Terms and Conditions of Sale

Thank you for purchasing a SamplingOne™ Kit (“Kit”) from Sampling Human, Inc. (“Sampling Human”, “we”, and “us”). You, the person ordering the Kit, or the organization or entity that has authorized you to order the Kit for its benefit (in either case “you”, “your”) wish to use the Kit solely for lawful purposes, and other than for Commercial Applications (defined below), and Sampling Human is willing to make the Kit available to you for lawful purposes, subject to these terms and conditions of sale (“Terms”). When you place an order for a Kit (each an “Order”), you accept and are bound by these Terms. “Commercial Applications” mean any and all uses of a Kit, including any components thereof (and components include reagents), in exchange for monetary or other consideration, including but not limited to, manufacturing, providing a service, information or data, and selling or distributing a Kit for any use.

1. Contract Terms. These Terms, together with the Order, comprise the entire contract between you and Sampling Human (“Agreement”), and supersede all other representations and understandings between the parties, whether written or oral, with respect to the purchase and supply of Kits. By submitting an Order, you accept and are bound by these Terms, including your commitment to use the Kit in accordance with these Terms. This Agreement is created when we accept your Order, either by sending a written confirmation or by shipping the ordered Kit(s). In the event of a conflict among documents, these Terms take precedence over an Order, and an agreement signed by both parties takes precedence over an Order and these Terms.
2. Price and Payment.
   1. Kit pricing is as set forth in a written quotation that we provide directly to you (“Quotation”). Pricing in our Quotation is valid for 30 days unless stated otherwise therein (and thereafter may be changed at any time without notice), but such pricing is subject to adjustment based on changes to specifications, quantities, raw materials, cost of production, shipment arrangements or other items that are not part of the original Quotation. If no price has been quoted to you by us in writing, the price is the Kit list price in effect at the time we accept your Order. Prices do not include taxes (including VAT), duties, levies or other government fees that may apply to your Order. If they apply, it is your responsibility to pay them. If we pay them, we will add them to your invoice. If you claim any exemption, you must provide a valid, signed certificate or letter of exemption for each applicable jurisdiction no later than sending your first Order. You are responsible for standard delivery and handling charges.
   2. You will pay our invoices within 30 days of receipt. You will pay all invoices without withholding, discount, setoff or reduction. Each Order is a separate transaction, and you may not offset payments from one order against another. We reserve the right to require you to make full or partial payment in advance, or other security to our satisfaction, if we believe in good faith that your financial condition does not justify the payments terms otherwise specified. You will make all payments in U.S. Dollars, and payments are not refundable.
   3. If you are late in making payment to us, we may, without limiting our other rights: (i) suspend deliveries of Kits or terminate your Orders; (ii) reject your Orders; and/or (iii) charge you a late-payment fee, from the due date until paid, at the rate of 1.5% per month, or, if less, the maximum amount allowed by law, which you must pay upon our demand. If we appoint a collection agency and/or an attorney to recover unpaid amounts, you will pay our costs of collection, including reasonable attorneys’ fees.
3. Delivery. Unless otherwise described in an Order, we ship Kits to the destination you specify in the Order, FCA (INCOTERMS 2020) our shipping point, with our selected freight carrier. Shipping dates are approximate only, and we are not liable for any loss or damage resulting from delays in shipping or delivery. If we delay shipment for a cause beyond our reasonable control, we may terminate the affected Order or reschedule the shipment within a reasonable period of time.
4. Restrictions and Authorized Use.
   1. You may not (i) disassemble, reverse engineer, reverse compile, or reverse assemble a Kit or its components, or make any modifications to a Kit or its components, (ii) separate, extract, or isolate components of a Kit or engage in other unauthorized analysis (including determination of chemical structure or composition) of a Kit or its components, (iii) gain access to or determine the methods of operation of a Product, (iv) access or use a Kit to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or interfaces, or (c) copy any ideas, features, functions or interfaces of the Kit; (v) use a Kit for any time sharing, leasing or service bureau purposes or permit use by anyone other than your employees and agents and/or (vi) aid or permit others to do any of the foregoing. You may not make any modifications or alterations to any Kit or component thereof. You may not alter, obscure or remove any identification of ownership or other marking on any Kits. You may not resell or distribute Kits.
   2. YOU ACKNOWLEDGE AND AGREE THAT KITS ARE INTENDED AND MAY BE USED FOR RESEARCH USE ONLY (RUO) AND NOT FOR DIAGNOSTIC, CLINICAL, IN VITRO, EX VIVO OR IN VIVO OR THERAPEUTIC USES, OR FOR CONSUMPTION BY OR APPLICATION TO HUMANS OR ANIMALS. YOU MAY NOT USE KITS FOR COMMERCIAL APPLICATIONS.
   3. You must use the Kit in accordance with our instructions and label licenses, in each case as provided by us in writing. You are solely responsible for making sure that the way you use the Kit complies with applicable laws, regulations and governmental policies. You must obtain all necessary approvals and permissions needed to use the Kit. It is solely your responsibility to make sure the Kit is suitable for your particular use, and you acknowledge that the Kit has not been approved, cleared, or licensed by the United States Food and Drug Administration or any other regulatory entity, whether foreign or domestic, for any specific intended use, whether research, commercial, diagnostic, or otherwise.
