Last updated: October 2018

1. Application

1.1 The following are the Terms and Conditions (T&C) for goods (including the MGMRTM sample) and services offered or otherwise provided to Recipient by Biopact (Recipient and Biopact may each be referred to in the T&C as a “Party”, and collectively as “Parties”).

1.2 These T&C supersede and replace all prior verbal or written price quotations and agreements between the parties as it relates to the goods (including the MGMRTM sample) and services offered or otherwise provided to Recipient by Biopact.

2. Placement of Order

2.1 Recipient’s order for goods (including the MGMRTM sample) and services offered by Biopact will be complete only if it is sent by electronic message using Biopact-approved electronic order forms and the commercial aspects of the order which are not specifically set out in these T&C (including, as the case may be: price, estimated turnaround times and delivery date) must be agreed to at the time of the order. Biopact is not obligated to start any work unless the order is complete, paid in full, and all required information is supplied.

2.2 Unless specifically accepted in writing and signed by an authorized representative Biopact, any terms proposed or submitted by a Recipient at any time (including, but not limited to, terms or provisions in the Recipient’s purchase order, instructions or other documents) which differ from these T&C are rejected as a material alteration of these T&C and shall be of no force or effect. Furthermore, special terms or conditions of prior orders, including special pricing, will not automatically apply to subsequent orders. For example, each MGMR® sample provided to Recipient by Biopact will be treated as a separate contract as between Biopact and the Recipient.

3. Price and Terms of Payment

3.1 If the acknowledgment of an order does not state otherwise, Biopact’s prices apply “ex works” for US Recipients and DDU for international Recipients. Any additional costs incurred by Biopact in connection with the order are the responsibility of the Recipient, and will be mutually agreed to in writing at the time order is placed.

3.2 Prices are exclusive of taxes (including sales, use and VAT) and are based on tariffs in force at the day of the remittance of the offer to the Recipient. Applicable taxes are those in force at the date of invoicing. If Biopact is required to pay any such tax, fee or charge, the Recipient shall reimburse Biopact.

3.3 Unless specifically agreed otherwise by Biopact in its acceptance of an order, payment of all invoices is due strictly within thirty (30) days of the invoice date. Any dispute about invoices must be raised within thirty (30) days of the invoice date. The challenge of a result does not entitle the Recipient to defer payment. Any invoice which remains outstanding after due date, shall be additionally charged with an administrative penalty of Seventy Five Dollars ($75) and will carry interest at the rate of one percent (1%) per month or the maximum interest rate permitted by applicable law, whichever is lower.

3.4 The invoice settlement method is bank transfer, credit card or direct debit. Any other method of payment must receive prior agreement from Biopact. The Recipient undertakes to provide bank account details.

3.5 Biopact requires full payment of the quoted order price as a condition of acceptance. For certainty, the order price will be provided in the materials provided to Recipient.

3.6 If Biopact’s goods (including the MGMR® sample) fail to meet Biopact’s specifications when used under recommended conditions and the Recipient notifies Biopact of the failure within thirty (30) days of shipment, Biopact will provide a prompt replacement of any defective materials. Biopact’s obligation will be limited to replacement of the goods agreed to in the original order. If the Recipient does not notify Biopact of any failure within thirty (30) days of shipment, the goods shall be deemed accepted by the Recipient. Returns outside of (30) days are not accepted.

4. Duties of Recipient in Delivering Samples or Materials

4.1 The samples, materials or information provided by the Recipient must be in a condition that makes the preparation of reports/analyses or the production of ordered products possible without difficulty. Biopact is entitled to conduct an initial examination of the samples, materials or information to check their condition before processing the samples, or using them in production. The Recipient bears the cost of this initial examination, if the samples, materials or information do not comply with the requirements described in this Section 4.1. If the result of the initial examination is that an analysis or production is impossible or is possible only under more difficult conditions than originally anticipated (for example, because the samples, materials or information are degraded) Biopact is entitled to request additional samples, materials or information, and, in the event that Recipient fails to procure the necessary samples, materials or information as requested by Biopact, Biopact shall be entitled to terminate the order without incurring any liability.

