Terms and Conditions of Sale

Effective Date – February 25, 2021

The following outlines the terms and conditions upon which Oxford Biodynamics PLC and its subsidiaries (“OBD”) accepts orders for and sells OBD goods and services. By issuing a purchase order, or accepting delivery of any OBD goods or services, the Purchaser (as defined below) is deemed to have accepted these terms.

1. APPLICABILITY

1.1 These terms and conditions of sale (these “Terms”), along with any Sales Documents (as defined below) issued by OBD together with any addenda to any of the foregoing provided by OBD, any other terms and conditions expressly agreed to in writing by an authorized OBD representative expressly referencing these Terms, and the purchaser’s (“Purchaser”) statement on its purchase order (if accepted by OBD) of the name and identity of the Product (as defined below)  and/or related services purchased, quantity, bill to and ship to address, shall govern the sale and license of any Product by OBD to the Purchaser, and shall constitute the complete, exclusive and entire agreement (“Agreement”) between OBD and Purchaser with respect to purchase of the Product and any related services from OBD.  “Product” means any good, kit, reagent, service, software or subscription (SaaS) offered for sale. “Sales Documents” means any document, print or digital, provided by OBD in the purchase and sale process, including but not limited to quotations (“Quotations”), invoices, documents confirming, acknowledging or accepting an order (“Order Confirmation”) and shipping documents.

1.2 These Terms prevail over any Purchaser’s terms regardless of when such terms are provided. Fulfillment of Purchaser’s order does not constitute acceptance of any of Purchaser’s terms and does not serve to modify or amend these Terms.

1.3 The Agreement between OBD and Purchaser is created when OBD confirms, acknowledges or begins to fulfill Purchaser’s order. Purchaser may not modify or cancel the Agreement at any time without OBD’s express written consent. Modification or cancellation may require payment by Purchaser of certain costs incurred by OBD.

2. Delivery and Performance

2.1 Delivery dates provided by OBD are non-binding and time of delivery is not of the essence. OBD shall not be liable for any delays in transit.

2.2 Unless otherwise agreed in writing, Product shall be shipped using OBD’s standard packaging and shipping methods, for which fees may apply. Unless otherwise agreed upon in writing by the parties or set forth on an Order Confirmation, delivery of Product shall be made DAP delivery location (INCOTERMS® 2010). With respect to Product (excluding any software), title and risk of loss passes to Purchaser upon delivery to OBD’s shipping point.

2.3 OBD may, in its sole discretion, make partial shipments of Product and invoice immediately therefor. Purchaser shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Purchaser’s order.

2.4 OBD reserves the right to allocate supply of the Products, to the extent such allocation is deemed necessary by OBD, among any or all customers (including OBD’s affiliates and distributors) at its sole discretion, without liability for any failure of performance which may result therefrom.

3. Permitted Use of Product

3.1 Purchaser shall (a) comply with all instructions, limitations, specifications, use statements or conditions of use made available by OBD, including but not limited to product data, product information, safety data sheets, limited use information and labeling (“Use Documents”), and (b) properly test, use, manufacture and market Product and/or materials produced with Product.  Purchaser may not resell any Product to any other person or entity or permit use of the Product by any person outside of its organization.

3.2 Purchaser acknowledges that the Product does not have United States Food and Drug Administration (“FDA”), UK Medicines and Healthcare Products Regulatory Agency (“MHRA”) or equivalent non-U.S. or UK regulatory agency approval (“Approval”). Accordingly, Purchaser 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 the Use Documents. Unless otherwise expressly stated by OBD in writing, no claim or representation is made or intended by OBD (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, the MHRA 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. Purchaser agrees that if it elects to use a Product for a purpose that would subject Purchaser, its customers or any Product to the application of Regulatory Laws or any other law, regulation or governmental policy, Purchaser shall be solely responsible for obtaining any required Approvals and otherwise ensuring that the importation of the Products into Purchaser’s jurisdiction and Purchaser’s users use of Products complies with all such laws, regulations and policies. The burden of proof for safe use and handling of Products sold to Purchaser is entirely the responsibility of Purchaser. For clarity, this Section 3.2 shall not be construed as granting, by implication, estoppel, reliance or otherwise, any right, license or authorization to Purchaser.

