Terms and conditions of sale

TAKARA BIO USA, INC. GENERAL TERMS & CONDITIONS OF SALE

1.  General Provisions. These Terms and Conditions of Sale ("Terms") will govern all purchases of Products and Instrument Services as defined below from Takara Bio USA, Inc. ("TBUSA") by you, the person, company, or legal entity ("Customer"). TBUSA's offer to sell Products and Instrument Services to Customer is conditioned upon Customer's acceptance of these Terms.

2.  Agreement. These Terms, TBUSA's quotation, any Service Plan and any Customer Specifications as defined below constitute the entire agreement between TBUSA and Customer regarding the sale of Products and Instrument Services ("Agreement"). The Agreement is created when TBUSA accepts Customer's order, either by sending Customer a written confirmation or initiating an action to provide the Products or Instrument Services. All prior agreements, understandings or representations related to such order, whether oral or in writing, including Customer's terms and conditions in any purchase order, are hereby rejected by TBUSA. In the event of a conflict between any terms and conditions contained in any purchase order, confirmation or other writing for the purchase of Products and Instrument Services and these Terms, these Terms will prevail and govern. If one or more of these Terms are held invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability will not affect the remaining Terms.

3.  Definitions. "Product(s)" mean reagents, consumables, instruments, including the software products and parts contained therein, Custom Products and any other goods, parts or products purchased under these Terms. "Custom Product(s)" mean a catalog Product modified specifically per Customer's instructions, specifications, or statement of work mutually agreed to by the parties in writing ("Customer Specifications") such as custom packaging, quantity, reformulation or other customization of an existing catalog Product. "Instrument Service(s)" mean any of the following: (1) the initial installation and training included with the purchase of an instrument ("Initial Services"); (2) services provided under warranty that are included with the purchase of the instrument; (3) services offered under a service plan, including preventive maintenance services ("Service Plan"); or (4) any other services such as additional training, instrument relocation, other maintenance and repair services, technical and software support services, and any other instrument related services.

4.  Orders.
4.1 Order Placement. Customer may place an order for Products and Instrument Services by contacting TBUSA's Customer Service Department at 1-800-662-2566 or by visiting TBUSA's website at www.takarabio.com. Upon placing an order, TBUSA's Customer Service Department will confirm the price, shipping method and charges and delivery schedule for Products and date and time for the performance of Instrument Services. Upon receipt of the order confirmation, Customer shall verify the information and immediately notify TBUSA's Customer Service Department of any inaccuracies.
4.2 Order Changes and Cancellations. Customer may cancel orders for regularly stocked Products and Instrument Services before the order is processed. Orders for Custom Products may not be canceled or changed. TBUSA may decline a Custom Product order or decide not to supply a Custom Product any time after acceptance of the order without incurring any liability for breach of this Agreement if TBUSA determines the manufacture or supply of the Custom Product is impractical for any reason in which case, TBUSA will notify Customer in writing and Customer will not be responsible for any expenses incurred by TBUSA thereof.

5.  Price and Other Charges. The price of Products (other than Custom Products) and Instrument Services shall be TBUSA's then-current published catalog prices at the time of order unless otherwise agreed to in writing by TBUSA. TBUSA reserves the right to change the Product's published catalog price at any time without notice. The price for Custom Products shall be as specified in the quotation or otherwise agreed to in writing by TBUSA. TBUSA may correct any misstated price in the order confirmation in which event, Customer may cancel the order or return the delivered Product in accordance with Section 7. In addition to the price, Customer is responsible for any applicable shipping and handling charges, which will be added to the invoice. Customer is also responsible for any taxes, duties, levies and other government fees that may apply to the order. Such taxes, duties, levies or fees will be added to the invoice unless Customer claims an exemption and provides a valid signed certificate of exemption or letter of exemption. In countries where TBUSA is not permitted to add such charges to the invoice, Customer is responsible for remitting payment of such amounts to the appropriate authority.

6.  Payment. An invoice for Products will be sent with the shipment of Product and shall be due 30 days from shipment. An invoice for Instrument Services will be due 30 days from the date of invoice. TBUSA's failure to provide an invoice shall not relieve Customer's payment obligation. All payments shall be in US Dollars. If Customer places the order with a credit card, the credit card will be charged on the invoice date. TBUSA may charge Customer a late payment fee equal to the lesser of 1.5% or the maximum rate allowable by law per month on any past-due balance without prejudice to other remedies available by law. If Customer's account is referred to collection, Customer shall pay any collection costs including reasonable attorneys' fees.

