Loop Genomics Terms & Conditions

Loop Genomics Terms and Conditions of Sale of Products

If you are purchasing a general catalogue product such as a LoopSeq Kit or reagents, these terms & conditions apply. 

Loop Genomics Terms and Conditions for Research Services
 

If you are purchasing a Loop Genomics Service, such as 16S Sequencing Service, these terms & conditions apply.

LOOP GENOMICS TERMS AND CONDITIONS OF SALE OF PRODUCTS

 

  1. Definitions: “Agreement” means the applicable Quote (if any), these Loop Genomics Terms and Conditions of Sale and any applicable Supplementary Terms. "Buyer" means the person or entity purchasing the Products from Seller. “Products” means all articles, materials, products, work, or services to be furnished pursuant to a Purchase Order. “Purchase Order” means a purchase order provided by Buyer to Seller for the purchase of Products from Seller.  “Quote” means the quote provided by Seller for the purchase of Products from Seller. “Seller” means Metabiotech Corporation d/b/a Loop Genomics, a part of Element Biosciences, Inc., and its affiliates. “Specifications” means Seller’s specifications attached to or specified in Quote, Seller’s website, or Seller’s product documentation. “Supplemental Terms” means additional software licenses, limited use label licenses or other additional terms that apply to the Products and that are listed on Quote, Seller’s website, Product label, or in the documentation that accompanies the Product.

  2. Acceptance: This Agreement is an offer to sell and when a Purchase Order is accepted by Seller becomes the exclusive agreement between the parties relating to Products. In the event of a conflict with the documents constituting this Agreement, said documents will be given the following order of precedence: (i) the applicable Quote; (ii) any applicable Supplemental Terms; and (iii) these Element Biosciences Terms and Conditions of Sale. Any Buyer terms of purchase and/or terms or conditions in Buyer’s Purchase Order and/or other similar documents that are inconsistent with, in addition to, or that alter in any way the provisions of this Agreement are hereby expressly rejected and will not apply to any Products. Following Seller’s acceptance of a Purchase Order, Seller will notify Buyer indicating the estimated lead time for manufacture and delivery of the requested Products, which may be made in installments. Seller may delegate its rights and obligations under this Agreement, or portion thereof, to an affiliate.

  3. Cancellation: Purchase Orders cannot be canceled or changed following acceptance by Seller without Seller’s written consent. Seller will use commercially reasonable efforts to accommodate Buyer’s reasonable requests to amend its Purchase Order to increase the number of Products.

  4. Price: The purchase price for Products is the price listed on the applicable valid Quote.  Prices listed on any Quote are valid for 30 days, unless otherwise agreed to in writing by Seller.  If there is no valid Quote or price listed on the applicable Quote, then the price will be Seller’s standard retail list price for said Products at the time Seller accepts Buyer’s Purchase Order. All Product prices are exclusive of all shipping and handling charges and any sales, value added, or other taxes and duties imposed with respect to the sale, delivery, or use of any Products and such items, if applicable, will be added to the invoice.  If Buyer claims any tax exemption, Buyer must provide Seller with a valid, signed certificate or letter of exemption for each respective jurisdiction.

  5. Invoice and Payment: Seller will provide Buyer with invoices upon shipment of Products and said invoice will contain the description of Products, quantities, shipping costs and associated fees (if any), and total price.  Seller, in its discretion, may make partial shipments of Products and invoice each shipment separately. Invoiced amounts are payable in the currency and to the address specified in Seller’s invoice.  Buyer will pay said invoice within 30 days of Buyer’s receipt of said invoice, unless Seller has agreed otherwise in writing. Each Purchase Order is a separate transaction and Buyer may not offset payments from other Purchase Orders or other transactions with Seller. Any amount not paid when due will accrue interest until paid at the rate of 1.5% per month or the maximum amount allowed by law, whichever is less, and Buyer will be responsible for any reasonable costs of collection (including collection agency fees and attorneys’ fees) incurred by Seller. Where invoices for Products are not timely paid, subsequent shipments may be canceled or delayed or subject to prepayment until overdue amounts are paid.

