Terms & Conditions

19 Pages·2016·0.19 MB·English

09 September 2016

Oxford Nanopore Technologies Ltd.
Nanopore Community
Terms and Conditions – 09 September 2016

BY ORDERING THE GOODS AND PAYING THE REQUIRED FEE, YOU (THE “CUSTOMER”)
AFFIRM THAT (A) YOU HAVE READ ALL THE TERMS CONTAINED HEREIN, (B) THIS CONTRACT
IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU, (C) YOU ARE AUTHORIZED
TO REPRESENT AND BIND ANY PERSON FOR WHOM YOU WORK AND (D) YOU ACKNOWLEDGE
AND ACCEPT THAT OXFORD NANOPORE TECHNOLOGIES, LTD. (“OXFORD NANOPORE”)
EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES
AVAILABLE UNDER LAW OR THROUGH COURSE OF DEALING, ON ANY GOODS MADE
AVAILABLE PURSUANT TO THE NANOPORE COMMUNITY (“COMMUNITY”).

1. Contractual Terms individual or entity that is, or is
affiliated with, a current or potential
1.1. Legal Agreement: These terms herein competitor of Oxford Nanopore (a
are a contract between You and Oxford “Competitor”); (ii) on behalf of or for
Nanopore under which Oxford Nanopore the benefit of any such Competitor; (iii)
authorizes You to use the Goods (the for the development of any other
“Contract”). This Contract, together product or service that competes or
with Your Programme Entry (if could compete with the products and
applicable), Your Order(s) and, to the services of Oxford Nanopore (except to
extent You have joined the PromethION the extent applicable laws specifically
Access Programme Queue, the prohibit such restriction); or (iv) for
PromethION Access Programme Terms monitoring, benchmarking or other
and Conditions of Deposit (the “Queue competitive purposes. You represent
Terms”), create a contract between and warrant that You will not use the
You and Oxford Nanopore for Goods in contravention of this
participation in the Community. If any provision. Without limiting the
terms of this Contract conflict with the generality of the foregoing,
terms of Your Programme Entry or, as “Competitor” shall (A) be deemed to
applicable, the Queue Terms, the terms include an entity or person that
of this Contract control. For the develops, sells, or distributes any third
avoidance of doubt, Oxford Nanopore’s party tool, process or system for
entry into this Contract with You does genomic sequencing, analysis of nucleic
not by itself constitute acceptance by acids or molecule sensing and (B) not
Oxford Nanopore of Your participation be deemed to include customers of
in the Community. competitors solely because they are
customers of competitors or
1.2. Condition to Use: OXFORD NANOPORE government agencies by virtue of their
ENCOURAGES YOU TO USE THE GOODS funding of research by competitors of
FOR YOUR OWN EXPERIMENTS ONLY Oxford Nanopore.
AFTER YOU SUCCESSFULLY COMPLETE
THE CONTROL EXPERIMENTS INCLUDED 1.3. Publishing Rights: YOU HAVE THE
WITH THE GOODS UNDER THE TERMS RIGHT TO PUBLISH AND SPEAK PUBLICLY
DEFINED IN THE DOCUMENTATION. The ABOUT THE RESULTS OF YOUR USE OF
Goods may not be used (i) by any THE GOODS, BUT OXFORD NANOPORE
Active 25076242 1
ENCOURAGES YOU TO DO SO ONLY Location”). Delivery of the Goods will
AFTER YOU SUCCESSFULLY COMPLETE be completed on the Goods' arrival at
THE CONTROL EXPERIMENTS INCLUDED the Delivery Location. You will
WITH THE GOODS UNDER THE TERMS promptly make a visual inspection to
DEFINED IN THE DOCUMENTATION. IF check that the Goods have arrived in
SO REQUIRED BY OXFORD NANOPORE IN good condition and that You have the
YOUR ORDER, YOU MAY ONLY PUBLISH correct number of each type of Goods.