7.  Product Delivery and Returns.
7.1 Delivery. Products may be shipped in a single shipment or in installments. Shipment in installments will be invoiced separately except that Customer will not be charged additional shipping charges if an order shipped in installments due to a backorder. Products may also be scheduled to ship as a standing order. All Products that are not instruments will be shipped FCA shipping point as defined in Incoterms 2010. TBUSA will not be liable for any delays, loss or damage occurring during shipment. Products that are instruments will be shipped FOB destination as defined in Incoterms 2010. Upon receipt of Product, Customer shall notify TBUSA's Customer Service Department of any shortages or damages within 72 hours of receipt.
7.2 Returns. Products may be returned only upon TBUSA's approval in which case, TBUSA's Customer Service Department will, at its sole discretion, provide a return material authorization number and return instructions, or require destruction of the Product at Customer's site. Products authorized for return must arrive at TBUSA's facilities in a satisfactory condition for resale unless the damage or defect was caused by TBUSA. At TBUSA's request, Customer shall provide a properly completed certificate of decontamination prior to the return. A restocking fee of 25% will be charged on authorized returns that are not due to TBUSA's error. Shipping charges will not be refunded. If Customer is issued a credit for a return and Customer's account is outstanding, Customer may use such credit towards the outstanding balance.

8.  Instrument Services.
8.1 Performance. Instrument Services will be performed at Customer's facility at a mutually agreed time Monday through Friday from 9:00am to 5:00pm local time, excluding holidays. Telephone support hours will be available Monday through Friday from 7:00am to 5:00pm Pacific time, excluding holidays. Instrument Services may be performed either by TBUSA or TBUSA's third party provider in accordance with the Agreement.
8.2 Service Plans. Customer may purchase a Service Plan when purchasing an instrument or anytime thereafter. Instrument Services to be performed pursuant to a Service Plan will be performed in accordance with the description set forth in such Service Plan. The exclusions set forth in Section 9.2 also apply to Service Plans. TBUSA may immediately terminate a Service Plan without notice if the instrument covered under the Service Plan has been moved or transferred to another location without TBUSA's written authorization.
8.3 Parts. In the performance of Instrument Services, TBUSA may, at its sole discretion and expertise, repair or replace any instrument part with a new or refurbished part. TBUSA shall retain ownership of the replaced part.
8.4 Software Products. From time to time, either pursuant to a Service Plan or otherwise, TBUSA may offer upgrades to software products incorporated in instruments purchased by Customer from TBUSA hereunder. Customer shall use the software products and any such upgrades in accordance with this Agreement. TBUSA shall not be responsible for any software product, including any installation of upgrades or damage or harm to the instruments caused by the upgrades if such software product has been disassembled, decompiled or reverse engineered, copied, modified, enhanced or otherwise changed or supplemented with another software product without TBUSA's prior written consent. TBUSA will not be responsible for any Customer developed software.
8.5 Safe Environment. Customer shall ensure that the location where the instrument is to be installed or serviced is safe. TBUSA reserves the right to inspect Customer's facilities prior to performing Instrument Services to determine safe entry and performance. Upon TBUSA's request, Customer shall move the instrument to a location that TBUSA deems safe. For Instrument Services other than Initial Services, Customer shall at its expense, decontaminate the instrument from radioactive, biological, toxic or other dangerous materials or substances and upon TBUSA's request, provide a certificate of decontamination. TBUSA will not provide Instrument Services in biosafety level-3 laboratories unless otherwise agreed in writing in which case additional charges and conditions may apply. TBUSA will not provide Instrument Services in biosafety level-4 laboratories.

