Beacon® Optofluidic System Service and Support

This Beacon Optofluidic System Service and Support document contains a description of the service and support plans available to a Berkeley Lights, Inc. (”BLI”) customer that has purchased a BLI Beacon optofluidic system (”BLI System”). Any additional or different terms than those set forth in this document that are proposed by a BLI customer whether (i) by a separate written document, (ii) by a purchase order, and/or (iii) by any other means (including by trade usage or prior course of dealing), will not have any force or effect and are hereby rejected, even if submitted at a point in time after this document.

The BLI System initially carries a thirteen (13) month non-transferable warranty which includes a standard service plan at the Performance level (as described below) (”Performance Warranty”) starting upon the shipment of the BLI System. After expiration of the initial Performance Warranty, a BLI customer has the option to purchase service plans in the form of either an “Essential Plan” or a “Performance Plan” (also each individually a ”Service Plan”). Neither the Essential Plan nor the Performance Plan modify or amend the Beacon System Performance Warranty.

Beacon Optofluidic System Plan Descriptions
And Support Options
…………………………………….. 1
Beacon Optofluidic System Warranty, Service
Plans and Support Feature Comparison
…………………………………….. 2
BLI System Performance Warranty …………………………………….. 3
Service and Support Contract (“Service
Contract
”)
…………………………………….. 5

Beacon Optofluidic System Plan Descriptions and Support Options

The Performance Plan and the Essential Plan, and the available system support options are summarized in the below table.

Plan Name Plan Coverage
Performance Service Plan ✓ 100% coverage of parts, labor, and travel/expense for covered repair and maintenance
✓ On-site response time of three (3) business days
✓ First Response to reported issues within 6 hrs.
✓ One (1) Preventative Maintenance Service (must be completed in service
period)*
✓ One (1) system health checkups (must be completed in service period)
✓ Priority installation of software updates and upgrades with training
✓ Phone and online technical support during BLI standard business hours
(8:00am-6:00pm Pacific time)
✓ Annual Field of Use, or FOU, license included (application
dependent)**
Essential Service Plan ✓ 100% coverage of parts, labor, and travel/expense for covered repair and maintenance
✓ On-site response time of five (5) business days
✓ First Response to reported issues within 24 hrs.
✓ One (1) Preventative Maintenance Service (must be completed in service
<period)
✓ Annual system health checkup must be purchased separately
✓ Installation of software updates and upgrades included
✓ Phone and online technical support during BLI standard business hours
(8:00am-6:00pm Pacific time)
✓ Annual FOU license must be purchased separately
* No Preventative Maintenance Service is performed in the first 12 months for Performance Warranty (available for purchase separately)
**Commercial use of the system may require a Field of Use license, please contact your Berkeley Lights representative to discuss.

Beacon Optofluidic System Performance Warranty, Service Plans and Support Feature Comparison

Plan Features Performance Warranty Performance Service Plan Essential Service Plan Time & Material (Off Coverage) Subscription Service Coverage*1
Term*2 13 months from shipment 1 year 1 year Quoted and charged per incident While in good contract payment status
Field Service Onsite Support ✓3 business days ✓3 business days ✓5 business days 7 to 11 business days from acceptance of Purchase Order*3 ✓4 business days
Remote Technical Support Response*4 6 business hours or less 6 business hours or less 24 business hours or less 24 to 48 business hours 12 business hours or less
Parts Replacement and Repairs Quoted and charged per incident
Onsite Service Labor Quoted and charged per incident
Travel and Expense Quoted and charged per incident
Non-covered Repairs and Relocation Services*5 10% discount applicable to Service List Price/Quote 10% discount applicable to Service List Price/Quote Quoted and charged per incident Quoted and charged per incident Quoted and charged per incident
Annual Preventative Maintenance Available for purchase separately Quoted and charged per incident
System Health Check ✓1 per service period ✓1 per service period Quoted and charged per incident Quoted and charged per incident ✓1 per service period
Software Updates Quoted and charged per incident
Software Upgrades Quoted and charged per incident
Field of Use License Included*6 Available for purchase separately Available for purchase separately
Instructor Lead Software Upgrade Training*7 Remote and/or Onsite as needed Remote and/or Onsite as needed Remote only (outside of APAC). Onsite Available – Per Incident at current Quoted Prices. Quoted and charged per incident Remote only (outside of APAC). Onsite Available – Per Incident at current Quoted Prices.
Optimization & Advanced Workflow Application Support (Remote and/or Onsite) Quoted and charged per incident 3 Days, Remote or Onsite*8 Quoted and charged per incident Quoted and charged per incident Quoted and charged per incident

*1 All Services available for duration of subscription period as long as customer is in good financial standing with BLI.

*2 All entitlements and SLA only valid during the Service Term and do not carry over to subsequent Terms.

*3 Expedited response available for purchase.

*4 Remote Telephone and/or E-mail Support reported through Technical Support hotline, Website, or e-mail address – from Incident Report date/time. PST 08:00 to 18:00 M-F.

*5 Relocations and non-covered repairs as detailed in the terms and conditions,

*6 As applicable, the FOU license is bundled with and renewed via the Performance Plan.

*7 Remote training through Support Portal and/or Instructor. On site for Performance available as needed.

*8 Must use within Service Term, no carryover. On-site requires 3 contiguous days.

BLI System Performance Warranty

Section 1. BLI System.

a. Scope of Warranty. Subject to Section 1.b and to Customer at all times using the BLI System in compliance with all terms and conditions of the system placement or sale, as applicable, and BLI provided documentation, including system user manuals, guides and technical bulletins (all collectively, “Documentation”), BLI warrants that the BLI System hardware and software will perform substantially in accordance with the BLI’s released specifications for the BLI System (“BLI Specifications”) for a period of thirteen (13) months after the date BLI ships the BLI System; provided, however, that, no warranty, express or implied, is provided or extended to results or data generated on the BLI System, by way of example but not of limitation, to data or results generated using Customer-provided cells and/or other biological materials in a BLI released workflow on the BLI System. Non-substantial variations of performance from the BLI Specifications do not establish a warranty right.

b. Warranty Claim. In the event of a warranty claim, Customer’s sole remedy and BLI’s entire obligation and liability shall be, at BLI’s option, to repair, replace or reconfigure the defective BLI System, or to correct, update or upgrade the defective BLI System, as applicable. BLI may use new, used, remanufactured, reconditioned, refurbished or functionally equivalent parts to perform such repair, replacement, or reconfiguration. BLI may require BLI Software Releases to be installed from time to time as a condition to the BLI System warranty. The warranty period for any BLI System furnished to correct a warranty failure will be the unexpired term of the warranty period applicable to the uncorrected product. All warranty claims must be made (i) to BLI in writing reasonably describing the failure, and (ii) within the applicable warranty period for the BLI System. BLI may issue, and require Customer to use, a return material authorization number to proceed with the warranty claim. BLI may require Customer to properly decontaminate, crate in BLI’s standard BLI System packaging, and return the BLI System to BLI. BLI will make a determination, in its sole discretion, as to whether the BLI System fails to perform substantially in accordance with the applicable BLI Specifications and, if so, whether such failure is covered by a BLI warranty that was in effect at the time of the warranty claim.

c. Voiding of Warranty. Notwithstanding anything else in this BLI System Performance Warranty, no warranty, express, implied, statutory, or otherwise, shall extend to any BLI System if

  • (i) Customer has violated any applicable use restriction, including but not limited any used outside of the Permitted Field(s) Of Use,
  • (ii) Customer has violated the BLI microchip “single-use” restriction on the BLI System,
  • (iii) Customer refused to allow BLI to install such BLI Software updates (or upgrades) that BLI believes, in its discretion, are necessary for the best operation of the BLI System,
  • (iv) the failure of the BLI System arose out of or resulted from Customer’s (1) deployment or use of the BLI System not in compliance with the applicable Documentation, (2) use of the Beacon System by a person not trained by BLI, (3) use of the BLI System or component thereof in an application, method or process for which such BLI System or component thereof was not designed or configured by BLI for Customer, (4) use of its own media, biologics, or reagents that are not compatible with the BLI System, (5) alteration or modification of the BLI System not authorized in writing by BLI, including for example, installation of any non-BLI approved third party software updates or upgrades, (6) maintenance, repair, service or support of the BLI System by anyone other than BLI personnel or persons approved in advance in writing by BLI, (7) accident, force majeure, or activities or forces outside of normal use specifications set forth in the applicable Documentation, or (8) breach of any other contractual agreement between BLI and Customer,
  • (v) Customer exposed the BLI System to Biosafety Level 3 or Biosafety Level 4 agents, or
  • (vi) Customer fails to either (x) have in place a secure Internet connection that permits BLI to remotely monitor the use and operation of the BLI System and perform System diagnostic tasks, or (y) permit BLI to download the information of romanette (x) when BLI performs repairs or regular maintenance on the BLI System on-site at Customer’s facility.

d. As Is. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 1.a, THE BLI SYSTEM IS PROVIDED “AS IS”. BLI SPECIFICALLY DISCLAIMS ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. BLI DOES NOT WARRANT THAT THE BLI SYSTEM, OR ANY USE THEREOF, WILL BE ERROR-FREE, UNINTERRUPTED OR VIRUS FREE, OR WILL MEET CUSTOMER’S QUALITY OR PERFORMANCE REQUIREMENTS.

e. Out-of-Warranty Repairs. If BLI determines that an issue or problem with the BLI System is not covered under the BLI System Performance Warranty (“Out-of-Warranty”), BLI will notify Customer of its determination, and provide Customer with an estimate of the cost for any Out-of-Warranty repairs. BLI will not proceed with the repair until Customer provides its written authorization to do so. All costs associated with BLI’s examination, authorized repair, and/or return shipment for Out-of-Warranty repairs shall be billed to Customer at BLI’s then-current commercial rates, and Customer shall bear the risk of loss associated with any BLI System if shipment to/from BLI or BLI’s manufacturer, is required.

Section 2. Data and Results.

BLI CANNOT CONTROL INDIVIDUAL CELLS OR BIOLOGY AND THE SAME OR SIMILAR CELLS AND CELL LINES CAN BEHAVE DIFFERENTLY AND, ACCORDINGLY, BLI DOES NOT WARRANT THE DATA AND RESULTS OF WORKFLOWS AND APPLICATIONS RUN ON THE BLI SYSTEM. THE DATA AND RESULTS OF WORKFLOWS AND APPLICATIONS RUN ON THE BLI SYSTEM ARE GENERATED “AS IS,” WITH NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND. WITHOUT LIMITING THE SCOPE OF THE FOREGOING, NEITHER PARTY MAKES ANY WARRANTIES TO THE OTHER PARTY, EITHER EXPRESS OR IMPLIED, AS TO THE SUCCESS OF ANY WORKFLOWS OR APPLICATIONS CONDUCTED ON THE BLI SYSTEM.

BERKELEY LIGHTS, INC. SERVICE AND SUPPORT CONTRACT

This Service and Support Contract (“Service Contract”) governs the provision of service (the “Services”) that Berkeley Lights, Inc. (“BLI”) will provide to the BLI Customer that has purchased a Service Plan or support option (as defined in the Beacon System Plan Descriptions (page 1, above), for the BLI Beacon optofluidic system (“Covered System”). By executing a purchase order for a Service Plan or Subscription with BLI, the Customer (“Customer”) agrees to be bound by this Service Contract for the provision of the Services.

1. TERMS, SERVICES, LICENSE AND SUPPORT

1.1 Except for service under the Performance Warranty which is covered under the terms of this Contract for a period of 13 months from the date of shipment, all Service Plans are for a fixed period of 12 months, unless a different period is set forth in a quotation or sales confirmation signed by both BLI and Customer (each such fixed period, the “Service Term”), or unless earlier terminated in accordance with Section 7 the initial Service Term shall commence upon shipment of the Covered System. All other Service Terms shall commence upon the date set forth in the Service Contract.

1.2 BLI will provide Customer the Services and, if mutually agreed in writing by Customer and BLI with respect to implementation and consulting services, during on-site visits by BLI to Customer facilities.

1.3 Before requesting Service, Customer is expected to reference the System User Manual and Training Guide. If the technical question is not answered or the problem not solved, Customer should contact its local BLI technical support representative. Contact information can be found on the BLI technical service portal and website.

1.4 BLI will use commercially reasonable efforts to make the Services available to Customer consistent with the response period set forth on the Service Plan, subject to scheduled or emergency maintenance. BLI reserves the right to provide service and support by any method in its sole discretion including but not limited to remote phone support, internet or email and deploying service personnel for on-site Services. BLI will respond to Customer’s request for support in accordance with the average response time specified in the Service Contract. BLI will provide the minimum number of on-site support visits specified in the Service Contract. Other than installation and preventative maintenance visits, BLI shall determine in its sole discretion whether and when any personnel or replacement parts are to be sent to Customer site. Customer shall make reasonable accommodations for scheduling such visit. If no need is identified and the timing of any visit cannot be scheduled at a mutually agreed date and time, BLI may provide fewer visits than prescribed in the Service Contract.

1.5 BLI hereby grants Customer a non-transferable (except as set forth in Section 11) and non-sublicensable license to access software provided as a part of the Services (“Software”) solely for the purpose of receiving and using the Services in accordance with this Service Contract.

