Terms of Sale

CUSTOMER USE AGREEMENT

1. Terms and Conditions

1.1 General Terms: When purchasing products (“Products”) or services (“Service”) incorporating SOMAGENICS’ technologies you agree to the following terms and conditions (“Terms”) unless your order is subject to a valid, written, executed agreement between you and SOMAGENICS, in which case such agreement applies. These terms and conditions constitute the use agreement (“Use Agreement”) for catalog Products, custom products (“Custom Products”), and Service based on our Products, primer designs, primer sequences, primers, probe designs, probe sequences, probes and/or assays. This Use Agreement creates a binding contract between you and SOMAGENICS for the purchase and use of SOMAGENICS’Products, Custom Products, and Services and takes effect when we accept your order, either by sending a written confirmation, or by shipping the product or otherwise initiating action to provide what you have ordered.

1.2 Price: SOMAGENICS may change the prices stated on the company website (https://www.somagenics.com) at any time without notice. Written quotes are valid for 30 days, unless states otherwise in writing.

1.3 Taxes and Fees: Our product prices do not include any taxes (including VAT), duties, levies or other government fees that may apply to your order. If they apply, it will be your responsibility to pay them. If we pay them, we will add them to your invoice. If you claim any exemption, you must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.

1.4 Shipping and Handling Costs: You are responsible for standard delivery and handling charges, if any. We will add these charges to your invoice. For details of our freight charges, please see our website or call SOMAGENICS.

1.5 Payment: We will invoice you for the Product or Service price and all other charges due when we ship you the Product or data (“Data”) resulting from Service. Unless we have agreed otherwise in writing, invoices shall be paid in U.S. dollars within 30 days from the invoice date. We reserve the right to require you to make full or partial payment in advance, or other security to our satisfaction. If your payment is late, we may, without affecting our other rights: suspend delivery or cancel the order or contract, reject your future orders, and charge you a late-payment charge, from the due date until paid, at the rate of 1% per month (12% per year) or, if less, the maximum amount allowed by law. If we appoint a collection agency or an attorney to recover any unpaid amounts, you must pay all reasonable costs of collection, including all associated reasonable attorneys’ fees.

1.6 Warranty and Returns: Our Products are guaranteed as specified on the accompanying “Certificate of Analysis”for each Product. Our warranty will not be effective if we determine that you have altered or misused the products or have failed to use or store them in accordance with our instructions, or if the defects to the Products result from neglect or accident caused by you. Our sole and exclusive liability, and your exclusive remedy with respect to Products returned within the warranty period and proved to our satisfaction (applying analytical methods reasonably selected by us) to be defective or nonconforming, will be the replacement of the Products free of charge upon your return of the Products in accordance with our instructions, although at our discretion we may provide a credit or refund. Warranty claims must be made within 30 days after you discover that the Product does not conform.

1.7 Returns: You can return Products that are damaged or defective on delivery, or correct any shortages or delivery errors, if you contact SOMAGENICS within 10 days from the day you receive the Products. If you do not contact us within 10 days, the Products will be deemed accepted. Warranty rights remain valid. Upon notification of damaged or otherwise faulty Products, SOMAGENICS will give you instructions on returning the Products and/or on replacements. All returns must be authorized by SOMAGENICS and receive a return authorization prior to being shipped back to SOMAGENICS. For any properly returned Products, at our discretion, we may replace the products free of charge, issue a product credit or refund the product value and shipping charges. No Product credit will be available for use if a past due balance is outstanding on the account. Any Product credit not used within twelve (12) months of the date of issue will expire.

1.8 Use Limitations: Products may only be used for internal research purposes, not for use in humans, and in accordance with any Limited Use Label License (LULL) associated with the Products. You may not transfer the Products to any third party, nor shall you nor any third party use the Products commercially, regardless of whether such transfer or commercial use of Products is for research purposes. The research use limitation, however, shall not preclude your use of (i) Products in your research and development of commercial products or services, provided that such product or service does not include or embed, nor require the practice of, SOMAGENICS’ proprietary technology, or (ii) any data resulting from the use of SOMAGENICS’proprietary technology needed for regulatory approval and commercialization of such products or services.