   4. You may not (i) reverse engineer or make any modifications to a Kit or any component thereof, (ii) separate, extract, or isolate components of a Kit or any component thereof or engage in other unauthorized analysis of a Kit or any component thereof, (iii) take any action to determine any characteristic and/or composition or structure of a Kit or any component thereof, (iv) alter, obscure or remove any identification of ownership, other Sampling Human marking on any Kit, or other marking on any component thereof; (v) resell, transfer, or distribute a Kit or any component thereof; (vi) propagate or otherwise create variations of Kit components or the gene networks stably transfected within, and/or (vii) aid or permit others to do any of the foregoing.
   5. Upon completion of testing the Kit, you will promptly destroy all unused Kit and Kit components, or return all unused Kit and Kit components to us.
5. Confidentiality. “Confidential Information” means all information disclosed or provided by us to you pursuant to or in connection with this Agreement, whether communicated in writing, electronically or orally, or by any other method. Notwithstanding the foregoing, Confidential Information shall not include information that you can demonstrate through sufficient written records (i) is, as of the date of disclosure, known to you without obligation of confidentiality to Sampling Human; (ii) is, as of the date of disclosure, in the public domain or subsequently enters the public domain other than through the fault of you or your representatives; or (iii) is obtained by you from a third party having a lawful right to make such disclosure free from any obligation of confidentiality to Sampling Human. Orders, Kit documentation, Quotations, and Feedback (defined below) constitute Sampling Human’s Confidential Information. You will hold Confidential Information in confidence and will not disclose it to any third party, and will not use such Confidential Information except to use a Kit or perform this Agreement.
6. Feedback. You hereby grant to Sampling Human an exclusive, worldwide, royalty-free, fully paid up, perpetual, sublicensable, transferable and irrevocable right and license to use and disclose, for any and all purposes, including to develop and make products and provide services, any and all feedback, suggestions or improvements that You provide to us regarding a Kit (including use of a Kit).
7. Cloud Analysis. Sampling Human may, from time to time, offer users a cloud-based platform through which Kit users can upload their sequences for analysis by Sampling Human (the content of the platform (other than user sequences), and all related technologies, applications, and services, including without limitation algorithms and machine learning capabilities are collectively the “Cloud Service”). If you register for the Cloud Service, you will be required to contractually agree to the Cloud Service terms and conditions found at www.samplinghuman.com/cloud-terms-and-conditions (“Cloud Terms”). The Cloud Terms govern your use of the Cloud Service and describe how we use data that you submit through the Cloud Service, and include separate warranties, disclaimers, and other legal terms. In the event of a conflict between these Terms and the Cloud Terms, the Cloud Terms will control.
8. No Warranty and Disclaimers.
   1. We warrant that every component of a Kit delivered to you under an Order will, from delivery under Section 3 until the expiration date identified on the Kit package (“Warranty Period”), substantially conform to the written specifications for such component accompanying delivery of such Kit (“Warranty”).
   2. Warranties do not cover, and we have no responsibility, liability or obligation with respect to: (a) normal wear and tear; (b) accident, disaster or event of force majeure; (c) your fault or negligence or use of the Kit other than as expressly permitted herein, or use in contravention of its documentation; (d) causes external to the Kits such as, but not limited to, power failure or electrical power surges; (e) maintenance, storage, or handling in an improper, inadequate, or unapproved manner by you or any third party (including the carrier), such as, but not limited to, failure to follow our instructions or operating guidelines, or protocols, operation outside of stated environmental or use specifications, or operation or contact with unapproved software, materials, chemicals or other products; or (f) Kits customized in accordance with specifications you gave us.
   3. To make a Warranty claim, you must notify our customer support team at info@xenocells.com during the Warranty Period, and follow our instructions with respect to the defective Kit. For Kits that we reasonably determine, using analytical methods specified by us, do not meet the Warranty, we will, at our option and sole discretion, either repair or replace such Kits, or credit the price you paid for such Kits against future Orders. The Warranties extend to only the original purchaser. The remedies identified in this Section 8.3 are your sole and exclusive remedies, and our only liabilities, under the Warranty. If we determine that Kits for which you requested Warranty services are not covered by the Warranty, you will pay all costs of investigating and responding to such request at our then prevailing time and materials rates.
   4. Except for the Warranty, ALL KITS, REAGENTS, ITEMS, INFORMATION AND SERVICES MADE AVAILABLE TO YOU IN CONNECTION WITH THIS AGREEMENT ARE ALL PROVIDED “AS IS” AND WITH NO WARRANTIES, AND SAMPLING HUMAN AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING ANY INFORMATION, MATERIALS AND SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR RELATING TO CUSTOM, USAGE OR TRADE. SAMPLING HUMAN DOES NOT WARRANT THAT KITS ARE ERROR-FREE OR THAT USE OF KITS WILL NOT INFRINGE THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. You acknowledge that you are responsible for your use of Kit, including reliance upon results from such use, and that you will use professional care and judgment in using Kit. You agree that you are not using any Kit in reliance upon any representation or warranty other than as set forth in these Terms.