2. RESPONSIBILITIES AND RESTRICTIONS

2.1. In connection with the Services and as a part of the Service Plan, Customer:

2.1.1.Agrees to follow all cleaning, handling, operating, environmental and maintenance procedures for the BLI Systems (as defined in the Terms and Conditions of Sale of the specific BLI System), as described in BLI’s user manuals and technical bulletins and will comply with all laws, rules, and regulations applicable to its use of the Services. Service Plan coverage terminates, and this Service Contract shall automatically terminate for Customer refusing or failing to follow procedure in accordance with BLI recommended methods, specifications, instructions, or procedures or applicable law, and BLI shall owe no further obligations under this Service Contract;

2.1.2. Will provide BLI with access to the Covered System along with adequate working space and facilities within a reasonable distance from the Covered System;

2.1.3. Will maintain a procedure to reconstruct lost or altered files, data or programs as well as for the security of all confidential, proprietary and classified information, such information to be secured and protected with at least as much care as Customer uses for its own similar information;

2.1.4. Will maintain an internet connection to allow BLI to remotely access the Covered System to provide more effective and efficient service to Customer;

2.1.5. Will notify BLI in writing if any toxic, hazardous or dangerous substance was used on the Covered System, or if any BSL2 materials were used on the Covered System and, if there was either such use, the Covered System must be decontaminated by Customer in accordance with BLI’s decontamination procedures and Customer shall deliver a completed and executed decontamination certificate to BLI before any Services will be performed on the Covered System;

2.1.6. Agrees to provide BLI designated Service personnel with safe environment for their work. The Covered System shall be placed in environmental condition in accordance with BLI recommended specification;

2.1.7. Agrees to allow BLI to install any and all (i) hardware upgrades or modifications and (ii) software updates and upgrades that BLI believes, in its discretion, are necessary for the best operation of the Covered System; and

2.1.8. Will be responsible for ensuring the site at all times adheres to BLI’s site requirements set forth in the Site Preparation Document. Any deviation from BLI site and facilities requirement affecting the proper function shall relieve BLI from its obligation under this Service Contract, including without limitation, under the Service Contract.

2.2. In connection with the Services and as part of the Service Plan, BLI:

2.2.1. Will use commercially reasonable efforts to distribute Software updates in accordance with terms of the Service Plan. Customer’s use of all Software, updates, and upgrades of Software shall be subject to this Agreement and the original terms governing the sale (or placement) of the Covered System (the “Original Terms”);

2.2.2. Shall use commercially reasonable efforts to install mandatory hardware updates in accordance with the terms of the Service Contract;

2.2.3. Shall use commercially reasonable efforts to repair Covered System if the issue is reported by Customer and the Covered System is deemed inoperable by Customer and BLI personnel. All repaired or replaced items shall be subject to this Agreement and the Original Terms;

2.2.4. Provide new or refurbished replacement parts and components, in BLI’s sole discretion, and furnish them to Customer on an exchange basis with the replaced part/component with all hardware or components removed for replacement becoming the sole property of BLI; and

2.2.5. Provide on-site system health checks and preventative maintenance visit(s) according to the terms of the then current Service Plan, which Customer acknowledges may result in one to five days of system down time to Customer. BLI shall cooperate with Customer to schedule such preventative maintenance visits at a time where that is mutually convenient. All preventative maintenance Services will be provided by BLI designated personnel. All costs for travel, labor and parts are borne in accordance with the Service Contract. All preventative maintenance services and system health checks must be used during the same year the specific plan is in place; such services expire if not used.

2.3. In connection with the Service, BLI, in its discretion:

2.3.1. May choose to provide a loaner Covered System or component thereof to Customer to substitute for such Covered System or component thereof. Customer will be responsible for all cost associated with the shipment of all components or Covered System shipped to Customer site including any taxes or duties; and

2.3.2. Loaner Covered Systems or components must be returned within 60 days of BLI’s request unless otherwise mutually agreed in writing by BLI and Customer.

3. Exclusions and Restrictions

3.1. Services cover maintenance and repair for conditions that result from standard use and operations as described in the user manual for the Covered System. BLI will not be obligated to perform maintenance or repair on any Covered System which, in BLI’s reasonable judgment, has been:

3.1.1. Subjected to misuse, neglect, negligence, accident, improper testing or use, improper installation other than the installation performed by BLI service personnel, improper storage condition or improper handling in a manner inconsistent with the user manual or other published processes and procedures;

3.1.2. Repaired, altered, disassembled, reassembled or damaged as a result of a modification made to the Covered System that was not authorized in writing by BLI;

3.1.3. Damaged by environmental condition(s) at site;

3.1.4. Moved from the agreed upon site by person(s) that
has (have) have not been authorized by BLI;

3.1.5. Used with any third party software, hardware or reagent that has not been approved by BLI;

3.1.6. Exposed to Biosafety Level (“BSL”) 3 and/or 4 material or agents or radioactivity and not been decontaminated; and/or

3.1.7. Damaged due to an act of Force Majeure (asdefined in Section 11).

3.2. ServicesAll Service Plans are terminated automatically with immediate effect without the need for prior notice, and with no refund of monies paid, if:

3.2.1. the Covered System is moved into a different facility from where it was installed by BLI without BLI’s prior written agreement; and/or

3.2.2. The Covered System is used in a BSL3 and/or BSL4 lab, or if BSL3 and/or BSL4 material or agents are run on the Covered System.

3.3. A system not under a current non-expired Service Plan is only eligible for a Service Plan if BLI has inspected the system and its ancillary equipment and provides written notice to Customer that the system is eligible to become a Covered System under a Service Plan. Customer acknowledges that system or components may need to be repaired or replaced at Customer’s sole expense prior to being eligible to become a Covered System under a Service Contract.

4. CONFIDENTIALITY

4.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Confidential Information” of the Disclosing Party). “Confidential Information” also includes the terms and existence of this Service Contract and any related or ancillary agreements.

4.2. The Receiving Party agrees: (i) not to disclose to any person any such Confidential Information other than employees and contractors (that are subject to standard confidentiality obligations) of the Receiving Party that need to access such information to provide (in the case of BLI) or receive (in the case of Customer) the Services; and (ii) to use such Confidential Information solely as necessary to provide (in the case of BLI) or receive (in the case of Customer) the Services and as otherwise permitted by this Service Contract. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (i) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Service Contract will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure.

4.3. Notwithstanding anything to the contrary contained herein, BLI is permitted to (i) disclose on its website or otherwise that Customer is one of its customers, and (ii) disclose to its affiliates and any third party service providers information regarding the Covered System in connection with BLI’s exercising its rights or performing its obligations under this Service Contract. Customer agrees to participate in press announcements, case studies, trade shows, or other forms of publicity as reasonably requested by BLI.

5. INTELLECTUAL PROPERTY RIGHTS

5.1. BLI (and its licensors, where applicable) has and retains ownership of, and all intellectual property rights relating to, any work product developed in connection with BLI’s providing of Services to Customer (“Work Product”), and any modifications, improvements or derivatives of the foregoing. Customer grants to BLI a perpetual, worldwide, royalty-free, fully-paid-up non- exclusive license to use, modify, distribute and otherwise exploit any suggestions, ideas, enhancement requests, feedback, recommendations or other information or ideas provided by Customer or any third party on behalf of Customer relating to the Services.

5.2. Customer Data means information provided or made accessible to BLI by or on behalf of Customer for the purpose of receiving or using the Services, including information regarding Customer’s operation of BLI products. Customer has and retains ownership of the Customer Data and any intellectual property rights with respect to the Customer Data. Notwithstanding anything herein to the contrary, and subject to BLI removing all information that identifies Customer by name, BLI shall have the right to use Customer Data for the improvement of BLI products, and in publications and presentations.

6. PAYMENT OF FEES

6.1. Customer will pay BLI the applicable fees as set forth on a BLI quote or BLI invoice. If Customer’s use of the Services exceeds any authorized use or other limitation specified on the applicable BLI quote or BLI sales confirmation, Customer will be invoiced at the end of each calendar month for the excess usage and Customer agrees to pay BLI for any applicable additional fees. Payments will be due Net 30 from the Services start date unless otherwise specified on the BLI invoice.

6.2. Unpaid fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. The fees are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on BLI’s net income) unless Customer has provided BLI with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.

7. TERMINATION AND SUSPENSION

7.1. In the event of any material breach of this Service Contract, the non-breaching party may terminate this Service Contract prior to the end of the Service Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Service Contract will not terminate if the breaching party has cured the breach prior to the expiration of such thirty (30) day period.

7.2. Without limiting the other provisions of this Section 7, BLI may suspend its provision of, and Customer’s access to, the Services if BLI receives any notice or claim that any activities hereunder may infringe or otherwise violate any law or the rights of a third party.

7.3. All Service Plans are personal to the original Customer and BLI may immediately cancel, without any reimbursement of payments, any Service Plan that Customer attempts to transfer, assign or otherwise delegate to a third party without BLI’s prior written consent.

7.4. Sections 2-5 and 8-11 will survive expiration or termination of this Service Contract.

8. NO INDEMNITY

Neither party shall have an obligation to indemnify, defend or hold harmless the other party, its respective officers, directors, agents, successors and employees from and against any and all third-party claims for damages, liabilities, awards, costs, fees and expenses (including reasonable attorneys’ fees) arising out of or relating to allegations, suits, actions or proceedings asserted by any third party relating to the provision of Services or this Service Contract.

9. WARRANTY DISCLAIMER.

BLI HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

10. LIMITATION OF LIABILITY

IN NO EVENT WILL BLI BE LIABLE FOR ANY LOST DATA, LOSS OF REVENUE, LOST OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, OR FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THE SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF BLI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF BLI, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), ARISING FROM OR RELATED TO THE SERVICES, A SERVICE PLAN, OR TO THIS SERVICE CONTRACT OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO BLI HEREUNDER IN THE SIX MONTH PERIOD ENDING ON THE DATE THAT THE FIRST CLAIM OR DEMAND IN CONNECTION WITH THIS SERVICE CONTRACT IS ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT SUCH LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS SERVICE CONTRACT BETWEEN THE PARTIES AND THAT IN THEIR ABSENCE THE ECONOMIC TERMS OF THESE SERVICE CONTRACT WOULD BE MATERIALLY DIFFERENT.

11. MISCELLANEOUS

11.1. BLI is not responsible for any failures to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God, fire, flood, tornado, earthquake, hurricane, lightning, epidemics, government actions or restrictions, actual or threatened acts of war, terrorism or civil disturbance (“Force Majeure”). In the event of any such Force Majeure, the delivery date shall be deferred for a period equal to the time lost by reason of delay.

11.2. If any provision of this Service Contract is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Service Contract will otherwise remain in full force and effect and enforceable.

11.3. This Service Contract (and Service Plans) are not assignable, transferable or sublicensable by Customer except with BLI’s prior written consent, and any attempted assignment shall be null and void from the beginning. BLI may freely transfer and assign this Service Contract or any of its rights and obligations hereunder, in whole or in part. The parties’ rights and obligations under this Service Contract will bind and inure to the benefit of their respective successors, heirs, executors, and administrators and permitted assigns.

11.4. Both parties agree that this Service Contract and the Service Plan are the complete and exclusive statement of the mutual understanding and entire agreement of the parties and supersedes and cancels all previous written and oral agreements, communications, representations, statements or other understandings relating to the subject matter of this Service Contract. All waivers and modifications hereto must be in a writing signed by both parties.

11.5. No agency, partnership, joint venture, or employment is created as a result of this Service Contract and Customer does not have any authority of any kind to bind BLI in any respect whatsoever.

11.6. In any action or proceeding to enforce rights under this Service Contract, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Service Contract will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.

11.7. This Service Contract will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. Nothing in this Service Contract shall be deemed to be a sale of goods. The parties agree that the federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Service Contract.

The Beacon Optofluidic System is:

FOR RESEARCH USE ONLY. Not for use in diagnostic procedures.

The following Terms and Conditions of Field of Use Sale of Beacon® Optofluidic Platform (“Ts&Cs”), together with the documents specifically referenced herein, constitute the entire and sole basis upon which Berkeley Lights, Inc. (“BLI”) agrees to sell to the purchasing party (“Buyer”) the BLI Beacon® Optofluidic Platform, hardware and component peripherals of such platforms, including any integrated computer (collectively, the “Beacon Platform”). BLI consumables for use with the Beacon Platform, including BLI optofluidic microchips (“BLI Chips”), kits and reagents are sold under separate terms and conditions. Additional or different terms from these Ts&Cs that are proposed by Buyer (i) by acknowledgement hereof, (ii) by a separate written document, (iii) by purchase order, and/or (iv) by any other means (including by trade usage or prior course of dealing), will not have any force or effect and are hereby rejected, even if submitted at a point in time after these Ts&Cs. Neither BLI’s commencement of performance, nor BLI’s failure to object to terms and conditions contained in any communication from Buyer, nor delivery of the Beacon Platform shall constitute an acceptance by BLI of additional or different terms and conditions proposed by Buyer.

NOTE: Beacon Platforms:

  • include integrated BLI Software (as defined below), which is licensed and not sold
  • are covered by one or more issued or pending BLI patents.
  • are subject to the Field of Use restriction identified on the BLI Quote, as further limited by the Section 3.1, below.
  • are sold “For Research Use Only. Not for use in diagnostic procedures.”
  • may only be used with BLI Chips, which are single use chips.
  • are for use only with biosafety level 1 (BSL-1) and biosafety level 2 (BSL-2) materials.

