The term "Products" shall mean any or all of the products and related components thereof, including any related Software, as and only to the extent set forth in the Order. The term "Array(s)" shall mean semiconductor-based COMBIMATRIX supplied biochips that may or may not contain Content synthesized by COMBIMATRIX for Customer, as specified in the Order. The term "Software" may, unless otherwise set forth in the Order, include (i) firmware or software in machine readable form, (ii) software for Array design, assay analysis, or data storage ("Service Software"), or (iii) any other software and documentation included in, shipped with, or made available for use with the Products and licensed to Customer by COMBIMATRIX under the Agreement.
2. Purchase and Payment
Customer agrees to buy or license the Products and related services as specified in the Order. Customer will be invoiced for Products at the time of shipment and for other services as set forth in the Order. Except as otherwise set forth in the Order, terms for payment using purchase order or check shall be made in full within thirty (30) days of the date of any invoice.
3. Cancellation Fee
If Customer cancels Customer's Order before CombiMatrix begins design of the Array Content, Customer shall pay to CombiMatrix a cancellation fee equal to 5% of the gross amount of the original Order for the Arrays. If Customer cancels Customer's Order after design of the Array Content has begun but prior to COMBIMATRIX beginning synthesis of Content on any one the Arrays for the Order, Customer shall pay to COMBIMATRIX a cancellation fee equal to 25% of the gross amount of the original Order for the Arrays. If Customer cancels Customer's Order after COMBIMATRIX has begun synthesis of Content on any one of the Arrays for the Order or has completed synthesis of Content on one or more of the Arrays for the Order, Customer shall pay a cancellation fee equal to 100% of the gross amount of the original Order for the arrays.
4. License
Customer is hereby granted a non-exclusive, non-assignable, and non-transferable limited license ("License") only in accordance with end user documentation provided by COMBIMATRIX to use the Software exclusively for the purposes permitted hereby. This License entitles Customer to use the Software only in connection with Products purchased from COMBIMATRIX. Customer agrees that it may not copy, alter, adapt, improve, modify, decode, decompile, disassemble, reverse engineer, reproduce, disclose, publish, sell, transfer, assign, lease, rent, sublicense, export, provide third party access to, or otherwise distribute any of the Products, in whole or in part. Customer agrees that the obligations in this paragraph shall survive termination of the License for any reason. Customer's use of or access to third party Software that may require Customer to obtain a separate license directly from such third party shall be governed by such third party license in lieu of this License. COMBIMATRIX reserves the right to terminate any CPU intensive processes running on COMBIMATRIX's servers. These Terms and Conditions incorporate by reference the CombiMatrix End User License Agreement(s) applicable to CombiMatrix Software.
5. Limited License and Use
The sale or license of any Products or any components thereof does not convey or imply the right to use such items in combination with any other product(s). Customer may use the Products only for internal research applications. The Products are investigational and have not been reviewed, registered, authorized, cleared or approved for medical, clinical, diagnostic, treatment, or other uses regulated by the U.S. Food and Drug Administration, Health Care Financing Administration or any foreign equivalents. Customer agrees not to use any of the Products or any of their components or data in any setting for such regulated uses.
6. Software Updates and Upgrades
For purposes of this Agreement, upgrades are defined as providing additional features and functionality, and updates are defined as performance modifications to correct system operation and functions. Unless otherwise provided in the Order, Software updates shall be provided by COMBIMATRIX at no cost to Customer, and any upgrades purchased by Customer shall be provided at COMBIMATRIX's then current list prices. Other than as set forth in the Agreement, neither COMBIMATRIX nor its licensors are obligated to provide service, upgrades, improvements, or enhancements to any Products.
