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Terms and Conditions of Sales


PharmaSeq, Inc. –Terms and Conditions to Purchase Orders


1. Definitions.

"Goods" means the system sold or otherwise licensed by Seller to Buyer under a purchase order and includes Seller Equipment, Seller Software, Documentation and any Third Party Software or Third Party Equipment sold or otherwise licensed to Buyer.

"Seller Equipment" means the hardware, components and other materials developed by or on behalf of Seller, and that are provided to Buyer as part of the Goods.

"Seller Software" means the software applications and/or other code developed by or on behalf of Seller, and that are provided to Buyer as part of the Goods.

"Documentation" means Seller's technical and/or functional user guides that describe the use, function or technical detail of the Goods, and that are provided or made available (e.g. online) to Buyer as part of the Goods.

"Third Party Software" means the software applications and/or other code, developed by or on behalf of entities other than Seller and that are provided to Buyer as part of the Goods.

"Third Party Equipment" means the hardware, components and other material, developed by or on behalf of entities other than Seller and that are provided by Buyer as part of the Goods.

2. Acceptance.

The acceptance of your ("Buyer") order by PharmaSeq, Inc ("Seller") for the Goods set forth on a purchase order is EXPRESSLY MADE CONDITIONAL UPON BUYER'S ASSENT TO THE TERMS AND CONDITIONS HEREIN, and these constitute the only binding terms and conditions between the parties, even if these terms and conditions differ from or are in addition to those on any purchase order or other document sent to Seller by Buyer. Any terms of sale requested by Buyer which are in any way inconsistent with or in addition to these terms and conditions are rejected and will not be binding upon Seller. In the event that a written sales agreement between the parties applies to the Goods, such agreement shall control and supersede any terms or conditions hereof in conflict therewith, but all other terms and conditions hereof shall apply.

3. Prices.

Prices are exclusive of taxes and subject to correction for error. The price invoiced will be the price in effect at the time of shipment. Price quotations are valid for 30 days unless otherwise noted by Seller. Any special contract pricing must be specified at the time the applicable order is placed (with reference to the applicable contract); no credit for contract pricing will be issued after acceptance of an order. Buyer shall pay each invoice within 30 days of the date of invoice. Buyer shall make all payments when due without offset, deduction or counterclaim regardless of any claim by Buyer. Amounts not paid when due will bear interest from the invoice date at the rate of 1.5% per month or the maximum rate allowed by law, whichever is less. Buyer shall pay to Seller all costs and expenses (including reasonable attorneys' fees) incurred in collecting any amounts due hereunder. If the financial responsibility of Buyer becomes impaired or unsatisfactory to Seller, advance cash payments or satisfactory security shall be given by Buyer upon demand by Seller, and shipments may be withheld until such payment or security is received.

4. Taxes.

The amount of any sales, use ad valorem, property or other tax or duty, however designated, levied or based on the Goods, or the sale or delivery thereof, shall be added to the price quoted and billed to and paid by Buyer. If Seller is required to pay any such tax or duty, Buyer shall reimburse Seller therefor, or provide Seller with an appropriate exemption certificate or other documents acceptable to the taxing or customs authorities.

5. Delivery.

Delivery shall be made Ex-Works (Incoterms 2000) Supplier's manufacturing or storage facility.

6. Packaging.

Supplier will package the Goods for shipment in accordance with Supplier's standard commercial shipping package and packing procedures.

7. Shipping.

All Goods shall be shipped via a carrier designated by Seller at Buyer's expense. Buyer shall pay all costs incurred by Seller in connection with shipping such Goods, including, without limitation all insurance, freight, cartage, warehousing, and all other charges in connection with loading and shipping the Goods to Buyer. All shipping dates are approximate and tentative, and are based on prompt receipt from the Buyer of all necessary information. Requests for proof of delivery must be made within 60 days of the date of shipment. If Buyer fails to accept delivery, Buyer shall nonetheless make payment to Seller. Claims for shortage, damage or non-delivery shall be made directly to carrier. Seller's responsibility ceases upon delivery to the carrier at the stated shipping point, and risk of loss, damage, injury or destruction to any of the Goods shall pass to Buyer upon such delivery to the carrier. In no event shall any loss, damage, injury or destruction operate in any manner to release Buyer from the obligation to make payments required herein. Seller reserves the right to make partial shipments and to submit invoices for partial shipments. Seller reserves the right to allocate available Goods among its customers in its discretion.

