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Product Terms & Conditions of Sale
10X GENOMICS TERMS AND CONDITIONS OF SALE
1.1 “Product” means each item, including any 10x Instrument, Licensed Software and/or 10x Consumable, listed in the applicable written sales quotation issued by 10x (“Quotation”) or, in the event a Quotation is not issued, listed in 10x’s then-current price list applicable to Buyer’s jurisdiction, and identified in Buyer’s purchase order.
1.2 “10x Instrument” means a 10x-branded instrument.
1.3 “10x Consumables” means 10x microfluidic cartridges and/or associated 10x-branded reagent kits, and labware, or any individual components of the foregoing, intended by 10x for use with 10x Instruments.
1.4 “Licensed Software” means (i) the 10x Instrument operating system software and/or firmware, including 10x Instrument control software and/or firmware, and (ii) the 10x data analysis software, including without limitation genomic assembly, phasing and structural variation calling, cell analysis and visualization functions, in each case provided by 10x to Buyer and/or made available by 10x for download, in conjunction with Buyer’s purchase of a 10x Instrument, in object code or executable form only.
1.5 “Documentation” means the user documentation accompanying, or provided by 10x, whether physically, electronically, as available download, or by any other means, regarding or for use in connection with a particular Product or related service.
2.0 Terms, Conditions and Orders
2.1 Terms and Conditions. These terms and conditions of sale along with any Quotation(s) issued by 10x Genomics, Inc., or any authorized subsidiary identified on the Quotation(s) (“10x”) and any applicable licenses, notices, terms, conditions or use restrictions referred to in Section 3 below, together with any label licenses, click-through licenses, conditions of use, or addenda to any of the foregoing provided by 10x, any other terms and conditions expressly agreed to in writing by an authorized 10x representative expressly referencing these Terms (collectively “Terms”) shall constitute the complete, exclusive and entire agreement (“Agreement”) between 10x and Buyer with respect to purchase and/or license of the Product(s) and any related services from 10x. 10x’s offer to sell products and provide any related services is expressly limited to the Terms which shall supersede and take precedence over all other understandings or agreements written or oral, and any of Buyer’s additional or different terms and conditions, which are hereby rejected. Buyer’s submission of a purchase order or other instrument for or regarding the purchase of Product(s) or related services from 10x, whether or not in response to a 10x Quotation or any other 10x documents that include or incorporate these Terms, shall be deemed an acceptance of and agreement to the Terms to the exclusion of any other terms or conditions contained in and/or referenced by such purchase order or other instrument (except the name and identity of the Product(s) purchased, quantity, bill to and ship to address, and, if accurate, price), which are hereby deemed to be material alterations, and notice of objection to which is hereby given, notwithstanding anything to the contrary contained within such purchase order or other instrument or elsewhere. Any acceptance by 10x of any offer of Buyer is expressly conditioned on Buyer’s assent to and acceptance of these Terms to the extent they are additional or different terms. Except as otherwise provided in these Terms, in the event of an inconsistency between these Terms and the terms appearing on 10x’s Quotation or other agreement signed by an authorized representative of 10x, the terms appearing on 10x’s Quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of these Terms, and all other provisions of these Terms shall remain in full force and effect.
2.2 Acceptance of Orders. No purchase order shall be binding upon 10x unless and until accepted by 10x in writing, and 10x shall have no liability or obligation to Buyer with respect to orders that are not accepted. No partial shipment of an order shall constitute the acceptance of the entire order, absent the written acceptance of such entire order. Any provision in Buyer’s Terms (if applicable) permitting Buyer at its convenience to unilaterally change or cancel its purchase order (in whole or part) once accepted by 10x shall be void and of no effect.
2.3 Contract Documents & Order of Precedence. Notwithstanding Section 2.1 above, if a purchase order from Buyer that is accepted by 10x contains or incorporates by reference any different or additional terms or conditions, and to the extent such different or additional terms or conditions are ultimately deemed part of the contract between Buyer and 10x regarding such purchase order (e.g., by express written agreement of the parties, or by application of legal doctrine), then such contract shall consist of the following documents (notwithstanding any provision in such documents to the contrary): (1) the Quotation(s) (if any) issued by 10x; (2) the following terms of Buyer’s order: name and identity of the Product(s) and/or related services purchased, quantity, bill to and ship to address, and, if accurate, price; (3) these Terms; and (4) any other terms and conditions contained in, or incorporated by reference into, Buyer’s order. Any conflict among these documents shall be resolved by giving them priority in the order listed above. Items (2) and (4) are collectively referred to herein as “Buyer’s Terms.”
