Terms and Conditions of Sale

Acceptance

The Terms and Conditions of Sale listed here constitute the entire agreement between Panomics, Inc. (“Panomics”) and the Customer with respect to the matters covered herein.  Acceptance of the Customer’s order is expressly limited to and conditional upon the incorporation of the terms set forth below.  Orders submitted on Customer’s purchase order or other documents that contain terms or conditions modifying, adding to, or inconsistent with these Terms or Conditions are unacceptable to Panomics, and are hereby rejected to the extent of such inconsistency or modification.  If Customer accepts or uses the Products covered hereby, Customer shall be deemed to consent to accept and consent to these Terms and Conditions of Sale.  If Panomics and Customer have heretofore entered into a formal written contract containing specific terms covering the sale of such products, the Terms and Conditions of such formal written contact shall govern.  If these Terms and Conditions of Sale are not acceptable to the Customer, Customer must so notify Panomics immediately, in writing.

Cancellation/Changes

Orders arising hereunder may be changed or amended only by written agreement signed by both Panomics and Customer.  Customer may NOT cancel this order after it has been accepted by Panomics.

Payment

All sales are in US dollars. All prices are subject to change without notice. Clerical and computer errors are subject to correction.

Delivery

Delivery terms shall be FOB Panomics shipping point, freight prepaid and added to the invoice.  Title and risk of loss shall pass to Customer upon delivery to the carrier.  Panomics reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries.  Delay in delivery of any installment shall not relieve Customer of Customer’s obligations to accept remaining deliveries. 

Technical Assistance

At Customer’s request, Panomics may, at its own discretion, furnish technical assistance and information with respect to Panomics’s products.  It is expressly agreed that Panomics is under no obligation to provide such assistance or information.  Panomics makes no warranties of any kind, express or implied, with respect to technical assistance or information provided by Panomics or Panomics personnel.  Any suggestions by Panomics regarding use, selection, application or suitability of the products shall not be construed as an express warranty unless specifically designated as such in writing signed by an officer or other authorized representative of Panomics.

Customer’s Permitted Uses and Restrictions on Such Use

All products delivered hereunder are solely for non-commercial, internal research and development use.  Customer is specifically not authorized to and is forbidden from: (i) reselling, transferring or distributing any Product either as a stand alone product or as a component of another product, (ii) using any Product in a clinical trial or as a diagnostic, clinical or therapeutic product, unless explicitly marked as authorized for such use.

Panomics Sales of By Request Products

Panomics may, at any time, market and make generally available for commercial sale to its other Customers and Collaborators, through its normal distribution channels, the Products manufactured at a Customer’s request (“By Request”).  By Request products include the development of controllable siRNAs or gene specific probe sets for use in QuantiGene or QuantiGene Plex Reagent Systems.

Taxes

Any tax, duty, or other fee of any nature whatsoever imposed by a government authority, on or measured by the transaction between Panomics and Customer shall be paid by Customer in addition to the prices quoted or invoiced.  In the event Panomics is required to pay any such charges, Customer shall reimburse Panomics.  In lieu of such payment, Customer shall provide Panomics at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, duty, or fee.

Required Consents for By Request Products

Customer is responsible for obtaining, and hereby represents and warrants to Panomics that it will have obtained as of the execution date of these Terms and Conditions, all required consents necessary for Customer to provide the target genes and/or siRNA sequences and related information to Panomics as contemplated hereunder with respect to By Request Products. A required consent means any rights, licenses, consents or approvals required to permit Customer the right to access, use and transfer the target genes and/or siRNA sequences or related information, without infringing the ownership or license rights (including patent and copyright) of any third party.  Panomics will be relieved of the performance of any obligations hereunder that may be affected by Customer’s failure to promptly provide any required consents to Panomics.

Patent Disclaimer/Indemnity

Panomics does not warrant that the use or sale of the products delivered hereunder will not infringe the claims of any United States or other patents covering the use thereof in combination with other products or in the operation of any process.  Additionally, Customer is required to indemnify Panomics from any legal action that may result from the synthesis of an ordered “By Request” product, or from Customer’s use of a product manufactured by Panomics under this agreement.

Limited Warranty and Limitation of Liability

Panomics warrants that its Products shall conform substantially to the description of such goods as provided in the catalogs and literature accompanying the Products until their respective expiration dates or, if no expiration date is provided, for six months from the date of Customer’s receipt of Products. THIS WARRANTY IS EXCLUSIVE, AND NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Immediately upon Customer’s receipt of any Product shipped hereunder, Customer shall inspect the same and shall notify Panomics in writing of any claims for shortages, defects, or damages and shall hold the Product for Panomics’s instructions regarding disposition.  If Customer fails to so notify Panomics within 15 days after Customer has received the Product, such Product shall conclusively be deemed to conform to the Terms and Conditions hereof and to have been irrevocably accepted by the Customer.  Panomics’s warranty shall not be effective if Panomics determines, in its sole discretion, that Customer has altered or misused the Product or has failed to use or store it in accordance with instructions furnished by Panomics. Panomics’s sole and exclusive liability and Customer’s exclusive remedy with respect to goods proved to Panomics’s satisfaction (applying analytical methods reasonably selected by Panomics) to be defective or nonconforming shall be the replacement of such goods free of charge, upon the return of such goods in accordance with Panomics’s instructions, although at Panomics’s discretion,  it may provide a credit or refund. IN NO EVENT SHALL PANOMICS BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF PANOMICS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. If Panomics manufactures By Request goods for Customer based on instructions, specifications, or other directions provided by Customer, Panomics shall not be liable for the lack of sufficiency, fitness for purpose or quality of the goods to the extent attributable to such instructions, specifications, or other directions. Panomics shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond Panomics’s reasonable control.

Miscellaneous

Panomics’s failure to strictly enforce any Term or Condition of this order or to exercise any right arising hereunder shall not constitute a waiver of Panomics’s right to strictly enforce such Terms and Conditions or exercise such right thereafter.  All right and remedies under this order are cumulative and are in addition to any other rights and remedies Panomics may have at law or in equity.

Force Majeure

Panomics shall not be liable for delay or failure to perform any of its obligations hereunder if performance was rendered impracticable by the occurrence of any condition beyond Panomics’s reasonable control.

Governing Law

This agreement shall be governed by, construed under and interpreted in accordance with the laws of the state of California.  In the event that any provision contained herein shall be determined to be unenforceable, all other provisions shall remain in full force and effect and the affected provision shall be construed so as to be enforceable to the maximum extent permissible by applicable law.