EPICYPHER TERMS AND CONDITIONS OF PURCHASE

These Terms And Conditions of Purchase (“Terms and Conditions”) shall govern all sales by EpiCypher, Inc. (“EpiCypher”) of EpiCypher products and/or services (“Products” or “Services”) to its customers (each a “Customer”), whether through purchase orders, telephone order, purchasing agents or other resellers or distributors, or EpiCypher’s website(s) (each, an “Order”). Customer’s purchase of any Products and Services is subject to and expressly limited by these Terms and Conditions, and Customer’s receipt of the Products or Services shall constitute agreement to these Terms and Conditions.Any preprinted or other terms contained in any Customer purchase order or other Customer documentation shall be deemed objected to by EpiCypher without need of further notice of objection and shall be of no effect nor in any circumstances binding upon EpiCypher; provided, however, that in the event that EpiCypher and Customer have entered into a master supply agreement or other written agreement for the purchase of Products, such written agreement shall control.

1.    Orders; Delivery.  All Orders are subject to acceptance by EpiCypher. EpiCypher will use reasonable commercial efforts to deliver the Products or Services pursuant to the Order and subject to these Terms and Conditions. Deliverydates are estimates only; provided, however, EpiCypher will use reasonable commercial efforts to deliver Orders received Monday through Thursday before 2:00 PM (EST/EDT) the next day within the Continental United States. Products are shipped F.O.B. shipping point and all risk of loss or damage to products in transit is upon Customer. Customer shall be responsible for all shipping fees, including insurance charges, unless otherwise agreed by EpiCypher.

2.    Pricing; Payments. Prices are in U.S. dollars and are subject to change without notice. EpiCypher reserves the right to require payment in advance, provided that any amounts invoiced to Customer are due and payable within thirty (30) days of the date of the invoice. Amounts not paid within such time shall be subject to interest equal to 1.5% percent per month or the maximum legal rate, whichever is less. All payments shall be made in U.S. dollars. For Product Order or Services that cover a period of more than a month, EpiCypher may submit invoices on a monthly basis for the portion of Products delivered or Services performed. Customer is responsible for any tax, duty, custom or other fee of any nature, other than taxes on EpiCypher’s income, imposed on the sale of Products or Services by any federal, state, local or foreign government authority. In the event that any payment is more than thirty (30) days late, EpiCypher has the right to suspend performance, including provision of Products, until all payments are made current. In the case of purchasing error or change in an Order after the Order has been shipped, Customer may only return Products (undamaged, unopened and that have been properly stored and handled) with a return authorization from EpiCypher. EpiCypher reserves the right to charge Customer a 20% return fee. 

3.    Conditions & Research Use Only. PRODUCTS ARE SOLD AND LICENSED FOR USE BY END-USERS ONLY FOR CUSTOMER’S INTERNAL RESEARCH OR LABORATORY USE AND NOT FOR COMMERCIAL PURPOSES. Products are not to be used on humans or for clinical diagnostic or drug purposes. Any use of Products for diagnostic or therapeutic purposes, or any purchase of Products for resale (alone or as a component) or use in the performance of services for others, requires a separate license or agreement from EpiCypher. Customer shall not transfer or provide the Products to any third party without the prior written consent of EpiCypher; provided that Customer may permit its research contractors access to the Products solely for use in performance of research or laboratory use for Customer. Except as expressly stated herein, the purchase of Product does not grant to Customer any right or license under any of EpiCypher’s patents or other intellectual property. Customer is solely responsible for use of the Products including Customer’s compliance with applicable laws, rules and regulations and industry standards, including following Good Laboratory Practice guidelines. It is the Customer’s responsibility to determine the suitability of any Products for Customer’s purposes and to adopt such safety precautions as may be necessary or appropriate. EpiCypher disclaims any and all responsibility for any injury or damage which may be caused by the failure of the Customer to follow applicable laws, rules or regulations, GLPs or EpiCypher’s Product instructions. Since these products are intended for research purposes by qualified persons, the Environmental Protection Agency does not require us to supply pre-manufacturing Notice.

