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Terms and Conditions

The following sets forth the terms and conditions pertaining to the sale of proteins and other reagents developed, manufactured and sold by Protein Foundry, LLC (the “Products”); and the use of the Products by the purchaser (the “Customer”).

Intellectual Property Rights, Use Restrictions, and Limited License.

A. Ownership. The Products are covered by one or more patents or pending patent applications of the Company and/or its licensors; copyright trade secret and other laws may also protect the products. Customer has a limited license to use the Products under the patents, subject to the use restrictions and third party licenses in subsections B and C below. Neither this Agreement nor the purchase of the Products by Customer shall be construed as a transfer of any title or the grant of any other rights in and to the intellectual property embodied in the Products.

B. Restrictions on Use. The Products and/or components of the Products are licensed for life science research only and may not be used for any other purpose. The Products must be used in accordance with the Product User’s Guide. No other right, express or implied, is conveyed by the sale of the Products. In particular, the sale or purchase of the Products implies no right to make, have made, offer to sell, or sell the Products. The license granted herein does not imply or convey the right to use the Products in combination with any other product(s) whose manufacture, sale, or use is covered by any patent, unless otherwise specified to, and/or agreed upon by the company. Customer may not transfer the Products to any third party without prior written consent. Customer shall not reverse engineer, modify or otherwise alter the Products in any way. Company shall not use the Products or any components thereof in humans, in clinical trials or for diagnostic purposes involving human subjects, for any therapeutic use or investigational use, nor for any purpose in contravention of any applicable law, regulation, ordinance, institutional review board approved protocol, or privacy office approval.

C. Third Party Licenses. The Products may contain products sold under licensing arrangements between the Company and a third party. The purchase of the Product conveys to the buyer the limited, non-transferable right under U.S. Patent to use the Product in internal research conducted by the buyer (whether the buyer is an academic or for profit entity). The buyer may not sell or otherwise transfer (a) the Product, (b) its components, or (c) materials made by the employment of the Product or its components to a third party or otherwise use this Product or its components or materials made by the employment of this Product or its components for Commercial Purposes, unless otherwise specified to, and/or agreed upon by the company. “Commercial Purposes” means any use of the Product for purposes other than internal research, including but not limited to: (i) manufacturing quality assurance/quality control; (ii) providing a service, information, or data for a fee or other consideration if such service, information or data uses or is generated using detection or selection with a third party licensed product; (iii) therapeutic, diagnostic or prophylactic purposes; or (iv) resale of the Product or its components, whether or not the Product or its components are resold for use in research.

Limited Warranty.

A. The Company warrants that the Products conform to the specifications contained in the Product Specifications Sheet or User’s Guide. Customer’s sole and exclusive remedy (and the Company’s sole and exclusive liability) under this limited warranty shall be replacement of the defective Products.

B. Under no circumstances shall the Company’s liability to Customer exceed the amount paid by Customer for the Products to the Company. The Company will bear all reasonable shipping costs if the Products are replaced pursuant to this warranty. This warranty does not apply to any defect or nonconformance caused by (i) Customer’s use of the Products for a purpose or in a manner other than that for which they were designed or that is permitted, (ii) the failure by Customer to follow the Product User’s Guide for use, storage, and handling of the Products; or (iii) as a result of any other abuse, misuse or neglect of the Products by Customer. This warranty applies only to Customer and not to third parties. This warranty is not assignable.

C. THE COMPANY DISCLAIMS ALL OTHER REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND DATA, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. CUSTOMER’S SOLE REMEDY FOR BREACH OF WARRANTY IS STATED ABOVE.

D. Any action by Customer for the Company’s breach of this limited warranty must be commenced within 12 months following the date of such breach. Notwithstanding such 12-month period, within 3 days of reanimation of the Product but prior to the expiration date of the Product as listed on its label, Customer must notify the Company in writing of any nonconformity of the Products, describing the nonconformity in detail and providing the results of the viability assays; otherwise all Products shall be conclusively deemed accepted without qualification. Customer must follow the instructions contained in the Product User’s Guide to request replacement Product based on breach of the limited warranty.

E. Customer acknowledges that the Products are subject to U.S. export control laws and regulations. Customer represents and warrants that it is the ultimate end-user of the Products, and further represents and warrants that it will not knowingly sell, export, re-export, transfer, divert, or otherwise dispose of the Products (including other materials or goods derived from or based on the Products) to any other destination, entity, or person without the appropriate export license, or other prior authorization of any relevant U.S. federal government agency and the Company. Customer represents and warrants that it will not use the Products for any purpose prohibited by the laws or regulations of the United States and/or other government authorities to which Customer is subject without the prior authorization from any government entity whose laws and regulations may apply to the use of the Products.

Limitations of Liability.

THE COMPANY SHALL HAVE NO LIABILITY FOR INCIDENTAL, COMPENSATORY, PUNITIVE, CONSEQUENTIAL, INDIRECT, SPECIAL OR OTHER SIMILAR DAMAGES, HOWEVER CAUSED AND REGARDLESS OF FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER UNDERSTANDS THAT ANY RISKS OF LOSS HEREUNDER ARE REFLECTED IN THE PRICE OF THE PRODUCTS AND THAT THESE TERMS WOULD HAVE BEEN DIFFERENT IF THERE HAD BEEN A DIFFERENT ALLOCATION OF RISK.

Indemnification.

A. Customer shall indemnify, defend and hold the Company and its employees, directors, officers, members and agents harmless against any claim or liability for damages, losses, judgments, costs, and other expenses (including but not limited to reasonable attorney’s fees and court costs) arising out of or resulting from any third party claims made or proceedings brought against the Company where such liability arises as the result of or in connection with Customer’s use of the Products for any purpose.

B. The Company shall promptly notify Customer in writing of a claim or suit and shall provide reasonable cooperation (at the Customer’s expense). No settlement or compromise shall be binding on the Customer without its prior written consent, which consent shall not be unreasonably withheld.