9.  Warranty.
9.1 Limited Warranty.
(a) Reagents and Consumables. For Products that are reagents or consumables (except for Custom Products), TBUSA warrants to Customer that the Product upon delivery, substantially conforms to the specifications as set forth in the applicable Certificate of Analysis in effect at the time of manufacture for a period of 12 months from the date of delivery or the stated shelf life of the Product, whichever occurs first.
(b) Custom Products. For Custom Products, TBUSA warrants to Customer that the Custom Product upon delivery, substantially conforms to the specifications set forth in the Certificate of Analysis accompanying the shipment of such Custom Product for the shelf life stated therein; or otherwise, the Custom Product upon delivery, shall substantially conform to the specifications and shelf life set forth in the Customer Specification, if any.
(c) Instruments. For Products that are instruments, TBUSA warrants that the instrument, upon delivery, is free from defects in material and workmanship and conforms to the manufacture's specifications in effect at the time of manufacture for a period of 12 months after installation; provided that installation occurs no later than 30 days after shipment, unless otherwise agreed to by TBUSA in writing. If the instrument is not installed within 30 days after shipment or as agreed to in writing by TBUSA, then the warranty period shall begin 30 days after shipment.
(d) Instrument Services. TBUSA warrants that Instrument Services will be performed at least in accordance with the generally accepted standards prevailing in the instrument service industry for 90 days from the date of completion of Instrument Services.
9.2 Exclusions.
(a) Reagents, Consumables and Custom Products. The above warranties for Products that are reagents, consumables and Custom Products do not apply if TBUSA determines that the nonconformance was a result of (1) alteration, misuse or neglect of the Product; (2) failure to use or store Product in accordance with TBUSA's instructions, including any product label and limited use statement; or (3) accident or acts of nature.
(b) Instruments, Parts and Instrument Services. The above warranties for Products that are instruments and parts and the above warranties for Instrument Services do not apply if TBUSA determines that the repair or replacement of the instrument or part were necessitated by, or any defects in the instrument or part were caused by: (1) neglect, improper or inadequate use, maintenance, handling or storage of the instrument or parts, including non-compliance with TBUSA's instructions, product information, site preparation or user manual; (2) installation of software or interfacing or use of the instrument in combination with software or products not supplied or authorized by TBUSA; (3) connection of the instrument to electrical services or other utilities not in accordance with the instrument's installation requirements; (4) external sources or intrusive activity such as short circuits, incorrect voltages, surge in voltage, computer viruses, hackers, or other unauthorized interactions with the instrument or software that detrimentally affect its normal operation; (5) use of incompatible solvents or chemicals on the instrument or part; (6) repair, modification, alteration, installation, de-installation, or transportation of an instrument or part thereof by anyone other than by TBUSA or a person authorized by TBUSA; (7) radioactive parts or parts contaminated with biological, toxic or other dangerous materials or substances; (8) normal wear and tear, negligence, accident or acts of nature; (9) instruments sold as a used product; and/or (10) any defect or damage to the instrument or part not caused by TBUSA. ADDITIONALLY, ANY INSTRUMENT INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION, ALTERATION, OR OTHER TAMPERING PERFORMED BY ANY PERSON OR ENTITY OTHER THAN TBUSA OR TBUSA'S THIRD PARTY PROVIDER WITHOUT TBUSA'S PRIOR WRITTEN CONSENT, OR USE OF ANY PART NOT SUPPLIED BY TBUSA, WILL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES FOR THE INSTRUMENT, PARTS AND INSTRUMENT SERVICES.
9.3 Warranty Claims and Remedies.
(a) Products. Upon suspect of a non-conforming Product, Customer must promptly notify TBUSA within the applicable warranty period, and if TBUSA determines that the Product is non-conforming and authorizes the Product for return or destruction, Customer shall do so in accordance with TBUSA's instructions. For timely and valid warranty claims, TBUSA, at its sole discretion and expense, will replace the non-conforming Product or provide a credit or refund.
(b) Instrument Services. Upon suspect of a non-conforming Instrument Service, Customer must promptly notify TBUSA within the applicable warranty period, and if TBUSA determines that the Instrument Service is non-conforming, TBUSA at its sole discretion and expense, will re-perform the Instrument Services. TBUSA may authorize a third-party provider to re-perform the Instrument Service.
9.4 Limitation of Warranty. THE ABOVE WARRANTIES DO NOT EXTEND TO ANYONE OTHER THAN THE CUSTOMER AS THE ORIGINAL PURCHASER OF PRODUCT OR INSTRUMENT SERVICE. THE ABOVE WARRANTIES ARE TBUSA'S ONLY LIABILITY AND CUSTOMER'S ONLY REMEDY FOR ANY NON-CONFORMING PRODUCT OR INSTRUMENT SERVICE. EXCEPT FOR THE ABOVE WARRANTIES, ALL PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND TBUSA EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES REGARDING RESULTS OBTAINED FROM THE USE OF ANY PRODUCT.
9.5 Third Party Products. TBUSA makes no warranty whatsoever regarding products manufactured or furnished by third parties. Any such products are subject to the warranties of their respective manufacturers, if any. TBUSA will transfer any such warranties to Customer to the extent they are transferable.