9. Your Indemnity. You will indemnify, defend with competent and experienced counsel acceptable to us, and hold us and our subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders, agents and employees, harmless from and against any and all damages, liabilities, causes of action, suits, claims, demands, losses, fines, penalties, costs and expenses (including without limitation reasonable attorneys’ fees) suffered or incurred by any of the foregoing entities or individuals arising from or in connection with (a) your negligence, misconduct, violation of applicable laws, breach of this Agreement, or noncompliance with Kit documentation; and (b) the reliance by any person or entity on any evaluation, analytic results or other data derived from Kit. You are responsible for the actions of your employees, agents and representatives for purposes of this Section 9.
10. Intellectual Property. As between you and Sampling Human, Sampling Human exclusively owns all intellectual property rights relating to, covering, claiming, included and/or embodied in, the Kit. Our license, sale, loan or lease of Kit to you grants you only a limited, nontransferable right under our intellectual property only for the specific intended use of the Kit you ordered from us and strictly in accordance with the terms of this Agreement. You will not modify, change, remove, cover or otherwise obscure any trademarks, logos, trade or service marks on the Kit. Nothing in this Agreement limits our ability to enforce our intellectual property rights. Except as expressly permitted herein, no license or right, whether express or implied, is granted under any Sampling Human or third party patent, trademark or other proprietary right, and we and our licensors reserve all rights not expressly granted herein. You are solely responsible for determining whether you have all third party intellectual property rights that are necessary for your use of the Kit. You acknowledge that the Kit may constitute, contain or embody our Confidential Information and intellectual property rights, including trade secrets.
11. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SAMPLING HUMAN AND ITS LICENSORS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE, THAT YOU OR A THIRD PARTY MIGHT INCUR UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH THE KIT, COMPONENTS THEREOF, INFORMATION, OR SERVICES, EVEN IF WE OR THEY HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THIS SENTENCE WILL NOT LIMIT DAMAGES CAUSED BY OUR GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD. IN ADDITION AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, SAMPLING HUMAN’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY KIT OR SERVICE, IS LIMITED TO THE AMOUNTS PAID BY YOU TO SAMPLING HUMAN UNDER THE ORDER UNDER WHICH THE LIABILITY AROSE. HOWEVER, THESE PROVISIONS DO NOT LIMIT LIABILITY THAT CANNOT BE LIMITED BY LAW.
12. Export Restrictions. You acknowledge that each Kit, and any related technology, including technical information we supply you, including those contained in Kit documents (collectively “Items”), is subject to U.S. government export controls. The export controls may include, among others, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. You must comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item.
13. Miscellaneous.
    1. You may not delegate any duties nor assign any rights or claims hereunder, and any such attempted delegation or assignment will be void. We may assign, delegate or transfer this Agreement or our rights or obligations hereunder, in each case in our discretion. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with this Agreement.
    2. The Agreement and performance under it will be governed by the laws of California, without reference to choice of law provisions, and all actions brought to enforce or interpret the Agreement and any all disputes hereunder or in connection herewith, including any negotiations relating thereto, shall be heard exclusively in the state and federal courts located in San Francisco, California, which courts have exclusive jurisdiction over all disputes relating hereto. The U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded. IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT TO THE MAXIMUM ALLOWED BY APPLICABLE LAW.
    3. We will not be responsible or liable for failing to perform our obligations under the Agreement to the extent such failure is caused by, or to the extent we cannot perform due to, circumstances beyond our reasonable control, including without limitation acts of God and nature, embargoes, war, acts of war (whether war be declared or not), terrorism, insurrections, riots, civil commotions, strikes, lockouts, or other labor disturbances, government actions, fire, earthquakes, floods, epidemics, pandemics (whether declared or not), and any actions we take to comply with applicable laws, directives, pronouncements or guidelines issued by a governmental entity relating to pandemics, such as quarantines and sheltering in place. In certain situations, we may use our reasonable judgment and apportion Kit then available for delivery fairly among our customers, or may terminate your Order without liability to you.
    4. Our failure to exercise any rights under the Agreement is not a waiver of our rights to damages for your breach of contract and is not a waiver of any subsequent breach. If any provision or part of the Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Agreement. No person other than you or us will have any rights under the Agreement. This Agreement binds the parties’ successors and permitted assigns. Headings are for convenience only and shall not be used in the interpretation of these Terms.
    5. Any notice or communication required or permitted under these Terms must be in writing and will be deemed received when delivered by nationally recognized commercial courier, or 3 business days after being sent by certified mail, postage prepaid, to a party’s specified address. No waiver, consent, modification, amendment or changes to the terms of this Agreement will be binding unless in writing and signed by both parties. Our failure to object to terms contained in any subsequent communication from you is not a waiver or modification of this Agreement.