ION Torrent Systems, Inc. Terms and Conditions of Sale

 

1. General. These Terms and Conditions of Sale ("Terms and Conditions") shall govern the sale and license to the purchaser ("Buyer") of chips, assays, reagents, instruments, software, and other products and related services ("Products") from ION Torrent Systems, Inc. ("ION"). These Terms and Conditions shall replace and supersede any current or future purchase orders or similar forms that are not mutually signed by ION and Buyer. Purchase orders, once accepted by ION, are not subject to cancellation or modification by Buyer without ION's written consent.

2. Price. Prices exclude all insurance, freight, taxes, fees, duties, and levies, which shall be payable by Buyer.

3. Delivery. Products will be packed in ION's standard shipping packages and shipped via carrier selected by ION. Delivery dates set forth on a purchase order accepted by ION are subject to change and are predicated on conditions existing at that time. ION 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. (a) For Deliveries Outside Europe: Tender will be FCA shipping point. Title (except for software, in which case ION shall retain title) and risk of loss or damage will pass to Buyer upon delivery of the Products to the carrier. (b) For Deliveries Within Europe and the UK:  Incoterms for shipments to these countries will be CIP (carriage and Insurance paid) to the nearest port of international entry . The Buyer will be the importer for the Products and be responsible for paying VAT or similar taxes within the Buyer's country. Title (except for software, in which case ION shall retain title) and risk of loss or damage will pass to Buyer upon delivery of the Products to the buyers carrier/broker in country.

4. Rejection. Any claims for damaged, missing, or defective Product must be reported in writing to ION by Buyer within five (5) days from the date of receipt of Product. For any valid claim made, ION shall repair or replace the Product. The foregoing shall be Buyer's sole and exclusive remedy for damaged or missing Products, and, except for express warranty rights, for defective Products.

5. Payment. Buyer will be invoiced at the time of shipment of each Product. Buyer shall make payment in full within thirty (30) days of the date of the invoice. Late payments may incur a charge of interest at the rate of one and one-half percent (1.5%) per month, or the maximum allowed by law, whichever is less. Further shipment of Products may be declined without advance notice if Buyer fails to make any payment when due, or if the financial condition of Buyer becomes unsatisfactory to ION. ION may elect to retain a security interest in all Products sold to Buyer to secure all of Buyer's obligations to ION under these Terms and Conditions, and Buyer will execute any documents necessary to create and perfect this interest. Sales by ION shipped outside the U.S. may require payment on an irrevocable letter of credit reasonably acceptable to ION.

6. Limited Warranty.

For new instruments, ION warrants to and only to Buyer for twelve (12) months from the date of shipping, that the software and instruments are free from defects in material and workmanship and conform to ION's published specifications in all material respects.

For chips or reagents reasonably determined by ION to be defective, independent of user error, shall be replaced by ION on a 1:1, like-kind basis at no cost to Buyer, provided that such defective chips or reagents were used by Buyer prior to their expiration date, or if there is no expiration date, the Products were used within six (6) months of receipt, and the defect was promptly reported with appropriate detail to ION's technical support.

Technical assistance: ION is under no obligation to provide technical assistance or information about ION products. Any suggestions by ION regarding use, selection, application, or suitability of the Products shall not be construed as a warranty.

Except as provided above, any warranty provided herein does not apply to other consumables, or to any defect caused by unsuitable storage, use, or operating environment, use of non-recommended reagents, spills, or the use of the Products for a purpose or in a manner other than that for which they were designed, modifications or repairs done by Buyer or a third party, or any other abuse, misuse, or neglect of the Products. This warranty applies only to Buyer, and not third parties. The foregoing is not intended to limit any warranty extended to Buyer by a third-party original manufacturer of a Product or component thereof, provided that any remedy received by Buyer under any such warranty shall relieve ION of its obligations with respect to the subject of such remedy. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ION AND ITS SUPPLIERS DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.

7. Limited License. Subject to these Terms and Conditions, and to the terms and conditions of any license provided by ION that is specific to a particular Product (which shall govern with respect to such Product in the event of conflict with these Terms and Conditions), ION hereby grants to Buyer a non-exclusive, non-transferable, non-sublicensable license to use the Product(s) provided to Buyer by ION only in accordance with the manuals and written instructions provided by ION. Buyer understands and agrees that except as expressly set forth in these Terms and Conditions (or in the ION-provided license specific to a particular Product), no right or license to any patent or other intellectual property owned or licensable by ION is conveyed or implied by these Terms and Conditions or any Product. In particular, no right or license is conveyed or implied to use any Product provided hereunder in combination with a product not provided, licensed, or specifically recommended by ION for such use.

8. Research Uses Only. Products of ION are for research use only and do not have the approval or clearance of the U.S. Food and Drug Administration ("FDA") or other regulatory approval, clearance or registration for in vitro diagnostic ("IVD") use.  Buyer shall not use the Products for any therapeutic or diagnostic purposes.  All Products shall be used by qualified professionals in accordance with any user manual, instruction or other documentation provided by ION in connection with the Products. The burden for safe use and handling of all Products sold by ION to Buyer is entirely the responsibility of Buyer.

