Partillion Nanovial Product Agreement
ALL SALES MADE BY PARTILLION BIOSCIENCE CORPORATION (“SELLER”) TO A PURCHASER (“PURCHASER”) FOR NANOVIALS AND NANOVIAL KITS (“PRODUCTS”) ARE EXPRESSLY CONDITIONED ON PURCHASER’S ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY ATTACHED ADDENDA (COLLECTIVELY, THIS “AGREEMENT”). THESE TERMS AND CONDITIONS (TOGETHER WITH ANY PURCHASE ORDERS ACCEPTED BY SELLER) CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SELLER AND PURCHASER AND SUPERSEDE ALL PREVIOUS NEGOTIATIONS, DISCUSSIONS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. THESE TERMS AND CONDITIONS MAY ONLY BE AMENDED OR WAIVED BY A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
This Agreement is supplemental to any terms and conditions or other contractual arrangements executed by both PURCHASER and SELLER in respect of the purchase, sale and use of SELLER and third party products and services (“Seller Agreement”); provided however, that this Agreement shall not be deemed to amend any such Seller Agreement.
1. Terms and Conditions. All purchase order acceptances shall be conditioned upon PURCHASER’s acceptance of these Terms and Conditions, which shall be deemed to have been irrevocably provided upon (i) PURCHASER’s placement of an order for Products through SELLER’s website or (ii) delivery of written confirmation provided by SELLER to PURCHASER if PURCHASER placed an order telephonically or by email.
2. Order; Confirmation. PURCHASER shall submit any orders for Products electronically through SELLER’s website, or in writing by email to sales@partillion.com. No order shall be binding upon SELLER unless and until confirmed in writing by SELLER.
3. Prices; Payment Terms. The price(s) for each unit of Product shall be as specified in writing by SELLER from time to time (the “Purchase Price”). Such price is exclusive of freight, insurance and taxes, all of which shall be borne by PURCHASER. PURCHASER shall make payments contemporaneously with the placement of each order by credit card payment through SELLER’s website or wire transfer in accordance with wire instructions provided to PURCHASER by SELLER.
4. Shipping. SELLER will use commercially reasonable efforts to ship Products to the location(s) and on the date(s) specified in PURCHASER’s purchase order, subject to a minimum five (5) day lead time and conditioned upon PURCHASER providing to such supplier all relevant specifications for Products. All Products will be suitably packed for shipment, marked for shipment to the address(es) specified in PURCHASER’s order and shipped by a carrier specified by PURCHASER, or if not specified, United Parcel Service or equivalent carrier. All shipping, insurance and taxes will be borne by PURCHASER in addition to the price.
5. Acceptance of Products. Upon written notice to SELLER within fifteen (15) days following delivery, PURCHASER may reject any Products that fail to conform to the limited warranty set forth in Section 6 below. If PURCHASER fails to provide notice within such fifteen (15)-day period, PURCHASER will be deemed to have irrevocably accepted Products.