1.9 Publication: Unless we expressly agree otherwise, you shall acknowledge SOMAGENICS by making reference to our name in any resulting publication involving information and/or results generated using our Products or services. We agree that such acknowledgement should simply state that“Products/Service (as applicable) were provided by SOMAGENICS, INC.”

1.10 Force Majeure: We will not be liable to you or be deemed to be in breach of these Terms by reason of any delay in performing or failure to perform any of our obligations under these conditions if such delay or failure is caused by events outside our reasonable control including, without limitation, acts of god, government action, war or national emergency, acts of terrorism, protests, riots, fire, floods, strikes or other industrial action of whatever nature. If we are unable to perform our obligations under these conditions we will promptly notify you of the nature and extent of the circumstances in question. Our performance under any Contract is deemed to be suspended for the period that the event in question continues, and we will have an extension of time for performance for the duration of that period.

2. Terms and Conditions for Custom Products and Services

2.1 miR-ID®/MiR-Direct® kits and custom Products (“Custom Products”)

2.1.1. Custom Terms: In addition to the Terms outlined in section 1, these terms and conditions (together “Custom Terms”) apply to your purchase of Custom Products from SOMAGENICS. These Custom Terms, together with the quotation, if any, form the entire contract between you and us with respect to your purchase of Custom Products. Productions of Custom Products is conditioned on your acceptance of these Custom Terms.

2.1.2. Acceptance: By purchasing and accepting delivery of Custom Products supplied by SOMAGENICS you agree to be bound by these Custom Terms.

2.1.3. Use: SOMAGENICS retains all rights, title and interest in and to the miR-ID®/MiR-Direct® Materials. All Custom Products derived from miR-ID®/MiR-Direct® Materials are provided on a non-exclusive basis. miR-ID®/MiR-Direct® Materials are provided for Research Use Only and no other rights are conveyed by this Use Agreement. You are expressly prohibited from independently recreating miR-ID®/MiR-Direct® Materials which are proprietary to SOMAGENICS. If you require additional rights please contact: .

2.1.4. Custom Terms Conflict: These Custom Terms supersede all prior communications between us, whether written or oral, relating to Custom Products. Terms and conditions contained in any order form or document submitted by you which are inconsistent with or in addition to these Custom Terms are rejected, objected to and shall be deemed void and of no force or effect.

2.1.5. Performance of Work: We will produce Custom Products as an independent contractor, using methods, materials, equipment, and/or related intellectual property owned or controlled by us or our affiliates (collectively “Service Provider”). Production of Custom Products may require information or materials you supplied (“Client Materials”).

2.1.6. Client Materials and Data: You will provide us with Client Materials in sufficient amounts as well as relevant safety information and other characteristics of Client Materials as required, including any certification or documentation of Client Materials we may request of you. The Client Materials shall be subject to the confidentiality requirements of Section 2.1.10. Unless otherwise specified or agreed in writing, any Client Materials not consumed in the Work or required for additional Work will be destroyed after completion of the Work.

2.1.7. Orders and Delivery: All custom orders are subject to our acceptance and availability. Any changes proposed to the Custom Products including quantities, method of shipment, schedule or place of delivery must be provided to us in writing and may be accepted by us at our discretion. We reserve the right to make the delivery in installments, which will be separately invoiced and paid for when due per invoice.

2.1.8. Ownership, Intellectual Property: You will be the exclusive owner of (i) the Custom Products, and (ii) Client Materials. You shall not, by virtue of the Custom Products delivered to you, obtain any license or other rights in any SOMAGENICS’ proprietary rights to (a) use Custom Products other than as set forth in Section 1.8, (b) independently recreate the Custom Products or any materials that are proprietary to SOMAGENICS, even if used to manufacture the Custom Products; and/or (c) sell or otherwise use Custom Products for commercial purposes whether or not commercialized for research use.