  6. Shipping: Seller will package the Products in containers designed to protect the Products from damage in the ordinary course of delivery. For delivery of the Products in the U.S., shipment will be made (a) DAP (Incoterms 2020) where shipment is made by Seller’s carrier with title and risk of loss or damage to the Products transferred to Buyer upon delivery of Products to Buyer’s address, and (b) FCA (Incoterms 2020) at Seller’s shipping point where Seller agrees, in its sole discretion, to use Buyer’s carrier with title and risk of loss or damage to the Products transferred to Buyer as soon as the Products are shipped (i.e., delivered into the custody of the carrier). For delivery of the Products outside of the U.S., shipment will be made FCA (Incoterms 2020) at Seller’s shipping point with title and risk of loss or damage to the Products transferred to Buyer as soon as the Products are shipped (i.e., delivered into the custody of the carrier) and Buyer is responsible for paying any applicable taxes (including VAT), duties, levies, or other government fees that may apply.  Notwithstanding the foregoing, Seller or its licensors will retain ownership and title to any software contained or incorporated in the Products. Any shipment of Products may be postponed or terminated, as required by law.

  7. Inspection: Buyer will have five (5) days from receipt of each delivery of Products to inspect said Products and notify Buyer of any shortfall or visible defects in Product packaging. If Buyer does not provide any said notice within said timeframe, then Buyer is deemed to have accepted the Products.  For purposes of clarification, Buyer’s acceptance of Products does not negate any Product warranties provided by Seller.

  8. Limited Warranty for Consumables: Seller warrants that Products that are consumables will conform to the applicable Specifications for a period of the later of three (3) months or the expiration date on the Product, but in no event to exceed twelve (12) months from the date of shipment. For the avoidance of doubt, shelf-life or use-by information printed on the Products or product literature is provided for informational purposes only and is not deemed a period of warranty.

  9. Limited Warranty for Instruments and Spare Parts: Seller warrants that Products that are instruments will conform to the applicable Specifications for a period of twelve (12) months from installation; provided, however, that in no event will the foregoing warranty exceed thirteen (13) months from the date of shipment (“Manufacturer Warranty”). If Buyer purchases an extended warranty from Seller prior to the expiration of the Manufacturer Warranty, then the Manufacturer Warranty will be extended for a period of twelve (12) months from the expiration of the Manufacturer Warranty. Seller warrants that Products that are spare instrument parts will meet the applicable Specifications for a period of three months or until the end of the warranty period of the applicable instrument in which it is installed, whichever is longer.

  10. Warranty Exclusions and Limitations: Seller’s warranties do not apply to the extent any Product failure to meet Specifications is the result of (i) abuse, negligence, or improper use, storage, or handling; (ii) accident, power failure, electrical power surge, or force majeure event; (iii) installation, removal, maintenance, alterations, disassembly, or repair by Buyer or a third party other than Seller; and/or (iv) use with any third party product.  All warranties provided are personal to Buyer and may not be transferred to assigned to a third party, including Buyer’s affiliate.  EXCEPT AS SET FORTH IN THESE TERMS AND CONDITIONS OF SALE, SELLER MAKES NO, AND HEREBY DISCLAIMS ANY AND ALL, REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS OR OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

  11. Warranty Remedies: If a Product fails to meet the applicable warranty, Seller will, at Seller’s election, repair or replace said Product with new or reconditioned Products or components, at Seller’s discretion and expense; provided, that Buyer has first provided written notice to Seller with details of said failure and Seller is reasonably able to confirm said failure.  The warranty period for any repaired or replaced Product will be the original Product warranty.  Any warranty claim must be submitted by Buyer prior to the expiration of the applicable warranty period. At Seller’s request and expense, Buyer will ship back the non-conforming Products and/or parts. The remedies set forth in this Section 11 and Seller’s indemnification obligations under Section 14 are the sole remedies for any breach by Seller of a representation or warranty under this Agreement.