10.  Compliance with Laws. TBUSA represents to the best of TBUSA's knowledge that Products are manufactured and supplied, and Instrument Services are performed in compliance with all applicable laws and regulations. Customer represents and warrants that it will use the Products in compliance with all applicable laws and regulations. TBUSA makes no representation that the Products and Instrument Services will meet or satisfy standards of any governmental body, including the U.S. Food and Drug Administration. It is Customer's responsibility to ensure that the Product and Instrument Service are adequate to meet Customer's regulations or certification requirements of any governmental body or other organization, including, but not limited to, any requirement of the U.S. Food and Drug Administration.

11.  Use and Restrictions.
11.1 Authorized Use. Customer acknowledges that TBUSA sells Products for internal research use only unless labeled otherwise. Products that are for internal research use are labeled "Research Use Only" and are not for use in any diagnostic or therapeutic procedures. Products labeled "For Laboratory Use" are for general purpose use as defined by the U.S. Food and Drug Administration ("GPR"). Except as otherwise agreed to by TBUSA in writing, in selling the Products, TBUSA only conveys to Customer the non-transferable right to use the quantity of Products purchased for its intended use as stated herein and Customer may not use Product in any commercial applications, or transfer, resell, or modify Product for resale to a third party. Customer may use GPR Product as permitted by the U.S. Food and Drug Administration. If Customer needs commercial use rights to a Product (including the right to use in manufacturing, quality control, or to perform fee-for-services), Customer must contact TBUSA's Licensing Department at licensing@takarabio.com. Products may also be subject to other licenses, limited use statements, including any notice to purchaser and/or limited use label licenses ("Limited Use Label License"), which may be located at www.takarabio.com or specified on the product label, quotation or other documentation accompanying the Product. Any applicable Limited Use Label Licenses are incorporated herein by reference as if set forth in their entirety. By using the Product, Customer hereby accepts the terms and conditions of all applicable Limited Use Label Licenses.
11.2 Risks and Hazards. Customer shall learn about any risks and hazards associated with the Product and use and handling thereof, and inform others of such risks and hazards as necessary. Customer shall comply with TBUSA's instructions, including any Material Safety Data Sheets (MSDS), which is available at www.takarabio.com or by contacting TBUSA's Technical Support Department at 1-800-662-2566.

12.  Software Products. With respect to any software products incorporated in an instrument purchased by Customer hereunder, Customer acknowledges that TBUSA is licensing such software product and not selling it to Customer. TBUSA hereby grants to Customer a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use the software product solely for Customer's internal use of the instrument purchased by Customer hereunder. Customer may not sell, rent, lease, loan, transfer or assign such software product to any third-party. Customer shall not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software product. TBUSA shall be entitled to terminate this license if Customer fails to comply with any term or condition herein.

13.  Ownership; Intellectual Property. As between TBUSA and Customer, TBUSA exclusively owns all intellectual property rights related to Products and Instrument Services, including but not limited to all methods, materials and equipment ("TBUSA Technology"). Nothing in these Terms shall be deemed or construed (1) as a license to or grant of any TBUSA Technology or any other intellectual property, whether implied, by estoppel or otherwise except to the extent expressly granted in Sections 11.1 and 12; (2) to limit TBUSA's rights to enforce its intellectual property rights to TBUSA Technology, including, without limitation, using the Product beyond the use granted under any Limited Use Label License or statements applicable to the Product; (3) as granting Customer any right to be supplied with Products or components thereof beyond those supplied by TBUSA in accordance with these Terms; or (4) as a license or grant of any right to manufacture or to have manufactured the Products. Customer must obtain all necessary approvals, intellectual property rights, licenses and permissions that Customer may need to use the Products.