AND SPEAK PUBLICLY ABOUT THE
RESULTS OF YOUR USE OF THE GOODS 2.2. Right to Use Contact Information: You
AFTER PROVIDING THE REQUIRED grant Oxford Nanopore full right and
ACKNOWLEDGMENT OF FITNESS FOR title to retain and re-use any and all
PURPOSE VIA OXFORD NANOPORE’S personal information included in Your
ONLINE FORM. Notwithstanding the Order(s) for purposes of providing You
above, You are encouraged to share notice regarding an Order, support, to
Your experiences using the Goods with facilitate completion of additional
Oxford Nanopore and with other orders, and to make You aware of new
Community participants via the private products and services available from
online forum provided at Oxford Nanopore. Your information
http://www.nanoporetech.com, will not be passed to third party
http://wiki.nanoporetech.com or other companies for the purpose of marketing
web address specified by Oxford third party products or services without
Nanopore (such website, the “Oxford Your prior consent for such purposes.
Website”) at any time during Your
participation in the Community. 2.3. Set-Off: Each Order is a separate,
Publishing and/or speaking publicly independent transaction and You will
about the results of Your use of the pay any amounts due under the
Goods and/or posting on the Oxford Contract relating to an Order in full,
Website is subject to Your compliance without any set-off, counterclaim,
with the terms of this Contract, deduction or withholding, except for
including clause 14.1. any withholding required by law or
except as Oxford Nanopore may
2. Delivery and Inspection otherwise specify in writing from time
to time. Oxford Nanopore may at any
time, without limiting its other rights
2.1. Order Fulfillment: Oxford Nanopore and remedies, set off any amount You
will aim to deliver the Goods to You by may owe Oxford Nanopore against any
the dates specified in the delivery amount payable by Oxford Nanopore to
schedule Oxford Nanopore will send to You.
Your account on the Oxford Website.
Oxford Nanopore reserves the right, in 2.4. No Pre-printed Purchase Order Terms
its sole discretion, to revise the Apply: Each Order once accepted by
delivery schedule and to determine the us, as confirmed by an email from us,
number of Goods Oxford Nanopore will shall become binding upon You and
make available to You when joining the Oxford Nanopore and shall be governed
Community. Any dates quoted for by the terms set out in this Contract.
delivery are approximate only, and Any terms proposed in Your acceptance
Oxford Nanopore will not be liable for of a quotation or a purchase order
any delay in delivery. Oxford Nanopore which add to, vary from, or conflict
will deliver the Goods to the location with the terms herein or in the
set out in the Order (“Delivery quotation are hereby objected to. Any
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such proposed terms shall be void and become subject to any Insolvency Event
the terms herein and in the email or Oxford Nanopore reasonably believes
confirmation acceptance of the Order that such an event is about to happen
shall constitute the complete and and notify You accordingly, then
exclusive statement of the terms and without limiting any other right or
conditions of the Contract between the remedy Oxford Nanopore may have,
parties with respect to the applicable Oxford Nanopore may at any time
Order. require You to return the Goods to it;
and
3. Title and Risk
(iii) give Oxford Nanopore such
3.1. Risk of Loss: The Goods are deemed information about the Goods as Oxford
delivered upon loading onto the Nanopore may request from time to
commercial carrier at Oxford time.
Nanopore’s facility. From the time of
such delivery, You are responsible for 4. Use of the Goods
the risk of loss of or damage to the
Goods; provided, that, if specified in 4.1. Research Use Only: You acknowledge
the applicable Order, Oxford Nanopore that the Goods do not have United
will procure insurance on Your behalf to States Food and Drug Administration
cover risk of loss during shipment. If (“FDA”) or equivalent non-U.S.