1. SALE OF BEACON PLATFORMS

1.1. Quotes; POs; Sales Order Confirmations. From time to time, BLI will provide a sales quotation to Buyer for one or more Beacon Platforms, which will include pricing, quantities, a permitted field of use, and service/support information (“Quote”). A Quote does not constitute a binding contract. Buyer may issue to BLI a purchase order (“PO”) for the Beacon Platform(s). A PO shall include BLI-designated product number(s), quantity(ies), and requested delivery date(s), which shall be consistent with BLI’s standard lead times. A PO does not constitute a binding contract. BLI will notify Buyer in writing (email acceptable) of either (i) BLI’s acceptance of the product purchase, quantity and delivery date, or (ii) any changes necessary for acceptance, or (iii) rejection of a PO, within three (3) business days of BLI’s receipt of the PO. BLI’s notification of acceptance is deemed a “Sales Order Confirmation”. BLI, in its sole discretion, may accept or reject any PO. No PO shall be deemed accepted by BLI until BLI sends a Sales Order Confirmation. For clarity, the Quote, these Ts&Cs, together with any BLI proposed terms confirmed in a Sales Order Confirmation constitute a binding contract.

1.2. Delivery; Risk of Loss; Title. BLI shall use commercially reasonable efforts to deliver the Beacon Platform(s) consistent with the delivery date confirmed in the Sales Order Confirmation. BLI’s failure to deliver a Beacon Platform by the specified delivery date(s) shall not be sufficient cause for cancellation, nor will BLI be liable for any loss or damage due to delay in delivery. Unless otherwise agreed in writing, BLI will ship the Beacon Platform(s) in its standard commercial platform packaging. When special packaging is requested, or in BLI’s opinion required, the cost of such packaging shall be borne by Buyer. BLI will ship the Beacon Platform(s) FOB Origin within the United States and for all international shipments CIP to Buyer’s facility designated on the Sales Order Confirmation (ICC Incoterms (the “Delivery Point”). Buyer shall pay all transportation, shipping, insurance and other charges incurred from such Delivery Point. Title will transfer upon delivery to the Delivery Point. For the purposes of these Ts&Cs, the date of delivery by BLI to the Delivery Point is referred to as the “Delivery Date.

1.3. Facility Space. Buyer shall be solely responsible for providing a room or area within the Buyer facility (the “Buyer Site”) with the necessary and required connections and appropriate biosafety levels/measures to install the Beacon Platform consistent with BLI’s applicable platform site preparation guide and operate the Beacon Platform in accordance with the Documentation (as defined below).

1.4. Cancellation. If Buyer cancels all or any portion of a PO that was accepted by BLI in a Sales Order Confirmation and prior to shipment, the cancellation charges (a percentage of the aggregate sales price of the Beacon Platform(s) set forth in the Sales Order Confirmation) shall be as set forth in Table 1.4.

Table 1.4.

Cancellation Date relative to Delivery Date
Platform ≤ 5 weeks > 5 weeks
All Beacon Platforms 100% 75%

Any requests by Buyer for delay in scheduled deliveries are subject to BLI approval, in its sole discretion, and if the delay is more than 3 weeks may be subject to imposition of a cancellation fee consistent with Table 1.4. A “week” is defined as seven (7) calendar days.

1.5. No Returns. In no event may Buyer return the Beacon Platform(s) to BLI for credit or refund.

1.6. Specifications; Acceptance. The Beacon Platform will meet the applicable BLI specifications (as may be modified from time to time by BLI, the “BLI Specifications”); provided, however, BLI reserves the right to make modifications to the BLI Specifications that do not materially affect the overall performance, use, installation or price thereof. BLI shall inspect each Beacon Platform prior to shipment to confirm that such product meets the applicable BLI Specifications. Buyer shall be deemed to have accepted each Beacon Platform upon delivery by BLI to the Delivery Point.

2. PRICE, INVOICING, PAYMENT AND TAXES.

2.1. Price, Invoicing and Payment. The price for the Beacon Platform(s) shall be as set forth in the Quote and, if applicable, confirmed in the Sales Order Confirmation. BLI shall issue an invoice to Buyer upon shipment of Beacon Platforms(s) or such other items or services as identified in the Sales Order Confirmation. Buyer will pay all amounts in U.S. dollars, unless otherwise mutually agreed in writing and stated on the Sales Order Confirmation. Unless otherwise mutually agreed in writing by BLI and Buyer, Buyer shall pay all invoices Net 30 calendar days from the date of BLI’s invoice. Invoices not disputed in good faith by Buyer within seven (7) calendar days of mailing shall be deemed accurate. All invoices that are not paid within 30 days shall be assessed a 1.5% late payment charge (or, if less, the highest legal rate under applicable law) for each month the invoice is not paid. Buyer will reimburse BLI for all reasonable costs (including bank charges, collection agency fees and reasonable attorneys’ fees) incurred by BLI in connection with collecting any overdue amounts.

2.2. Taxes. The pricing specified in a Quote (and the Sales Order Confirmation if applicable) does not include any taxes, customs, duties, fees or other amounts assessed or imposed by any government authority. Buyer is responsible for paying all such taxes, including sales taxes, customs, duties, fees and other amounts, other than taxes imposed on BLI’s income. Buyer will pay or reimburse BLI for all such amounts upon demand, or provide evidence of payment or exemption.

2.3. No Set-Off. Buyer shall not have any right to set off against or to recoup from any payment or other obligation owed to BLI, in whole or in part, any amounts due to Buyer or its affiliates from BLI.

3. PERMITTED USES; INTELLECTUAL PROPERTY.

3.1. Permitted Uses.

  • a. Field of Use Restriction
  • Buyer’s use of the Beacon Platform is subject to a “field-of-use” restriction (the “Field of Use”) as set forth in the Quote, and as further limited by this Section 3.1.a. Buyer has a license to use the Beacon Platform for commercial purposes in the Field of Use and for the term specified in the Quote. For any research outside the Field of Use, Buyer agrees to use the Beacon Platform for Buyer’s own internal business purposes only.
  • b. Other Restrictions on Use.
  • Buyer will not directly or indirectly (i) modify, enhance, adapt, create derivative works based upon, disassemble, decompile, circumvent any technological measure that controls access to, or reverse engineer the Beacon Platform or the BLI Software (as defined in Section 3.4), or (ii) use the Beacon Platform in violation of applicable laws and regulations or in a manner inconsistent with any applicable documentation.
  • c. Markings.
    Buyer agrees to not remove, modify or cover any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices in or on the Beacon Platform, or add any other markings or notices in or on the Beacon Platform. Buyer agrees to not remove, modify or cover any warning labels on Beacon Platform.
  • d. Audit Right.
  • At any time during the Term of this Agreement and for a period of one (1) year thereafter, BLI shall have to right to audit Buyer’s books and records as such pertain to this Agreement for compliance with this Section 3.1.

3.2. Permitted Uses. The Beacon Platform is designed, developed and configured to be used, and shall be used only with, BLI Chips, which are designated as single use only. Buyer agrees to comply with, and is solely responsible for complying with all applicable laws, rules and regulations in its use of the Beacon Platform. The Beacon Platform is only for use in biosafety level 1 (BSL-1) and biosafety level 2 (BSL-2) facilities. Buyer assumes all responsibility for selecting a positive pressure or negative pressure Beacon Platform, and for Buyer’s use thereof.

3.3 Regulatory. The Beacon Platform is sold “For Research Use Only. Not for use in diagnostic procedures.” Buyer acknowledges that (i) the Beacon Platform has not been approved, cleared, or licensed by the United States Food and Drug Administration or any other regulatory entity whether foreign or domestic for any specific intended use, whether research, commercial, diagnostic, or otherwise, and (ii) Buyer must ensure it has any regulatory approvals that are necessary for Buyer’s intended uses of the Beacon Platform. Buyer further agrees to comply with all applicable laws and regulations when using, maintaining, and disposing of the Beacon Platform.

3.4. BLI Software and Firmware. The Beacon Platform contains integrated software, firmware or other patented, copyrighted or protected intellectual property rights owned by BLI and its licensors. Any and all software and firmware resident on a Beacon Platform (“BLI Software”) is licensed and not sold. Buyer may not transfer BLI Software.

  • a. License Grant.
  • Subject to these Ts&Cs (including Buyer’s payment of all monies and compliance with the Field of Use), BLI hereby grants to Buyer a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to use the BLI Software solely in conjunction with authorized use of the Beacon Platform at the Buyer Site. Notwithstanding anything to the contrary in these Ts&Cs, any open source or third party software or components included in or provided with the BLI Software are provided solely in accordance with, and subject to, the applicable open source and third party software licenses.
  • b. Updates.
  • Buyer agrees to allow BLI to install such BLI Software updates that BLI, in its discretion, believes are necessary for the best operation of the Beacon Platform. Buyer will not permit any third party software updates or upgrades, including for example, any Windows® software updates, to be installed or loaded onto the Beacon Platform (including the associated personal computer) without BLI’s prior written consent.
  • c. Upgrades.
  • BLI may, from time to time, make BLI Software upgrades available to Buyer. Buyer agrees to permit BLI to install such BLI Software upgrades that BLI, in its discretion, believes are necessary for the best operation of the Beacon Platform. Buyer understands that certain BLI Software upgrades may be subject to an additional fee payment and Buyer agrees to pay for an implement the same in all events within three (3) months of BLI’s written request.

3.5 Transfer Restrictions. Buyer understands and agrees that any re-sale or transfer of the Beacon Platform will immediately terminate any warranty and service obligation and the limited license to BLI Software shall be immediately terminated.

3.6. Rights Reservation. The sale of the Beacon Platform does not convey to Buyer, whether by implication, estoppel or otherwise, any rights in or to any patent, copyright, trademark or other intellectual property right of BLI, or any rights in or to BLI technology or BLI confidential information, except the limited right to use such Beacon Platform in accordance with these Ts&Cs. All rights not expressly granted to Buyer in these Ts&Cs are retained by BLI and its licensors.

3.7. Documentation. The documentation and other data, information and materials (“Documentation”) regarding the Beacon Platform provided by BLI to Buyer contain proprietary and confidential information of BLI. Buyer agrees not to disclose Documentation to any person other than Buyer’s employees and contractors (that are subject to standard confidentiality obligations) that need to access information in the Documentation to operate the Beacon Platform. BLI agrees that the foregoing obligation of confidentiality will not apply with respect to any information that Buyer can document (i) is or becomes generally available to the public without any action by, or involvement of, Buyer, (ii) was in its possession or known by it prior to receipt from BLI, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of, or reference to, any Documentation or other BLI confidential information. Nothing in these Ts&Cs will prevent Buyer from disclosing Documentation pursuant to any judicial or governmental order, provided that Buyer gives BLI reasonable prior written notice of such disclosure.

4. WARRANTIES.

4.1. Limited Warranty. Subject to Section 4.2 and Buyer at all times using the Beacon Platform in compliance with these Ts&Cs and the applicable Documentation, BLI warrants that the Beacon Platform will perform substantially in accordance with the BLI Specifications for such Beacon Platform in effect on the Delivery Date for a period of thirteen (13) months after the shipment date; provided, however, that, no warranty, express or implied, is provided or extended to a Buyer-implemented workflow or any workflow, script or other changes created or modified by Buyer. Non-substantial variations of performance from the BLI Specifications do not establish a warranty right. All warnings and disclaimers that are contained in the Documentation are hereby incorporated by reference. BLI’s warranties extend only to Buyer and cannot be transferred. BLI’S OBLIGATION TO REPAIR OR REPLACE A BEACON PLATFORM IS, IN ALL EVENTS, BUYER’S SOLE AND EXCLUSIVE REMEDY.

4.2. Warranty Claim. In the event of a warranty claim, Buyer’s sole remedy and BLI’s entire obligation and liability shall be, at BLI’s option, to repair, replace or reconfigure the defective Beacon Platform, or to correct, update or upgrade the defective Beacon Platform, as applicable. BLI may use new, used, remanufactured, reconditioned, refurbished or functionally equivalent parts. BLI may require new software releases provided by BLI for the Beacon Platform to be installed from time to time as a condition to the warranty. The warranty period for any Beacon Platform furnished to correct a warranty failure will be the unexpired term of the warranty period applicable to the uncorrected product. All warranty claims must be made to BLI in writing reasonably describing the failure and must be made within the applicable warranty period by requesting a return material authorization number from BLI. BLI may require Buyer to properly decontaminate, crate in BLI’s standard Beacon Platform packaging and returning the Beacon Platform to BLI. BLI will make a determination, in its sole discretion, as to whether the returned Beacon Platform fails to perform substantially in accordance with the applicable BLI Specifications and, if so, whether such failure is covered by the warranty set forth in Section 4.1.

4.3. Voiding of Warranty. Notwithstanding Section 4.1, no warranty, express, implied, statutory or otherwise, shall extend to any Beacon Platform if:

  • (a) Buyer has violated any applicable use restriction, including but not limited any used outside of the Field(s) Of Use;
  • (b) Buyer has violated the BLI microchip “single-use” restriction on the Beacon Platform;
  • (c) Buyer refused to allow BLI to install such BLI Software updates (or upgrades) that BLI believes, in its discretion, are necessary for the best operation of the Beacon Platform;
  • (d) the failure of the Beacon Platform arose out of or resulted from Buyer’s (1) deployment or use of the Beacon Platform not in compliance with the applicable Beacon Documentation, (2) use of the Beacon Platform by a person not trained by BLI, (3) use of the Beacon Platform or component thereof in an application, method or process for which such Beacon Platform or component thereof was not designed or configured by BLI for Buyer, (4) use of its own media or reagents that are not compatible with the Beacon Platform, (5) alteration or modification of the Beacon Platform not authorized in writing by BLI, , including for example, installation of any non-BLI approved third party software updates or upgrades, (6) maintenance, repair, service or support of the Beacon Platform by anyone other than BLI personnel or persons approved in writing by BLI, (7) accident, force majeure, or activities or forces outside of normal use specifications set forth in the applicable Beacon Documentation, or (8) breach by Buyer of any other contractual agreement between BLI and Buyer;
  • (e) Buyer exposed the Beacon Platform to Biosafety Level 3 or Biosafety Level 4 agents; or
  • (f) Buyer fails to either (i) have in place a secure Internet connection that permits BLI to remotely monitor the use and operation of the Beacon Platform and perform platform diagnostic tasks, or (ii) permit BLI to download the information of romanette (i) when BLI performs repairs or regular maintenance on the Beacon Platform on-site at Buyer’s facility.