  12. Confidential Information: “Confidential Information” means any and all information and materials disclosed by one party to the other party that is (i) marked “confidential” or otherwise identified in writing as confidential or proprietary at the time of disclosure, or (ii) or if not so marked, is understood by a reasonable receiving party from the context of disclosure or from the information itself, to be confidential. The receiving party will (i) use Confidential Information of the disclosing party only to the extent necessary to perform under Agreement, and (ii) not disclose Confidential Information of the disclosing party to any person other than those persons under its direction who require said Confidential Information in order to perform under this Agreement and who have agreed to confidentiality obligation as stringent as those set forth herein. The receiving party will protect the Confidential Information or materials of the disclosing party by using the same degree of care as said party uses to protect its own Confidential Information, but in any event no less than a reasonable degree of care. Notwithstanding any other provisions herein, however, each receiving party will have no obligation to the disclosing party for any information or material that is (a) already known to the receiving party; (b) publicly known other than by a wrongful act of the receiving party; (c) received from a third party lawfully entitled to disclose it; (d) disclosed pursuant to an enforceable order of a court or administrative agency; and/or (e) is independently developed by or for the receiving party..

  13. Intellectual Property and Product Use: Seller retains ownership of all intellectual property rights contained in and relating to the Products. Upon transfer and payment of Products purchased under this Agreement, Seller hereby grants Buyer a limited, non-exclusive, non-transferrable right under Seller’s intellectual property to use the Products, including software contained in any Products, for research purposes only and not for any other purpose, including without limitation manufacturing, quality control, non-research commercial services, laboratory developed tests, diagnostics, or therapeutics.  Except for the license granted in this Section 13, nothing in this Agreement will be construed as conferring explicitly or by implication, estoppel or otherwise any license, right or immunity under any Seller intellectual property rights. Buyer will use Products in accordance with the terms and conditions of this Agreement, any product documentation provided by Seller, and all applicable laws and regulations.  Buyer will not transfer, resell, reverse engineer, decompile, disassemble, or distribute the Products or any of their components.  Buyer is solely responsible for obtaining any third party intellectual property rights necessary for Buyer’s use of the Products.  

  14. Indemnification: Seller will defend, indemnify, and hold harmless Buyer, its officers, employees, agents, and representatives, from and against any and all losses, liabilities, costs, damages, claims, fines, penalties and expenses (including, without limitation, costs of defense or settlement and reasonable attorneys’, consultants’, and experts’ fees) resulting from any claims, demands, actions or other proceedings (“Claims”) made or instituted by a third party to the extent arising out of or resulting from (i) any actual or alleged infringement or misappropriation of a third party intellectual property right in Seller’s manufacture and sale of the Products; (ii) Seller’s breach of any representation, warranty, or obligations under this Agreement; and/or (iii) Seller’s gross negligence or willful misconduct. Buyer will defend, indemnify, and hold harmless Seller, its officers, employees, agents, and representatives, from and against any and all losses, liabilities, costs, damages, claims, fines, penalties and expenses (including, without limitation, costs of defense or settlement and reasonable attorneys’, consultants’, and experts’ fees) resulting from any Claims made or instituted by a third party to the extent arising out of or resulting from (i) any actual or alleged infringement or misappropriation of a third party intellectual property right in Buyer’s use of the Products; (ii) Buyer’s breach of any representation, warranty, or obligation under this Agreement; and/or (iii) Buyer’s gross negligence or willful misconduct. This provision will survive expiration or termination of this Agreement.