3.0 Limited License; Regulatory Compliance
3.1 Limited License. Subject to the Terms, and to all applicable end user license agreement(s), notices, terms, conditions and/or use restrictions (i) printed on any Product packaging, label, Product user manual(s) or instructions, whether provided with the Product(s) or available for download, or insert, (ii) appearing in or included with the Licensed Software or any Documentation, (iii) listed on 10x’s website, or (iv) provided herein, 10x grants to Buyer a non-exclusive, non-transferable, non-sublicensable license to use the Product(s) sold and/or licensed to Buyer by 10x or its authorized distributor only in accordance with the applicable, then-current Documentation for the Product purchased by Buyer, and no other use is authorized hereunder. Buyer is also authorized to use, in connection with the Product(s) sold and/or licensed to Buyer by 10x or its authorized distributor, standard laboratory reagents, tools and equipment ancillary to the use of such Product(s), as provided in the applicable, then-current Documentation, provided that the foregoing shall not be construed as granting, by implication, estoppel or otherwise, any license or authorization to Buyer with regard to such reagents, tools, equipment or protocols per se. No other license or authorization is granted, by implication, estoppel, or otherwise.
3.2 Certain Use Restrictions. Each Product is also subject to the following terms, conditions, and restrictions, to which Buyer hereby agrees: (a) except as otherwise provided in the applicable, then-current Documentation, each Product may be used only with other Products; (b) 10x Consumables are licensed for SINGLE USE ONLY and MAY NOT BE REUSED, and (c) licensed use of a kit Product applies to the kit Product as a whole and does not extend to any individual component part of such kit Product or to any substitution of a licensed kit Product component with an un-licensed kit Product component. Buyer is not licensed or authorized to, and agrees not to: (i) use any 10x Product other than as set forth in the applicable Documentation, (ii) use any 10x Consumable more than once, (iii) refurbish and/or remanufacture any Product, (iv) transfer (including but not limited to resell, donate, or loan) any Product to any third party; (v) adapt, modify or reverse engineer any Product, or (vi) without the express written consent of 10x, provide a fee-for-service or other non-collaborative sample processing service to third parties using any 10x Product(s) (e.g., wherein the service provider offers standardized services for standardized fees to multiple third parties, the customer does not contribute scientifically to the services performed, and all rights to the results and discoveries derived therefrom are transferred to the customer). Documentation is proprietary to 10x and may only be used in connection with the associated Product(s). All license restrictions specified in this Section 3 or in the Terms shall apply to the maximum extent permissible under applicable law. If Buyer believes that it has additional rights or the right to act contrary to the express license restrictions specified herein under mandatory laws (including, without limitation, national laws implementing Directive 91/250/EEC and similar laws), Buyer must provide 10x with at least thirty (30) days prior written notice and any reasonably requested information before exercising such rights, to allow 10x to offer alternatives at 10x’s sole discretion.
3.3 Regulatory Compliance. Buyer acknowledges that the Products do not have United States Food and Drug Administration (“FDA”) or equivalent non-U.S. regulatory agency approval (“Approval”). Accordingly, Buyer acknowledges that the Products are labeled and intended FOR RESEARCH USE ONLY and NOT FOR USE IN DIAGNOSTIC PROCEDURES. The Products should be used by qualified professionals in strict accordance with applicable instructions, warnings and other information in user manuals and other Documentation. Unless otherwise expressly stated by 10x in writing, no claim or representation is made or intended by 10x (i) as to any diagnostic or other clinical use of a Product; (ii) that any Product has any Approval for use in any diagnostic or other clinical procedure, or for any other use requiring compliance with any law, regulation or governmental policy concerning medical devices, laboratory tests or the like (collectively, “Regulatory Laws”); (iii) that any Product will satisfy the requirements of the FDA or any other regulatory agency; or (iv) that any Product or its performance is suitable or has been validated for clinical or diagnostic use, for safety and effectiveness, for any specific use or application, or for importation into Buyer’s jurisdiction. Buyer agrees that if it elects to use a Product for a purpose that would subject Buyer, its customers or any Product to the application of Regulatory Laws or any other law, regulation or governmental policy, Buyer shall be solely responsible for obtaining any required Approvals and otherwise ensuring that the importation of the Products into Buyer’s jurisdiction and Buyer’s use of Products complies with all such laws, regulations and policies. The burden of proof for safe use and handling of Products sold to Buyer is entirely the responsibility of Buyer.
4.0 Prices, Taxes and Payment
4.1 Prices. The price for any Product or related service shall be the applicable price stated (i) in 10x’s written Quotation to Buyer, or, if no Quotation is issued, (ii) in 10x’s then-current price list applicable to Buyer’s jurisdiction, provided that 10x’s Quotations are only valid for thirty (30) days from the quotation date unless otherwise stated in the Quotation.