4.4. As Is. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, EACH BEACON PLATFORM IS PROVIDED “AS IS”. BLI SPECIFICALLY DISCLAIMS ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. BLI DOES NOT WARRANT THAT A BEACON PLATFORM, OR ANY USE THEREOF WILL BE ERROR-FREE, UNINTERRUPTED OR VIRUS FREE, OR WILL MEET BUYER’S QUALITY OR PERFORMANCE REQUIREMENTS. ALL WARNINGS AND DISCLAIMERS THAT ARE CONTAINED IN THE APPLICABLE BEACON PLATFORM DOCUMENTATION ARE HEREBY INCORPORATED INTO THESE TS&CS BY REFERENCE.

4.5. Out-of-Warranty Repairs. If BLI determines that an issue or problem with a Beacon Platform is not covered under the warranty (“Out-of-Warranty”), BLI will notify Buyer of its determination, and provide Buyer with an estimate of the cost for any Out-of-Warranty repairs. BLI will not proceed with the repair until Buyer provides its written authorization to do so. All costs associated with BLI’s examination, authorized repair, and/or return shipment for Out-of-Warranty repairs shall be billed to Buyer at BLI’s then-current commercial rates, and Buyer shall bear the risk of loss associated with any Beacon Platform if shipment to/from BLI or BLI’s manufacturer, is required. In the event Buyer disagrees with BLI’s Out-of-Warranty determination, BLI and Buyer agree to resolve the disagreement in accordance with Section 8.10 below.

4.6. PLATFORM DATA AND RESULTS. BLI CANNOT CONTROL INDIVIDUAL CELLS OR BIOLOGY AND THE SAME OR SIMILAR CELLS AND CELL LINES CAN BEHAVE DIFFERENTLY AND, ACCORDINGLY, BLI DOES NOT GIVE OR EXTEND ANY WARRANTY ON OR RELATION TO THE DATA AND RESULTS OF WORKFLOWS AND APPLICATIONS RUN ON THE BEACON PLATFORM. THE DATA AND RESULTS OF WORKFLOWS AND APPLICATIONS RUN ON THE BEACON PLATFORM ARE GENERATED “AS IS,” WITH NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND. WITHOUT LIMITING THE SCOPE OF THE FOREGOING, BLI MAKES AND EXTENDS NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE SUCCESS OF ANY WORKFLOWS OR APPLICATIONS CONDUCTED ON THE BEACON PLATFORM. TO THE EXTENT NOT ALREADY COVERED UNDER SECTION 4.4, BLI SPECIFICALLY DISCLAIMS ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, IN RELATION TO THE USE OF THE BEACON PLATFORM AND IN RELATION TO DATA AND/OR RESULTS GENERATED ON AND/OR FROM THE BEACON PLATFORM.

5. INFRINGEMENT CLAIM DEFENSE.

SECTIONS 5.1 AND 5.2, BELOW, SET FORTH BUYER’S SOLE AND EXCLUSIVE REMEDY AND BLI’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY A BEACON PLATFORM OR ANY COMPONENT THEREOF, OR BY ITS OPERATION.

5.1. BLI Defense of an Infringement Claim. Subject to Section 5.2, BLI shall defend Buyer from and against any third party claim that a Beacon Platform infringes a valid United States patent that has been issued prior to the Delivery Date, provided that (i) Buyer shall have promptly provided BLI written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) BLI shall have sole authority and control with respect to the defense, settlement, or compromise thereof. BLI’s defense obligation under this Section 5.1 is conditional on Buyer’s strict compliance with romanettes (i) and (ii) of the preceding sentence. If BLI reasonably believes that Buyer’s use of any Beacon Platform or component thereof is likely to be enjoined, or if any Beacon Platform or component thereof is held to infringe such patent and all use of such Beacon Platform or component thereof by Buyer is thereby enjoined, BLI may, at its expense and option, (1) procure for Buyer the right to continue using such Beacon Platform or component thereof, (2) replace or modify such Beacon Platform or component thereof so that it becomes non-infringing, or, if (1) and (2) are not available to BLI, in its reasonable determination, then (3) request Buyer’s return of the allegedly infringing Beacon Platform(s), without any right of refund to Buyer.

5.2. BLI Defense Exclusions. Notwithstanding the provisions of Section 5.1, BLI shall have no liability or obligation to Buyer with respect to any intellectual property infringement or misappropriation, or claim thereof to the extent based upon (i) an application, method or process in which the Beacon Platform may be used where the Beacon Platform when used alone would not result in such infringement, including experiments designed in whole or in part by or for Buyer, (ii) use of the Beacon Platform or component thereof by Buyer in combination with software, hardware, devices, products or services not provided or specified in writing by BLI, (iii) use of the Beacon Platform or component thereof in an application, method or process for which such Beacon Platform or component thereof was not designed or configured by BLI for Buyer (e.g., use outside of the uses permitted hereunder), (iv) alterations or modifications of the Beacon Platform or component thereof not authorized in writing by BLI, (v) any cells, antibodies, reagents or other tangible biological materials provided by Buyer or other Buyer confidential information, or (vi) any workflows, scripts or processes modified or created by Buyer. Buyer shall defend and hold BLI harmless from and against any third party claim falling within the exclusions of romanettes (i)-(vi) of this Section 5.2.

6. LIMITATION OF LIABILITY.

EXCEPT FOR BREACH OF CONFIDENTIALITY OR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY BUYER, OR BUYER’S VIOLATION OF THE FIELD OF USE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, BUSINESS, GOODWILL, REVENUE, USE OR OTHER ECONOMIC ADVANTAGE OR BUSINESS INTERRUPTION) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE BEACON PLATFORM OR USE THEREOF OR THESE TS&CS, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BREACH OF CONFIDENTIALITY OR INFRINGEMENT, MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY BUYER, OR BUYER’S VIOLATION OF THE FIELD OF USE, EACH PARTY’S AGGREGATE LIABILITY UNDER THESE TS&CS, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, SHALL BE LIMITED TO THE PURCHASE PRICE OF THE SPECIFIC BEACON PLATFORM AT ISSUE. FOR CLARITY, THE ABOVE LIMITATIONS SHALL NOT LIMIT BUYER’S PAYMENT OBLIGATIONS UNDER SECTION 2. The limitations of liability and exclusions of damages in this Section 6 form an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in these Ts&Cs is found to have failed its essential purpose.

7. TERMINATION

7.1. Termination by BLI. BLI may terminate these Ts&Cs immediately upon written notice if either (i) Buyer is more than sixty (60) days late on the payment of any fee, or (ii) Buyer makes any assignment of rights for the benefit of its creditors, files for bankruptcy protection, or announces an intention to file for bankruptcy protection.

7.2. Termination For Breach Other than Under Section 7.1. Either party may terminate these Ts&Cs for cause upon written notice to the other party if the other party materially breaches these Ts&Cs (other than a breach by Buyer covered by Section 7.1) and does not cure such breach within thirty (30) days from receipt of notice of the material breach.

7.3. Effect. Upon termination of these Ts&Cs, (i) the license rights granted by BLI to Buyer pursuant to these Ts&Cs will cease immediately, (ii) Buyer will immediately cease all use of the Beacon Platform, properly decontaminate, package and return the Beacon Platform to BLI, along with any BLI confidential information in its possession or control, and (iii) Buyer shall pay all unpaid amounts due and payable to BLI pursuant to Section 2.

7.4. Survival. Sections 3.6, 3.7, 5, 6, 7.3, and 8 will survive any termination of these Ts&Cs.

8. MISCELLANEOUS.

8.1. Marketing. Neither party may disclose the specific terms of these Ts&Cs or issue a public statement or press release regarding these Ts&Cs without the other party’s prior written consent. Notwithstanding the foregoing, (a) BLI may identify Buyer as its Buyer and display Buyer’s name, mark and logo on the website of BLI, and other marketing materials and make disclosures in accordance with Sections 8.3 and 8.4, below, and (b) BLI may disclose these Ts&Cs to prospective acquirers and investors in connection with their due diligence review of BLI; provided that such parties are bound by written agreements that contain use and nondisclosure restrictions reasonably protective of Buyer’s confidential information.

8.2. Independent Contractors. BLI and Buyer are independent contractors with respect to these Ts&Cs. Nothing in these Ts&Cs is intended to, or shall be construed to, create a partnership, agency, joint venture, employment or similar relationship between the parties. Neither party has, and will not represent itself as having, any authority, power or right to bind the other party, or to assume or create any obligation or responsibility, express or implied, on behalf or in the name of the other party.

8.3. Legal Compliance; Export Controls. Each party hereto agrees that it shall comply with all applicable U.S. and foreign laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export or reexport licenses or other government approvals, and any healthcare law or regulation, if applicable), with respect to its activities under these Ts&Cs, including U.S. and any other applicable foreign export and trade restrictions or similar rules. Buyer shall be responsible for any breach of this section by its owners, directors, officers, employees, agents or contractors, as well as its successors and permitted assigns.

8.4. Import and Other Regulatory Requirements. Buyer represents and warrants that it shall, at its expense (i) comply with all import clearance requirements and customs formalities associated with any physical importation of the commodities, software and related technical data into the country of importation, including but not limited to the payment of any duties, fees or taxes imposed, and (ii) obtain any and all import and other licenses and governmental and regulatory approvals that may be necessary for importation into the destination country.

8.5. Amendment; Waiver. These Ts&Cs may not be modified, and no provision hereof may be waived, other than by a written instrument signed by duly authorized officers of each of the parties.

8.6. Severability; English Language. If any provision of these Ts&Cs is held to be illegal, invalid or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from these Ts&Cs, while the remainder of these Ts&Cs will continue in full force and effect. Regardless of whether these Ts&Cs are translated into one or more other languages for any purpose, the American English form of these Ts&Cs shall control and determine the interpretation of these Ts&Cs.

8.7. Assignment.BLI may assign or transfer these Ts&Cs, in whole or in part, to any affiliate or in connection with any acquisition, consolidation, merger, reorganization, transfer of all or substantially all of the assets of the business to which these Ts&Cs relates or other business combination, or by operation of law without Buyer’s consent and without providing notice. Buyer may not assign or transfer these Ts&Cs by business combination, operation of law or otherwise without BLI’s prior written consent. Subject to the foregoing, these Ts&Cs will bind and benefit the parties and their respective successors and permitted assigns.

8.8. Third Party Beneficiaries. Nothing in these Ts&Cs, express or implied, is intended to confer upon any party other than the parties hereto, BLI’s licensors or their respective successors and permitted assigns any rights or obligations, to enforce these Ts&Cs.

8.9. Governing Law. These Ts&Cs are to be construed in accordance with and governed by the internal laws of the State of California, United States and, where applicable, the federal laws of the United States, without giving effect to any conflict of laws provisions.

8.10. Dispute Resolution; Injunctive Relief. In the event of a dispute arising under these Ts&Cs (a “Dispute”), a party shall provide the other party with written notice of the Dispute, and the parties agree to exercise commercially reasonable efforts to resolve the Dispute in good faith by promptly engaging in discussions through a designated executive officer of each party. A Dispute that cannot be resolved within 30 days following the discussions contemplated by the preceding sentence will, upon written demand of either party, be resolved exclusively by final and binding arbitration. Arbitration will be conducted exclusively in San Francisco, California by the Judicial Arbitration and Mediation Service (“JAMS”) pursuant to the United States Arbitration Act, 9 U.S.C., § 1 et seq, and the Comprehensive Arbitration Rules and Procedures of JAMS then in effect before a single arbitrator who shall at all times follow applicable law. Each party shall bear its own expenses, and the two parties will share equally the fees of the arbitrator. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY. Notwithstanding anything in these Ts&Cs to the contrary, each party shall have the right, at its election, to seek injunctive or other equitable relief in any court of competent jurisdiction to enforce or obtain compliance with any provision of these Ts&Cs without first submitting such matter to arbitration. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently and, unless otherwise stated herein, shall not be deemed exclusive.

8.11. Force Majeure. A party shall be excused from performance under these Ts&Cs for any period to the extent that such party is prevented from performing any obligation, in whole or in part, as a result of causes beyond its reasonable control and without its negligent or willful misconduct, including without limitation, acts of God, natural disasters, epidemics, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations, third party nonperformance, or failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment. Nothing in this Section 8.11 is intended to excuse payment by Buyer of a valid invoice submitted by BLI.

8.12. Notices. Any notice under these Ts&Cs shall be given in writing and shall be deemed effectively given upon the earlier of actual receipt or four (4) business days after deposit with an internationally recognized express courier, freight prepaid, with written verification of receipt.

8.13. Government or Government-Funded Acquisitions. If Buyer is the United States government, or anyone that is acquiring any Beacon Platform pursuant to a United States government contract or with United States government funds, Buyer agrees that each Beacon Platform meets the definition of a “commercial-off-the-shelf” item or a “commercial item” as defined in 48 C.F.R. 2.101. All government end users acquire only those rights in the Beacon Platform that are expressly granted in these Ts&Cs. In the case of any other government, BLI’s rights are protected to the maximum extent possible as set forth in these Ts&Cs, but in any event to at least the same extent they would be protected under the immediately preceding sentences.