  15. Limitation of Liability: EXCEPT AS PURSUANT TO A BREACH OF CONFIDENTIALITY UNDER SECTION 12,  IN NO EVENT WILL EITHER PARTY AND ITS AFFILIATES BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR LOSS OF USE DAMAGES) THAT THE OTHER PARTY MIGHT INCUR OT THAT MAY ARISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF SAID AND/OR ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SAID DAMAGES OR LOSSES. EXCEPT AS PURSUANT TO A BREACH OF CONFIDENTIALITY UNDER SECTION 12 OR AN EXPRESS INDEMNITY OBLIGATION IN SECTION 14, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF EITHER PARTY AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY BUYER TO SELLER FOR THE PRODUCTS PURCHASED UNDER THE APPLICABLE PURCHASE ORDER.

  16. Compliance with Law: Buyer acknowledges that Products provided under this Agreement may be subject to U.S. and applicable foreign export laws and regulations. Specifically, Buyer agrees that it will not export, re-export, distribute, transfer, release or use the Products in violation of U.S. export laws or regulations or the import laws and regulations of applicable foreign states.

  17. Assignment: This Agreement may not be assigned by either party without the prior written consent of the other party.  Notwithstanding the foregoing, either party may assign, without consent, its rights and obligations hereunder to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise); provided, however, that the assigning party provides written notice of said assignment to the other party and said successor agrees in writing to be bound by the terms of this Agreement.  Any attempted assignment contrary to this Agreement is null and void.  This Agreement will be binding upon and inure to the benefit of the successors, representatives, and permitted assigns of the parties.

  18. Governing Law: This Agreement and performance of the parties hereunder will be governed by and interpreted in accordance with the laws of the United States and the State of Delaware, without reference to choice of law provisions. The parties agree that any application of the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded and will NOT apply to this Agreement. Any dispute, controversy or claim arising out of or relating to this Agreement or to a breach hereof, including without limitation its interpretation, performance or termination, and the determination of the scope or applicability of this agreement to arbitrate, will be finally resolved by arbitration in San Diego, California before one arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules, unless the claim is for less than $100,000, in which case the arbitration will be pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. The parties will keep confidential: (i) the fact that any arbitration occurred; (ii) any awards awarded in the arbitration; (iii) all materials used, or created for use in the arbitration; and (iv) all other documents produced in the arbitration and not otherwise in the public domain, except, with respect to each of the foregoing, to the extent that disclosure may be legally required (including to protect or pursue a legal right) or necessary to enforce or challenge an arbitration award before a court or other judicial authority. The arbitrator(s) will award to the prevailing party, if any, its costs and expenses, including its attorneys’ fees. The prevailing party will also be entitled to its attorneys’ fees and costs in any action to confirm and/or enforce any arbitration award in any judicial proceedings. Judgment on the award may be entered in any court having jurisdiction. Nothing in the Agreement shall prevent either party from seeking provisional relief, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The parties agree that the exclusive jurisdiction for such relief will be the state or federal courts located in San Diego, California.

  19. Notices: Any and all notices, requests, demands, or other communications that relate to the other party’s failure to perform or which otherwise affect either party's rights under this Agreement will be deemed properly given when furnished by receipted hand-delivery to the other party, deposited with an express courier, or deposited with the postal service (postage prepaid, certified mail, return receipt requested).  Except in situations involving hand-delivery, the sender will address all notices, requests, demands or other communications to the address located on the Purchase Order and/or Quote, as applicable.

  20. Publicity: Except as required by law or deemed necessary under applicable federal or state securities laws or regulations, Buyer will not use the name of Seller, nor the name of any member of Seller’s staff, in connection with any publicity without the prior written approval of Seller.

  21. Force Majeure: Except for payment obligations, each party will be relieved of its obligations under this Agreement to the extent that fulfillment of said obligations is prevented by acts of war, labor difficulties, riots, fire, flood, hurricane, windstorm, acts or defaults of common carrier, governmental laws, acts or regulations (including the inability to obtain any necessary permits), pandemics, epidemics, shortages of materials or any other occurrences, whether or not similar to the foregoing, beyond the reasonable control of the affected party; provided, however, that said relief will only continue for so long as the force majeure condition exists.