4.2 Taxes; Shipping Charges. Unless otherwise expressly indicated in the Quotation, Buyer’s purchase price does not include any U.S. or non-U.S. federal, state, local, sales, VAT, GST or other taxes, duties, or other governmental assessments (“Taxes”) that may be applicable to the Products, any related services or the sale thereof, nor does the price include freight and insurance; Buyer will be responsible for any such charges specified on 10x’s invoice(s). Unless otherwise expressly indicated in the Quotation, Products will be shipped “Freight Prepaid and Added” (i.e., charged back to Buyer on 10x’s invoice) and any provision to the contrary in Buyer’s Terms (if applicable) shall be void and of no effect. All Taxes shall be paid or reimbursed by Buyer (other than taxes on 10x’s net income), or in lieu thereof, Buyer shall provide 10x with a tax exemption certificate acceptable to the applicable taxing authorities. Taxes and other charges payable by Buyer may be billed as separate items on 10x’s invoice. Buyer shall be solely responsible for any non-United States withholding taxes (e.g., if Buyer is located or incorporated outside the United States) and if withholding taxes apply, Buyer shall gross up the amount payable to ensure post-withholding remittance to 10x at the amounts quoted and invoiced by 10x.
4.3 Payment. Unless otherwise specifically indicated in the Quotation, 10x shall invoice Buyer for a Product and any related services ordered by Buyer upon shipment of the Product, or upon 10x’s acceptance of Buyer’s purchase order in the case of a Service Contract, and such invoice shall cover Buyer’s purchase price for the Product and/or related services and any freight, insurance, Taxes or other applicable costs initially paid or payable by 10x, to be ultimately borne by Buyer, and Buyer shall pay all such amounts. Unless otherwise expressly indicated in the Quotation or, in the event a Quotation is not issued, in 10x’s then-current price list applicable to Buyer’s jurisdiction, all invoices shall be issued and payable in U.S. Dollars, and are due and payable thirty (30) days from date of invoice, subject to credit approval at 10x sole discretion. Each delivery shall be considered a separate and independent transaction and payment therefor made accordingly. Amounts outstanding sixty (60) or more days from the date of invoice shall be subject to a service charge of one percent (1.0%) per month (or the maximum allowed by applicable law, if less). (Notwithstanding the foregoing, if Buyer is an agency of the U.S. Government, payment will be made in accordance with the Prompt Payment Act, 31 U.S.C. 39 et seq.). Buyer shall pay all of 10x’s costs and expenses (including reasonable attorneys’ fees) to enforce and preserve 10x’s rights under this section. If Buyer fails to make any payment when due, or if 10x deems Buyer to be or to have become un-creditworthy, then, without prejudice to 10x’s rights, 10x may, at its option, cancel and/or suspend future deliveries, and/or require prepayment, letter of credit, or other payment method(s) in 10x’s discretion. The amount of credit may be changed or credit withdrawn by 10x at any time. 10x may elect to retain title to Products and any resale purchase price claims, until 10x receives payment in full, and where title retention is not fully valid or enforceable, 10x may elect to retain a security interest in Products sold to Buyer to secure Buyer’s payment obligations to 10x, and Buyer will execute any documents necessary to create and perfect this interest.
5.0 Delivery and Acceptance
5.1 Delivery. Unless otherwise expressly indicated in the Quotation, all deliveries to destinations within the United States are F.O.B. shipping point, and all deliveries to destinations outside the U.S. are FCA Origin (ICC Incoterms 2010) 10x’s shipping dock. 10x’s title (except for Licensed Software, which is only licensed, never sold), and all risk of loss, passes to Buyer, and 10x’s liability as to delivery ceases, upon delivery of the Products at the F.O.B./FCA point. Unless specific shipping instructions have been agreed between 10x and Buyer, 10x will ship in accordance with its standard practices. 10x does not guarantee any delivery dates and shall not be responsible for any loss or damage of any kind or nature whatsoever caused by any delay in delivery irrespective of the cause of such delay. Any provision in Buyer’s Terms (if applicable) indicating a delivery date and/or that time is “of the essence” (or other terms of similar import) for delivery or other performance by 10x shall be void and of no effect. Delivery of Products shall be in accordance with 10x’s then applicable manufacturing schedule and based upon a priority of ‘first order accepted, first order shipped’ basis. Notwithstanding the foregoing, 10x, in its sole discretion, may reprioritize scheduling of any delivery or deliveries of any orders accepted by 10x. For multiple unit and/or multiple Product orders 10x may make delivery in installments, and each installment shall be deemed to be a separate sale. 10x may issue a separate invoice for each installment, which invoice shall be paid without regard to prior or subsequent installments. Buyer must notify 10x of any damaged or missing Products within five (5) days after receipt. Products rejected by Buyer will be held by Buyer and may be returned only upon 10x’s written authorization. 10x shall be entitled to repair or replace damaged, missing, and/or rejected Products in its sole discretion. These are Buyer’s sole and exclusive remedies for rejected Products.