2.1.9. Non-Exclusivity: Unless expressly agreed in writing, all Custom Products are provided on a non-exclusive basis, and SOMAGENICS reserves all rights for ourselves and our affiliates to provide third parties with identical or similar Custom Products, provided that in doing so, we will not use any Client Materials to manufacture Custom Products for any third party. Notwithstanding anything else in the Terms, where we manufacture Custom Products without reliance on Client Materials, we reserve all rights to commercialize such Custom Products as a catalog Product.

2.1.10. Confidentiality: We will treat all Data and Client Materials as proprietary and confidential to you, and will not disclose Data or Client Materials to any person except to our employees, consultants, and subcontractors as necessary for purposes of manufacturing Custom Products. Notwithstanding any other provisions herein, however, SOMAGENICS shall have no obligation to the Client for any information or material that is (a) already known to us; (b) publicly known; (c) received from a third party lawfully entitled to disclose it; (d) disclosed pursuant to an enforceable order of a court or administrative agency; and/or (e) is independently developed by us as demonstrated in writing.

2.1.11. Limited Warranty for Custom Products: Our sole warranty for the performance of Custom Products is that the Custom Products will be manufactured using due care in accordance with (a) the Custom Terms, and (b) laws, regulations and generally prevailing industry standards applicable to such Custom Products. We do not warrant or represent that the performance of Custom Products will be acceptable to any regulatory agency to which results using Custom Products are presented or that they will advance your interests. If you believe that we, in breach of our limited warranty, have made a material error in manufacturing Custom Products that renders the results of using Custom Products invalid, you must notify us of such error in writing, within thirty (30) days after receipt of the final delivery of Custom Products.

2.1.12 Remedies: For valid warranty claims made, we will either (i) repeat manufacturing of the particular Custom Products at our own expense or (ii) refund to you the fees actually paid for the particular Custom Products giving rise to the breach of warranty.

2.1.13. Limitations: The warranty set forth in section 2.1.11. is in lieu of any and all other warranties relating to Custom Products, express or implied, including, without limitation, any implied warranties of satisfactory quality, merchantability or fitness for a particular purpose, or that Custom Products or use thereof will not infringe any third party intellectual property right. We shall not be liable under any legal theory, for any indirect, special, or consequential damages or for loss of profits or loss of business, even if we had notice of the possibility thereof. Our liability to you for breach of any provision of the terms (other than breach of the warranty in this section 2.1.12 for which liability is limited to re-performance or refund as specified herein) shall be limited to damages in an amount not to exceed the fee to be paid for the Custom Products.

2.1.14. Indemnification: Except to the extent caused by our willful misconduct, you shall indemnify and hold harmless SOMAGENICS, and our affiliates and our and their respective officers, directors, employees and agents (“Indemnified Party”) from and against any and all expenses (including, but not limited to, reasonable attorney’s fees) and losses incurred by any such Indemnified Party in connection with any claim asserted by a third party arising out of or based on (a) Client Materials or use thereof in manufacturing of Custom Products; and/or (b) any product or service of yours that is based in whole or part on your reliance on Custom Products, or any portion or derivative thereof; and/or (c) breach of Section 1.8.

2.1.15. Changes Termination:

        2.1.15.1: Changes: Changes to the Custom Products order must be agreed by both parties in writing, and may require changes in the fees or timelines.

       2.1.15.2: Termination: We may terminate manufacturing of Custom Products if (a) you breach any material provision of the Custom Terms and fail to remedy the breach to our satisfaction within 30 days after our written notice to you; (b) we are unable to obtain third party materials or technology required to conduct the Work, for reasons beyond our reasonable control; (c) we determine that biosecurity, biosafety, and/or feasibility reasons prevent or are likely to prevent the manufacturing of Custom Products, or (d) you are, or are deemed by law to be, unable to pay your debts or perform your obligations under these Custom Terms. Termination manufacturing of Custom Products in progress will result in a partial charge commensurate with the percentage of manufacturing completed at the time of cancellation.

2.2. Services

2.2.1. Service Terms: In addition to the Terms, these terms and conditions (together “Service Terms”) apply to your purchase of custom sequencing or quantitative PCR services (“Services”) from SOMAGENICS. These Service Terms, together with the quotation, if any, form the entire contract between you and us with respect to your purchase of Services. Performance of Services is conditioned on your acceptance of these Terms.