4.2 The Recipient must ensure, and hereby warrants, that no sample or materials poses any danger, including on its site, during transportation, in the laboratory or otherwise to Biopact’s premises, instruments, personnel or representatives. It is the Recipient’s responsibility to ensure compliance with hazardous waste regulations, including regarding information, transportation and disposal and to inform Biopact personnel or representatives about sample or materials health and safety concerns, including any known or suspected toxic or other contaminant that may be present in the sample or materials and its likely level of contamination as well as the risks to Biopact’s premises, instruments, personnel and representatives related to the contamination. The Recipient shall be responsible for, and indemnifies Biopact against, all costs, damages, liabilities and injuries that may be caused to or incurred by Biopact or its personnel or representatives including on the sampling site, during the transportation or in the laboratory by the Recipient’s sample or materials or by sampling site conditions. The Recipient shall bear all costs for adequate disposal of hazardous waste resulting from the sample or materials, whether or not described as hazardous waste. At Biopact’s request, and for safety, regulatory or other compliance purposes, the Recipient must provide Biopact with the eMGMR composition of the samples and materials.

5. Licensed Rights to Samples, Materials and Storage

5.1 When Recipient provides samples and materials to Biopact, Recipient provides Biopact with a non-exclusive license to make use of the samples and materials for the purposes outlined in the order and in these T&C. Biopact shall have no obligation or liability for samples or materials sent to Biopact, including samples or materials requiring refrigeration.

5.2 Biopact may dispose of or destroy any excess samples or materials provided by Recipient five (5) days after Biopact sends its products to Recipient or completes its services for Recipient, all without any liability owed to Recipient. Biopact will not return unneeded samples or materials.

6. Delivery Dates, Turnaround Time

6.1 Biopact will make commercially reasonable effort to meet delivery dates, deadlines and turnaround times. Nevertheless, any event that results in a missed delivery date, deadline, or turnaround time will not constitute a breach of these T&C.

7. Title to Property and Intellectual Property

7.1 Title in any products, data or the like supplied by Biopact to the Recipient will remain with Biopact until all invoices in respect thereof have been paid by the Recipient in full, and until such full payment, the Recipient shall have no property rights or other rights to use them. In addition, even if Biopact has accepted and begun to fulfill an order, Biopact has the right at any time to stop processing that order and to stop doing any work for a Recipient, if that Recipient is late in paying any amount due to Biopact, whether for that or any other order.

7.2 The goods or services ordered from Biopact and the methods of making thereof, and methods of loading goods ordered from Biopact are and/or may be protected by patent, copyright, trade secret, and other intellectual property rights. Biopact retains all intellectual property rights in and to all of Biopact’s goods and services (including the MGMRTM sample). For certainty, as between Biopact and Recipient, Recipient is the owner only of the materials (and intellectual property rights therein) as provided by Recipient to Biopact.

No intellectual property rights are granted to the Recipient through the purchase of Biopact’s goods or services. Biopact does not assert or warrant that any goods or services sold or supplied by Biopact to any purchaser or prospective user, or thereafter used by any Recipient or user in any manner, or for any purpose, research or otherwise, is or shall be free or any claim by any third party for patent infringement or the like. If any claim is made against Biopact for infringement of intellectual property rights of any third party as a result of: (i) the manufacture or sale of goods or services based upon instructions, specifications, or other directions provided by the Recipient; or (ii) the Recipient’s use or resale of goods or services purchased from Biopact, the Recipient shall indemnify Biopact Indemnifying Parties, defend Biopact Indemnifying Parties and hold Biopact Indemnifying Parties harmless from and against any and all losses, damages and expenses (including reasonable attorneys’ fees and other costs of defending any action) that they may incur as a result thereof. The Recipient shall fully cooperate with Biopact Indemnifying Parties in any investigation relating to any such claims and make available to Biopact Indemnifying Parties all related statements, reports and tests available to the Recipient.

8. Limited Warranties

8.1 Goods (including the MGMR® sample) and services are prepared and handled in the conditions available to Biopact in accordance with the current state of technology and methods developed and generally applied by Biopact. Goods and services are prepared with a commercially reasonable degree of care but Biopact cannot guarantee that these will always be correct or absolute. This warranty expires thirty (30) days after the delivery date or provision date of the goods or services, as the case may be.

8.2 Goods and services (including MGMR® sample) relate exclusively to the applicable order. If Biopact has not been mandated and paid to define the specifications of the precise goods and services (including the MGMR® sample) to be provided for an order or if the Recipient has not followed Biopact’s recommendations regarding the use of goods or services, Biopact shall not bear any responsibility if the goods or services prove insufficient or inappropriate.