4.    Customer Representations and Warranties. Customer represents and warrants that any biological materials or other materials sent to EpiCypher by or on behalf of Customer (“Materials”) are or will be collected, labeled, handled, stored, packaged and shipped in accordance with all applicable laws, rules and regulations. Customer is responsible for notifying EpiCypher of any special handling requests. Any and all Materials supplied to EpiCypher that are not utilized in the performance of the Services will be destroyed sixty (60) days after completion of the Services. If EpiCypher delivers, ships, or mails Materials or other materials or documents to Customer or to third parties at Customer’s request, then the expense and risk of loss for such deliveries, shipments, or mailings shall be borne by Customer. EpiCypher disclaims any liability for the actions or omissions of third-party delivery services or carriers.

5.    Confidentiality and Ownership. Customer represents and warrants that any information, technology, supplies, specifications, designs and materials it supplies to EpiCypher will not infringe the intellectual property or other rights of any third parties. Any proprietary know-how or other information disclosed by Customer to EpiCypher in connection with the provision of Services, as well as any deliverables supplied to Customer by EpiCypher as the result of such Services (collectively, “Customer Information”) will remain the sole property of Customer and EpiCypher will use Customer Information only for the purposes of carrying out the Services or delivery of Products. . Customer acknowledges and agrees that EpiCypher and its affiliates possess certain inventions, processes, know-how, trade secrets, improvements, other intellectual properties and other assets, including but not limited to analytical methods, procedures and techniques, procedure manuals, personnel data, financial information, computer technical expertise and software, which have been independently developed by or for EpiCypher and its affiliates and which relate to the business or operations of EpiCypher and its affiliates (collectively “EpiCypher Property”). All EpiCypher Property, as well as any improvements, modifications and enhancements thereto, are the sole and exclusive property of EpiCypher. Customer will not use or disclose to any third party any confidential or proprietary information of EpiCypher, including without limitation, prices and price schedules, and EpiCypher’s standard operating procedures, without EpiCypher’s prior written consent, except as expressly authorized in these Terms and Conditions. Upon purchase of any Products or Services, and satisfactory payment for Products or Services, Customer shall receive a non-transferable, limited, temporary license to utilize the Product solely in accordance with these Terms and Conditions. This paragraph will survive any termination or expiration of the Agreement. 

6.    Limited Warranty. EpiCypher warrants that the Product when delivered to Customer will meet the specifications stated on the technical data sheet for that Product. EpiCypher agrees to replace the Product free of charge if the Product does not conform to the specifications. Notice of any nonconformity with the specifications and request for replacement must be given within 15 days of receipt of Products. If changes in the physical criteria of any Product are made, the description in the technical data sheet delivered with the Product will supersede the information contained in the EpiCypher catalog or on the EpiCypher site. Other than as expressly set forth in these Terms and Conditions, EpiCypher makes no representations, warranties or guarantees regarding the Services or any deliverables supplied by EpiCypher to Customer, or the use of, or the results of the use of the Products or deliverables, or the performance of the Services. EPICYPHER AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. CLIENT’S EXCLUSIVE REMEDY UNDER EPICYPHER’S WARRANTY IS, AT EPICYPHER’S SOLE OPTION, REPLACEMENT OF NONCONFORMING PRODUCT OR REPERFORMANCE OF THE SERVICES, OR THE ISSUANCE OF A CREDIT OR REFUND TO CUSTOMER FOR THE NONCONFORMING PRODUCTS OR SERVICES. 

