Terms of Sale

MiR-ID®/MiR-Direct® CUSTOMER USE AGREEMENT

When purchasing products incorporating SOMAGENICS’ miR-ID®/MiR-Direct® technologies you agree to the following terms and conditions. These terms and conditions constitute the use agreement (“Use Agreement”) for products and materials containing miR-ID®/MiR-Direct® sample preparation products, primer designs, primer sequences, primers, probe designs, probe sequences, probes and/or assays (together “miR-ID®/MiR-Direct® Materials”). This Use Agreement creates a binding contract between you and SOMAGENICS for the purchase and use of our miR-ID®/MiR-Direct® Materials.

Under this Use Agreement, SOMAGENICS retains all right, title and interest in and to the miR-ID®/MiR-Direct® Materials. All custom services derived from miR-ID®/MiR-Direct® Materials are provided on a non-exclusive basis (see SOMAGENCS’ Terms and Conditions for Custom Service). miR-ID®/MiR-Direct® Materials are provided for Research Use Only and no other rights are conveyed by this Use Agreement. You are expressly prohibited from independently recreating miR-ID®/MiR-Direct® Materials which are proprietary to SOMAGENICS. If you require additional rights please contact:

TERMS AND CONDITIONS FOR CUSTOM SERVICES

1.         General Terms. These terms and conditions (“Terms”) apply to your purchase of custom services, including custom products (“Work”) from SOMAGENICS, INC. These Terms, together with the quotation, if any, form the entire contract between you and us with respect to your purchase of Work. Performance of Work is conditioned on your acceptance of these Terms.

            1.1       Acceptance. By purchasing and accepting delivery of Work supplied by SOMAGENICS you agree to be bound by these Terms and Conditions.

            1.2       Terms Conflict. These Terms supersede all prior communications between us, whether written or oral, relating to the Work. Terms and conditions contained in any order form or document submitted by you which are inconsistent with or in addition to these Terms and Conditions are rejected, objected to and shall be deemed void and of no force or effect.

2.         Performance of Work. We will perform the Work as an independent contractor, using methods, materials, equipment, and/or related intellectual property owned or controlled by us or our affiliates (collectively “Service Provider”) to provide you with data and/or materials produced by us as a direct result of the Work (“Deliverables”). Deliverables may include data or materials that result from the use of data, information, or materials you supplied (“Client Materials”).

3.         Client Materials and Data. You will provide us with Client Materials in sufficient amounts as well as relevant safety information and other characteristics of Client Materials as required, including any certification or documentation of Client Materials we may request of you. The Client Materials shall be subject to the confidentiality requirements of Section 10. Unless otherwise specified or agreed in writing, any Client Materials not consumed in the Work or required for additional Work will be destroyed after completion of the Work.

4.         Use Limitations. Deliverables may only be used for internal research purposes, not for use in humans, and in accordance with any Limited Use Label License (LULL) associated with the technologies employed in the Work. Deliverables shall not be transferred to or commercially used by you or any third party, regardless of whether such transfer or commercial use of Deliverables is for research purposes. The research use limitation, however, shall not preclude your use of (i) Deliverables in your research and development of commercial products or services, provided that such product or service does not include or require the practice of SOMAGENICS’ proprietary technology, or (ii) any Data for the regulatory approval and commercialization of such products or services.

6.         Orders and Delivery. All custom orders are subject to our acceptance and availability. Any changes proposed to the Work and/or Deliverables including quantities, method of shipment, schedule or place of delivery must be provided to us in writing and may be accepted by us at our discretion. We reserve the right to make the delivery in installments, which will be separately invoiced and paid for when due per invoice.

7.         Payments. You will pay us for the Work within 30 days after the date of the respective invoice(s), which we will send to you when we complete the Work (or portion thereof), according to the payment schedule. If you default on any payment when due, we, at our option and without prejudice to our other lawful remedies, may delay performance, defer delivery, charge interest on undisputed amounts owed, and/or terminate the Work.

8.         Ownership, Intellectual Property. You will be the exclusive owner of (i) the Data, and (ii) Client Materials. You shall not, by virtue of the Work performed hereunder, obtain any license or other rights in any Service Provider Technology to (a) use Deliverables other than as set forth in Section 4, (b) independently recreate the Deliverables or any materials that are proprietary to SOMAGENICS, even if used to perform the Work; and/or (c) sell or otherwise use the Deliverables for commercial purposes whether or not commercialized for research use.