14.  Indemnity.
14.1. TBUSA Indemnity.
(a) General Indemnity. TBUSA will defend and indemnify Customer against third-party claims for personal injury, death, or property damage occurring while TBUSA's employees are performing Instrument Services at Customer's facilities to the extent such claims are caused by the negligent acts or negligent omissions by TBUSA's employees.
(b) Infringement Indemnity. TBUSA will defend and indemnify Customer from and against infringement damages finally awarded in any legal action brought by a third party against Customer to the extent that the action is based on claim that the manufacture and sale of Product infringes on such third party's patent, copyright, trademark or other intellectual property right, and that TBUSA had actual knowledge of such intellectual property right and actual infringement at the time TBUSA ships the Product. This infringement indemnity does not apply to claims arising from: (1) the manufacture or sale of Product made pursuant to Customer's instructions, specifications, statement of work, or other directions, including Customer Specifications; (2) Customer's use or resale of Products; (3) modifications to the Products made by Customer or any third party; (4) products originating from third parties; (5) Customer's failure to acquire rights to use the Product, including as required by this Agreement; (6) products made, assembled or labeled in reliance on materials and information provided by Customer; or (7) Customer's failure to comply with this Agreement. TBUSA shall have no obligation to indemnify Customer against any claims for infringement if TBUSA, at its sole option and expense, either: (1) secures the right for Customer's use of Product; (2) substitutes the Product with another suitable product with similar functionality; or (3) requires the return of Product for a refund of the price paid, and for the return of Products that are instruments, TBUSA will deduct a reasonable amount for the instrument's use, damage and obsolescence.
THIS INDEMNITY IS TBUSA'S ONLY LIABILITY AND CUSTOMER'S ONLY REMEDY FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT.
(c) Conditions to TBUSA's Indemnity. Customer shall notify TBUSA in writing immediately upon becoming aware of any such claims, and shall not admit liability or take any other action that could affect the defense of such claim. Customer shall allow TBUSA to control the defense or settlement of such claim and reasonably assist TBUSA in thereof.
14.2 Customer Indemnity. Customer will defend and indemnify TBUSA, its affiliates and their respective officers, directors, employees and agents from and against any and all claims, losses, damages, liabilities and expenses (including reasonable attorneys' fees) in connection with a claim asserted by a third party arising out of: (a) negligence or willful misconduct of Customer, its agents, employees, representatives or contractors; (b) TBUSA's compliance with Customer's instructions, specifications, statement of work, or other directions, including Customer Specifications; (c) alleged infringement from the use of Product with materials, equipment or software not supplied by TBUSA, where the Product itself would not be infringing; (d) Customer's use of Products in an application or environment for which it was not designed or intended; (e) modifications to the Products not approved in writing by TBUSA; (f) Customer's failure to use Product in compliance with the Limited Use Label License; or (g) Customer's failure to acquire rights to use the Product, including as required by the Agreement.

15.  Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY MAY HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TBUSA SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY RESULTING FROM A PRODUCT ERROR OR FAILURE OF A PRODUCT PERFORMANCE IN ACCORDANCE WITH ITS SPECIFICATIONS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR TBUSA'S LIABILITY FOR BREACH OF WARRANTY, THE TOTAL LIABILITY OF TBUSA OR ITS AFFILIATES UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE PRODUCT OR INSTRUMENT SERVICE.

16.  Export Control. Customer acknowledges that Products are subject to US export control laws and regulations, and represents and warrants that it will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Products, software, or technology (including products derived from or based on such technology) to any destination, entity, or person prohibited by the laws or regulations of the United States.

17.  Technical Assistance. TBUSA may provide technical assistance and information regarding Products and Instrument Services in gratis at its sole discretion. Customer assumes sole responsibility for any reliance on or use of such assistance and information and TBUSA makes no warranty thereon.

18.  Miscellaneous. Customer may not assign the Agreement without TBUSA's written consent. TBUSA may assign the Agreement without consent. The Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to any conflict of law principles that would require the application of the laws of a different jurisdiction, except that matters pertaining to patents and other intellectual property rights shall be governed by the laws of the jurisdiction in which such intellectual property rights exist. The Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods. Except for payment obligations, neither party shall be responsible for failure to perform its obligations due to natural disaster or other force majeure causes beyond its reasonable control. Neither party shall use the name of the other party or of its employees in any promotion or publication without the other party's prior written consent. The failure of either party to assert a right hereunder or insist upon compliance with any term of the Agreement shall not constitute a waiver of such right or excuse a similar subsequent failure to perform any such term by the other party.

Takara Bio USA, Inc. Terms and Conditions — Custom Services

1.  General Provisions. These Terms and Conditions ("Custom Terms") will govern all purchases of Custom Service as defined below from Takara Bio USA, Inc. and its affiliates ("TBUSA") by you, the person, company or legal entity ("Customer"). TBUSA's offer to sell Custom Service to Customer is conditioned upon Customer's acceptance of these Terms.

2.  Agreement. These Custom Terms together with TBUSA's quotation (if any) and Statement of Work as defined below constitute the entire agreement between TBUSA and Customer with respect to the purchase of Custom Service ("Agreement"). The Agreement is created when TBUSA accepts Customer's order, either by sending Customer a written confirmation or performance of the Custom Service. All prior agreements, understandings or representations related thereto, whether expressed orally or in writing, including Customer's terms and conditions in any purchase order, are hereby rejected by TBUSA. In the event of a conflict between any terms and conditions contained in any purchase order, confirmation or other writing for the purchase of Custom Service and these Custom Terms, these Custom Terms will prevail and govern. If one or more terms of these Custom Terms are held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability will not affect the remaining Custom Terms.