The following Terms and Conditions of Sale of Lightning Platforms (“Ts&Cs”), together with the documents specifically referenced herein, constitute the entire and sole basis upon which Berkeley Lights, Inc. (“BLI”) agrees to sell to the purchasing party (“Buyer”) the BLI Lightning Optofluidic Platform, hardware and component peripherals of such platforms, including any personal computer (collectively, “Lightning Platforms”). BLI consumables for use with Lightning Platforms, including optofluidic microchips (“BLI Chips”), kits and reagents are sold under separate terms and conditions. Additional or different terms from these Ts&Cs that are proposed by Buyer (i) by acknowledgement hereof, (ii) by a separate written document, (iii) by purchase order, and/or (iv) by any other means (including by trade usage or prior course of dealing), will not have any force or effect and are hereby rejected, even if submitted at a point in time after these Ts&Cs. Neither BLI’s commencement of performance, nor BLI’s failure to object to terms and conditions contained in any communication from Buyer, nor delivery of Lightning Platforms shall constitute an acceptance by BLI of additional or different terms and conditions proposed by Buyer.

NOTE: Lightning Platforms:

  • include integrated BLI Software (as defined below), which is licensed and not sold
  • are covered by one or more issued or pending BLI patents.
  • are sold “For Research Use Only. Not for use in diagnostic procedures.”, as further limited by Section 3.1. below.
  • may only be used with BLI Chips.
  • are for use only with biosafety level 1 (BSL-1) and biosafety level 2 (BSL-2) facilities.

1. SALE OF LIGHTNING PLATFORMS

1.1. Quotes; POs; Sales Order Confirmations. From time to time, BLI will provide a sales quotation to Buyer for one or more Lightning Platforms, which will include pricing, quantities, and service/support information (“Quote”). A Quote does not constitute a binding contract. Buyer may issue to BLI a purchase order (“PO”) for Lightning Platform(s). A PO shall include BLI-designated product number(s), quantity(ies), and requested delivery date(s), which shall be consistent with BLI’s standard lead times. A PO does not constitute a binding contract. BLI will notify Buyer in writing (email acceptable) of either (i) BLI’s acceptance of the product purchase, quantity and delivery date, or (ii) any changes necessary for acceptance, or (iii) rejection of a PO, within three (3) business days of BLI’s receipt of the PO. BLI’s notification of acceptance is deemed a “Sales Order Confirmation”. BLI, in its sole discretion, may accept or reject any PO. No PO shall be deemed accepted by BLI until BLI sends a Sales Order Confirmation. For clarity, the Quote, these Ts&Cs, together with any BLI terms confirmed in a Sales Order Confirmation constitute a binding contract.

1.2. Delivery; Risk of Loss; BLI shall use commercially reasonable efforts to deliver the Lightning Platform(s) consistent with the delivery date confirmed in the Sales Order Confirmation. BLI’s failure to deliver a Lightning Platform by the specified delivery date(s) shall not be sufficient cause for cancellation, nor will BLI be liable for any loss or damage due to delay in delivery. Unless otherwise agreed in writing, BLI will ship the Lightning Platform(s) in its standard commercial platform packaging. When special packaging is requested, or in BLI’s opinion required, the cost of such packaging shall be borne by Buyer. BLI will ship the Lightning Platform(s) within the United States and for all international shipments Delivered at Place (DAP) Buyer’s facility designated on the Sales Order Confirmation (ICC Incoterms (the “Delivery Point”). Buyer shall pay all transportation, shipping, insurance and other charges incurred from such Delivery Point. Title will transfer upon delivery to the Delivery Point. For the purposes of these Ts&Cs, the date of delivery by BLI to the Delivery Point is referred to as the “Delivery Date.

1.3. Facility Space. Buyer shall be solely responsible for providing a room or area within the Buyer facility (the “Buyer Site”) with the necessary and required connections and appropriate biosafety levels/measures to install the Lightning Platform(s) consistent with BLI’s applicable platform site preparation guide and operate the Lightning Platform(s) in accordance with the Documentation (as defined below).

1.4. Cancellation. If Buyer cancels all or any portion of a PO that was accepted in a Sales Order Confirmation and prior to shipment, the cancellation charge will be the equivalent of a 25% restocking fee. Any requests by Buyer for delay in scheduled deliveries are subject to BLI approval, in its sole discretion, and subject to imposition of a cancellation fee based on the 25% restocking fee.

1.5. No Returns. In no event may Buyer return the Lightning Platform(s) to BLI for credit or refund.

1.6. Specifications; Acceptance. the Lightning Platform(s) will meet the applicable BLI specifications (as may be modified from time to time by BLI, the “BLI Specifications”); provided, however, BLI reserves the right to make modifications to the BLI Specifications that do not materially affect the overall performance, use, installation or price thereof. BLI shall inspect each Lightning Platform prior to shipment to confirm that such product meets the applicable BLI Specifications. Buyer shall be deemed to have accepted each Lightning Platform upon delivery by BLI to the Delivery Point.

2. PRICE, INVOICING, PAYMENT AND TAXES.

2.1. Price, Invoicing and Payment. The price for the Lightning Platform(s) shall be as set forth in the Quote and confirmed in the Sales Order Confirmation. BLI shall issue an invoice to Buyer upon shipment of the Lightning Platforms(s) or such other items or services as identified in the Sales Order Confirmation. Buyer will pay all amounts in U.S. dollars, unless otherwise mutually agreed and stated on the Sales Order Confirmation. Unless otherwise agreed in writing by BLI and Buyer on a Sales Order Confirmation, Buyer shall pay all invoices Net 30 calendar days from the date of BLI’s invoice. Invoices not disputed in good faith by Buyer within seven (7) calendar days of mailing shall be deemed accurate. All invoices that are not paid within 30 days shall be assessed a 1.5% late payment charge (or, if less, the highest legal rate under applicable law) for each month the invoice is not paid. Buyer will reimburse BLI for all reasonable costs (including bank charges, collection agency fees and reasonable attorneys’ fees) incurred by BLI in connection with collecting any overdue amounts.

2.2. Taxes. The pricing specified in a Quote and in any Sales Order Confirmation does not include any taxes, customs, duties, fees or other amounts assessed or imposed by any government authority. Buyer is responsible for paying all such taxes, including sales taxes, customs, duties, fees and other amounts, other than taxes imposed on BLI’s income. Buyer will pay or reimburse BLI for all such amounts upon demand, or provide evidence of payment or exemption.

2.3. No Set-Off. Buyer shall not have any right to set off against or to recoup from any payment or other obligation owed to BLI, in whole or in part, any amounts due to Buyer or its affiliates from BLI.

3. PERMITTED USES; INTELLECTUAL PROPERTY.

3.1. Field of Use.

  • a. Field of Use
  • Buyer agrees to use the Lightning Platform for research purposes only.
  • b. Other Restrictions on Use.
  • Buyer will not directly or indirectly: (i) modify, enhance, adapt, create derivative works based upon, disassemble, decompile, circumvent any technological measure that controls access to, or reverse engineer the Lightning Platform or the BLI Software (as defined in Section 3.4); or (ii) use the Lightning Platform in violation of applicable laws and regulations or in a manner inconsistent with any applicable documentation.
  • c. Markings.
    Buyer agrees to not remove, modify or cover any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices in or on Lightning Platforms, or add any other markings or notices in or on Lightning Platforms. Buyer agrees to not remove, modify or cover any warning labels on Lightning Platforms.

3.2. Permitted Uses. Lightning Platforms are designed, developed and configured to be used, and shall be used only with, BLI Chips, which are designated as single use only. Buyer agrees to comply with, and is solely responsible for complying with all applicable laws, rules and regulations in its use of Lightning Platforms. Lightning Platforms are only for use in biosafety level 1 (BSL-1) and biosafety level 2 (BSL-2) facilities.

3.3 Regulatory. The Lightning Platforms are sold “For Research Use Only. Not for use in diagnostic procedures.” Buyer acknowledges that (i) Lightning Platforms have not been approved, cleared, or licensed by the United States Food and Drug Administration or any other regulatory entity whether foreign or domestic for any specific intended use, whether research, commercial, diagnostic, or otherwise, and (ii) Buyer must ensure it has any regulatory approvals that are necessary for Buyer’s intended uses of Lightning Platforms. Buyer further agrees to comply with all applicable laws and regulations when using, maintaining, and disposing of Lightning Platforms.

3.4. BLI Software and Firmware. The Lightning Platform contains and/or includes a personal computer with integrated software, firmware or other patented, copyrighted or protected intellectual property rights owned by BLI and its licensors. Any and all software and firmware resident on a Lightning Platform or on a computer used with the Lightning Platform (“BLI Software”) is licensed and not sold. Buyer may not transfer BLI Software.

  • a. License Grant.
  • Subject to these Ts&Cs, BLI hereby grants to Buyer a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to use the BLI Software solely in conjunction with authorized use of the Lightning Platform at the Buyer Site. Notwithstanding anything to the contrary in these Ts&Cs, any open source or third party software or components included in or provided with the BLI Software are provided solely in accordance with, and subject to, the applicable open source and third party software licenses.
  • b. Updates.
  • Buyer agrees to allow BLI to install such BLI Software updates that BLI, in its discretion, believes are necessary for the best operation of the Lightning Platform. Buyer will not permit any third party software updates or upgrades, including for example, any Windows® software updates, to be installed or loaded onto the Lightning Platform (including the associated personal computer) without BLI’s prior written consent.
  • c. Upgrades.
  • BLI may, from time to time, make BLI Software upgrades available to Buyer. Buyer agrees to permit BLI to install such BLI Software upgrades that BLI, in its discretion, believes are necessary for the best operation of the Lightning Platform. Buyer understands that certain BLI Software upgrades may be subject to an additional fee payment and Buyer agrees to pay for an implement the same in all events within three (3) months of BLI’s written request.

3.5 Transfer Restrictions. Buyer understands and agrees that any re-sale or transfer of the Lightning Platform will immediately terminate any warranty and service obligation and the limited license to BLI Software shall be immediately terminated.

3.6. Rights Reservation. The sale of the Lightning Platform does not convey to Buyer, whether by implication, estoppel or otherwise, any rights in or to any patent, copyright, trademark or other intellectual property right of BLI, or any rights in or to BLI technology or BLI confidential information, except the limited right to use the Lightning Platform in accordance with these Ts&Cs. All rights not expressly granted to Buyer in these Ts&Cs are retained by BLI and its licensors.

3.7. Documentation. The documentation and other data, information and materials (“Documentation”) regarding Lightning Platforms provided by BLI to Buyer contain proprietary and confidential information of BLI. Buyer agrees not to disclose Documentation to any person other than Buyer’s employees and contractors (that are subject to standard confidentiality obligations) that need to access information in the Documentation to operate the Lightning Platform. BLI agrees that the foregoing obligation of confidentiality will not apply with respect to any information that Buyer can document (i) is or becomes generally available to the public without any action by, or involvement of, Buyer, (ii) was in its possession or known by it prior to receipt from BLI, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of, or reference to, any Documentation or other BLI confidential information. Nothing in these Ts&Cs will prevent Buyer from disclosing Documentation pursuant to any judicial or governmental order, provided that Buyer gives BLI reasonable prior written notice of such disclosure.

4. WARRANTIES.

4.1. Limited Warranty. Subject to Section 4.2 and provided that Buyer at all times uses the Lightning Platform in compliance with these Ts&Cs and the applicable Documentation, BLI warrants that the Lightning Platform will perform substantially in accordance with the BLI Specifications for such Lightning Platforms in effect on the shipment date for a period of thirteen (13) months after the shipment date; provided, however, that, no warranty, express or implied, is provided or extended to a Buyer-implemented workflow or any workflow, script or other changes created or modified by Buyer. Non-substantial variations of performance from the BLI Specifications do not establish a warranty right. In the event of a warranty claim, Buyer’s sole remedy and BLI’s entire obligation and liability shall be, at BLI’s option, to repair, replace or reconfigure the defective Lightning Platform, or to correct, update or upgrade the defective Lightning Platform, as applicable. BLI may use new, used, remanufactured, reconditioned, refurbished or functionally equivalent parts. BLI may require new software releases provided by BLI for the Lightning Platform to be installed from time to time as a condition to the warranty. The warranty period for any Lightning Platform furnished to correct a warranty failure will be the unexpired term of the warranty period applicable to the uncorrected product. All warranty claims must be made to BLI in writing reasonably describing the failure and must be made within the applicable warranty period by requesting a return material authorization number from BLI. BLI may require Buyer to properly decontaminate, crate in BLI’s standard Lightning Platform packaging and return the Lightning Platform to BLI. BLI will make a determination, in its sole discretion, as to whether the returned Lightning Platform fails to perform substantially in accordance with the applicable BLI Specifications and, if so, whether such failure is covered by the warranty set forth in this Section 4.1.