5.2 10x Product Inspection. Without limiting the preceding section, Buyer shall promptly unpack and visually inspect any 10x Product(s) upon receipt and notify 10x in writing of any damaged or missing Product(s) or component(s) thereof, that Buyer notes within five (5) days of receipt. Buyer shall provide 10x with the opportunity to inspect any shipment that includes any damaged or missing Product or component thereof, including through video, photo and/or in person inspection, at 10x sole discretion. If Buyer fails to comply with this section, Buyer shall be deemed to have waived its rights to claim incorrect or incomplete delivery or packaging and any related warranty rights. If 10x has agreed to install a 10x Instrument at Buyer’s facility, then it is Buyer’s responsibility, at Buyer’s cost, to have the installation site prepared and available for installation in accordance with 10x’s site requirements and free of hazardous or unsafe conditions. Buyer shall have appropriate Buyer personnel present at any such installation. Buyer shall not assign 10x personnel to work in biosafety level 3 or level 4 laboratories without prior written notice to 10x and 10x’s prior written consent.
6.0 Limited Warranty.
6.1 Limited Warranty for Instruments. 10x warrants, only to Buyer, that each 10x Instrument purchased by Buyer from 10x hereunder, as delivered and under normal use will: (1) as of the date of delivery to Buyer, conform in all material respects to 10x’s published specifications for such Instrument in effect at the time of delivery; and (2) for a period of one (1) year from the date of delivery to Buyer, be free from defects in material and workmanship under normal use and service; in either case unless the applicable Quotation or Documentation states that a different warranty or no warranty is provided by 10x. Buyer’s exclusive remedy, and 10x’s sole liability and obligation, under this warranty is limited to replacing, repairing (including parts, labor and shipping to and from 10x or a 10x authorized service center) or giving credit for, at 10x’s sole option, any 10x Instrument for which written notice of the nonconformity is provided to 10x during such one (1) year period (or such other period as stated in the applicable Quotation or Documentation) following the date of delivery to Buyer (the “Warranty Period”). Warranty repairs and/or service may, at 10x’s sole option, be conducted by 10x personnel, or 10x authorized service provider, on-site at Buyer’s facility or at a 10x authorized service center. For any warranty service not performed at Buyer’s facility, Buyer shall ship the 10x Instrument to a 10x designated service center in accordance with 10x return procedures, and at 10x’s expense. 10x shall perform such service and/or maintenance on the Instrument within a commercially reasonable timeframe and return the Instrument to Buyer by shipping methods chosen by 10x, and at 10x expense. Notwithstanding the foregoing, in performing any warranty service hereunder, 10x reserves the right, at its sole option, to repair or replace the Instrument or any component thereof. Without limiting the foregoing warranty, repairs and replacements may be effected prior to acceptance or during the Warranty Period with reconditioned or refurbished Products, parts or subassemblies. This limited warranty is subject to certain exceptions listed below
6.2 Limited Warranty for Consumables. 10x warrants, only to Buyer, that each 10x Consumable purchased by Buyer from 10x hereunder will be free from defects in material and workmanship upon delivery to Buyer, for use as set forth in the Documentation. All 10x Consumable warranty remedies are subject to the condition that warranty claims must be received by 10x in writing no later than thirty (30) days after the earlier of any shelf life date, expiration date, “use by” date, “guarantee date” or other end of recommended use date, or the date the number of uses stated on the 10x Consumable’s label or in the accompanying Documentation is reached. Buyer’s exclusive remedy, and 10x’s sole liability and obligation, under this warranty are replacing, or, at 10x’s option, giving credit for, any 10x Consumable not meeting the above warranty for which written notice is provided to 10x within the applicable period. If the defect(s) in material and workmanship diminished but did not prevent performance of the 10x Consumable, any amount refunded may be apportioned according to 10x’s reasonable allocation of the value of the diminished performance. The decision of whether to replace the 10x Consumable or give credit will be made by 10x in its sole discretion. Notwithstanding the foregoing, custom 10x Consumables made to specifications of Buyer are sold “AS IS”, without any warranty whatsoever, express or implied, except to the extent set forth in any separate express written limited warranty included in the Documentation provided with the 10x Consumable or in the Quotation. Except as set forth above, expiration dates, shelf life, “use by,” guaranty or other end of recommended use dates are included for informational purposes only and shall not be deemed as a period of warranty. This limited warranty is subject to certain exceptions listed below.