3.  Definitions. "Custom Service" means services performed specifically for Customer in accordance with either (1) the description provided on TBUSA's website at www.takarabio.com; or (2) instructions, specifications, or statement of work agreed to by the parties in writing (collectively a "Statement of Work"). Upon completion of the Custom Service, TBUSA will provide Customer the end results, including data, materials or products ("Deliverables") in accordance with the quotation or Statement of Work.

4.  Orders.
4.1 Order Placement. Customer may place an order for Custom Services by contacting TBUSA's Customer Service Department at 1-800-662-2566 or by visiting TBUSA's website at www.takarabio.com.
4.2 Order Changes and Agreement Termination. Customer may not cancel any order for Custom Services. Only upon TBUSA written approval, Customer may change its order and any such change may affect the pricing and timelines specified in the Statement of Work or quotation. TBUSA may terminate the Agreement if (a) Customer breaches any material provision of the Agreement and fails to remedy such breach to TBUSA's satisfaction within 15 days after written notice thereof; (b) TBUSA is unable to obtain third party materials or technology specified in the Statement of Work for reasons beyond TBUSA's reasonable control; (c) TBUSA determines that biosecurity, biosafety, and/or feasibility reasons prevent or are likely to prevent the performance of the Custom Service; or (d) Customer is or is deemed by law to be unable to pay its debts or perform its obligations under the Agreement.

5.  Price and Other Charges. The price for the Custom Service shall be as specified in the Statement of Work or TBUSA's quotation. In addition to the price, Customer is responsible for any applicable shipping and handling charges, which will be added to the invoice. Customer is also responsible for any taxes, duties, levies or other government fees that may apply to the order. Such taxes, duties levies or fees will be added to the invoice unless Customer claims an exemption and provides a valid signed certificate of exemption or letter of exemption. In countries where TBUSA is not permitted to add such charges to the invoice, Customer is responsible for remitting payment of such amounts to the appropriate authority.

6.  Payment. An invoice will be sent upon completion of Custom Service or delivery of Deliverables, or portions thereof, as specified in the Statement of Work or quotation; and shall be due 30 days from the date of invoice unless otherwise specified in the Statement of Work or quotation. TBUSA's failure to provide an invoice shall not relieve Customer's obligation to pay for the completed Custom Service or delivered Deliverables. All payments shall be in US Dollars. If Customer places the order with a credit card, the credit card will be charged on the invoice date. TBUSA may charge Customer a late payment fee equal to the lesser of 1.5% or the maximum rate allowable by law per month on any past-due balance without prejudice to other remedies available by law. If Customer's account is referred to collection, Customer shall pay any collection costs including reasonable attorneys' fees. In the event that payment is late for any portion of a Custom Service, TBUSA may suspend performing the Custom Service until all payments are made current.

7.  Performance. TBUSA shall perform the Custom Service and provide Deliverables to Customer as an independent contractor. TBUSA may delegate the performance of Custom Service, or portion thereof, to an affiliate or authorized subcontractor, provided that the Custom Service will be performed in accordance with the Agreement. TBUSA will comply with all laws and regulations applicable to the Custom Service. TBUSA may use methods, materials, equipment and/or related intellectual property owned or controlled by TBUSA ("TBUSA Technology"). TBUSA may also use data, information and/or materials supplied by Customer ("Customer Materials"). TBUSA will make a good faith effort to begin and complete the Custom Service on time, as described in the Statement of Work, and will notify Customer of any foreseeable substantial delays.

8.  Information Transfer; Customer Materials. In order to ensure timely and satisfactory performance of the Custom Service, it is critical that Customer provide to TBUSA Customer Materials and other information described in the Statement of Work in a timely manner and in sufficient quantities. Customer will provide Customer Materials in compliance with applicable laws and regulations. Customer will provide any safety information and other information regarding Customer Materials necessary for TBUSA to perform the Custom Service, including without limitation to, any certifications and documentation of Customer Materials reasonably requested by TBUSA. Customer acknowledges that failure to provide Customer Materials or other information in accordance with the Statement of Work may result in delays in the performance of Custom Service. The Customer Materials and information about Customer Materials, whether provided by Customer or generated by TBUSA in the performance of Custom Service (such information collectively, "Data"), shall be subject to the confidentiality and non-use requirements of Section 15. Customer represents and warrants that it owns or otherwise controls the Customer Materials and has the right to provide Customer Materials to TBUSA for the purpose of TBUSA's performance of Custom Service. TBUSA will use Customer Materials and Data only in the performance of Custom Services and in accordance with the Statement of Work, and will not modify or reverse engineer Customer Materials except as provided in the Statement of Work. Unless otherwise specified in the Statement of Work or agreed to in writing, any Customer Material not consumed in the Custom Service will be destroyed. TBUSA will not transfer Customer Materials, in whole or in part, to any third party, other than an affiliate or subcontractor, without Customer's prior written approval.