8. Delays in Delivery.

Seller shall be excused for delay in delivery, may suspend performance and shall under no circumstances be responsible for failure to fill any order or orders, or any portion thereof, when due to: acts of God or the public enemy, fires, floods, riots, strikes, freight embargoes or transportation delays, inability to procure labor, fuel, material supplies, or power at current prices or on account of shortages thereof, any existing or future law or governmental act affecting the conduct of Seller's business, or any cause beyond the reasonable control of Seller.

9. Third Party Equipment;

Third Party Software. Seller may provide Buyer with Third Party Software and Third Party Equipment (e.g. a pre-loaded laptop optimized to run the Seller Software in connection with the Seller Equipment) as part of the Goods. Such Third Party Software and Third Party Equipment may be utilized by DB1/64447838.6 Seller to cause the Seller Software and the Seller Equipment to function or operate or may be incorporated in the Goods and may only be used as part of and in connection with the Goods. The Third Party Software and Third Party Equipment is provided "as-is", with no warranty expressed or implied. In no event shall Seller be liable for any damages arising in any way out of the use of any Third Party Software or Third Party Equipment in connection with the use of the Seller Software and the Seller Equipment. No rights are granted to Buyer to use any Third Party Software and Third Party Equipment included in the Goods, except as bundled or otherwise provided in combination with Seller Software and Seller Equipment as part of the Goods.

10. Limited Warranty.

Except for the Third Party Equipment or the Third Party Software which is provided "as-is" as set forth in Section 9, Seller warrants that the Goods will conform to Seller's published specifications therefor, or such other specifications as the parties may agree in writing, provided that the Goods are subjected to only the usage for which they were intended. The warranty shall commence on the date of shipment and continue for a period of twelve (12) months. Seller's warranties will not apply to a Good with respect to which there has been (i) improper installation, improper maintenance or testing, (ii) failure to provide a suitable operating environment, (iii) use of the Good for purposes other than that for which it was designed, (iv) use of the Goods with third party data, software or hardware which is incompatible with the Goods and/or not recommended by Seller as set forth in the Documentation; (v) failure to store the Good in accordance with applicable specifications in good industry practice, (vi) unauthorized attachment or removal or alteration of part of the Good, (vii) unusual mechanical, physical or electrical stress, (viii) modifications or repairs done by other than Seller or its authorized service representative, or (ix) any other abuse, misuse, mishandling, neglect or accident. In the event that any Good fails to comply with the foregoing limited warranty, Buyer must promptly (but no later than expiration of the applicable warranty period) contact Seller to obtain a return materials authorization. Goods must be returned to Seller, freight prepaid by Buyer, for determination by Seller that such Goods are defective. Such Goods shall be accompanied by a written description of the circumstances under which the applicable Goods purportedly failed. Seller shall replace or repair, at its sole option and expense, any defective Goods for parts thereof that prove to be defective during the warranty period, and return such repaired/replacement Goods to Buyer, freight prepaid by Seller, or refund the purchase price paid therefor. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO BUYER. If Seller determines that the defect is attributable to any cause other than poor workmanship or defective materials supplied by Seller, then Seller shall have no obligation with respect to repair or replacement of the defective Goods. Seller shall return the Goods to Buyer, freight to be paid by Buyer, and the warranty described herein shall be void. THIS WARRANTY IS IN LIEU OF ANY OTHER WARRANTIES, AND SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, THAT THE OPERATION OF THE GOODS WILL BE UNINTERRUPTED OR ERROR FREE, THAT ALL DEFECTS WILL BE CORRECTED OR THAT THE GOODS SUPPLIED WILL AVERT, AVOID OR PREVENT THE LOSS OF DATA OR INFORMATION GENERATED BY BUYER IN THE COURSE OF USING THE GOODS. THE GOODS INCLUDE AN ID READER WAND ("WAND") CONTAINING A LASER OPERATING AT A WAVELENGTH OF 658NM AND WHICH IS CLASSIFIED AS A CLASS 3R DEVICE. BUYER AGREES TO USE THE WAND IN A MANNER CONSISTENT WITH THE DOCUMENTATION PROVIDED WITH THE WAND AND THE SPECIFICATIONS FOR CLASS 3R DEVICES, WHICH INCLUDE AVOIDING DIRECT EYE EXPOSURE AND LOOKING OR STARING DIRECTLY INTO THE LASER BEAM. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS), WHETHER BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF SELLER SHALL BE LIMITED TO THE PRICE ALLOCABLE TO THE GOODS WHICH GAVE RISE TO THE CLAIM, AND SHALL TERMINATE ONE YEAR AFTER SHIPMENT OF THE APPLICABLE GOODS TO BUYER.