the Goods are lost or damaged while regulatory agency approval
being transported, Oxford Nanopore will (“Approval”). Accordingly, You
help Customer in communicating with acknowledge that the Goods are
the carrier with respect to such lost labeled and intended FOR RESEARCH
and/or damaged Goods. (CIF - USE ONLY and NOT FOR USE IN
INCOTERM 2010) DIAGNOSTIC, THERAPEUTIC, OR
CLINICAL PROCEDURES and agree that
3.2. No Title Transfer: You will take no You shall only use the Goods for Your
title to the Goods, including, without Research Use. You acknowledge that
limitation, all Consumables and You have not obtained the Goods for
Software. As between You and Oxford personal, family, domestic, household
Nanopore, Oxford Nanopore will remain or other similar use that would trigger
the legal owner the Goods, including, the applicability of the consumer
without limitation, all Consumables and protection laws of the jurisdiction in
Software, and all Intellectual Property which You are located. The Goods
Rights therein or appurtenant thereto. should be used in strict accordance
with the Documentation and applicable
3.3. Safeguarding Goods: You will: instructions, warnings and other
information in user manuals
(i) maintain the Goods in good accompanying such Goods or on their
condition and in a safe location, under packaging or on the Oxford Website.
environmental conditions as specified in Unless otherwise expressly stated by
the Documentation and on the Oxford Oxford Nanopore in writing, no claim
Website; or representation is made or intended
by Oxford Nanopore (i) as to any
(ii) notify Oxford Nanopore diagnostic, therapeutic, or other
immediately if You become subject to clinical use of the Goods; (ii) that any
any of the events listed in clause 11 (an of the Goods has any Approval for use
“Insolvency Event”) and, if You in any diagnostic, therapeutic, or other
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clinical procedure, or for any other use be used for the development of any
requiring compliance with any law, product or service that competes or
regulation or governmental policy could compete with the products or
concerning medical devices, laboratory services of Oxford Nanopore. It is Your
tests or the like (collectively, responsibility to make sure that the
“Regulatory Laws”); (iii) that any of Goods are suitable for the particular
the Goods will satisfy the requirements use for which You intend them. In
of the FDA or any other regulatory using the Goods, You acknowledge that
agency; or (iv) that any of the Goods or there are hazards associated with their
their performance is suitable or has use and that the Goods have not been
been validated for clinical, tested for safety and efficacy in food,
therapeutic, or diagnostic use, for drug, diagnostic, clinical, medical
safety and effectiveness, for any devices, cosmetic, commercial or any
specific use or application, or for other use.
importation into Your jurisdiction. You
agree that if You elect to use the 4.3. Access to Reports: Oxford Nanopore
Goods for a purpose that would subject will have access to instrument run
You or any of the Goods to the reports produced by You using the
application of Regulatory Laws or any Software (“Instrument Run Reports”)
other law, regulation or governmental and the Software will automatically
policy, You shall be solely responsible post Instrument Run Reports to Oxford
for obtaining any required Approvals Nanopore. The Instrument Run Reports
and otherwise ensuring that the will be solely diagnostic in nature
importation of the Goods into Your relating to Oxford Nanopore
jurisdiction and Your use of the Goods Technology and not contain any
complies with all such laws, Biological Data. You agree to enable
regulations and policies. The burden of this access, including across Your
proof for safe use and handling of the firewalls, and the Software license
Goods is entirely Your responsibility. granted hereunder is conditioned upon
such access. You hereby grant Oxford
4.2. Limited Use of Flow Cells: You Nanopore a worldwide, non-exclusive,
acknowledge that Hardware is perpetual, irrevocable, royalty free,
authorized for multiple uses, but shall fully paid up right and license to use,
not be reused longer than its useful copy, modify, and create derivative
life, which is stated on the Oxford works using Instrument Run Reports
Website. You acknowledge that solely for purposes of evaluation and to
Consumables are authorized for use improve and report on the
only in accordance with performance of any Oxford Nanopore
Documentation. You acknowledge and product. This license does not extend
agree that Flow Cells and Consumables to Biological Data generated in parallel
MUST BE USED as soon as possible, but with the run report.