8.3 The Recipient is solely responsible for the proper delivery of samples or materials sent to Biopact for goods or services to be provided by Biopact (including, for example, MGMR® sample preparation). Unless otherwise specifically agreed in writing by Biopact, Biopact accepts no responsibility for any loss or damage, which may occur to any sample or materials in transit or to any facility or site where services are being delivered. The Recipient will at all times be liable for the security, packaging and insurance of the sample or materials from its dispatch until it is delivered to the offices of the laboratories of Biopact. Biopact will use commercially reasonable care in handling and storing samples and materials, but Biopact shall neither be held responsible for any loss or destruction of samples or materials even after their receipt at its laboratories.

8.4 The Recipient warrants and represents to Biopact that all samples and materials sent to Biopact for goods or services are safe and in a stable condition and undertakes to indemnify Biopact for any losses, injuries, claims and costs which Biopact, or its personnel, may suffer as a result of any sample or materials not being in a safe or stable condition, notwithstanding that the Recipient may have given an indication on the sample or materials or any order form of any perceived problem with the sample. The Recipient must always inform Biopact in writing prior to shipment and label the packaging, samples or materials and/ or containers appropriately, if the samples or materials are dangerous or otherwise of a hazardous nature.

8.5 Unless explicitly agreed in writing by all parties, the contractual relationship shall be between the Recipient and Biopact. There shall be no third party beneficiary or collateral warranty relating to any order and the Recipient shall indemnify and hold Biopact harmless from and against any and all third party claims in any way relating to the Recipient or order by the Recipient.

9. Limitation of Liability

9.1 Except to the extent that such limitations are not permitted or void under applicable law: (a) Biopact (together with its workers, office clerks, employees, representatives, managers, officers, directors, agents and consultants and all Biopact partners and affiliates, the “Biopact Indemnifying Parties”) shall be liable only for the proven direct and immediate damage caused by Biopact Indemnifying Party’s willful misconduct in connection with the performance of an order and then, only if Biopact has received written notice thereof not later than two (2) months after the date of the Recipient’s knowledge of the relevant claim (unless any longer period is prescribed under applicable law and cannot be contractually limited), and (b) in all cases (whether arising under contract, tort, negligence, strict liability, through indemnification or otherwise), Biopact Indemnifying Parties’ liability per claim or series of related claims, and the Recipient’s exclusive remedy, with respect to Biopact’s goods and services which fall under these T&C, shall be limited to the lesser of: (i) the direct and immediate loss or damage caused by Biopact Indemnifying Party’s willful misconduct in connection with the performance of the order and (ii) five times the amount Biopact actually received from the Recipient in relation to the order up to five thousand dollars ($5,000).

9.2 Biopact Indemnifying Parties shall not be liable for any indirect, direct or consequential loss or damage (including, but not limited to, loss of business, profits, goodwill, business opportunities or similar) incurred by the Recipient or by any third party.

9.3 It is a condition of Biopact’s acceptance of an order that the Recipient indemnify Biopact Indemnifying Parties for any losses, injuries, claims and costs which Biopact Indemnifying Parties may suffer as a result of, arising from or in any way connected with its role under or services or products provided pursuant to these T&C, except to the extent that Biopact Indemnifying Parties are required to bear them according to these T&C, and by placing an order the Recipient agrees to provide that indemnification.

10. Repeated Goods or Services

10.1 Objections to goods or services can be made within thirty (30) days after the Recipient receives the goods or services. However, unless Biopact failed to manufacture the goods or conduct the services in accordance with these T&C, the Recipient shall bear all costs associated with repeat manufacture, services or review. Furthermore, a repeated manufacture or service will be possible only if Biopact has a sufficient amount of the original sample or materials on hand when it receives the Recipient’s objection. Otherwise the Recipient will be required to pay all costs, including sampling, transportation, analytical and disposal costs for the repeat manufacture or services.

11. Confidentiality & Processing of Recipient Data

11.1 Goods and services are prepared and supplied exclusively for the use of the Recipient and must not be divulged to a third party for any purposes without the prior written agreement of Biopact. In addition, the Recipient is required to maintain secrecy concerning all services provided by Biopact. The Recipient: (a) remains responsible for any consequences due to the divulgence of information relating to goods or services provided by Biopact to a third party and any reliance of such third party on such information; and (b) hereby agrees to indemnify Biopact Indemnified Parties against any liability which Biopact Indemnified Parties may incur as a result of such divulgence or any such third party reliance.

Unless mutually agreed to in writing, each Party is prohibited from sharing the other Party’s confidential information, data or study results with a third party. For certainty, Recipient is prohibited from sharing the MGMRTM sample to any third party. Biopact agrees not to provide Recipient’s payload molecule(s) to any third party. Recipient is prohibited from publishing or otherwise disclosing data or study results generated with the MGMRTM sample.