6. Product Warranty. SELLER represents and warrants to PURCHASER that all Products supplied by or on behalf of SELLER hereunder will conform to the applicable specifications therefor and will be free from defects in materials and workmanship at the time of delivery. If any Product does not comply with the foregoing limited warranty, except to the extent caused by or attributable to PURCHASER, any of its customers or the carrier, SELLER will use commercially reasonable efforts to cause its supplier to promptly replace such Product(s) or, in SELLER’s sole discretion, credit or refund the amount paid for such Product(s) upon receipt of timely notice from PURCHASER in accordance with Section 5. EXCEPT AS PROVIDED IN THIS SECTION 6, ALL PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND SELLER SPECIFICALLY DISCLAIMS SUCH ADDITIONAL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Internal Use Only/Limited Use. PURCHASER shall use the Products solely for its own internal research and development use activities which for clarity include (w) use in connection with a bona fide collaboration pursuant to which a third party from an academic or commercial institution working with PURCHASER will provide substantial scientific input, materials, or data interpretation relating to the collaboration, and who will receive data arising from use of the Products (“Product Data”) (bona fide collaborations do not include performance of commercial for-profit services by PURCHASER, whether through a service bureau or otherwise, using the Products); (x) the transfer of Product Data to a third party so long as PURCHASER receives no consideration or other quid-pro-quo for such transfer (e.g. such transfer cannot be contingent on the third party and PURCHASER exchanging other goods, services or intellectual property); (y) the publication of Product Data as part of a normal, peer-reviewed scientific publication or public scientific presentation; or (z) if PURCHASER is an academic or governmental entity or institution, the provision of services using the Products to recover direct and indirect costs (“Field”). Notwithstanding the foregoing, PURCHASER shall not transfer the Products to any third party without the express written consent of SELLER. Except as set forth in clauses (w) through (z) in this Section 7, the Field shall exclude use of the Products on behalf of any third party including on a fee-for-service basis or by providing such third-party access to the results therefrom. Nothing in this Section 7 shall permit any application or use of any Product that requires regulatory approval by the U.S. Food and Drug Administration (“FDA”) or any other regulatory authority, including in vitro or other clinical diagnostic applications. Except to the extent such restrictions are prohibited by applicable law and solely for the purpose(s) contemplated by such law, PURCHASER agrees not to reverse engineer, adapt, modify, sequence, copy, make, have made or develop replacements for a component part of any Products or portion thereof (which prohibitions shall not be interpreted as restricting PURCHASER with respect to anything that are not the Products). The Products are designed for one-time use with the number of samples of the specified volume and maximum cell number, as specified in the use instructions insert provided with the Product. Use of the Products (A) for applications outside of the Field, (B) for more than the specified number of samples, or (C) re-use of the Products is not authorized under this Agreement and is hereby prohibited.
8. Limitations. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT ABOVE, NO RIGHT TO COPY, MODIFY, DISTRIBUTE, MAKE DERIVATIVE WORKS OF, PUBLICLY DISPLAY, MAKE, HAVE MADE, OFFER TO SELL, SELL, USE OR IMPORT THE PRODUCTS IS CONVEYED OR IMPLIED WITH ANY PRODUCT PROVIDED HEREUNDER, AND ALL SUCH ACTIVITIES ARE PROHIBITED. ALL PRODUCTS DELIVERED HEREUNDER ARE LICENSED TO PURCHASER FOR APPLICATIONS IN THE FIELD ONLY. THIS LIMITED LICENSE PERMITS ONLY THE USE BY PURCHASER OF THE PARTICULAR PRODUCT(S) IN ACCORDANCE WITH THE PRODUCT INSERT THEREFOR. FOR CLARITY, THE PURCHASE OF ANY PRODUCT(S) DOES NOT ITSELF CONVEY OR IMPLY ANY RIGHT TO USE, COPY, MODIFY, DISTRIBUTE, MAKE DERIVATIVE WORKS OF, PUBLICLY DISPLAY, MAKE, HAVE MADE, OFFER TO SELL, SELL, OR IMPORT SUCH PRODUCT(S). NO RIGHT TO MAKE, HAVE MADE, IMPORT OR DISTRIBUTE PRODUCTS IS CONVEYED OR IMPLIED, WHETHER BY SINGLE-CELL ANALYSIS KITS, INSTRUMENTS, OR OTHERWISE. FURTHERMORE, THE PRODUCTS ARE LICENSED FOR ONE (1) TIME USE ONLY AND MAY NOT BE REUSED. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED TO SELLER. The Products are protected by the patent, copyright, and/or trade secret rights of SELLER.
9. Third Party Rights. Portions of the Products may be proprietary to third parties. Where SELLER has provided or procured such portions on PURCHASER’s behalf, the third-party supplier’s terms and conditions run directly between that supplier and PURCHASER as a direct purchaser. The licenses and restrictions in this Agreement continue to apply, and the third-party terms and conditions shall additionally apply. SELLER does not guarantee or provide any assurances that use of the Products, or any of its components, will not require additional licenses or rights from third parties.