6.3 Limited Warranty for Software. 10x warrants, only to Buyer, that as of the date of delivery of a 10x Instrument purchased by Buyer that includes Licensed Software, that for the Warranty Period, such Licensed Software as provided by 10x, when properly installed and used as set forth in the applicable Documentation, will function substantially in accordance with the functions and features described in such Documentation. Buyer’s exclusive remedy, and 10x’s sole liability and obligation, under this warranty are limited to using reasonable efforts, commensurate with the severity of the nonconformity, to correct, or, at 10x’s option, giving credit for, any substantial nonconformity of the Licensed Software for which written notice is provided to 10x within the Warranty Period. 10x does not warrant that use of Licensed Software will be uninterrupted or error free, or that any particular Licensed Software warranty nonconformity will be corrected, or a workaround provided, within any particular time frame. This limited warranty is subject to certain exceptions listed below.
6.3 Exceptions. The foregoing warranties shall not apply to, and shall be void for, any Product that (i) was subject to improper or abnormal use or storage, abuse, neglect, negligence, accident, including without limitation failure to properly perform routine maintenance and maintain the Product site in accordance with 10x’s site requirements or the use of the Product with any non-10x product (except as may be specifically recommended, with respect to standard laboratory reagents, tools and equipment ancillary to use of the Product, in the then-current Documentation for that Product); (ii) has been repaired, altered, disassembled, reassembled or removed from Buyer’s facility by persons other than 10x or its designee; or (iii) has failed due to externally caused short circuits, incorrect voltages, failure or fluctuation of electrical power, lightning, static or other improper external inputs, or due to civil unrest, threat of or actual acts of terrorism or war, embargoes, governmental actions, acts of God, earthquakes, floods, storms, fires, supplier delay, accidents, explosions, epidemics, quarantine restrictions, or other such contingencies beyond the reasonable control of the applicable party. For clarity, and without limitation, use of a 10x Instrument with consumables other than the 10x Consumables specified for use with that 10x Instrument, will void the warranty for that 10x Instrument. Any Buyer attempt to repair or otherwise alter any Product, except as may be specifically pre-authorized by 10x in writing in each case, and except for cleaning and replenishment or replacement of specific elements, as may be provided in the applicable Documentation, shall void the warranty for that Product. Without limiting the foregoing, with regard to Licensed Software, these warranties shall not apply to any failure to conform that is caused by the use or operation of the Licensed Software in an environment other than that intended or recommended by 10x, or modifications to the Licensed Software not made or authorized by 10x. 10x makes no standalone warranty with regard to Licensed Software. These warranties are not transferable or assignable, including without limitation, in any re-sale of a 10x Instrument or third party computing system, and any such attempt to transfer or assign these warranties shall be void for any unit to which they apply. 10x neither assumes, nor authorizes any other person to assume for it, any other obligations or liabilities in connection with the sale of Products. Repair or replacement of a Product shall not extend the original warranty period for that Product. 10x’s warranties do not cover de-installation, re-installation, or transportation of products.
6.4 Disclaimer; No Other Warranties. EXCEPT FOR 10x’s INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 9.0, THE EXPRESS WARRANTIES AND THE REMEDIES SET FORTH IN THIS SECTION 6 ARE IN LIEU OF, AND 10x HEREBY DISCLAIMS, ALL OTHER REMEDIES AND WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT OR SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), IN EACH CASE HOWEVER ARISING, INCLUDING WITHOUT LIMITATION FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE, OR OTHERWISE. IN NO EVENT SHALL 10x BE LIABLE FOR COSTS OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES FOR BREACH OF WARRANTY. ANY PRODUCT OR SERVICE PROVIDED WITHOUT A WRITTEN WARRANTY FROM 10x IS PROVIDED “AS IS” WITHOUT (AND 10x HEREBY DISCLAIMS) ANY WARRANTY, STATUTORY, EXPRESS, IMPLIED OR OTHERWISE. Without limiting the generality of 10x’s general rejection of conflicting terms presented by Buyer, and for clarification purposes only, Buyer agrees that any different or additional warranty terms stated in Buyer’s Terms (if applicable) shall be void and of no effect.
6.5 Third Party Disclaimers. Notwithstanding any provision to the contrary herein, and unless otherwise expressly indicated in the Quotation or Documentation, none of 10x’s suppliers or licensors of any Product or other item provided by 10x, or any portion thereof (under this Agreement or otherwise) (each, a “Supplier”) provides ANY WARRANTY WHATSOEVER, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE TO BUYER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE DISCLAIMED. EXCEPT AS OTHERWISE EXPRESSLY INDICATED IN THE QUOTATION OR DOCUMENTATION, IN NO EVENT SHALL ANY SUPPLIER BE LIABLE TO BUYER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, DIRECT, INDIRECT OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR SALE OF THE PRODUCTS.