4.2. Voiding of Warranty. Notwithstanding Section 4.1, no warranty, express, implied, statutory or otherwise, shall extend to any Lightning Platform: (i) that has been used in violation of any applicable use restriction; (ii) if Buyer has refused to allow BLI to install such BLI Software updates (or upgrades) that BLI believes, in its discretion, are necessary for the best operation of the Lightning Platform; (iii) if any failure has arisen or resulted from (1) installation, deployment or use not in compliance with the applicable Documentation, (2) use of a Lightning Platform by a person not trained by BLI, (3) use of a Lightning Platform or component thereof in an application, method or process for which such Lightning Platform or component thereof was not designed or configured by BLI for Buyer, (4) Buyer’s use of its own media or reagents that are not compatible with the Lightning Platform, (5) alteration or modification not authorized in writing by BLI, including for example, installation of any non-BLI approved third party software updates or upgrades, (6) maintenance, repair, service or support by anyone other than BLI personnel or persons approved in writing by BLI, (7) accident, force majeure, or activities or forces outside of normal use specifications set forth in the applicable Documentation, or (8) breach of these Ts&Cs or any document referenced herein by Buyer; (iv) that has been exposed to Biosafety Level 3 or Biosafety Level 4 agents; or (v) Buyer fails to either (x) have in place a secure Internet connection that permits BLI to remotely monitor the use and operation of the Lightning Platform and perform platform diagnostic tasks, or (y) permit BLI to download the information of romanette (x) when BLI performs repairs or regular maintenance on the Lightning Platform on-site at Buyer’s facility.

4.3. As Is. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, EACH LIGHTNING PLATFORM IS PROVIDED “AS IS”. BLI SPECIFICALLY DISCLAIMS ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING RESULTS OBTAINED THROUGH THE USE OF THE LIGHTNING PLATFORM. BLI SPECIFICALLY DISCLAIMS ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. BLI DOES NOT WARRANT THAT A LIGHTNING PLATFORM, OR ANY USE THEREOF WILL BE ERROR-FREE, UNINTERRUPTED OR VIRUS FREE, OR WILL MEET BUYER’S QUALITY OR PERFORMANCE REQUIREMENTS. ALL WARNINGS AND DISCLAIMERS THAT ARE CONTAINED IN THE APPLICABLE LIGHTNING PLATFORM DOCUMENTATION ARE HEREBY INCORPORATED INTO THESE TS&CS BY REFERENCE.

4.4. Out-of-Warranty Repairs. If BLI determines that an issue or problem with the Lightning Platform is not covered under the warranty (“Out-of-Warranty”), BLI will notify Buyer of its determination, and provide Buyer with an estimate of the cost for any Out-of-Warranty repairs. BLI will not proceed with the repair until Buyer provides its written authorization to do so. All costs associated with BLI’s examination, authorized repair, and/or return shipment for Out-of-Warranty repairs shall be billed to Buyer at BLI’s then-current commercial rates, and Buyer shall bear the risk of loss associated with any Lightning Platform if shipment to/from BLI or BLI’s manufacturer, is required. In the event Buyer disagrees with BLI’s Out-of-Warranty determination, BLI and Buyer agree to resolve the disagreement in accordance with Section 8.10 below.

5. INFRINGEMENT CLAIM DEFENSE.

SECTIONS 5.1 AND 5.2, BELOW, SET FORTH BUYER’S SOLE AND EXCLUSIVE REMEDY AND BLI’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY A LIGHTNING PLATFORM OR ANY COMPONENT THEREOF, OR BY ITS OPERATION.

5.1. BLI Defense of an Infringement Claim. Subject to Section 5.2, BLI shall defend Buyer from and against any third party claim that a Lightning Platform infringes a valid United States patent that has been issued prior to the Delivery Date, provided that (i) Buyer shall have promptly provided BLI written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) BLI shall have sole authority and control with respect to the defense, settlement, or compromise thereof. BLI’s defense obligation under this Section 5.1 is conditional on Buyer’s strict compliance with romanettes (i) and (ii) of the preceding sentence. If BLI reasonably believes that Buyer’s use of any Lightning Platform or component thereof is likely to be enjoined, or if any Lightning Platform or component thereof is held to infringe such patent and all use of such Lightning Platform or component thereof by Buyer is thereby enjoined, BLI may, at its expense and option, (1) procure for Buyer the right to continue using such Lightning Platform or component thereof, (2) replace or modify such Lightning Platform or component thereof so that it becomes non-infringing, or, if (1) and (2) are not available to BLI, in its reasonable determination, then (3) request Buyer’s return of the allegedly infringing Lightning Platforms, without any right of refund to Buyer.

5.2. BLI Defense Exclusions. Notwithstanding the provisions of Section 5.1, BLI shall have no liability or obligation to Buyer with respect to any intellectual property infringement or misappropriation, or claim thereof to the extent based upon (a) an application, method or process in which the Lightning Platform may be used where the Lightning Platform when used alone would not result in such infringement, including experiments designed in whole or in part by or for Buyer, (b) use of a Lightning Platform or component thereof by Buyer in combination with software, hardware, devices, products or services not provided or specified in writing by BLI, (c) use of a Lightning Platform or component thereof in an application, method or process for which such Lightning Platform or component thereof was not designed or configured by BLI for Buyer (e.g., use outside of the uses permitted hereunder), (d) alterations or modifications of Lightning Platform or component thereof not authorized in writing by BLI, (e) any cells, antibodies, reagents or other tangible biological materials provided by Buyer or other Buyer confidential information, or (f) any workflows, scripts or processes modified or created by Buyer. Buyer shall defend and hold BLI harmless from and against any third party claim falling within the exclusions of this Section 5.2.

6. LIMITATION OF LIABILITY.

EXCEPT FOR BREACH OF CONFIDENTIALITY OR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY BUYER, OR BUYER’S VIOLATION OF THE FIELD OF USE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, BUSINESS, GOODWILL, REVENUE, USE OR OTHER ECONOMIC ADVANTAGE OR BUSINESS INTERRUPTION) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE LIGHTNING PLATFORM OR USE THEREOF OR THESE TS&CS, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BREACH OF CONFIDENTIALITY OR INFRINGEMENT, MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY BUYER, OR BUYER’S VIOLATION OF THE FIELD OF USE, EACH PARTY’S AGGREGATE LIABILITY UNDER THESE TS&CS, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, SHALL BE LIMITED TO THE PURCHASE PRICE OF THE SPECIFIC LIGHTNING PLATFORM AT ISSUE. FOR CLARITY, THE ABOVE LIMITATIONS SHALL NOT LIMIT BUYER’S PAYMENT OBLIGATIONS UNDER SECTION 2. The limitations of liability and exclusions of damages in this Section 6 form an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in these Ts&Cs is found to have failed its essential purpose.

7. TERMINATION

7.1. Termination by BLI. BLI may terminate these Ts&Cs immediately upon written notice if either (i) Buyer is more than sixty (60) days late on the payment of any fee, or (ii) Buyer makes any assignment of rights for the benefit of its creditors, files for bankruptcy protection, or announces an intention to file for bankruptcy protection.

7.2. Termination For Breach Other than Under Section 7.1. Either party may terminate these Ts&Cs for cause upon written notice to the other party if the other party materially breaches these Ts&Cs (other than a breach by Buyer covered by Section 7.1) and does not cure such breach within thirty (30) days from receipt of notice of the material breach.

7.3. Effect. Upon termination of these Ts&Cs, (i) the license rights granted by BLI to Buyer pursuant to these Ts&Cs will cease immediately, (ii) Buyer will immediately cease all use of the Lightning Platform, properly decontaminate, package and return the Lightning Platform to BLI, along with any BLI confidential information in its possession or control, and (iii) Buyer shall pay all unpaid amounts due and payable to BLI pursuant to Section 2.

7.4. Survival. Sections 3.6, 3.7, 5, 6, 7.3, and 8 will survive any termination of these Ts&Cs.

8. MISCELLANEOUS.

8.1. Marketing. Neither party may disclose the specific terms of these Ts&Cs or issue a public statement or press release regarding these Ts&Cs without the other party’s prior written consent. Notwithstanding the foregoing, (a) BLI may identify Buyer as its Buyer and display Buyer’s name, mark and logo on the website of BLI, and other marketing materials and make disclosures in accordance with Sections 8.3 and 8.4, below, and (b) BLI may disclose these Ts&Cs to prospective acquirers and investors in connection with their due diligence review of BLI provided that such parties are bound by written agreements that contain use and nondisclosure restrictions at least as protective of the disclosing party’s confidential information as those set forth in the NDA.

8.2. Independent Contractors. BLI and Buyer are independent contractors with respect to these Ts&Cs. Nothing in these Ts&Cs is intended to, or shall be construed to, create a partnership, agency, joint venture, employment or similar relationship between the parties. Neither party has, and will not represent itself as having, any authority, power or right to bind the other party, or to assume or create any obligation or responsibility, express or implied, on behalf or in the name of the other party.

8.3. Legal Compliance; Export Controls. Each party hereto agrees that it shall comply with all applicable U.S. and foreign laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export or reexport licenses or other government approvals, and any healthcare law or regulation, if applicable), with respect to its activities under these Ts&Cs, including U.S. and any other applicable foreign export and trade restrictions or similar rules. Buyer shall be responsible for any breach of this section by its owners, directors, officers, employees, agents or contractors, as well as its successors and permitted assigns.

8.4. Import and Other Regulatory Requirements. Buyer represents and warrants that it shall, at its expense: (i) comply with all import clearance requirements and customs formalities associated with any physical importation of the commodities, software and related technical data into the country of importation, including but not limited to the payment of any duties, fees or taxes imposed, and (ii) obtain any and all import and other licenses and governmental and regulatory approvals that may be necessary for importation into the destination country.

8.5. Amendment; Waiver. These Ts&Cs may not be modified, and no provision hereof may be waived, other than by a written instrument signed by duly authorized officers of each of the parties.

8.6. Severability; English Language. If any provision of these Ts&Cs is held to be illegal, invalid or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from these Ts&Cs, while the remainder of these Ts&Cs will continue in full force and effect. Regardless of whether these Ts&Cs are translated into one or more other languages for any purpose, the American English form of these Ts&Cs shall control and determine the interpretation of these Ts&Cs.

8.7. Assignment. BLI may assign or transfer these Ts&Cs, in whole or in part, to any affiliate or in connection with any acquisition, consolidation, merger, reorganization, transfer of all or substantially all of the assets of the business to which these Ts&Cs relates or other business combination, or by operation of law without Buyer’s consent and without providing notice. Buyer may not assign or transfer these Ts&Cs by business combination, operation of law or otherwise without BLI’s prior written consent. Subject to the foregoing, these Ts&Cs will bind and benefit the parties and their respective successors and permitted assigns.

8.8. Third Party Beneficiaries. Nothing in these Ts&Cs, express or implied, is intended to confer upon any party other than the parties hereto, BLI’s licensors or their respective successors and permitted assigns any rights or obligations, to enforce these Ts&Cs.

8.9. Governing Law. These Ts&Cs are to be construed in accordance with and governed by the internal laws of the State of California, United States and, where applicable, the federal laws of the United States, without giving effect to any conflict of laws provisions.

8.10. Dispute Resolution; Injunctive Relief. In the event of a dispute arising under these Ts&Cs (a “Dispute”), a party shall provide the other party with written notice of the Dispute, and the parties agree to exercise commercially reasonable efforts to resolve the Dispute in good faith by promptly engaging in discussions through a designated executive officer of each party. A Dispute that cannot be resolved within 30 days following the discussions contemplated by the preceding sentence will, upon written demand of either party, be resolved exclusively by final and binding arbitration. Arbitration will be conducted exclusively in San Francisco, California by the Judicial Arbitration and Mediation Service (“JAMS”) pursuant to the United States Arbitration Act, 9 U.S.C., § 1 et seq, and the Comprehensive Arbitration Rules and Procedures of JAMS then in effect before a single arbitrator who shall at all times follow applicable law. Each party shall bear its own expenses, and the two parties will share equally the fees of the arbitrator. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY. Notwithstanding anything in these Ts&Cs to the contrary, each party shall have the right, at its election, to seek injunctive or other equitable relief in any court of competent jurisdiction to enforce or obtain compliance with any provision of these Ts&Cs without first submitting such matter to arbitration. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently and, unless otherwise stated herein, shall not be deemed exclusive.

8.11. Force Majeure. A party shall be excused from performance under these Ts&Cs for any period to the extent that such party is prevented from performing any obligation, in whole or in part, as a result of causes beyond its reasonable control and without its negligent or willful misconduct, including without limitation, acts of God, epidemics, natural disasters, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations, third party nonperformance, or failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment. Nothing in this Section 8.11 is intended to excuse payment by Buyer of a valid invoice submitted by BLI.

8.12. Notices. Any notice under these Ts&Cs shall be given in writing and shall be deemed effectively given upon the earlier of actual receipt or four (4) business days after deposit with an internationally recognized express courier, freight prepaid, with written verification of receipt.

8.13. Government or Government-Funded Acquisitions. If Buyer is the United States government, or anyone that is acquiring any Lightning Platform pursuant to a United States government contract or with United States government funds, Buyer agrees that each Lightning Platform meets the definition of a “commercial-off-the-shelf” item or a “commercial item” as defined in 48 C.F.R. 2.101. All government end users acquire only those rights in Lightning Platforms that are expressly granted in these Ts&Cs. In the case of any other government, BLI’s rights are protected to the maximum extent possible as set forth in these Ts&Cs, but in any event to at least the same extent they would be protected under the immediately preceding sentences.

The following Terms and Conditions of Field of Use Sale of BLI Consumables (“Ts&Cs”), together with the documents specifically referenced herein, constitute the entire and sole basis upon which Berkeley Lights, Inc. (“BLI”) agrees to sell to the purchasing party (“Buyer”) BLI optofluidic microchips (“BLI OptoSelect Chips”) and reagents, kits and media (BLI OptoSelect Chips and reagents, kits and media are referred to collectively as “BLI Consumables”) for use with BLI’s optofluidic platforms, including the Beacon platform and the Lightning platform (individually and collectively, the “BLI Platform(s)”). Additional or different terms from these Ts&Cs that are proposed by Buyer (i) by acknowledgement hereof, (ii) by a separate written document, (iii) by purchase order, and/or (iv) by any other means (including by trade usage or prior course of dealing), will not have any force or effect and are hereby rejected, even if submitted at a point in time after these Ts&Cs. Neither BLI’s commencement of performance, nor BLI’s failure to object to terms and conditions contained in any communication from Buyer, nor delivery of BLI Consumables shall constitute an acceptance by BLI of additional or different terms and conditions proposed by Buyer.