in any event, Flow Cells and
Consumables MAY NOT BE USED more 4.4. Software License: Subject to Your
than eight (8) weeks after delivery of compliance with this Contract, Oxford
such Flow Cells and/or Consumables to Nanopore hereby grants to You a non-
You. Consumables may be used only in exclusive, non-transferable limited,
conjunction with Flow Cells and the personal license (without the right to
Hardware and not with any other sublicense) under Oxford Nanopore’s
products. Other than the uses Intellectual Property Rights (i) to use
described in 4.10, the Goods may not the Software for Your Research Use
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only and in accordance with any third party applications, data analysis
instructions issued by Oxford Nanopore tools, or third party services to analyze
solely for purposes of internal testing such streaming data output within 48
and evaluation with Flow Cells and (ii) hours of collection; or (viii) remove or
to copy Software for archival or backup alter any trademark, logo, copyright or
purposes; provided that, (a) all titles other proprietary notices, legends,
and trademarks, copyright, and symbols or labels in or on the Software
restricted rights notices are or a component thereof. The Software
reproduced on such copies and (b) You may be used only in connection with
provide Oxford Nanopore with notice the Goods.
of the location of the computer on
which the Software is installed. For 4.6. Termination: Your rights with respect
the avoidance of doubt, this license is to the Software will terminate upon
valid for Research Use only. the termination or expiration of this
Contract in accordance with Section
4.5. Restrictions on Use: You must not, 14.11.
and will not permit any third party to:
(i) except as otherwise specifically 4.7. Savings: All restrictions specified in
permitted in this Contract, modify or this clause 4 and elsewhere in the
create any derivative works of any Contract shall apply to the maximum
Software, Goods or Documentation; (ii) extent permissible under applicable
copy the Software except as provided law. If You believe that You have
in this Contract or approved in writing additional rights or the right to act
by Oxford Nanopore; (iii) separate contrary to the express restrictions
Software, which is licensed as a single specified in the Contract under
product, into its component parts; (iv) mandatory laws (including, without
sublicense or permit simultaneous use limitation, national laws implementing
of the Software by more than one user; Directive 91/250/EEC and similar
(v) reverse engineer, decompile, or laws), You agree to provide Oxford
disassemble or otherwise attempt to Nanopore with at least thirty (30) days
derive the source code for any prior written notice and any reasonably
Software (except to the extent requested information before
applicable laws specifically prohibit exercising such rights, to allow Oxford
such restriction) nor extract or isolate Nanopore to offer alternatives at its
components of Software or Goods or sole discretion.
subject them to non-authorised
analysis; (vi) redistribute, encumber, 4.8. Compliance with Laws: You represent
sell, rent, lease, sublicense, use the and warrant that You are authorized to
Goods or Software in a timesharing or enter into this Contract and comply
service bureau arrangement (including with its terms. You will at any and all
provision of services to third parties times meet Your obligations hereunder
using the Software except as provided and You will ensure that the way in
in this Contract), or otherwise transfer which and the purposes for which You
rights to any Goods or Software (You use the Goods comply with all laws,
may NOT transfer the Software under regulations and government policies
any circumstances); (vii) access, read that may apply. You are responsible
or copy any streaming data output for obtaining any necessary approvals,
before hdf files are fully written or licenses and permissions that may be
otherwise use, without specific required for such use and operation.
authorization from Oxford Nanopore, Without limitation to the other
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restrictions set out in this Contract, You Notwithstanding the foregoing in this
warrant that You will in no event use or Section 4.9, local laws and regulations
allow use of the Goods or any parts of applicable to Your disposal of the
them in connection with the Goods shall take precedence, and it is
development, production, handling, Your responsibility to comply with any
operation, maintenance, storage, such laws and regulations and Oxford
detection, identification or Nanopore will have no liability in
dissemination of chemical or biological relation to any breach thereof. Oxford
weapons or other military end-use of Nanopore reserves the right to recover
any kind. from You monetary compensation for
any Goods not returned or for which
4.9. Return Goods: You pledge to keep the proof of legal and appropriate
Goods in Your possession at the destruction (of Contaminated Flow
Delivery Location until You return Cells) has not been provided to Oxford
them to Oxford Nanopore or destroy Nanopore.