  22. General: This Agreement is the final, complete, and exclusive statement of the understanding between the Seller and Buyer with respect to the subject matter hereof. No terms, conditions, usages of trade, courses of dealing or agreements purporting to modify, vary, explain, or supplement this Agreement will be binding. This Agreement may not be waived, amended, or otherwise modified except by a writing signed by both Seller and Buyer. If any provision of this Agreement is held invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the remainder of this Agreement will continue in full force and effect. The relationship of the parties is that of independent contractors, and nothing herein will be construed as establishing one party or any of its employees as the agent, legal representative, joint venturer, partner, employee, or servant of the other. There are no third party beneficiaries to this Agreement. No remedy herein provided will be deemed exclusive of any other remedy allowed by law or in equity. All rights and obligations of the parties set forth herein that expressly or by their nature survive the expiration or termination of this Agreement will continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement until they are satisfied or by their nature expire and will bind the parties and their legal representatives, successors, and permitted assigns.

 

LOOP GENOMICS TERMS AND CONDITIONS FOR

RESEARCH SERVICES

  1. Definitions: “Agreement” means the applicable SOW (if any), these Terms and Conditions, and any applicable Supplementary Terms. “Customer” means the person or entity purchasing the Services from Loop. “Customer Materials” means materials provided by Customer to Loop for use in the performance of the Services. “Purchase Order” means a purchase order provided by Customer to Loop for the purchase of Services from Loop. “Loop” means Metabiotech Corporation d/b/a Loop Genomics, a part of Element Biosciences, Inc. “Loop Technology” means methods, materials, equipment, and/or related intellectual property owned, controlled, or licensed by Loop or its affiliates. “Services” means all sequencing and analysis research services provided pursuant to a Purchase Order. “SOW” means the quote or other written statement of work provided by Loop for the purchase of Services from Loop. “Supplemental Terms” means additional software licenses, limited use label licenses, or other additional terms that apply to the Services and that are listed on SOW, Seller’s website, or in the documentation that accompanies the Services. “Terms and Conditions” means these Loop Genomics Terms and Conditions for Research Services.

  2. Acceptance: This Agreement is an offer to sell and when a Purchase Order is accepted by Loop becomes the exclusive agreement between the parties relating to Services.  In the event of a conflict with the documents constituting this Agreement, said documents will be given the following order of precedence: (i) the applicable SOW; (ii) any applicable Supplemental Terms; and (iii) the Terms and Conditions. Any Customer terms of purchase and/or terms or conditions in Customer’s Purchase Order and/or other similar documents that are inconsistent with, in addition to, or that alter in any way the provisions of this Agreement are hereby expressly rejected and will not apply to any Services.

  3. Performance of Services. Loop will perform the Services as an independent contractor, using Loop Technology  and Customer Materials.  Loop will provide Customer with data and/or work product generated by Loop using Customer Materials in performance of the Services as specified in the SOW (collectively “Deliverables”). Loop will make a good faith effort to start and complete all Services on time and will notify Customer if substantial delays are likely. Loop will comply with all laws and regulations generally applicable to the Services. The Services are not performed and the Deliverables are not produced in accordance with United States Food and Drug Administration good manufacturing practices or good laboratory practices or in accordance with any other similar laws or regulations in other jurisdictions. Loop may delegate performance of the Services, or portion thereof, to an affiliate or authorized subcontractor, provided that all Services will be performed in accordance with the Agreement.