7. Risk of Loss and Delivery
Delivery of Products shall be F.O.B. CombiMatrix, Freight Prepaid & Add. Upon delivery of Products to a common carrier, (a) risk of loss to the Products shall pass to Customer, and (b) except for title to the Software, which title shall remain with COMBIMATRIX or its licensors at all times, title to the Products shall pass to the Customer. Prices for shipments exclude all insurance, taxes, fees, duties, and levies, all of which shall be payable by Customer. Shipping and handling charges will be prepaid by COMBIMATRIX and charged to Customer. Unless COMBIMATRIX receives specific shipping instructions from Customer, COMBIMATRIX may exercise its discretion in selecting the method of shipment and the carrier. Time is not of the essence for COMBIMATRIX's obligations herein. All shipping and delivery dates are approximate, and COMBIMATRIX will use commercially reasonable efforts to meet such dates. COMBIMATRIX or its representative may make partial deliveries. Customer will be required to complete any necessary site preparations at its cost. If shipment is delayed at Customer's request, Customer will promptly reimburse COMBIMATRIX for all costs of storage.
8. Substitution and Modifications of Specifications
COMBIMATRIX may, without approval from or notice to Customer, make Product changes (i) that do not adversely affect physical or functional interchangeability or performance, or (ii) that are necessary to meet functional specifications as defined by COMBIMATRIX.
9. Termination and Default
If Customer breaches any terms or conditions of this Agreement, COMBIMATRIX may, without limiting its other legal or equitable remedies, terminate or suspend any or all of its obligations and Customer licenses under the Agreement and repossess or reclaim the Products with full cooperation from Customer, without being obligated to return any payments that may have been made to COMBIMATRIX.
10. Limited Warranty
Subject to the limitations set forth elsewhere herein and in the terms of the Order, COMBIMATRIX further warrants exclusively to Customer that the Products, other than Software, under normal use and conditions, will substantially comply with any applicable COMBIMATRIX published specifications or standards that are current at the date of the Agreement for a period of 30 days from the date of shipment to the Customer. COMBIMATRIX does not warrant that the Software is free of all defects. Customer's exclusive remedy for breach of warranty concerning Products will be repair or replacement of the defective portion thereof or a refund to Customer, at COMBIMATRIX sole discretion. Parts or components may be replaced as deemed necessary by COMBIMATRIX and such parts or components may be new, used, repaired, or rebuilt and will be furnished on an exchange basis, with the returnable part or components becoming the property of COMBIMATRIX. COMBIMATRIX does not warrant that Products will work in combination with third-party hardware or software, operate uninterrupted or error free, or that non-material defects will be corrected. This warranty does not apply to any defect caused by failure to provide a suitable operating environment, use of non-recommended reagents, use of Products for a purpose or in a manner other than that for which they were designed, or any other abuse, misuse, or neglect of the Products.
11. Warranty and Remedy Limitations
The warranties and remedies herein are exclusive, non-transferable, and effective only with respect to the original purchaser of any Products. The warranties and remedies herein do not apply to any Product or any part thereof that (a) has been installed, altered, moved, reinstalled, modified, or replaced or repaired by non-COMBIMATRIX authorized personnel or by using non-COMBIMATRIX authorized components, procedures, or programs; or (b) has not been serviced, maintained, or upgraded (including all software and firmware associated with it) pursuant to the manufacturers' recommendations or specifications or as required by COMBIMATRIX or external industrial codes; or (c) has been damaged by accident, shipment, handling, abuse, misuse, modifications, misapplication, or a failure to exercise due caution in cleaning, maintenance, or operation; or (d) does not comply with the warranty requirements because of the use of non-recommended non-COMBIMATRIX products or software. If Customer fails to give notice of a warranty claim during the applicable warranty period, Customer waives that warranty claim. COMBIMATRIX and its suppliers are not obligated to provide service, upgrades, updates, improvements, or enhancements to COMBIMATRIX's Products beyond those set forth in the Agreement.