7.0 Support and Service
7.1 Support. During the Warranty Period set forth in Section 6.1 for a given 10x Instrument, 10x shall use commercially reasonable efforts to (i) provide Licensed Software upgrades as officially released by 10x and as are applicable to Buyer’s 10x Instrument, and (ii) respond to Buyer’s requests for technical support for such 10x Instrument. 10x reserves the right to provide such Software upgrades by any method in its sole discretion, including by internet download, provision of electronic files via e-mail or physical storage medium, or by deploying service personnel to Buyer’s site to install such Software upgrades. 10x reserves the right to provide such technical support by any method in its sole discretion including, but not limited to, remote instruction via telephone, internet or e-mail, mailing to Buyer replacement parts, components or test equipment, exchanging Buyer’s 10x Instrument with a loaner instrument while repairs are being made, and deploying service and/or support personnel to Buyer’s site for on-site services.
7.2 Service. Warranty service for Instruments shall be provided as set forth in Section 6.1 of these Terms. Except to the extent covered by a separate agreement, for Instrument maintenance and/or repair not covered by a warranty (collectively “Unwarranted Service”) as set forth herein, 10x shall, upon inspection and diagnosis of an Instrument submitted for such Unwarranted Service, provide Buyer with an estimate of the cost for performing such Unwarranted Service in accordance with 10x’s then current service rate schedule and parts pricing. Buyer shall bear all costs associated with shipping any Instrument(s) to 10x or its authorized service center for performance of such Unwarranted Service, including without limitation, any costs associated with 10x’s handling, repackaging and shipping of such Instrument.
7.3 Extended Service and Warranty. Upon payment by Buyer of the amount stated in an applicable Quotation for a 10x Instrument for the purchase of an extended warranty or “Assurance Plan”, then the applicable Warranty Period set forth in each of Sections 6.1 and 7.1 of this Agreement shall be extended for such period of time as is set forth in such Quotation.
8.0 Limitation on Liability.
10x’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR SALE OF THE PRODUCTS OR PROVISION OF SERVICES SHALL BE LIMITED TO THE AMOUNT PAID BY THE BUYER FOR THE PRODUCTS AND/OR SERVICES GIVING RISE TO THE LIABILITY, AND IN NO EVENT SHALL 10x’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR SALE OF THE PRODUCTS AND SERVICES EXCEED THE TOTAL AMOUNTS RECEIVED BY 10x FROM BUYER UNDER THIS AGREEMENT. IN NO EVENT SHALL 10x BE LIABLE FOR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, WARRANTY, PURSUANT TO ANY STATUTE, OR ON ANY OTHER BASIS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR SALE OF THE PRODUCTS OR SERVICES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT 10x IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM OR RELATED TO LOSS OF USE, LOSS OF SAMPLE, LOSS OF DATA, OR DOWNTIME, OR FOR LOSS OF REVENUE OR PROFITS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.0 Indemnification and Insurance
9.1 Indemnification of Buyer. Subject to Sections 9.2 and 9.3 below, 10x agrees to defend Buyer against any third party claim, proceeding or action against Buyer (“Claim”) to the extent the Claim alleges that any Product sold to Buyer hereunder, as delivered to Buyer by 10x, directly infringes any patent, copyright, or other intellectual property right. 10x will pay all damages awarded, and settlements approved in writing by an authorized representative of 10x, in connection therewith, provided that (i) Buyer provides to 10x written notice of the Claim within thirty (30) days of receipt by Buyer of such Claim, or such earlier time as required to avoid prejudice to 10x or its ability to defend such Claim, (ii) Buyer allows 10x to control the defense and settlement of the Claim, and (iii) Buyer provides to 10x reasonable assistance in connection therewith, at no charge to 10x. Buyer may employ counsel at its own expense to assist it with respect to any such Claim, provided that this shall not obligate 10x or its counsel to consult with or advise such Buyer counsel, nor affect 10x’s control of the defense and settlement of the Claim.
9.2 Exceptions. 10x shall have no liability or obligation pursuant to this Section 10 with respect to Claims resulting from (i) modification of the Product other than by 10x or its authorized service provider; (ii) combination of the Product with any item or method not supplied or specifically recommended in writing by 10x, (iii) use of the Product other than in accordance with the Documentation and this Agreement (including without limitation use for diagnostic or other non-research uses), (iv) Buyer’s actions or inactions unrelated to the use of the Products, or (v) compliance with Buyer’s instructions, specifications or design to the extent such instructions, specifications or design materially differ from comparable Products that 10x makes generally available to its customers (collectively, (i)-(v), “Excluded Causes”).