NOTE: BLI Consumables that are BLI OptoSelect Chips

  • are for use with a BLI Platform, which includes integrated BLI software that is licensed and not sold.
  • are covered by one or more issued or pending BLI patents.
  • for single use only; multiple use of OptoSelect chip voids any warranty.
  • are subject to the Field of Use restriction identified on the BLI Quote, as further limited by the Section 3.1, below.
  • are sold “For Research Use Only. Not for use in diagnostic procedures.”
  • are for use only with biosafety level 1 (BSL-1) and biosafety level 2 (BSL-2) materials.

1. Contract Terms for Sale of BLI Consumables

1.1. Quotes; POs; Sales Order Confirmations. From time to time, BLI will provide a sales quotation to Buyer for specific BLI Consumables, which may include pricing, quantities, specific lead times, and service/support information (“Quote”). A Quote does not constitute a binding contract. Buyer may issue to BLI a purchase order (“PO”) for BLI Consumables. A PO shall include BLI-designated product numbers, quantities, and requested delivery date(s), which all shall be consistent with the 3 Mos Forecast (as defined in Section 1.4), if applicable. A PO does not constitute a binding contract. BLI will notify Buyer in writing (email acceptable) of either (i) BLI’s acceptance of the product purchase, quantity and delivery date, or (ii) any changes necessary for acceptance, or (iii) rejection of a PO, within three (3) business days of BLI’s receipt of the PO. BLI’s notification of acceptance is deemed a “Sales Order Confirmation”. BLI, in its sole discretion, may accept or reject any PO. No PO shall be deemed accepted by BLI until BLI sends a Sales Order Confirmation. For clarity, the Quote, these Ts&Cs, together with any BLI proposed terms confirmed in a Sales Order Confirmation constitute a binding contract.

1.2. Delivery; Risk of Loss; Title. BLI shall use commercially reasonable efforts to deliver all BLI Consumables consistent with its then-standard lead-time(s), or the delivery date set forth in the Sales Order Confirmation, whichever is later. BLI may deliver the BLI Consumables in one or more lots and on or before the identified lead-time or delivery date. BLI’s failure to deliver BLI Consumables by the specified delivery date(s) shall not be sufficient cause for cancellation, nor will BLI be liable for any loss or damage due to delay in delivery. Unless otherwise agreed in writing, BLI will ship BLI Consumables in standard commercial packaging. When special packaging is requested, or in BLI’s opinion required, the cost of such packaging shall be borne by Buyer. BLI will ship BLI Consumables within the United States per FOB Origin and for all international shipments per CIP (ICC Incoterms) (collectively, “Delivery Point”). Buyer shall pay all transportation, shipping, insurance and other charges incurred, regardless of whether such fees are listed on the quote or purchase order. For the purposes of these Ts&Cs, the date of delivery by BLI to the Delivery Point may be referred to as the “Delivery Date.” Title will transfer upon delivery to the Delivery Point.

1.3. Cancellation. If Buyer cancels prior to shipment all or any portion of a PO that was accepted by BLI in a Sales Order Confirmation and prior to shipment, the cancellation charges (a percentage of the aggregate sales price of the BLI Consumables set forth in the Sales Order Confirmation) shall be as set forth in Table 1.3.

Table 1.3.

  Cancellation Date relative to Delivery Date
BLI Consumables ≤ 1 week > 1 week and ≤ 3 weeks > 3 weeks and ≤ 5 weeks > 5 weeks
BLI OptoSelect Chips 100% 80% 50% 0%
Reagents, Kits and Media 100% 50% 25% 0%

Any requests by Buyer for delay in scheduled deliveries are subject to BLI approval, in its sole discretion, and subject to imposition of a cancellation fee consistent with Table 1.3. A “week” is defined as seven (7) calendar days. Buyer may not cancel an order for any BLI Consumables after shipment.

1.4. Forecasts. If BLI and Buyer have agreed that Buyer will provide forecasts for Buyer’s purchases, then on or before the 15th day of each month, Buyer shall provide BLI with a written forecast identifying Buyer’s anticipated volume of purchases of BLI Consumables, including an identification and volume for each different type of BLI Consumable, for the following three (3) consecutive calendar months (the “3 Mos Forecast”). The 1st and 2nd months of the 3 Mos Forecast shall be binding; the 3rd month of the 3 Mos Forecast is not binding.

1.5. No Returns. In no event may Buyer return BLI Consumables to BLI for credit or refund.

1.6. Specifications; Acceptance. BLI Consumables will meet the applicable BLI product specifications (as may be modified from time to time by BLI, the “BLI Specifications”); provided, however, BLI reserves the right to make modifications to the BLI Specifications of the BLI Consumables that do not materially affect the overall performance, use, installation or price thereof. BLI shall inspect each BLI Consumable prior to shipment to confirm that such product meets the applicable BLI Specifications. Buyer shall be deemed to have accepted each BLI Consumable upon delivery by BLI to the Delivery Point.

2. PRICE, INVOICING, PAYMENT AND TAXES.

2.1. Price, Invoicing and Payment The price for BLI Consumables shall be as set forth in the Quote. BLI shall issue an invoice to Buyer consistent with the Quote upon shipment of BLI Consumables(s) or such other items or services as identified in a Sales Order Confirmation. Buyer will pay all amounts in U.S. dollars, unless otherwise mutually agreed and stated on the Sales Order Confirmation. Unless otherwise mutually agreed in writing by BLI and Buyer, Buyer shall pay all invoices Net 30 calendar days from the date of BLI’s invoice. Invoices not disputed in good faith by Buyer within seven (7) calendar days of mailing shall be deemed accurate. All invoices that are not paid within 30 days shall be assessed a 1.5% late payment charge (or, if less, the highest legal rate under applicable law) for each month the invoice is not paid. Buyer will reimburse BLI for all reasonable costs (including bank charges, collection agency fees and reasonable attorneys’ fees) incurred by BLI in connection with collecting any overdue amounts.

2.2. Taxes. The pricing specified in a Quote (and the Sales Order Confirmation if applicable) does not include any taxes, customs, duties, fees or other amounts assessed or imposed by any government authority. Buyer is responsible for paying all such taxes, including sales taxes, customs, duties, fees and other amounts, other than taxes imposed on BLI’s income. Buyer will pay or reimburse BLI for all such amounts upon demand or provide evidence of payment or exemption.

2.3. No Set-Off. Buyer shall not have any right to set off against or to recoup from any payment or other obligation owed to BLI, in whole or in part, any amounts due to Buyer or its affiliates from BLI.

3. PERMITTED USES; INTELLECTUAL PROPERTY.

3.1. Permitted Uses.

  • a. Field of Use Restriction
  • Buyer’s use of the BLI Consumables is subject to the “field-of-use” restriction (the “Field of Use”) as set forth in the Quote, or as provided in connection with Buyer’s purchase of a BLI optofluidic platform, and as further limited by this Section 3.1.a. Buyer agrees to use BLI Consumables for Buyer’s own internal business purposes only, and, unless expressly permitted on the Quote, shall not use BLI Consumables for any commercial use or to provide commercial services to any third party (e.g., the BLI Consumables shall not be used by Buyer to identify or provide isolated cells and/or provide data or information to any third party as a commercial service or in exchange for money or anything of value). Without limiting the foregoing, no use of the BLI Consumables is permitted in and/or with plant cells, yeast, bacteria, filamentous fungi, cell-free DNA and/or expression systems, cellular therapies (whether for manufacturing, quality or otherwise), diagnostics, and in vitro fertilization.
  • b. Other Restrictions on Use.
  • Buyer will not directly or indirectly modify, enhance, adapt, create derivative works based upon, disassemble, decompile, circumvent any technological measure that controls access to, or reverse engineer the BLI Consumables. BLI Consumables that are BLI OptoSelect Chips are designed, and shall only be used, for a single use. BLI Consumables are designed, developed and/or configured to be used and shall be used only with a BLI Platform. Buyer agrees to comply with, and is solely responsible for complying with, all applicable laws, rules and regulations in its use of BLI Consumables. BLI Consumables are only for use with biosafety level 1 (BSL-1) and biosafety level 2 (BSL-2) materials.
  • c. Markings.
    Buyer agrees to not remove, modify or cover any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices in or on the BLI Consumables, or add any other markings or notices in or on the BLI Consumables. Buyer agrees to not remove, modify or cover any warning labels on the BLI Consumables or packaging therefor.
  • d. Audit Right.
  • At any time during the Term of this Agreement and for a period of one (1) year thereafter, BLI shall have to right to audit Buyer’s books and records as such pertain to this Agreement for compliance with this Section 3.1.

3.2. Regulatory.BLI Consumables are sold “For Research Use Only. Not for use in diagnostic procedures.” Buyer acknowledges that (i) BLI Consumables have not been approved, cleared, or licensed by the United States Food and Drug Administration or any other regulatory entity whether foreign or domestic for any specific intended use, whether research, commercial, diagnostic, or otherwise, and (ii) Buyer must ensure it has any regulatory approvals that are necessary for Buyer’s intended uses of BLI Consumables. Buyer further agrees to comply with all applicable laws and regulations when using, maintaining, and disposing of BLI Consumables.

3.3. BLI Software and Firmware.The BLI Consumables are for use with a BLI Platform that contains integrated software, firmware or other patented, copyrighted or protected intellectual property rights owned by BLI and its licensors. Any and all software and firmware resident on a BLI Platform or BLI OptoSelect Chips is licensed and not sold. The license to BLI Software is non-exclusive, non-transferable and non-sublicensable and is set forth in more detail in the “Terms and Conditions of Field of Use Sale of Beacon Platforms” or the “Terms and Conditions of Field of Use Sale of Lightning Platforms” (individually and collectively, “BLI Platform Ts&Cs”). In the event of a conflict between the terms and conditions related to BLI software found in the BLI Platform Ts&Cs and these Ts&Cs, the BLI Platform Ts&Cs shall govern with respect to all matters relating to the BLI software.

3.4. Rights Reservation.The sale of BLI Consumables does not convey to Buyer, whether by implication, estoppel or otherwise, any rights in or to any patent, copyright, trademark or other intellectual property right of BLI, or any rights in or to BLI technology or BLI confidential information, except the limited right to use such BLI Consumables in accordance with these Ts&Cs. All rights not expressly granted to Buyer in these Ts&Cs are retained by BLI and its licensors.

3.5. Documentation. The documentation and other data, information and materials (“Documentation”) regarding BLI Consumables provided by BLI to Buyer contain proprietary and confidential information of BLI. Buyer agrees not to disclose Documentation to any person other than Buyer’s employees and contractors (that are subject to standard confidentiality obligations) that need to access information in the Documentation to use the BLI Consumables. BLI agrees that the foregoing obligation of confidentiality will not apply with respect to any information that Buyer can document (i) is or becomes generally available to the public without any action by, or involvement of, Buyer, (ii) was in its possession or known by it prior to receipt from BLI, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of, or reference to, any Documentation or other BLI confidential information. Nothing in these Ts&Cs will prevent Buyer from disclosing Documentation pursuant to any judicial or governmental order, provided that Buyer gives BLI reasonable prior written notice of such disclosure.

4. WARRANTIES.

4.1. Limited Warranty. Subject to Section 4.2 and Buyer at all times using the BLI Consumables in compliance with these Ts&Cs and the applicable Documentation, BLI warrants that (i) the BLI Consumables will perform substantially in accordance with the BLI Specifications for such BLI Consumables in effect on the shipment date for a period of thirteen (13) months after the shipment date; and (ii) the BLI Consumables that are not BLI OptoSelect Chips will substantially comply with any BLI Specifications for such BLI Consumables in effect on the Delivery Date and for a period of time equal to the lesser of (a) the identified shelf-life and (b) thirteen (13) months after the shipment date; provided, however, that, in both (i) and (ii), no warranty, express or implied, is provided or extended to a Buyer-implemented workflow or any workflow, script or other changes created or modified by Buyer. Non-substantial variations of performance from the BLI Specifications do not establish a warranty right. All warnings and disclaimers that are contained in the Documentation are hereby incorporated by reference. BLI’s warranties extend only to Buyer and cannot be transferred. BLI’S OBLIGATION TO REPAIR OR REPLACE A BLI CONSUMABLE IS, IN ALL EVENTS, BUYER’S SOLE AND EXCLUSIVE REMEDY.

4.2. Warranty Claim.In the event of a warranty claim, Buyer’s sole remedy and BLI’s entire obligation and liability shall be, at BLI’s option, to repair, replace or reconfigure the defective BLI Consumables, or to correct, update or upgrade the defective BLI Consumables, as applicable. BLI may require new software releases provided by BLI for the BLI Platform to be installed from time to time as a condition to the warranty on BLI Consumables. The warranty period for any BLI Consumables furnished to correct a warranty failure will be the unexpired term of the warranty period applicable to the uncorrected product. All warranty claims must be made to BLI in writing reasonably describing the failure and must be made within the applicable warranty period by requesting a return material authorization number from BLI and, then, properly decontaminating, packing in industry acceptable packaging for like devices and returning BLI Consumables to BLI. BLI will make a determination, in its sole discretion, as to whether the returned BLI Consumable fails to perform substantially in accordance with the applicable BLI Specifications and, if so, whether such failure is covered by the warranty set forth in this Section 4.1.