3.3 Purchaser shall not (i) rent, sell, assign, lease, share, sublicense or otherwise transfer the Product, or any portion thereof; (ii) derive or attempt to derive the microarray designs or composition of all or any portion of the Product by reverse engineering, disassembly, decompilation, or any other means including removing (stripping) the oligonucleotides from any in situ microarray; (iii) decompile and reconstruct nucleotide chains, derive clones or make any other type or form of derivative, copy, translate, port, modify or make derivative works of the Product; (iv) use OBD-provided probes, probe sets, microarray designs or layouts to develop any probes, probe sets, microarrays or microarray designs, (v) file patent applications based on the Product, without the express written consent of OBD; (vi) use in situ microarray(s) or any part thereof included in the Product as a template in any DNA or RNA in vitro or in vivo synthesis or assembly reaction including but not limited to a linear or exponential amplification reaction or gene assembly; or (vii) use in situ microarray(s) in more than one hybridization reaction.  Nothing herein will be construed to restrict Purchaser’s rights to use any results of or discoveries made in the performance of research conducted using the Product.

3.4 Purchaser acknowledges that the Product is not tested for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use. Purchaser is solely responsible for: (a) obtaining any necessary intellectual property permission related to the use of Product, (b) compliance with all applicable regulatory requirements and generally accepted industry standards, and (c) conducting all necessary testing and verification, including for fitness for the intended purpose.

3.5 OBD may, at its sole discretion, upon giving reasonable prior written notice to Purchaser of its intention to do so, engage OBD employees or an independent auditor reasonably acceptable to Purchaser, for the purpose of verifying the fulfillment of Purchaser’s obligations under this Agreement. Purchaser will make reasonable efforts to provide OBD or its designated auditor with prompt access, through mutually agreed upon means, to records relating to the use of Products to the extent reasonably required to verify Purchaser’s compliance with the Agreement.

4. Inspection and Rejection of Nonconforming Product

4.1 Purchaser shall inspect Product no later than ten (10) days after receipt (“Inspection Period”). Purchaser will be deemed to have accepted the received Product unless it notifies OBD in writing of any Nonconforming Product during the Inspection Period, furnishing evidence or other documentation if required. “Nonconforming Product” means damaged or missing Product.

4.2 If notified in accordance with Section 4.1, OBD shall, in its sole discretion, (a) replace such Nonconforming Product with conforming Product, or (b) credit the price for such Nonconforming Product or, in the event of partial delivery, adjust the invoice to reflect the actual quantity delivered. Purchaser acknowledges and agrees that the remedies set forth herein are the exclusive remedies for delivery of Nonconforming Product.

4.3 Purchaser shall not return Product without OBD’s prior written consent. OBD reserves the right to inspect Product at Purchaser’s site and/or require disposal instead of return. All returns must be in compliance with OBD’s instructions. Title to returned Product shall transfer to OBD upon acceptance at the facility designated by OBD. Any returned Product must be in its original packaging with the original label affixed, and unaltered in form and content.

5. Price and Payment

5.1 Prices. The price for any Product and/or services shall be the applicable price stated in OBD’s written Quotation to Purchaser, or, if no Quotation is issued, in OBD’s then-current price list applicable to Purchaser’s jurisdiction, provided that OBD’s Quotations are only valid for thirty (30) days from the quotation date unless otherwise stated in the Quotation. If there is a price increase before Product are shipped, then the Agreement shall be construed as if the increased prices were originally inserted therein, and Purchaser shall be invoiced by OBD in accordance therewith.

5.2 Unless otherwise expressly indicated in the Quotation, the price for the Product does not include any U.S., U.K. or non-U.S. or U.K. federal, national, state, local, sales, VAT, GST or other taxes, duties, or other governmental assessments (“Taxes”) that may be applicable to the Product, any related services or the sale thereof, or freight and insurance costs; Purchaser will be responsible for any such charges, which may be specified on OBD’s invoice(s). Unless otherwise expressly indicated in the Quotation, Product will be shipped “Freight Prepaid and Added” (i.e., charged back to Purchaser on OBD’s invoice). All Taxes shall be paid or reimbursed by Purchaser (other than taxes on OBD’s net income).  Purchaser shall be solely responsible for any withholding taxes and if withholding taxes apply, Purchaser shall gross up the amount payable to ensure post-withholding remittance to OBD at the amounts quoted and invoiced by OBD.

5.3 Purchaser shall pay all invoiced amounts, in the currency invoiced, within thirty (30) days from date of invoice to the specified bank account or as otherwise instructed.