11.2 Biopact shall be entitled to save and process personal or commercial data received from the Recipient in any way, no matter whether such data stems from the Recipient directly or from a third party and shall use commercially reasonable efforts to keep such data confidential, in compliance with applicable law.

11.3 Biopact shall use commercially reasonable efforts to keep any results and service reports confidential, subject to Biopact’s rights set forth in these T&C and the right to use them in order to demonstrate its entitlement to payment for services rendered.

11.4 Each Party agrees to provide a summary of the data generated from the MGMRTM sample testing using a template provided by Biopact. The data provided to the receiving Party is for internal use only, and is considered confidential.

12. Disclaimer and Miscellaneous

12.1 ALL TERMS, CONDITIONS AND WARRANTIES (INCLUDING ANY IMPLIED WARRANTY AS TO MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE) AS TO THE MANNER, QUALITY AND TIMING OF THE GOODS OR SERVICE AND RESULTS, EQUIPMENT, PRODUCTS OR DATA SUPPLIED BY BIOPACT ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF BIOPACT CONTAINED IN THESE T&C ARE EXCLUSIVE.

12.2 These T&C may be modified in writing from time to time by Biopact and orders will be governed by the most recent version of these T&C that is in effect at the time Biopact accepts the order.

12.3 Should a court waive, limit or hold to be invalid, illegal or unenforceable any part of these T&C, all other parts shall still apply to the greatest extent possible.

12.4 Failure by either Biopact or the Recipient to exercise the rights under these T&C shall not constitute a waiver or forfeiture of such rights.

12.5 Except as otherwise agreed in writing by Biopact’s authorized representative, the purchase of goods or services from Biopact only conveys to the Recipient a non-transferable right for only the Recipient to use the quantity of goods or services and components of goods or services purchased in compliance with any applicable intended use statement. Unless otherwise authorized by Biopact in writing, no right to resell the goods or services, or any portion of them, is conveyed hereunder.

Unless otherwise expressly indicated on Biopact’s website, or on a label or other documentation accompanying the goods and services, the goods (including the MGMRTM sample) are intended for research use only and are not to be used for any other purposes including, but not limited to, unauthorized commercial purposes, in vitro diagnostic purposes, ex vivo or in vivo therapeutic purposes, investigational use, in foods, drugs, devices or cosmetics of any kind, or for consumption by or use in connection with or administration or application to humans or animals. Any other use will require an additional license from Biopact. Further details about Biopact’s licenses are available on request; please email your request to inquiries@bio-pact.com.

The Recipient acknowledges that the goods or services purchased from Biopact have not been tested by or for Biopact for safety or efficacy, unless expressly stated on Biopact’s website or in other documentation accompanying the goods or services. Without limiting the foregoing restrictions, the Recipient warrants to Biopact that should the Recipient use or sell goods or services purchased from Biopact for any use other than research, the Recipient shall conduct all necessary tests, comply with all applicable regulatory requirements, issue all appropriate warnings and information to subsequent purchasers and/or users and be responsible for obtaining any and all required intellectual property rights.

The Recipient represents and warrants to Biopact that: the Recipient will properly test, use, and, to the extent authorized, manufacture and market any goods or services purchased from Biopact and any final articles made from them in accordance with the practices of a reasonable person who is an expert in the field, including, but not limited to, a technically qualified individual, and in strict compliance with all applicable national, state, provincial, and local food, drug, device, and cosmetic and other relevant laws and regulations, now and hereinafter enacted.

12.6 The Recipient acknowledges that the goods or services received from Biopact are subject to U.S. export control laws and regulations. The Recipient represents and warrants to Biopact that the Recipient will not, directly or indirectly: (1) sell, export, re-export, transfer, divert, or otherwise dispose of any goods or services received from Biopact to any destination, entity, or person prohibited by the laws or regulations of the United States; or (2) use the product for any use prohibited by the laws or regulations of the United States and/or your local jurisdiction, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.

12.7 Biopact cannot be held liable for delays, errors, damages or other problems caused by events or circumstances which are unforeseen or beyond Biopact’s reasonable control, or which result from compliance with governmental requests, laws and regulations.

13. Governing Law/ Jurisdiction

13.1 The construction, validity and performance of these T&C shall be governed by the laws and the commercial courts of Maricopa County, Arizona (including in cases involving multiple counsels for the defense or third-party respondents), which shall have exclusive jurisdiction.