12. Disclaimer and Limitations on Damages
THE WARRANTIES SET FORTH IN THESE TERMS AND CONDITIONS ARE EXCLUSIVE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMBIMATRIX, ITS SUPPLIERS, LICENSORS, AND REPRESENTATIVES SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGMENT, SAMPLES PREVIOUSLY PROVIDED, SECURITY (OF CONNECTION, ACCESS, OR DATA), OR COURSE OF DEALING. COMBIMATRIX HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT USE OF ANY OF THE CONTENT SYNTHESIZED ON THE ARRAYS WILL BE FREE FROM INFRINGEMENT OF THIRD PARTY RIGHTS. Customer agrees that in no event will COMBIMATRIX or its suppliers, licensors, or representatives be liable to Customer or anyone else for indirect, special, incidental, punitive, or consequential damages arising from any breach of the Agreement, or the sale, license, use of, or inability to use the Products, or related materials, even if advised of the possibility of such damages, regardless of the form of action, whether contract, tort (including negligence), strict product liability, or otherwise. Specifically, COMBIMATRIX and its licensors, suppliers, and representatives are not responsible for any costs, including, but not limited to, those incurred as a result of lost profits or revenue, loss of use of the Products or related materials, loss of data, the cost of recovering such products, related materials or data or, the cost of any substitute products or materials. It is specifically agreed that any COMBIMATRIX liability to Customer shall, in no event, exceed COMBIMATRIX's replacement cost of the Products. COMBIMATRIX's warranty is only valid provided COMBIMATRIX authorized components are used. Customer understands that the risks of loss hereunder are reflected in the price of the Products and that these terms would have been different if there had been a different allocation of risk.
13. Liability
The remedies set forth in the Agreement are the sole and exclusive remedies for any breach of any obligation by COMBIMATRIX or its suppliers, licensors, or representatives hereunder.
14. Confidentiality
For the purposes of this section, "Sequence Information" shall mean the sequence of nucleotide bases that make up an oligonucleotide that is synthesized on the Array or that is captured by the Array and is provided by Customer to CombiMatrix. "Collective Information" shall mean the total collective Sequence Information, taken as a whole, or compilation of oligonucleotides that is synthesized on the Array, or the total collective Sequence Information, taken as a whole, of the oligonucleotides that are captured on the Array, or both and is provided by Customer to CombiMatrix. "Association Information" shall mean the combination of the Customer's identity with any Sequence Information or Collection Information that Customer has provided to COMBIMATRIX. "Confidential Information" shall mean Sequence Information, Collective Information, or Association Information that Customer wishes to keep confidential, is not in the public domain, is not already known by COMBIMATRIX independently while being under no obligation of confidentiality, or is not made known to COMBIMATRIX independently while being under no obligation of confidentiality. COMBIMATRIX will not disclose to third parties nor use for its own research purposes any Confidential Information, including any Sequence Information, Collective Information, or Association Information except as provided in these Terms and Conditions.
15. Intellectual Property
For all Sequence and Collective Information designed or developed by CombiMatrix including by the use of CombiMatrix Software by any party ("CombiMatrix Design"), CombiMatrix retains all intellectual property rights to the CombiMatrix Design except that when the CombiMatrix Design is made at the request of Customer and the CombiMatrix Design is not a CatalogArray product or other Array product of CombiMatrix, CombiMatrix grants to Customer a non-exclusive license to the CombiMatrix Design to make, use, sell, publicly disclose, and distribute the CombiMatrix Design. CombiMatrix retains the right to use the CombiMatrix Design in array designs and products for its own internal and commercial use.
16. Force Majeure and Allocation
If either party's performance under the Agreement (except payment of monies due) is prevented, restricted, or interfered with by reason of casualty, accident, fire, strikes or labor disputes, terrorist acts, inability to procure materials or components, power or supplies, war or other violence, compliance with any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency or intergovernmental body (including, without limitation, those related to infringement), production delays, or any other act, circumstance, or condition whatsoever beyond such party's or its suppliers' or licensors' reasonable control, the party whose performance is prevented, restricted, or interfered with, upon notice to the other party, shall be excused from such performance to the extent of such prevention, restriction, or interference. COMBIMATRIX may allocate its available supply of Products among any or all of its customers, including the internal requirements of COMBIMATRIX and its affiliates, on such basis as it may deem fair and practical, without liability for any failure to comply with the provisions of the Agreement.