7.    Limitation of Liability. IN NO EVENT WILL EPICYPHER OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, SUBCONTRACTORS OR AGENTS BE LIABLE (INCLUDING, BUT NOT LIMITED TO, CONTRACT, NEGLIGENCE AND TORT LIABILITY) FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR PROPERTY DAMAGE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING OUT OF CUSTOMER’S ORDER OR USE OF THE PRODUCTS OR SERVICES, EVEN IF EPICYPHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AS TO ANY EPICYPHER LIABILITY NOT LEGALLY SUBJECT TO THE FOREGOING, IN NO EVENT SHALL THE COLLECTIVE, AGGREGATE LIABILITY (INCLUDING WITHOUT LIMITATION, CONTRACT, NEGLIGENCE AND TORT LIABILITY) OF EPICYPHER OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, SUBCONTRACTORS OR AGENTS ARISING OUT OF THE SERVICES OR UNDER THESE TERMS AND CONDITIONS EXCEED THE AGGREGATE AMOUNT PAID BY CLIENT TO EPICYPHER FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE LIABILITY. Any claims by Customer arising under these Terms and Conditions or otherwise relating to the Products or Services must be brought within one (1) year of the delivery of the Products or performance of Services.  

8.    Indemnification. Customer shall indemnify, defend and hold harmless EpiCypher and its affiliates, and its and their directors, officers, employees and agents (each, a “EpiCypher Indemnified Party”), from and against any and all losses, damages, liabilities, fines, reasonable attorney fees, court costs, and expenses (collectively “Losses”), joint or several, resulting or arising from any third-party claims, actions, proceedings, investigations or litigation relating to or arising from or in connection with these Terms and Conditions, the Products or the Services (including, without limitation, any Losses arising from or in connection with any study, test, device, product or potential product to which the Services relate), except to the extent such Losses are determined to have resulted solely from the negligence or intentional misconduct of the EpiCypher Indemnified Party seeking indemnity hereunder. 

9.    Force Majeure. EpiCypher will not be liable for delay or non-performance of any of its obligations hereunder or its performance of the Services to the extent that such performance is prevented, prohibited or delayed by any circumstance for reasons beyond its control including, without limitation, strikes, lock-outs or labor disputes, fire, flood, natural disaster, war, blockade, military operations, riot, civil commotion, plant breakdown, power outage, and computer or other equipment failure.

10. Agents. No agent, employee or other representative of EpiCypher or its affiliates has the right to modify or expand these Terms and Conditions or EpiCypher’s standard warranty applicable to the Products and Services or to make any representations concerning the Products or Services other than those set forth in these Terms and Conditions. Any such affirmation, representation or warranty, if made, should not be relied upon by Customer and does not form a part of these Terms and Conditions.

11. Notices. All notices to EpiCypher shall be made by certified mail, return receipt requested or overnight commercial courier, with proof of delivery, addressed as follows: EpiCypher, Inc., PO Box 14453, Durham, North Carolina 27709, Attn: General Manager

12. Miscellaneous. The parties hereto are independent contractors and nothing in these Terms and Conditions shall be construed to create a partnership, joint venture or employment relationship between the parties. If any provision of these Terms and Conditions shall be determined to be invalid or unenforceable, such determination shall not affect the validity of the other provisions of the Terms and Conditions. Waiver by either party or the failure by either party to claim a breach of any provision of the Terms of Conditions shall not be deemed to constitute a waiver or estoppel with respect to any subsequent breach of any provision of the Terms of Conditions. EpiCypher may assign or transfer its rights or obligations under these Terms and Conditions to any person or entity without the prior written consent of Customer. The Terms and Conditions, with the applicable Order, represent the entire agreement of the parties. No change or modification of these Terms and Conditions shall be effective unless it is in writing and signed by a duly authorized representative of EpiCypher and Customer. EpiCypher will accept Customer purchase orders for administrative convenience, but any terms of purchase orders that purport to modify or supplement the terms of this Agreement shall have no effect.

13. Governing Law & Venue. These Terms and Conditions of Sale shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to the conflicts of law principles thereof. Any disputes relating to these Terms and Conditions of Sale shall be adjudicated in the state or federal courts in the State of North Carolina and Customer hereby consents to the exclusive jurisdiction of such courts for purposes of any such litigation.

*PRODUCTS ARE FOR RESEARCH USE ONLY.*