9.3 Remedy. In the event there is a Claim, or 10x believes a Claim is likely, alleging intellectual property infringement with respect to any Product sold to Buyer hereunder, in addition to defending Buyer against such Claim as set forth herein, 10x shall be entitled, without obligation to do so, at its option and expense, to (i) modify the Product so that it is no longer infringing, (ii) obtain a license with respect to the applicable intellectual property rights, or (iii) require the return of each such Product purchased by Buyer hereunder (except for contaminated Products that, in 10x’s discretion, cannot be safely returned to 10x) and in Buyer’s possession and control, and provide to Buyer a refund of the price paid by Buyer to 10x therefor, subject to reasonable deductions for damage, and depreciated on a straight line basis over three (3) years from the date of original delivery to Buyer. 10x will have no liability or obligation with respect to any alleged infringement occurring after the date 10x makes any such remedy available to Buyer.
9.4 Exclusive Obligation. Notwithstanding any other provision, the foregoing Sections 9.1-9.3 state 10x’s sole liability and obligation, and Buyer’s exclusive remedy, arising out of any actual or alleged intellectual property infringement of any kind, or any actual or alleged breach of any representation or warranty (statutory, express or implied) regarding non-infringement, anywhere in the world. To the extent Buyer’s Terms (if applicable) include any terms different from, or in addition to, those set forth above regarding indemnification by 10x for intellectual property infringement claims, then such additional or different indemnity terms shall be void and of no effect. To the extent Buyer’s Terms (if applicable) include any terms regarding any other type of indemnification by 10x, then such other indemnity terms shall be void and of no effect.
9.5 Indemnification of 10x. Buyer agrees to defend 10x against any Claim (i) to the extent the Claim alleges infringement of any patent, copyright, or other intellectual property right as a result of any Excluded Cause, or (ii) that arises in connection with Buyer’s use of Products (a) for any clinical purpose or application, (b) in violation of any applicable law or regulation, or (c) in the provision of services under any ‘fee for service’ agreement or other arrangement. Buyer will pay all damages awarded, and settlements approved by Buyer, in connection therewith, provided that (i) 10x provides to Buyer written notice of the Claim within thirty (30) days of receipt by 10x of such Claim, or such earlier time as required to avoid prejudice to Buyer or its ability to defend such Claim, (ii) 10x allows Buyer to control the defense and settlement of the Claim, and (iii) 10x provides to Buyer reasonable assistance in connection therewith, at no charge to Buyer. 10x may employ counsel at its own expense to assist it with respect to any such Claim, provided that this shall not obligate Buyer or its counsel to consult with or advise such 10x counsel, nor affect Buyer’s control of the defense and settlement of the Claim. If Buyer is a U.S. state, city, town or other municipality, or a public university, college or other not-for-profit institution chartered under the laws of a U.S. state, this section shall apply to the maximum extent permitted by applicable law. This section shall not apply if Buyer is an agency of the U.S. Government; in such case, Buyer’s liability shall be limited by the Federal Tort Claims Act, 28 USC 2671, et seq.
10.0 Buyer Improvements
Except to the extent prohibited by applicable laws, Buyer hereby grants to 10x a non-exclusive, worldwide, fully sublicensable, fully paid-up, royalty-free, irrevocable, perpetual license to all Product Improvements. Buyer shall promptly disclose any Product Improvements to 10x. For this purpose, “Product Improvements” means all intellectual property rights (including patent and similar rights like utility models) on inventions conceived or reduced to practice by or for Buyer that arise out of the use of Products (or the adaptation, modification or reverse engineering of any Product(s), in violation of these Terms), and which relate to (a) development, design, manufacturing, layout, packaging or protocols or methods for using any Products, alone or with other Products or other devices and/or reagents; (b) interfaces between any Products and other devices, including but not limited to sequencing systems, thermal cycling systems, and robotics for use in connection with any Products; or Product Improvements shall not include data resulting from using Products (e.g., results of assays or sequencing of samples prepared using Products) or discoveries derived from such data (except to the extent covered by (a) or (b) above). For purposes of this section, the term “Buyer” shall include all persons that Buyer permits to use the Products, irrespective of being legal employees of Buyer, and Buyer shall have the necessary agreements in effect with all such users and their employers to enable Buyer to comply with this section.
11.1 Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by first class mail (registered or certified if available; air mail if overseas), postage prepaid, or otherwise delivered by hand, commercial courier service, messenger, electronically, or by telecopy, addressed to the addresses listed in the Quotation (or to Buyer’s address listed in its purchase order) or at such other address furnished with a notice in the manner set forth herein. Such notices shall be deemed to have been effective when delivered or, if delivery is not accomplished by reason of some fault or refusal of the addressee, when tendered (which tender, in the case of mail, shall be deemed to have occurred upon posting, and in the case of electronic communication or telecopy (fax), shall be deemed to have occurred upon transmission). All notices shall be in English.