17. Modifications
The Agreement may only be modified by a written amendment or agreement signed by authorized representatives of COMBIMATRIX and Customer.
18. Severability
If any provision of the Agreement is found to be unenforceable, the remaining provisions shall remain in full force and effect, and any unenforceable provision shall be replaced by a legally effective provision that comes as close as possible to the purpose of the unenforceable provision.
19. Environmental
Customer shall be solely responsible and COMBIMATRIX shall have no responsibility for (1) properly disposing of wastes, spent materials, laboratory equipment, and other materials constituting or used in connection with the Products, including, but not limited to, solutions, reagents, buffers, and biological material; and (2) personal injury or property damage resulting from or alleged to result from the improper handling of the Products or the use of non-COMBIMATRIX authorized materials in conjunction with the Products, including, without limitation, biological material introduced into the Products by the Customer. Customer shall promptly notify COMBIMATRIX in writing of any effects on or hazards to the environment or human health by the Products or their use of which Customer becomes aware that are inconsistent with or not reflected in the material safety data sheets provided by COMBIMATRIX to the Customer.
20. No Waiver
Failure on any occasion by either party to enforce any term of this Agreement shall not prevent enforcement on any other occasion.
21. Notices
All notices and other communications hereunder shall be in writing and shall be sent by registered mail, postage prepaid, or overnight courier (with proof of delivery), to the following parties' respective addresses, subject to the right of either party to change its address by written notice: (1) If to COMBIMATRIX: the address set forth on the Order, and (2) If to Customer: The address set forth on the Purchase Order.
22. Governing Law
The Agreement shall be deemed entered into in, and shall be interpreted, construed, performed, and enforced in all respects in accordance with, the laws of Washington State without regard to any applicable conflicts of law. Customer submits to the jurisdiction of any State and Federal courts sitting in the Western District of the State of Washington with respect to matters arising out of or relating hereto, agrees that all claims with respect to such matters may be heard and determined in an action or proceeding in such State or Federal court, waives the defense of an inconvenient forum, and agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
23. Priority
The Terms provided herein shall supersede any prior agreements, understandings, oral agreements, or other contracts in place between the parties. CombiMatrix reserves the right to update these Terms and Conditions at any time.
24. Terms of Sale
The sale or license of the Products as described in the Order shall be governed by these terms and conditions provided herein. CombiMatrix's offer to sell or license the Products to Customer is expressly limited by Customer's acceptance of these terms and conditions, and customer accepts, without qualification, these terms and conditions upon any one of the following: (i) Customer issues or assigns a purchased order (PO) for the purchase of the Products; (ii) Customer accepts any of the Products under the PO; or (iii) Customer pays for any of the Products under the PO. Any additional, contradictory, or different terms or conditions proposed by Customer shall be void and of no effect unless CombiMatrix specifically identifies and accepts such terms and conditions in writing. Subject to the terms and conditions herein, the Order, these terms and conditions, and any resulting PO shall be the exclusive agreement between CombiMatrix and Customer for the sale of the Products. Agents and sales representatives of CombiMatrix have no authority to make any representation that is not included herein or is different or contradictory to what is included herein, and Customer should not rely upon any such representation.
25. Acceptance
Customer or Customer's agent may inspect the Products at CombiMatrix's place of manufacture. Customer shall accept any tender of the Products by CombiMatrix that substantially conforms to the description of the Products set forth in the Order. Customer shall be deemed to have irrevocably accepted any Product and, subject to the warranty provided herein, Customer's right to reject such Product shall cease, unless Customer gives to CombiMatrix notice of rejection in writing: (a) in the case of defects discoverable through inspection, within 20 days after delivery to the destination specified in Customer's purchase order or (b) in the case of defects not discoverable through inspection, within 45 days after delivery to the destination specified in Customer's purchase order. Customer's notice must specify the nature and grounds of the rejection in reasonable detail. Customer's right to inspect and reject any defective product as described in this Section does not apply to any service parts.