them in accordance with its
instructions. You agree that You will 4.10. Nanopore Extensions: The Flow Cells
not resell, distribute or transfer the will be delivered with pre-loaded
Goods to any third party. You shall nanopores, membranes (that hold the
return to Oxford Nanopore, using the nanopores) and electrochemistry on
prepaid packaging provided by Oxford top of a modified chip surface. None of
Nanopore, the Hardware within thirty these components either individually
(30) days of expiration or termination or collectively are allowed to be
of this Contract. You shall return to modified, derivativised, replaced or
Oxford Nanopore, using the prepaid removed. The Sequencing Kits will
packaging provided by Oxford include other components: enzymes
Nanopore, each shipment of Flow Cells and adaptors that enable sample
delivered to You the earlier of: (i) as preparation methods, molecular
soon as practical after all Flow Cells ‘tethers’ that enable improved analyte
delivered in one shipment have been to nanopore binding through
used, or (ii) eight (8) weeks after interactions with the membranes,
delivery to You, except that You shall enzymes that allow for controlled
not return Contaminated Flow Cells to transport of analytes through
Oxford Nanopore and shall instead nanopores, buffered solutions for
provide Oxford Nanopore proof of legal improved ionic conductance, solutions
and appropriate destruction of for washing the Flow Cells between
Contaminated Flow Cells. In addition, samples and other components as
Oxford Nanopore may request that the provided by Oxford Nanopore from
Goods be returned to Oxford Nanopore time to time. You may not analyse,
or disposed of as soon as possible at modify or reverse engineer these
any time and You agree to comply with components, but may develop and use
any such request in accordance with alternative versions (“Nanopore
any instructions in the Documentation Chemistries”). In addition, You are
(or on their packaging or on the Oxford encouraged to develop and use: (i)
Website), or as otherwise specified by new application protocols, (ii) sample
Oxford Nanopore in writing; provided, preparation methods, (iii) data analysis
that Oxford Nanopore may not request tools, such as, software written to APIs
that the Goods be returned or disposed (application programming interfaces)
of at any time at which You have published by Oxford Nanopore (but not
remaining unused, viable Flow Cells. the Software itself) and/or (iv) new
6
uses of the Goods (“Nanopore Your Order(s) (the “Nanopore
Extensions”). Your right to create and Community Fee”), (b) other fees for
use Nanopore Extensions and Nanopore Flow Cells and Consumables set forth in
Chemistries is conditioned on Your Your Order(s) from time to time and (c)
compliance with the Nanopore delivery charges (for both delivery of
Extension Requirements. “Nanopore Goods to You and return of Goods to
Extension Requirements” means: (A) Oxford Nanopore) as specified in Your
all titles and trademarks, copyright, Order(s) or in notification(s) sent to
patent marking and restricted rights Your account on the Oxford Website.
notices are reproduced on any If, after You have paid the Nanopore
materials embodying Nanopore Community Fee, You are not approved
Extensions or Nanopore Chemistries; for participation in the Community,
(B) any materials embodying Nanopore Oxford Nanopore shall promptly, and in
Extensions or Nanopore Chemistries any event no more than fifteen (15)
must carry prominent notices stating days after notice is given that You are
that You modified it, and giving a not approved, refund to You the
relevant date and that the Nanopore Nanopore Community Fee.
Extension or Nanopore Chemistry must
be used only with a Flow Cell; (C) use 5.2. Taxes: If any taxes (including any
of the Nanopore Extension and/or value added tax (“VAT”)), charges or
Nanopore Chemistry may not be government fees (including import or
conditioned on payment of license fee export duty) apply, You will be
(or consideration) for use of same; (D) responsible for paying them and Oxford
the Nanopore Extension or Nanopore Nanopore will add them to Your
Chemistry may not be disclosed to or Order(s) where appropriate. The price
used by any of Oxford Nanopore’s of the Goods is also exclusive of
Competitors and You may not authorise insurance, transport and delivery costs
any of Oxford Nanopore’s Competitors and Oxford Nanopore will charge You
to use the Nanopore Extension or and You agree to pay the delivery fee
Nanopore Chemistry; (E) any Nanopore specified in Your Order(s). This fee
Extension or Nanopore Chemistry is will be included on Your Order(s).