4.3. Voiding of Warranty.Notwithstanding Section 4.1, no warranty, express, implied, statutory or otherwise, shall extend to any BLI Consumable:

  • (a) that has been used in violation of any applicable use restriction, including but not limited any used outside of the Field(s) Of Use;
  • (b) if Buyer has violated the BLI microchip “single-use” restriction on the BLI Platform;
  • (c) if any failure has arisen or resulted from (1) use not in compliance with the applicable Documentation, (2) use with Buyer’s own media or reagents that are not pre-approved for use by BLI, (3) an alteration or modification of the BLI Consumable not authorized in writing in advance by BLI, (4) accident, force majeure, or activities or forces outside of normal use specifications set forth in the applicable Documentation; or (5) breach by Buyer of any other contractual agreement between BLI and Buyer; or
  • (e) Buyer exposed to Biosafety Level 3 or Biosafety Level 4 agents.

4.4. As Is.EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, EACH BLI CONSUMABLE IS PROVIDED “AS IS”. BLI SPECIFICALLY DISCLAIMS ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. BLI DOES NOT WARRANT THAT A BLI CONSUMABLE, OR ANY USE THEREOF WILL MEET BUYER’S QUALITY OR PERFORMANCE REQUIREMENTS. ALL WARNINGS AND DISCLAIMERS THAT ARE CONTAINED IN THE APPLICABLE BLI CONSUMABLE DOCUMENTATION ARE HEREBY INCORPORATED INTO THESE TS&CS BY REFERENCE.

4.5. Out-of-Warranty Repairs.If BLI determines that an issue or problem with a BLI Consumable is not covered under the warranty (“Out-of-Warranty”), BLI will notify Buyer of its determination, and provide Buyer with an estimate of the cost for any Out-of-Warranty repairs. BLI will not proceed with the repair until Buyer provides its written authorization to do so. All costs associated with BLI’s examination, authorized repair, and/or return shipment for Out-of-Warranty repairs shall be billed to Buyer at BLI’s then-current commercial rates, and Buyer shall bear the risk of loss associated with any BLI Consumable if shipment to/from BLI or BLI’s manufacturer, is required. In the event Buyer disagrees with BLI’s Out-of-Warranty determination, BLI and Buyer agree to resolve the disagreement in accordance with Section 8.10 below.

4.6. DATA AND RESULTS.BLI CANNOT CONTROL INDIVIDUAL CELLS OR BIOLOGY AND THE SAME OR SIMILAR CELLS AND CELL LINES CAN BEHAVE DIFFERENTLY AND, ACCORDINGLY, BLI DOES NOT GIVE OR EXTEND ANY WARRANTY ON OR RELATION TO THE DATA AND RESULTS OF WORKFLOWS AND APPLICATIONS RUN ON OR USING A BLI CONSUMABLE. THE DATA AND RESULTS OF WORKFLOWS AND APPLICATIONS RUN ON OR USING A BLI CONSUMABLE ARE GENERATED “AS IS,” WITH NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND. WITHOUT LIMITING THE SCOPE OF THE FOREGOING, BLI MAKES AND EXTENDS NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE SUCCESS OF ANY WORKFLOWS OR APPLICATIONS CONDUCTED ON OR USING A BLI CONSUMABLE. TO THE EXTENT NOT ALREADY COVERED UNDER SECTION 4.4, BLI SPECIFICALLY DISCLAIMS ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, IN RELATION TO THE USE OF BLI CONSUMABLES AND IN RELATION TO DATA AND/OR RESULTS GENERATED ON AND/OR FROM THE BLI CONSUMABLES.

5. INFRINGEMENT CLAIM DEFENSE.

SECTIONS 5.1 AND 5.2, BELOW, SET FORTH BUYER’S SOLE AND EXCLUSIVE REMEDY AND BLI’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY A BLI CONSUMABLE OR ANY COMPONENT THEREOF, OR BY ITS OPERATION.

5.1. BLI Defense of an Infringement Claim.Subject to Section 5.2, BLI shall defend Buyer from and against any third party claim that a BLI Consumable infringes a United States patent that has been issued prior to the Delivery Date, provided that (i) Buyer shall have promptly provided BLI written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) BLI shall have sole authority and control with respect to the defense, settlement, or compromise thereof. BLI’s defense obligation under this Section 5.1 is conditional on Buyer’s strict compliance with romanettes (i) and (ii) of the preceding sentence. If BLI reasonably believes that Buyer’s use of any BLI Consumable or component thereof is likely to be enjoined, or if any BLI Consumable or component thereof is held to infringe such patent and all use of such BLI Consumable or component thereof by Buyer is thereby enjoined, BLI may, at its expense and option, (1) procure for Buyer the right to continue using such BLI Consumable or component thereof, (2) replace or modify such BLI Consumable or component thereof so that it becomes non-infringing, or, if (1) and (2) are not available to BLI, as reasonably determined by BLI, then (3) request Buyer’s return of the allegedly infringing un-used BLI Consumables and refund to Buyer the amounts which Buyer has paid to BLI for such BLI Consumable.

5.2. BLI Defense Exclusions.Notwithstanding the provisions of Section 5.1, BLI shall have no liability or obligation to Buyer with respect to any intellectual property infringement or misappropriation, or claim thereof to the extent based upon (i) an application, method or process in which the BLI Consumable may be used where the BLI Consumable when used alone would not result in such infringement, including experiments designed in whole or in part by or for Buyer, (ii) use of a BLI Consumable or component thereof by Buyer in combination with software, hardware, devices, Consumables or services not provided or specified in writing by BLI, (iii) use of a BLI Consumable or component thereof in an application, method or process for which such BLI Consumable or component thereof was not designed or configured by BLI for Buyer (e.g., use outside of the uses permitted hereunder), (iv) alterations or modifications of BLI Consumable or component thereof not authorized in writing by BLI, (v) any cells, antibodies, reagents or other tangible biological materials provided by Buyer or other Buyer confidential information, or (vi) any workflows, scripts or processes modified or created by Buyer. Buyer shall defend BLI from and against any third party claim falling within the exclusions of this Section 5.2.

6. LIMITATION OF LIABILITY.

IN NO EVENT SHALL BLI BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, BUSINESS, GOODWILL, REVENUE, USE OR OTHER ECONOMIC ADVANTAGE OR BUSINESS INTERRUPTION) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH BLI CONSUMABLES OR USE THEREOF OR THESE TS&CS, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BLI’S AGGREGATE LIABILITY UNDER THESE TS&CS, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, SHALL BE LIMITED TO THE PURCHASE PRICE OF THE SPECIFIC BLI CONSUMABLE AT ISSUE. FOR CLARITY, THE ABOVE LIMITATIONS SHALL NOT LIMIT BUYER’S PAYMENT OBLIGATIONS UNDER SECTION 2. The limitations of liability and exclusions of damages in this Section 6 form an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in these Ts&Cs is found to have failed its essential purpose.

7. TERMINATION

7.1. Termination.If either party materially breaches these Ts&Cs and the other party seeks to terminate these Ts&Cs for such breach, such other party shall notify the breaching party in writing, setting out the breach, and the breaching party will have 30 days following receipt of such notice to remedy the breach. If the breaching party fails to remedy the breach during that period, the other party may terminate these Ts&Cs by written notice to the breaching party.

7.2. Effect.Upon termination of these Ts&Cs, (i) any permission to use within the Field of Use is expressly and immediately terminated, (ii) and any rights granted by BLI to Buyer pursuant to these Ts&Cs will cease immediately, and (iii) Buyer shall pay all unpaid amounts due and payable to BLI pursuant to Section 2.

7.3. Survival.Sections 3.1-3.6, 4, 5, 6, 7.3, and 8 will survive any termination of these Ts&Cs.

8. MISCELLANEOUS.

8.1. Marketing.Neither party may disclose the specific terms of these Ts&Cs or issue a public statement or press release regarding these Ts&Cs without the other party’s prior written consent. Notwithstanding the foregoing, (i) BLI may identify Buyer as a purchaser of BLI Consumables and display Buyer’s name, mark and logo on BLI’s website, and in other marketing materials and make disclosures in accordance with Section 8.6, below, and (ii) BLI may disclose these Ts&Cs to prospective acquirers and investors in connection with their due diligence review of BLI; provided that such parties are bound by written agreements that contain use and nondisclosure restrictions reasonably protective of Buyer’s confidential information.

8.2. Independent Contractors.BLI and Buyer are independent contractors with respect to these Ts&Cs. Nothing in these Ts&Cs is intended to, or shall be construed to, create a partnership, agency, joint venture, employment or similar relationship between the parties. Neither party has, and will not represent itself as having, any authority, power or right to bind the other party, or to assume or create any obligation or responsibility, express or implied, on behalf or in the name of the other party.

8.3. Legal Compliance; Export Controls.Each party hereto agrees that it shall comply with all applicable U.S. and foreign laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export or reexport licenses or other government approvals and any healthcare law or regulation, if applicable), with respect to its activities under these Ts&Cs, including U.S. and any other applicable foreign export and trade restrictions or similar rules. Buyer shall be responsible for any breach of this section by its owners, directors, officers, employees, agents or contractors, as well as its successors and permitted assigns.

8.4. Import and Other Regulatory Requirements.Buyer represents and warrants that it shall, at its expense (i) comply with all import clearance requirements and customs formalities associated with any physical importation of the commodities, software and related technical data into the country of importation, including but not limited to the payment of any duties, fees or taxes imposed, and (ii) obtain any and all import and other licenses and governmental and regulatory approvals that may be necessary for importation into the destination country.

8.5. Amendment; Waiver.These Ts&Cs may not be modified and no provision hereof may be waived other than by a written instrument signed by duly authorized officers of each of the parties.

8.6. Severability; English Language.If any provision of these Ts&Cs is held to be illegal, invalid or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from these Ts&Cs, while the remainder of these Ts&Cs will continue in full force and effect. Regardless of whether these Ts&Cs are translated into one or more other languages for any purpose, the American English form of these Ts&Cs shall control and determine the interpretation of these Ts&Cs.

8.7. Assignment.BLI may assign or transfer these Ts&Cs, in whole or in part, to any affiliate or in connection with any acquisition, consolidation, merger, reorganization, transfer of all or substantially all of the assets of the business to which these Ts&Cs relates or other business combination, or by operation of law without Buyer’s consent and without providing notice. Buyer may not assign or transfer these Ts&Cs by business combination, operation of law or otherwise without BLI’s prior written consent. Subject to the foregoing, these Ts&Cs will bind and benefit the parties and their respective successors and permitted assigns.

8.8. Third Party Beneficiaries.Nothing in these Ts&Cs, express or implied, is intended to confer upon any party other than the parties hereto, BLI’s licensors or their respective successors and permitted assigns any rights or obligations, to enforce these Ts&Cs.

8.9. Governing Law.These Ts&Cs are to be construed in accordance with and governed by the internal laws of the State of California, United States and, where applicable, the federal laws of the United States, without giving effect to any conflict of laws provisions.

8.10. Dispute Resolution; Injunctive Relief.In the event of a dispute arising under these Ts&Cs (a “Dispute”), a party shall provide the other party with written notice of the Dispute, and the parties agree to exercise commercially reasonable efforts to resolve the Dispute in good faith by promptly engaging in discussions through a designated executive officer of each party. A Dispute that cannot be resolved within 30 days following the discussions contemplated by the preceding sentence will, upon written demand of either party, be resolved exclusively by final and binding arbitration. Arbitration will be conducted exclusively in San Francisco, California by the Judicial Arbitration and Mediation Service (“JAMS”) pursuant to the United States Arbitration Act, 9 U.S.C., § 1 et seq, and the Comprehensive Arbitration Rules and Procedures of JAMS then in effect before a single arbitrator who shall at all times follow applicable law. Each party shall bear its own expenses, and the two parties will share equally the fees of the arbitrator. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY. Notwithstanding anything in these Ts&Cs to the contrary, each party shall have the right, at its election, to seek injunctive or other equitable relief in any court of competent jurisdiction to enforce or obtain compliance with any provision of these Ts&Cs without first submitting such matter to arbitration. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently and, unless otherwise stated herein, shall not be deemed exclusive.

8.11. Force Majeure.A party shall be excused from performance under these Ts&Cs for any period to the extent that such party is prevented from performing any obligation, in whole or in part, as a result of causes beyond its reasonable control and without its negligent or willful misconduct, including without limitation, acts of God, epidemics, natural disasters, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations, third party nonperformance, or failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment. Nothing in this Section 8.11 is intended to excuse payment by Buyer of a valid invoice submitted by BLI.

8.12. Notices.Any notice under these Ts&Cs shall be given in writing and shall be deemed effectively given upon the earlier of actual receipt or four (4) business days after deposit with an internationally recognized express courier, freight prepaid, with written verification of receipt.

8.13. Government or Government-Funded Acquisitions.If Buyer is the United States government, or anyone that is acquiring any BLI Consumable pursuant to a United States government contract or with United States government funds, Buyer agrees that each BLI Consumable meets the definition of a “commercial-off-the-shelf” item or a “commercial item” as defined in 48 C.F.R. 2.101. All government end users acquire only those rights in BLI Consumables that are expressly granted in these Ts&Cs. In the case of any other government, BLI’s rights are protected to the maximum extent possible as set forth in these Ts&Cs, but in any event to at least the same extent they would be protected under the immediately preceding sentences.