5.4 Purchaser shall pay interest on all late payments at the rate of one percent (1.0%) per month (or the maximum allowed by applicable law, if less). Purchaser shall reimburse OBD for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law or in equity, OBD may, without notice to Purchaser, delay or postpone delivery of Product and/or performance of Services and may, at its option, change the terms of payment with respect to any undelivered Product and/or unperformed Services.

5.5 Purchaser shall pay all of OBD’s costs and expenses (including reasonable attorneys’ fees) to enforce and preserve OBD’s rights under this section. If Purchaser fails to make any payment when due or if OBD deems Purchaser to be or to have become un-creditworthy, then, without prejudice to OBD’s rights, OBD may, at its option, cancel and/or suspend future deliveries, and/or require prepayment, letter of credit, or other payment method(s) in OBD’s discretion. OBD may elect to retain title to Product, until OBD receives payment in full, and where title retention is not fully valid or enforceable, OBD may elect to retain a security interest in Products sold to Purchaser to secure Purchaser’s payment obligations to OBD, and Purchaser will execute any documents necessary to create and perfect this interest.

5.6 Purchaser shall not withhold payment of any amounts due and payable hereunder by reason of any set-off of any claim or dispute with OBD.

6. Limited Warranties

6.1 OBD warrants to Purchaser that Product will conform to OBD’s published specifications for sixty (60) days from the date of shipment of Product (“Warranty Period”).

6.2  Any claim that OBD has breached the warranty in Section 6.1 above must be made in writing to OBD prior to expiration of the Warranty Period.

6.3 The limited warranty set forth in Section 6.1 above does not apply unless: (a) Purchaser gives written notice of the defect(s) to OBD immediately upon discovery; (b) if applicable, OBD is given reasonable opportunity to examine the relevant Product; and (c) the defect(s) are verified by OBD.

6.4 The limited warranty set forth in Section 6.1 does not apply if: (a) a defect arises as a result of a breach of the obligations in Section 3; (b) any unauthorized installation, repairs, adjustments, modifications, upgrades, maintenance or other servicing of Product occurs; (c) a defect arises as a result of normal wear and tear or lack of proper maintenance; (d) Product are used beyond the shelf life or expiration date as set forth in the applicable Use Documents; (e) non-compliance with Use Documents; (f) any improper use, misuse, theft, water flow-back, negligence or wrongful act by Purchaser, its contractors or agents; (g) accidents or shipping related damage; (h) electrical failure; or (i) vandalism, explosion, flood or fire, weather or environmental conditions.

6.5 Subject to the conditions set forth above in this Section, including the time limitations set forth in Section 6.1, OBD shall, in its sole discretion with respect to Product that does not conform to the warranty provided under Section 6.1, either repair or replace such Product (or the defective part thereof) and if OBD is unable to repair or replace, OBD shall credit the price of such Product or the part thereof. The remedies set forth herein shall be Purchaser’s sole and exclusive remedy and OBD’s entire liability for any breach of its warranty.

6.6  THE EXPRESS WARRANTY AND THE REMEDIES SET FORTH IN THIS SECTION 6 ARE IN LIEU OF, AND OBD HEREBY DISCLAIMS, TO THE EXTENT PERMITTED BY LAW, 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 (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. Without limiting the generality of OBD’s general rejection of conflicting terms presented by Purchaser, and for clarification purposes only, Purchaser agrees that any different or additional warranty terms stated in any terms, purchase orders or other documentation (if applicable) shall be void and of no effect.  Any suggestions by OBD regarding use, selection, application or suitability of Product shall not be construed as an express or implied warranty.

7. Limitation of Liability and Indemnification

7.1 Purchaser assumes all risk and liability for loss, damage or injury to persons or to property of Purchaser or others arising out of the transport, storage or use of Product, including infringement of any third-party intellectual property rights resulting from Purchaser’s specific use of Product. If OBD’s performance of its obligations is prevented or delayed by any act or omission of Purchaser, its agents or subcontractors, OBD shall not be deemed in breach of its obligations or otherwise liable for any costs, charges, or losses sustained or incurred by Purchaser or others, in each case, to the extent arising directly or indirectly from such prevention or delay.

7.2 Purchaser shall indemnify and hold OBD, its affiliates, and their respective agents, employees, representatives and suppliers, harmless from and against all claims, damages, losses, costs and expenses (including reasonable attorney’s fees) (a) arising from or in connection with the transport, storage, sale or use of the Product, (b) resulting from Purchaser’s breach of the Agreement, including use outside of the permitted use under Section 3.2, and/or (c) arising from the negligence, recklessness or misconduct of Purchaser, its affiliates, or their respective agents, employees, partners or subcontractors.