made available under terms and
conditions that provide that the 5.3. Payment Terms: You agree to pay the
Nanopore Extension and/or Nanopore invoice in full and in cleared funds
Chemistry is provided “AS IS” and (F) within 30 days of the date of the
with respect to any Nanopore invoice, in the manner specified on the
Extension or Nanopore Chemistry invoice. Payment must be made to the
created pursuant to this section 4.10, account specified by Oxford Nanopore
use is limited to Research Use. on the invoice in U.S. Dollars. Time of
Notwithstanding anything herein to the payment is of the essence.
contrary, the Goods may not be used
for the development of any other 5.4. Suspension for Non-Payment: If You
product or service that competes or fail to make any payment due to Oxford
could compete with the products or Nanopore under the Contract by the
services of Oxford Nanopore. due date for payment, Your
participation in the Community will be
5. Payments suspended (for the avoidance of doubt,
without refund of the Nanopore
5.1. Payment: You agree to pay (a) the Community Fee) until the account is
Nanopore Community Fee set forth in fully paid up.
7
CANNOT BE LAWFULLY EXCLUDED,
6. Maintenance and Support OXFORD NANOPORE DOES NOT MAKE,
AND HEREBY DISCLAIMS, ANY
6.1. No Continuing Support Obligation: REPRESENTATION OR WARRANTY,
Oxford Nanopore provides no assurance EXPRESS OR IMPLIED, REGARDING THE
that any specific errors or discrepancies ACCURACY, ADEQUACY, TIMELINESS,
in the Goods will be corrected. Limited COMPLETENESS, MERCHANTABILITY,
technical support, Documentation and FITNESS FOR A PARTICULAR PURPOSE,
other literature will be available on the OR NON-INFRINGEMENT OF ANY KIND
Oxford Website. You will have access to WITH RESPECT TO THE GOODS AND
the Oxford Website during Your SOFTWARE, INCLUDING BUT NOT
participation in the Community. Oxford LIMITED TO, WARRANTIES OF FITNESS
Nanopore reserves the right, but does FOR A PARTICULAR PURPOSE
not have the obligation to provide (INCLUDING ANY PURPOSE RELATING TO
additional support at no additional A CUSTOMER’S LEGAL OR REGULATORY
cost, or for a fee to be agreed in Your COMPLIANCE OBLIGATIONS). WITHOUT
Order(s). Provision of the Goods under LIMITATION OF THE FOREGOING,
this Contract is for testing purposes and OXFORD NANOPORE EXPRESSLY DOES
shall not create any obligation for NOT WARRANT THAT THE GOODS OR
Oxford Nanopore to continue to THE SOFTWARE WILL MEET YOUR
develop, productize, support, repair, REQUIREMENTS OR THAT OPERATION OF
offer for sale or in any other way THE GOODS OR THE SOFTWARE WILL BE
continue to provide or develop Goods UNINTERRUPTED OR ERROR FREE. YOU
either to You or to any other party. ASSUME RESPONSIBILITY FOR THE
RESULTS OBTAINED FROM YOUR USE OF
6.2. Limited Remedy: If Goods are THE GOODS AND SOFTWARE. YOU SHALL
defective or dysfunctional, Oxford BEAR THE ENTIRE RISK AS TO THE
Nanopore will provide replacement QUALITY AND THE PERFORMANCE OF
Goods with no additional payment or THE GOODS AND THE SOFTWARE. You
delivery charges required, provided, acknowledge that You have not relied
that the no replacement Goods will be on any statement, promise,
provided for Goods that have been representation, assurance or warranty
misused, mishandled, neglected, or made or given by Oxford Nanopore or
stored improperly or otherwise used in its agents which is not set out in this
ways contrary to the Documentation or Contract. Oxford Nanopore makes no
this Contract. warranty or representation and gives no
indemnity in respect of any third party's
7. Warranties products, whether or not obtained from
Oxford Nanopore. Oxford Nanopore’s
THE GOODS AND SOFTWARE ARE supply of any such third party-produced
PROVIDED “AS IS” AND, EXCEPT FOR products will be subject to separate
ANY WARRANTY, CONDITION OR terms and conditions of the
GUARANTEE THAT CANNOT BE manufacturer or licensor, which will be
EXCLUDED BY APPLICABLE LAW, ALL specified at the time of purchase in
WARRANTIES IMPLIED OR OTHERWISE relation to such product. CERTAIN OF
NOT STATED IN THIS SECTION 7 ARE THE SOFTWARE LICENSED HEREUNDER
EXCLUDED. TO THE MAXIMUM EXTENT MAY BE A BETA RELEASE AND MAY
PERMITTED BY APPLICABLE LAW AND CONTAIN DEFECTS. THE PRIMARY
SUBJECT TO ANY SUCH WARRANTIES, PURPOSE OF THIS BETA TESTING
CONDITIONS OR GUARANTEES WHICH LICENSE IS TO OBTAIN FEEDBACK ON
8
SOFTWARE PERFORMANCE, THE PERFORMING OR FAILURE TO PERFORM
IDENTIFICATION OF DEFECTS AND ITS OBLIGATIONS UNDER THE
SUGGESTIONS FOR ADDITIONAL CONTRACT WHERE SUCH DELAY OR
FEATURES. YOU ARE ADVISED TO FAILURE IS CAUSED BY FORCE MAJEURE.