9.  Delivery. If Deliverables are to be delivered electronically, delivery will be deemed to occur once TBUSA has transmitted an electronic file containing the Deliverables to Customer in accordance with the Statement of Work. If Deliverables are to be delivered as physical material, delivery will be deemed to occur upon shipment of the Deliverables in accordance with the Statement of Work. Deliverables will be shipped FCA shipping point as defined in Incoterms 2010. Upon receipt of a Deliverable, Customer shall notify TBUSA's Customer Service Department of any damages within 72 hours of receipt.

10.  Warranty.
10.1 Limited Warranty. TBUSA's sole warranty in providing the Custom Service is that the Custom Service will be performed: (a) in accordance with the Statement of Work or quotation; and (b) at least in accordance with the generally accepted standards prevailing in the service industry. TBUSA does not warrant or represent that the Deliverables or any results of the Custom Service will be acceptable to any regulatory agency to which they are presented or that they will advance the interest of Customer.
10.2 Warranty Claims and Remedies. If Customer claims that the Deliverables do not conform to the Statement of Work or quotation, Customer must notify TBUSA immediately in writing and no later than one month after receipt of such Deliverable. If TBUSA determines that such Deliverable does not conform to the Statement of Work or quotation, Customer's sole remedy shall be that TBUSA, at TBUSA's sole discretion and expense, either: (a) re-perform the Custom Service; or (b) refund the price paid for the Custom Service.
10.3 Limitation of Warranty. THE ABOVE WARRANTIES DO NOT EXTEND TO ANYONE OTHER THAN CUSTOMER AS THE ORIGINAL PURCHASER OF CUSTOM SERVICE. THESE WARRANTIES ARE TBUSA'S ONLY LIABILITY AND CUSTOMER'S ONLY REMEDY FOR ANY NON-CONFORMING DELIVERABLE OR CUSTOM SERVICE. EXCEPT FOR THE ABOVE WARRANTIES, DELIVERABLES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND TBUSA EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES REGARDING RESULTS OBTAINED FROM THE USE OF ANY DELIVERABLE.

11.  Use and Restrictions. Except as agreed to in the Statement of Work, Customer agrees to use Deliverables only for Customer's internal research purposes and in accordance with any applicable limited use statement, notice to purchaser and/or limited use label license ("Limited Use Label License") and as specified on the Deliverable label, www.takarabio.com or other documentation provided with the Deliverables. Any Limited Use Label License is incorporated herein by reference as if set forth in their entirety. Notwithstanding the foregoing, under no circumstance shall the Deliverables or any end results of the Custom Service be used in humans or transferred to any third party for commercial purposes regardless of whether such transfer or commercial use is for Customer's research purposes. Without limiting the foregoing, Customer shall not directly or indirectly use or transfer Deliverables to any person, entity or destination, except in full compliance with all applicable laws and regulations, including without limitation to export control and trade sanctions laws and regulations of the United States.

12.  Ownership; Intellectual Property. Except as otherwise expressly agreed in the Statement of Work, Customer shall be the owner of: (1) Data; (2) Customer Materials; (3) any derivatives or modifications of Customer Materials that are generated by TBUSA as a direct result of the Custom Service; and (4) any inventions and/or discoveries that directly result from the performance of the Custom Service to the extent such inventions and/or discoveries directly relate to the Customer Materials, whether or not copyrightable or patentable (collectively, "Customer Inventions"). All other inventions shall be owned by TBUSA, including but not limited to TBUSA Technology or any improvements or modifications thereof, whether developed before or during the performance of Custom Service. At Customer's request and expense, TBUSA shall reasonably assist Customer in obtaining patents or copyrights to any Customer Inventions. Customer shall not, by virtue of the Custom Service performed hereunder, obtain any license or other rights in any TBUSA Technology to: (1) use Deliverables other than as set forth in Section 11; (2) independently recreate the Deliverables or any materials that are proprietary to TBUSA, even if used to perform the Custom Service; and/or (3) sell or otherwise use the Deliverables for commercial purposes whether or not commercialized for research use, unless expressly stated in the Statement of Work or agreed to in a separate written agreement between the parties. TBUSA's laboratory notebooks or other records maintained with respect to the Custom Service shall be owned by TBUSA; provided however, that if such notebooks or records contain any Data or confidential information of Customer, such Data and confidential information will remain the property of Customer, and the parts of the notebooks and records that contain Customer's Data or confidential information will be subject to TBUSA's obligations of confidentiality in accordance with Section 15.