  4. Customer Materials. Customer will provide Loop with Customer Materials specified in the SOW, in compliance with applicable laws and regulations and in sufficient amounts, as well as relevant safety information and other characteristics of Customer Materials needed by Loop to perform the Services, including without limitation any certification or documentation of Customer Materials reasonably requested by Loop. Customer represents and warrants that (i) it has the right to transfer the Customer Materials to Loop for use as set forth herein, and (ii) the Customer Materials do not and will not contain any personally identifiable information, personal health information, or Protected Health Information (as said term is defined at 45 C.F.R. 160.13).  The Customer Materials, and all information about Customer Materials, whether provided by Customer or generated by Loop in the performance of the Services, will be subject to the confidentiality and non-use requirements of Section 9. Loop will use Customer Materials and Customer Confidential Information only in accordance with the SOW and will not modify nor reverse engineer Customer Materials except as agreed therein. Unless otherwise specified in the SOW or agreed in writing, any Customer Materials not consumed in the Services or required for additional Services will be destroyed after six months. Loop will not transfer Customer Materials, in whole or in part, to any third party, other than a subcontractor or affiliate for purposes of performing the Services, without Customer’s prior written approval.

  5. Use Limitations. Customer agrees to use Deliverables only for Customer’s lawful internal research purposes, not for use in humans, and in accordance with any Limited Use Label License (LULL) identified in the SOW and in accordance with these Terms and Conditions and all applicable laws and regulations. Deliverables will not be transferred to or commercially used by or for any third party, regardless of whether said transfer or commercial use of Deliverables is for research purposes of Customer. The research use limitation, however, will not preclude Customer’s use of Deliverables in its lawful research and development of commercial products or services, provided that said product or service does not require the practice of Loop Technology. Where more than one LULL is applicable, the most restrictive LULL will apply, and these Terms and Conditions take precedence over any less restrictive LULL. Without limiting the foregoing, Customer will not directly or indirectly furnish Deliverables or information provided hereunder to any entity, or destination, or for any use, except in full accordance with all applicable laws and regulations, including without limitation export control and trade sanctions laws and regulations of the United States.

  6. Payments. Unless otherwise specified in the SOW, Loop will provide Customer with an invoice upon completion of the Services and Customer will pay said invoice within 30 days of Customer’s receipt of said invoice. Each Purchase Order is a separate transaction and Customer may not offset payments from other Purchase Orders or other transactions with Loop. Any amount not paid when due will accrue interest until paid at the rate of 1.5% per month or the maximum amount allowed by law, whichever is less, and Customer will be responsible for any reasonable costs of collection (including collection agency fees and attorneys’ fees) incurred by Loop. Where invoices for Services are not timely paid, subsequent Services or Purchase Orders may be canceled or delayed or subject to prepayment until overdue amounts are paid.

  7. Ownership, Intellectual Property. As between the parties, Customer will be the exclusive owner of (i) Customer Confidential Information, (ii) Customer Materials, and (iii) Deliverables, ((i)-(iii) collectively, the “Customer Property”). As between the parties, Loop will be the exclusive owner of Loop Technology and any improvements or modifications thereof, whether developed before or during the performance of the Services. Except to the extent necessary to use the Deliverables in accordance with Section 5, nothing in the Agreement will be construed as conferring to Customer explicitly or by implication, estoppel or otherwise any license, right or immunity under Loop’s intellectual property rights, including without limitation Loop Technology.

  8. Non-Exclusivity. Unless expressly agreed in writing, all Services are provided on a non-exclusive basis, and Loop reserves all rights for itself and its affiliates to provide third parties with deliverables that are identical or similar to Deliverables, provided that Loop will not use any Customer Materials or Customer Confidential Information to perform Services for any third party.