11. Indemnification.

Buyer shall indemnify and hold Seller harmless for any loss, damage or other consequence suffered by Buyer or any other party as a direct or indirect result of the Goods or the use of the Goods. Seller will (a) provide Buyer reasonably prompt notice in writing of any such claim or action and permit Buyer, through counsel reasonably acceptable to Seller, to answer and defend such claim or action and (b) provide Buyer with information, assistance and authority, at Buyer's expense, to help Buyer to defend any claim or action. Buyer will not settle any claim or action under this Section 11 on Seller's behalf without first obtaining Seller's written permission, which permission will not be unreasonably withheld

12. No Cancellation or Modification.

A purchase order received by Seller may not be canceled or changed by Buyer, unless Seller shall expressly consent thereto in writing by Buyer's authorized officer.

13. Limited License;

Limitation on Use. Seller grants to Buyer a non-exclusive license to use the Goods in the entire world for research use only in connection with the tagging and tracking of objects and/or animals. Seller grants no additional license rights other than those explicitly granted herein, and except for such license rights, all other intellectual property and proprietary rights in and to the Goods are and shall remain the exclusive property of Seller and its licensors. The Goods shall not be used in humans. Buyer agrees to take commercially reasonable steps to prevent unauthorized use, access, copying or disclosure of Seller's intellectual property. Buyer agrees not to cause or permit the copying, creation of any derivative work, reverse engineering, disassembling or decompilation of the Goods.

14. Intellectual Property Rights.

Seller, or its third party licensors, shall exclusively own all right, title and interest in and to any inventions, discoveries and improvements to the Goods, whether or not patentable, which are made, created or developed by Buyer in the arising out of the use of the Goods provided hereunder and to the extent exclusively or primarily relating to the Goods or their use. Notwithstanding the foregoing, all data, information and results entered, stored, compiled, generated and/or analyzed by Buyer using the Goods in accordance with these terms and conditions shall be the property of Buyer. Unless otherwise agreed to in writing by the parties, Buyer-supplied design information that is incorporated into goods shall remain the property of Buyer. With respect to any Good, including Goods containing or incorporating Buyer-supplied design information, Buyer obtains no right to Good other than the limited right to use such Good for the purposes sold and any Buyer-supplied information incorporated in such, if any. Notwithstanding the foregoing, with respect to such Good, Seller retains all rights in Seller's intellectual property incorporated therein, including but not limited to processing information and any Seller information used in design, production or in filling orders for Good placed by Buyer DB1/64447838.6 hereunder. No ownership rights in Seller's intellectual property shall pass to Buyer by the provision of any Good hereunder. Buyer shall receive no right or license, express or implied, in or to any Seller intellectual property or information incorporated into the Goods, or used in the processing or manufacturing of the Good, other than the limited right to use the Goods for the purposes sold. The Parties agree that all technology and discoveries, inventions, developments, modifications, innovations, updates, enhancements, improvements, writing or rights (whether or not protectable under patent, copyright, trademark or similar law) that are conceived, discovered, invented, developed, created, made or reduced to practice by Buyer related to the Goods shall be the sole and exclusive property of Seller and Buyer agrees to assign, and hereby does assign, to Seller Buyer's entire right, title and interest in and to any and all such inventions without additional consideration to Buyer as well as to provide reasonable assistance in obtaining, perfecting, maintaining or enforcing Seller's rights therein.

15. Export Control.

Buyer acknowledges that Goods provided under these terms and conditions are subject to United States and other export laws and regulations. Buyer agrees not to export, reexport, transfer, or transmit the Goods except in compliance with all applicable laws. This sale is subject to any applicable governmental approvals and, at Seller's request, Buyer agrees to sign written assurances and other export related documents as may be required for Seller to comply with export laws and regulations.

16. Import Laws.

Buyer shall, at its sole cost and expense, obtain all required licenses, permits, authorizations, consents, and approvals necessary for Buyer to import Goods from Seller.

17. General Provisions.

Buyer may not assign its order, these terms and conditions or any right or interest therein or any other obligation arising hereunder without the prior written consent of Seller. The contract resulting form Seller's acknowledgement and acceptance of Buyer's purchase order shall be governed by the laws of the State of New Jersey. Buyer hereby consents to the jurisdiction of New Jersey for all disputes arising hereunder. Buyer further consents that service of process may be made upon Buyer by certified mail, return receipt requested, at Buyer's last known address and that such service shall be deemed valid personal service. No failure of Seller to insist upon strict compliance by Buyer shall impair Seller's rights in case Buyer's default continues or in case of any subsequent default by Buyer. Waiver by Seller of any breach shall not be construed as a waiver of any other existing or future breach(es).

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