9.         Non-Exclusivity. Unless expressly agreed in writing, all Work is provided on a non-exclusive basis, and SOMAGENICS reserves all rights for ourselves and our affiliates to provide third parties with deliverables that are identical or similar to Deliverables, provided that in doing so, we will not use any Client Materials to perform Work for any third party. Notwithstanding anything else in the Terms, where we perform Work without reliance on Client Materials, we reserve all rights to commercialize such Work as a catalog product.

10.       Confidentiality. We will treat all Data and Client Materials as proprietary and confidential to you, and will not disclose Data or Client Materials to any person except to our employees, consultants, and subcontractors as necessary for purposes of providing the Work.

            10.1     Notwithstanding any other provisions herein, however, SOMAGENICS shall have no obligation to the Client for any information or material that is (a) already known to us; (b) publicly known; (c) received from a third party lawfully entitled to disclose it; (d) disclosed pursuant to an enforceable order of a court or administrative agency; and/or (e) is independently developed by us as demonstrated in writing.

11.       Warranty.

            11.1     Our Limited Warranty. Our sole warranty for the performance of Work is that the Work will be performed using due care in accordance with (a) the Terms and Conditions, and (b) laws, regulations and generally prevailing industry standards applicable to such Work. We do not warrant or represent that the results of the Work will be acceptable to any regulatory agency to which they are presented or that they will advance your interests. If you believe that we, in breach of our limited warranty, have made a material error in the Work that renders the results of such Work invalid, you must notify us of such error in writing, within 1 month after receipt of the final Deliverable for such Work.

            11.2     Remedies. For valid warranty claims made, we will either (i) repeat the particular Work at our own expense or (ii) refund to you the fees actually paid for the particular Work giving rise to the breach of warranty.

            11.3.    Limitations. THE WARRANTY SET FORTH IN THIS SECTION 11 IS IN LIEU OF ANY AND ALL OTHER WARRANTIES RELATING TO THE WORK, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT DELIVERABLES OR USE THEREOF WILL NOT INFRINGE ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT. WE SHALL NOT BE LIABLE UNDER ANY LEGAL THEORY, FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFITS OR LOSS OF BUSINESS, EVEN IF WE HAD NOTICE OF THE POSSIBILITY THEREOF. OUR LIABILITY TO YOU FOR BREACH OF ANY PROVISION OF THE TERMS AND CONDITIONS (OTHER THAN BREACH OF THE WARRANTY IN THIS SECTION 11 FOR WHICH LIABILITY IS LIMITED TO RE-PERFORMANCE OR REFUND AS SPECIFIED HEREIN) SHALL BE LIMITED TO DAMAGES IN AN AMOUNT NOT TO EXCEED THE FEE TO BE PAID FOR THE WORK.

12.       Indemnification. Except to the extent caused by our willful misconduct, you shall indemnify and hold harmless SOMAGENICS, and our affiliates and our and their respective officers, directors, employees and agents (“Indemnified Party”) from and against any and all expenses (including, but not limited to, reasonable attorney’s fees) and losses incurred by any such Indemnified Party in connection with any claim asserted by a third party arising out of or based on (a) Client Materials or use thereof in performance of the Work; and/or (b) any product or service of yours that is based in whole or part on your reliance on Deliverables, or any portion or derivative thereof; and/or (c) breach of Section 4.

13.       Changes Termination.

            13.1     Changes. Changes to the Work must be agreed by both parties in writing, and may require changes in the fees or timelines.

            13.2     Termination. We may terminate the Work if (a) you breach any material provision of the Terms and Conditions and fail to remedy the breach to our satisfaction within 30 days after our written notice to you; (b) we are unable to obtain third party materials or technology required to conduct the Work, for reasons beyond our reasonable control; (c) we determine that biosecurity, biosafety, and/or feasibility reasons prevent or are likely to prevent the performance of the Work, or (d) you are, or are deemed by law to be, unable to pay your debts or perform your obligations under these Terms and Conditions. You will have the right to terminate the Work upon 30 days’ prior written notice to us. Termination of Work in progress will result in a partial charge commensurate with the percentage of Work completed at the time of cancellation.