2.2.2. Performance of Services: We will perform Services as an independent contractor, using methods, materials, equipment, and/or related intellectual property owned or controlled by us or our affiliates (collectively “Service Provider”) to provide you with data produced by us as a direct result of Service (“Data”). Generation of Data may result from the use of data, information, or materials you supplied (“Client Materials”).

2.2.3. Client Materials: You will provide us with Client Materials in sufficient amounts as well as relevant safety information and other characteristics of Client Materials as required, including any certification or documentation of Client Materials we may request of you. The Client Materials shall be subject to the confidentiality requirements of section 2.2.4. Unless otherwise specified or agreed in writing, any Client Materials not consumed in the Service or required for additional Service will be destroyed after completion of the Service.

2.2.4. Confidentiality: We will treat all Client Materials as proprietary and confidential to you, and will not disclose Client Materials to any person except to our employees, consultants, and subcontractors as necessary for purposes of providing Service. Notwithstanding any other provisions herein, however, SOMAGENICS shall have no obligation to the Client for any information or material that is (a) already known to us; (b) publicly known; (c) received from a third party lawfully entitled to disclose it; (d) disclosed pursuant to an enforceable order of a court or administrative agency; and/or (e) is independently developed by us as demonstrated in writing.

2.2.5. Cancelation: You may at any time before the Service is performed amend or cancel an order by providing us with written notice and, if you amend or cancel an order, your liability to us shall be limited to payment to us of all costs we reasonably incur in fulfilling the order until we receive your amendment or cancellation.

2.2.6. Delivery: Unless otherwise expressly agreed between us, Data shall be delivered to you by one of the following mechanisms: a) email to an agreed email address to be provided by you prior to the commencement of Service, b) via a secure FTP website or cloud service; or c) on a CD Rom or external hard drive. We will not (under any circumstances) be liable for your (or any third party's) use of Data.

2.2.7. Your obligations: You warrant that you are acting on your own behalf and not for the benefit of another person. You shall comply with all applicable laws and regulations in respect of your possession of and/or use of the Data; and have obtained all necessary ethical permissions and consents in connection with your submission of the Client Material to us; and our use of the Client Material. You shall supply us with the Client Material in respect of each order for Service in a timely manner and, in any event, in such a timescale as will allow us to meet any performance dates. You shall be responsible for ensuring that the Client Material is in accordance with any specification agreed between us and in any event are in good condition and of appropriate quality and purity and are suitable for use by us in the performance of Service.

2.2.8. Use Limitations: Data resulting from Service are not intended for clinical use. No claim or representation is intended or made with respect to clinical use (including, without limitation, diagnostic, prognostic or therapeutic use, or blood banking). You understand and acknowledge that Data resulting from Service (or any part thereof) may not deliver the Data that you are seeking and you accept that this is foreseeable, given the nature of Service. You understand that a successful outcome of Service is intrinsically linked to the quality of the submitted Client Material as well as other external variable factors that can influence the obtained Data.

2.2.9. Indemnification: Except to the extent caused by our willful misconduct, you shall indemnify and hold harmless SOMAGENICS, and our affiliates and our and their respective officers, directors, employees and agents (“Indemnified Party”) from and against any and all expenses (including, but not limited to, reasonable attorney’s fees) and losses incurred by any such Indemnified Party in connection with any claim asserted by a third party arising out of or based on (a) Client Materials or use thereof in performance of Service; and/or (b) Data resulting from Service, including without limitation any inaccuracy of the Data. We shall have no liability whatsoever (howsoever arising) in connection with Data. We will not be liable for any breach by you of any applicable laws and regulations of the country for which the Samples, Products and Data are destined (including, without limitation, your failure to obtain any necessary permissions and approvals).

2.2.10. Warranty: Subject always to you complying with all of your obligations under the Customer User Agreement, we warrant that we shall perform Service using reasonable skill and care and in accordance with all applicable laws.