11.2 Governing Law and Venue. This Agreement and any disputes arising out of or relating do this Agreement (including its formation or termination) or 10x’s goods, software or related services (“Disputes”) shall be governed by and interpreted in accordance with the laws of the State of California, U.S.A., (provided, however, that if Buyer is a U.S. state, city, town or other municipality, or a public university, college or other not-for-profit institution chartered under the laws of a U.S. state, the law of such state shall govern), excluding in all cases choice of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. If Buyer is located within the U.S., any Disputes may be brought in the state courts located in Alameda County, California or the U.S. District Court for the Northern District California, and each party consents to the personal and non-exclusive jurisdiction and venue of these courts. If Buyer is located outside the U.S., any Disputes shall be resolved by final and binding arbitration under the rules and auspices of the International Centre for Dispute Resolution in Santa Clara County, California, in English language proceedings whereby either party can request a written opinion from the arbitrator(s) appointed in accordance with the rules, which shall award legal fees (including reasonable attorneys’ fees) to the party winning the proceedings, provided however, that either party may seek injunctive relief (including preliminary and permanent injunctive relief) before any court of competent jurisdiction. Any specification in Buyer’s Terms (if applicable) of a different legal forum or venue for resolution of disputes between the parties shall be deemed non-exclusive, notwithstanding any provision in Buyer’s Terms to the contrary. This section shall not apply if Buyer is an agency of the U.S. Government.
11.3 Purchases for the U.S. Government. If Buyer is placing an Order for the United States Government or in support of a contract with the U.S. Government, Buyer agrees that the Products purchased are “commercial items” as defined in the U.S. Federal Acquisition Regulations (“FAR”). If Buyer is placing this Order in the name of the U.S. Government and the Order is less than or equal to $3,000, then Buyer agrees that only these Terms shall apply to the Order. If the Order is greater than $3,000, then Buyer agrees that the Order is subject to FAR Part 12, and pursuant to FAR 12.301 and 12.302, only those mandatory provisions of FAR 52.212-1, 52.212-3, 52.212-4 and 52.212-5, and these Terms, shall apply. If Buyer is placing this Order in support of a contract with the U.S. Government, Buyer agrees that only those mandatory clauses listed in FAR 52.244-6 as well as these Terms shall apply to the Order. All other terms and conditions are expressly rejected. In the event of a conflict between the FAR provisions referenced herein and these Terms, these Terms shall take precedence to the maximum extent permitted by applicable law.
11.4 U.S. Government End Users. The Licensed Software and Documentation provided by 10x pursuant to this Agreement are “commercial items,” as the term is defined at 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the commercial computer software and commercial computer software documentation are licensed to United States Government end users (i) only as commercial items and (ii) with only those rights granted pursuant to the terms of this Agreement.
11.5 Export Controls. Buyer agrees that it will not export or transfer Product for re-export in violation of any United States laws or the laws of any other jurisdiction, or to any denied or prohibited person, entity, or embargoed country in violation of such laws.
11.6 Severability. If any section, paragraph, provision or clause or any portion thereof in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, the remainder of this Agreement shall be valid and enforceable and the parties shall negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into this Agreement.
11.7 Force Majeure. Except for the payment of money, neither party shall be liable to the other party for any failure or delay in the performance of any of its obligations under this Agreement for the period and to the extent such failure or delay is caused by civil unrest, threat of or actual acts of terrorism or war, embargoes, governmental actions, acts of God, earthquakes, floods, storms, fires, supplier delay, accidents, explosions, epidemics, quarantine restrictions, or other such contingencies beyond the reasonable control of the applicable party (“Force Majeure”). The party affected shall notify the other party as soon as practicable of any anticipated delay due to Force Majeure.
11.8 No Third Party Beneficiaries. This Agreement has been made and is made solely for the benefit of 10x and Buyer and their respective permitted Subsidiaries, successors and assigns. Except as set forth in Section 6.5 (with respect to Suppliers), nothing in this Agreement is intended to (i) confer any rights or remedies under or by reason of this Agreement on any persons or entity other than the parties to this Agreement and their respective permitted successors and assigns; or (ii) relieve or discharge the obligation or liability of any third persons or entities to any party to this Agreement.
11.9 General. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The English language shall govern the meaning and interpretation of this Agreement. This Agreement (including without limitation all exhibits hereto and all attachments thereto, which are incorporated herein by this reference as though fully set forth in the body of this Agreement) embodies the final and complete understanding of the parties with respect to the subject matter hereof, superseding all prior oral or written communications between them, and neither of the parties shall be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided herein. Each party acknowledges that it has not entered into this Agreement in reliance on any statement or representation not expressly set out herein. No oral explanation or oral information by either party hereto shall alter the meaning or interpretation of this Agreement.