SAFEGUARD IMPORTANT DATA, TO USE THE GOODS ARE SOLD “AS IS” AND WE
CAUTION AND NOT TO RELY IN ANY WAY GIVE NO GUARANTEES OR WARRANTIES
ON THE CORRECT FUNCTIONING OR IN RELATION TO THE GOODS. EXCEPT
PERFORMANCE OF THE SOFTWARE WITH RESPECT TO OUR OBLIGATIONS
AND/OR ACCOMPANYING UNDER ARTICLE 9 AND SUBJECT TO
DOCUMENTATION AND MATERIALS. IT IS SECTIONS 14.5 AND 14.6, IN ALL EVENTS
POSSIBLE THAT THE USE OF THE GOODS THE MAXIMUM DAMAGES OF ANY TYPE
MAY RESULT IN DATA THAT CANNOT BE FOR WHICH OXFORD NANOPORE SHALL
INTERPRETED WITH THE SOFTWARE. BE LIABLE UNDER THIS IS $100, AND
SUBJECT TO OTHER PROVISIONS HEREIN, WITH RESPECT TO OXFORD NANOPORE’S
YOU MAY DEVELOP SOFTWARE TO OBLIGATIONS UNDER ARTICLE 9, THE
INTERPRET DATA GENERATED USING MAXIMUM AMOUNT FOR WHICH OXFORD
THE SEQUENCING KIT PROVIDED BY NANOPORE IS AT RISK, INCLUDING ITS
OXFORD NANOPORE OR A CUSTOM OWN INTERNAL COSTS INCURRED IN
SAMPLE PREPARATION. Any samples, DEFENDING YOU, IS FIVE MILLION
training materials, descriptive material DOLLARS ($5,000,000.00). HOWEVER,
or advertising related to the Goods, THESE PROVISIONS DO NOT LIMIT
whether or not, produced by Oxford OXFORD NANOPORE’S LIABILITY THAT
Nanopore and any descriptions CANNOT BE EXCLUDED UNDER
contained in or on the Oxford Website APPLICABLE LAW.