10. DISCLAIMER OF WARRANTY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SELLER, ITS DISTRIBUTORS, AFFILIATES AND REPRESENTATIVES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, AND NONINFRINGEMENT.
11. Improvements. Except to the extent prohibited by applicable law, PURCHASER hereby grants to SELLER a non-exclusive, worldwide, fully sublicensable and transferable, fully paid-up, royalty-free, irrevocable, perpetual license to make, have made, use, sell, offer to sell, import, transmit, display, perform, reproduce, produce derivatives of, distribute, and otherwise exploit and dispose of all Improvement Inventions (as defined below). This Section 11 is not intended to require that PURCHASER disclose any Improvement Inventions to SELLER. “Improvement Inventions” means all inventions made, conceived or reduced to practice based upon or using the Products that relate to (i) the design, development, manufacture, synthesis, purification, stabilization, preparation, chemical modification, bioconjugation, degradation, use, use with other cell analysis reagents or instruments, formulation, labeling, performance, or packaging of nanovials, (ii) cell loading or analysis techniques, assays, or labeling approaches using nanovials; (iii) assay software, data collection, and data analysis techniques that may be used in connection with nanovial-type products or platforms (including techniques related to gating, thresholding, signal shape analysis, identification, barcoding (and barcode identification), multiplexing, image analysis, machine learning, computer vision, and other processes); or (iv) other inventions relating directly and solely to nanovials. Improvement Inventions shall not include other data generated in performing the single-cell assays or discoveries identified through other use of the single-cell assays.
12. Publications. Unless otherwise agreed in writing between SELLER and PURCHASER, any and all manuscripts that contains experiments or research and development performed using Products shall identify SELLER as vendor and include: (i) a description of Products according to specifications provided with the Product to PURCHASER by SELLER; and (ii) a description of any experimental designs, instruments, and software used to collect and analyze Product Data.
13. PURCHASER Indemnification. PURCHASER shall defend, indemnify, and hold harmless SELLER, its affiliates and its representatives and suppliers and their employees, officers and agents from and against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) in connection with any third party claims, suits, or proceedings arising out of or relating to the use of the Products by PURCHASER or its customers, except to the extent caused by the gross negligence or willful misconduct of SELLER.
14. Liability Limitation. EXCEPT TO THE EXTENT (i) CAUSED BY SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (ii) REQUIRED BY APPLICABLE LAW, SELLER, ITS AFFILIATES AND ITS REPRESENTATIVES SHALL HAVE NO LIABILITY FOR ANY LOSS OF USE OR PROFITS, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND REGARDLESS OF FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF SELLER OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AS TO ANY LIABILITY NOT LEGALLY SUBJECT TO THE FOREGOING, SELLER’S LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY PURCHASER TO SELLER IN THE PRIOR TWELVE (12) MONTHS. PURCHASER 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.
15. Miscellaneous. This Agreement constitutes the entire agreement between PURCHASER and SELLER with respect to the subject matter hereof and is the final, complete, and exclusive statement of the terms of the Agreement, superseding all prior written and oral agreements, understandings and undertakings. Modifications may be made only in writing, signed by an authorized corporate officer of SELLER. The waiver of any term or condition or any breach thereof shall not affect any other term or condition of this Agreement. This Agreement shall be governed by and construed according to the laws of California, without regard to conflict of law provisions. PURCHASER may not assign this Agreement without the prior written consent of SELLER, and any change of control of PURCHASER shall be deemed to be an assignment. In any legal action commenced to enforce or interpret this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and expenses. Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14, and all terms and conditions in the attached addenda, if any, shall survive termination. In the event that any provision of this Agreement or portion thereof is found to be illegal or unenforceable, the Agreement shall be construed without the unenforceable provision or portion thereof.