10. Use Restrictions. Buyer is not licensed to, and agrees not to: (a) resell any ION-supplied chips or reagents, (b) transfer, or distribute any ION-supplied chips or reagents, directly or indirectly, to any third party for any purpose or use, except as otherwise approved by ION in writing; (c) use or allow anyone to use any ION-supplied chips or reagents more than once, or dilute any ION-supplied reagent; (d) decompile, deconstruct, disassemble or make other attempts to reverse engineer ION chips, instruments, or kits; or (e) provide a fee-for-service or other non-collaborative sample processing service to third parties using any ION-supplied chips or reagents (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).  Unless otherwise agreed by ION in writing, Buyer agrees not to use any Product provided hereunder in combination with any chips, kits, reagents, instruments, software and/or other products which are not provided by ION or from a source authorized by ION.  Buyer acknowledges that failure to comply with any restriction of use set forth herein will (i)constitute a breach of these Terms and Conditions, (ii) invalidate any warranty provided herein and any applicable service agreement, and (iii) constitute a violation or infringement of ION's and/or a third party's intellectual property rights.

11. Product Improvements. Except to the extent prohibited by applicable laws, Buyer hereby grants to ION 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 ION. For purposes of this Section, a "Product Improvement" shall mean any invention conceived or reduced to practice using a Product that relates to (a) design, manufacturing, layout, or packaging of any Product; (b) manual or automated assay techniques that may be used in connection with chips or similar products (including techniques related to nucleic acid extraction, amplification, labeling, dilution, and other processes); or (c) software analysis techniques relating to the extraction or storage of data generated using chips. "Product Improvements" shall not include data generated using Products or discoveries derived therefrom (except as expressly set forth in (a) - (c) above).

12. Indemnification. ION agrees to indemnify Buyer from and against any final judgment or settlement amounts as a result of any legal action or proceeding brought by a third party against Buyer to the extent that such action is based on a claim that the use of a Product in a manner expressly authorized by any applicable label or other written license furnished by or otherwise in writing by ION infringes any Unites States, European, or Japanese patents of such third party.  If any Product or any component thereof is subject to a legal proceeding claiming that the Product infringes a third party's intellectual property right, or in ION's opinion is (are) likely to become subject of such a claim, ION may, at its option either: (a) procure for Buyer the right to continue using the Product; or (b) replace or modify the Product so that it becomes non-infringing; or (c) require Buyer to return the Product and upon return, refund to Buyer the price actually paid by Buyer for the Product, less a reasonable amount for use, damage or obsolescence; or (d) substitute for the infringing Product with suitable, non-infringing products.  Notwithstanding the foregoing, ION shall have no liability or obligation hereunder for any claim arising out of: (i) the use of Product in combination with any product, equipment or material not provided by ION, (ii) any modification to Product made by Buyer or a third party, or (iii) any modification to Product made by ION at the request of the Buyer.  THE FOREGOING STATES THE ENTIRE LIABILITY OF ION, AND THE EXCLUSIVE REMEDY OF BUYER, FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHT BY PRODUCT OR ANY PART THEREOF OR USE THEREOF.

Buyer shall indemnify, defend and hold harmless ION, its officers, directors, employees and agents from and against any losses, liabilities, demands, damages, costs, and expenses, including without limitation reasonable legal fees and expenses, in connection with any third party claims, suits, or proceedings arising out of the use of Products by Buyer, except to the extent such claim is caused by the gross negligence or willful misconduct of ION or otherwise covered by ION's indemnification obligation above.  The party providing indemnification under this Section 12 for a claim shall have the sole control with respect to the defense and settlement thereof at its expense. 

13. Liability Limitation. ION SHALL HAVE NO LIABILITY FOR ANY LOSS OF USE OR PROFITS, PROCUREMENT OF SUBSTITUTE GOODS OR ANY OTHER INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OF ANY KIND, WHETHER SUCH CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.ION'S TOTAL LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY BUYER TO ION HEREUNDER.

14. Export Controls. Buyer agrees that it will not directly or indirectly export Products in violation of any United States export laws or regulations.

15. Unforeseen Events. ION shall not be liable for delay or failure in performance of any obligations hereunder if performance is rendered impracticable by the occurrence of any condition beyond the reasonable control of ION. In the event of any such delay or failure in performance, ION shall have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances.

16. Miscellaneous. These Terms and Conditions constitute the entire agreement between Buyer and ION with respect to the subject matter hereof and is the final, complete, and exclusive statement of the terms of the agreement, superseding all prior written and oral agreements, understandings, and undertakings with respect to the subject matter hereof. The waiver of any provision or any breach thereof shall not affect any other provision of these Terms and Conditions. These Terms and Conditions shall be governed by and construed according to the laws of California, without regard to conflict of law provisions. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions. In the event that any provision of this Agreement or portion thereof is found to be illegal or unenforceable, the Agreement shall be construed without such unenforceable provision or portion.