or in Oxford Nanopore’s marketing
materials or product literature are 8.2. Duration of Claims: Any action for
produced for the purpose of general breach of contract with respect to the
information only and shall not form part Goods or the Software must be
of this Contract or have any contractual commenced within one year of delivery
force. of the Goods or the Software, following
which You covenant not to bring or
8. Limitation of Liability permit the making of any claim, action
or proceeding in connection with this
8.1. TO THE MAXIMUM EXTENT PERMITTED Contract or its subject matter.
BY APPLICABLE LAW, OXFORD
NANOPORE WILL NOT BE LIABLE TO 9. Indemnification
YOU, WHETHER IN CONTRACT, TORT,
BREACH OF STATUTORY DUTY OR 9.1. Oxford Nanopore Indemnity: In
OTHERWISE, FOR ANY LOSS OF PROFIT, consideration of Your compliance with
BUSINESS, OPPORTUNITY OR SAVINGS this Contract, Oxford Nanopore agrees
OR ANY INDIRECT, SPECIAL, PUNITIVE, to defend and indemnify You from and
INCIDENTAL OR CONSEQUENTIAL LOSS against any third party claims alleging
OR DAMAGES, EVEN IF ADVISED OF THE that the Goods or the Software in the
POSSIBILITY OF SUCH DAMAGE AND form delivered infringe any copyright or
HOWSOEVER ARISING (WHETHER IN trademark or misappropriate any trade
TORT (INCLUDING FROM OXFORD secret or knowingly infringe any
NANOPORE’S NEGLIGENCE), IN presently existing patent. Oxford
CONTRACT, UNDER STATUTE OR Nanopore shall not have any obligation
OTHERWISE). OXFORD NANOPORE WILL or liability to the extent any
NOT BE LIABLE FOR ANY DELAY IN infringement or misappropriation is
9
caused by (i) modifications to the direct and control the defense of the
Goods or the Software made by or on claim and will provide such reasonable
behalf of anyone other than Oxford assistance as reasonably requested by
Nanopore, (ii) the combination of the the Indemnitor (at the Indemnitor’s
Goods or the Software with items not cost) in the defense of the claim
furnished by Oxford Nanopore, (iii) a provided always that Indemnitee will
breach of this Contract by You, not make any admission on behalf of
including, a failure to follow the the Indemnitor. The Indemnitee will in
processes or protocols defined by any event take reasonable steps to
Oxford Nanopore, or (iv) Your failure to mitigate or reduce its loss pursuant to
use corrections or modifications any claim.
provided by Oxford Nanopore, or (v)
third party materials. This clause sets 10. Intellectual Property
forth Oxford Nanopore's sole and
exclusive liability and Your sole and 10.1. Reservation of Rights: You
exclusive remedy with respect to acknowledge that Oxford Nanopore is
infringement claims in connection with the sole and exclusive owner of all
this Contract. Intellectual Property Rights in and to
the Oxford Nanopore Technology, all
9.2. Your Indemnity: In consideration of components thereof, any processes for
Oxford Nanopore granting to You the use of the same, all media, printouts,
right to use the Goods, to the fullest papers, support materials or hard
extent permitted under applicable law, copies containing such Oxford Nanopore
You agree to defend and indemnify Technology, and/or related
Oxford Nanopore from and against all documentation, including any
liabilities, costs, expenses, damages intellectual property therein or
and losses (including any direct, appurtenant thereto. You shall take no
indirect or consequential losses, loss of action that, in any way, would infringe
profit, loss of reputation and all upon the copyrighted or droit d’auteur
interest, penalties and legal and other protected programs, Goods, Software,
reasonable professional costs and or data of Oxford Nanopore, or that
expenses) suffered or incurred by would infringe upon Oxford Nanopore
Oxford Nanopore in connection with (i) Technology or Oxford Nanopore’s
any breach by You of the provisions of Intellectual Property Rights therein.
this Contract, (ii) any failure to use the You shall not remove any proprietary,
Goods or the Software in accordance copyright, droit d’auteur, confidential
with Oxford Nanopore’s written or trade secret legend from any portion
instructions, (iii) any introduction by of the Goods, the Software or any data
You of hazardous substances into or or support materials provided to You by
onto the Goods, or (iv) otherwise Oxford Nanopore. Except where
arising in connection with Your use of prohibited by applicable law, You agree
the Goods or the Software. not to contest Oxford Nanopore’s
ownership of any copy right or other
9.3. Indemnification Procedures: In the applicable Intellectual Property Right in
event that a Party (the “Indemnitee”) Oxford Nanopore Technology. Your
intends to seek indemnification under rights to use the Goods and the
this Section 9, it will promptly inform Software exist only to the extent
the other Party (the “Indemnitor”) of a specifically provided in this Contract.
claim after receiving notice of the You retain all right, title and interest in
claim and will permit the Indemnitor to materials You owned prior to entering
10