7.3  OBD SHALL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR SPECIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, LOSS OF REVENUE OR PROFITS, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS, OR ANY LIABILITY OF PURCHASER TO A THIRD PARTY. THE TOTAL LIABILITY OF OBD HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT INVOLVED. Without limiting the provisions regarding and limiting warranty claims hereunder, all claims must be brought within one (1) year of delivery of Product or Software or performance of Services, regardless of their nature.

8. Compliance with Laws

Purchaser shall comply with all applicable laws, regulations and ordinances in connection with the Product, including but not limited to those pertaining to pharmaceutical, cosmetic and food preparations, and bribery and corruption (e.g. Foreign Corrupt Practices Act and UK Bribery Act). Purchaser shall maintain in effect all required licenses, permissions, authorizations, consents, and permits in connection with the Product. Purchaser shall comply with all applicable export and import laws in its purchase of Product hereunder and assumes all responsibility for all shipments governed by such laws. OBD may terminate the Agreement or suspend delivery if any governmental authority imposes antidumping or countervailing duties or any other penalties on Product.

9. Confidential Information

All non-public, confidential or proprietary information, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, pricing, discounts, or rebates, disclosed by OBD to Purchaser, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” is confidential information of OBD and may not be disclosed or used by Purchaser for its own use (other than as necessary to use the Product in accordance with these Terms), including but not limited to filing any patent applications disclosing or based on such confidential information, unless authorized in advance in writing by OBD. Upon request, Purchaser shall promptly return or destroy all confidential information received from OBD. This section does not apply to information that Purchaser can demonstrate is: (a) in the public domain; (b) known to Purchaser at the time of disclosure free of any duty of confidentiality; or (c) lawfully obtained by Purchaser on a non-confidential basis from a third party.

10. Termination

In addition to any other remedies provided hereunder or available at law or in equity, OBD may immediately terminate the Agreement upon written notice if Purchaser: (a) fails to pay any amount when due; (b) has violated any provision of this Agreement; (c) ceases to do business; (c) becomes the subject of any bankruptcy, insolvency, or similar proceeding, becomes insolvent, makes an assignment for the benefit of creditors, is unable to pay its debts when due, a receiver is appointed for a substantial part of Purchaser’s assets, or an action is taken toward the liquidation or winding up of Purchaser ‘s business; or (d) Purchaser suffers a materially adverse change in its financial condition or operations.

11. 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, actions of governments, intergovernmental organizations or political unions, acts of God, earthquakes, floods, storms, fires, supplier delay, accidents, explosions, epidemics, pandemics, 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.

12. Miscellaneous

12.1 No Waiver. No waiver by OBD of any provisions of this Agreement is effective unless explicitly set forth in writing. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof.

12.2 Assignment. Purchaser shall not assign any of its rights or delegate any of its obligations under this Agreement without OBD’s prior written consent. Any purported assignment or delegation in violation hereof is null and void, ab initio. No assignment or delegation relieves Purchaser of any of its obligations hereunder.

12.3 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

12.4 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature.

12.5 Publicity and Use of Name. Purchaser shall not, without the prior written consent of OBD, (a) refer to OBD, its affiliates, Product or Services in any marketing, promotion or other publicity material, whether written or in electronic form, or (b) use proprietary brand names, trademarks, trade names, logos and other intellectual property owned by OBD or one of its affiliates.

12.6 Governing Law and Venue. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of England and Wales without giving effect to any choice or conflict of law provision or rule, excluding the United Nations Convention on Contracts for the International Sale of Goods. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the High Court of Justice in England and Wales courts located in London, and each party irrevocably submits to the exclusive jurisdiction of such court in any such suit, action, or proceeding.

12.7 Notices. Except if otherwise agreed upon by the parties, any notices required hereunder shall be made in writing and sent by courier service with tracking or registered or certified mail to the other party at its registered office or principal place of business or such other address as indicated by the receiving party.

12.8 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

12.9 Survival. Provisions hereof which by their nature should apply beyond their terms will remain in force after any termination of this Agreement including, but not limited to, the following provisions: Sections 3, 6, 7, 9 and 12.

12.10 Amendment and Modification. Except as otherwise set forth herein, this Agreement may only be amended or modified in writing and signed by an authorized representative of each party.

12.11 Data Protection. OBD will request, process and use personal data (e.g. contact name and business addresses) from Purchaser to fulfill its obligations under the Agreement and for the continuing relationship management with Purchaser.