13.  Indemnity. Customer will defend and indemnify TBUSA, its affiliates and their respective officers, directors, employees and agents from and against any and all claims, losses, damages, liabilities and expenses (including reasonable attorneys' fees) in connection with a claim asserted by a third party arising out of: (1) Customer Material or any other material or information provided by Customer or use thereof in performance of the Custom Service as specified in the Statement of Work or quotation; (2) any product or service of Customer based in whole or part on Customer's reliance on the Deliverables, or any portion or derivative thereof; (3) Customer's use of the Deliverables; and/or (4) Customer's failure to comply with the Agreement, including Section 11, except to the extent such claim was caused by the negligence or willful misconduct of TBUSA.

14.  Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION TO LOSS OF PROFITS, LOSS OF RESEARCH OR DEVELOPMENT OR OTHER ECONOMIC LOSS, EVEN IF SUCH PARTY MAY HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR TBUSA'S LIABILITY FOR BREACH OF WARRANTY AND BREACH OF CONFIDENTIALITY, THE TOTAL LIABILITY OF TBUSA OR ITS AFFILIATES UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE CUSTOM SERVICE.

15.  Confidentiality. TBUSA shall treat all Data and Customer Material as proprietary and confidential and will not disclose Data or Customer Materials to any person except its employees, consultants, and subcontractors as necessary to perform the Custom Service. Customer shall treat as proprietary and confidential any information or material disclosed or provided by TBUSA, either directly or indirectly, including but not limited to information or materials regarding TBUSA Technology or TBUSA's business, including TBUSA's operations and prices. Each party shall protect the proprietary and confidential information or materials of the other party by using the same degree of care as such party uses to protect its own information or materials, but in any event no less than a reasonable degree of care. The receiving party shall have no obligation to the other party for any information or material that is: (1) already known to Customer without any obligation of confidentiality; (2) publicly known without breach of the confidentiality obligation herein; (3) received from a third party lawfully entitled to disclose it; or (4) is independently developed by or for Customer without breach of the confidentiality obligation herein. Customer may disclose TBUSA's confidential information pursuant to an enforceable order of a court or administrative agency only to the extent required.

16.  Non-Exclusivity. Unless otherwise agreed in writing, the Custom Service is provided on a non-exclusive basis and TBUSA reserves all rights to provide other parties with deliverables that are identical or similar to Deliverables, provided that TBUSA shall not use any Customer Materials or information received from Customer to perform the Custom Service for any third party. Notwithstanding anything contained in these Custom Terms, TBUSA reserves the right to commercialize any Custom Service as a catalog product; provided that TBUSA performs such Custom Service without reliance on Customer Materials, Data or Customer's confidential information.

17.  Export Control. Customer acknowledges that Deliverables are subject to US export control laws and regulations, and represents and warrants that it will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Deliverable, software, or technology (including products derived from or based on such technology) to any destination, entity, or person prohibited by the laws or regulations of the United States.

18.  Technical Assistance. TBUSA may provide technical assistance and information regarding Custom Services or Deliverables in gratis at its sole discretion. Customer assumes sole responsibility for any reliance on or use of such assistance and information and TBUSA makes no warranty thereon.

19.  Miscellaneous. Customer may not assign the Agreement without TBUSA's written consent. TBUSA may assign the Agreement without consent. The Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to any conflict of law principles that would require the application of the laws of a different jurisdiction, except that matters pertaining to patents and other intellectual property rights shall be governed by the laws of the jurisdiction in which such intellectual property rights exist. The Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods. Except for payment obligations, neither party shall be responsible for failure to perform its obligations due to natural disaster or other force majeure causes beyond its reasonable control. Neither party shall use the name of the other party or of its employees in any promotion or publication without the other party's prior written consent. The failure of either party to assert a right hereunder or insist upon compliance with any term of the Agreement shall not constitute a waiver of such right or excuse a similar subsequent failure to perform any such term by the other party.