  9. Confidentiality. “Confidential Information” means any and all information and materials disclosed by one party to the other party that is (i) marked “confidential” or otherwise identified in writing as confidential or proprietary at the time of disclosure, or (ii) or if not so marked, is understood by a reasonable receiving party from the context of disclosure or from the information itself, to be confidential. Each party will (i) use Confidential Information of the other party only to the extent necessary to perform the Agreement, and (ii) not disclose Confidential Information of the other party to any person other than those persons under its direction who require said Confidential Information in order to perform the Agreement and who have agreed to confidentiality obligation as stringent as those set forth herein. Each party will protect the Confidential Information or materials of the other party by using the same degree of care as said party uses to protect its own Confidential Information, but in any event no less than a reasonable degree of care. Notwithstanding any other provisions herein, each recipient party will have no obligation to the other party for any information or material that is (a) already known to the recipient party; (b) publicly known other than by a wrongful act of the recipient party; (c) received from a third party lawfully entitled to disclose it; (d) disclosed pursuant to an enforceable order of a court or administrative agency; and/or (e) is independently developed by or for the recipient party. The confidentiality obligations set forth in this Section 9 will survive for a period of two (2) years after expiration or termination of this Agreement.

  10. Limited Warranty. Loop’s sole warranty for the performance of the Services is that the Services will be performed using due care in accordance with (a) the Agreement, including the respective SOW(s), and (b) laws, regulations and generally prevailing industry standards applicable to said Services. Loop does not warrant or represent that the results of the Services, including the Deliverables, will produce scientifically successful results or that they will advance the interests of Customer. If Customer believes that Loop, in breach of its limited warranty, has made a material error in the Services that renders the results of said Services invalid, Customer must notify Loop of said error in writing, within one month after receipt of the final Deliverable for said Services; and as Customer’s sole remedy for said error, Loop will either (i) repeat the particular Services at Loop’s own expense, or (ii) refund to Customer the fees actually paid for the particular Services giving rise to the breach of warranty. THE WARRANTY SET FORTH IN THIS SECTION 10 IS IN LIEU OF ANY AND ALL OTHER WARRANTIES RELATING TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT DELIVERABLES OR USE THEREOF WILL NOT INFRINGE ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.

  11. Indemnification. Loop will defend, indemnify, and hold harmless Customer, its officers, directors, employees, agents, and representatives  from and against any and all losses, liabilities, damages, and expenses (including, but not limited to, reasonable attorneys’ fees) resulting from any claims, demands, actions or other proceedings (“Claims”) made or instituted by a third party to the extent arising out of or resulting from Loop’s gross negligence or willful misconduct. Customer will indemnify and hold harmless Loop, its affiliates and its and their respective officers, directors, employees, agents and representatives  from and against any and all losses, liabilities, damages, and expenses (including, but not limited to, reasonable attorney’s fees) resulting from any Claims made or instituted by a third party to the extent arising out of or resulting from (a) Customer Materials or use thereof in performance of the Services as specified in the SOW; (b) Customer’s use of the Deliverables; (c) the manufacture, sale, use (or misuse), and possession of any product or service based in whole or part on Customer’s reliance on Deliverables, or any portion or derivative thereof; and/or (d) Customer’s breach of this Agreement or its gross negligence or willful misconduct.

  12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LOOP WILL NOT BE LIABLE HEREUNDER, UNDER ANY LEGAL THEORY, FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFITS OR LOSS OF BUSINESS, EVEN IF LOOP HAD NOTICE OF THE POSSIBILITY THEREOF. LOOP’S LIABILITY TO CUSTOMER FOR BREACH OF ANY PROVISION OF THE AGREEMENT (OTHER THAN BREACH OF THE WARRANTY IN SECTION 10 FOR WHICH LIABILITY IS LIMITED TO RE-PERFORMANCE OR REFUND AS SPECIFIED THEREIN) WILL BE LIMITED TO DAMAGES IN AN AMOUNT NOT TO EXCEED THE FEE TO BE PAID FOR THE APPLICABLE SERVICES.

  13. Changes, Termination. Changes to the Services must be agreed by both parties in writing and may require changes in the fees or timelines. Loop may terminate the Agreement if (a) Customer breaches any material provision of the Agreement and fails to remedy the breach to the satisfaction of Loop within 15 days after written notice thereof; (b) Loop is unable to obtain third party materials or technology specified in the SOW, for reasons beyond Loop’s reasonable control; (c) Loop determines that biosecurity, biosafety, and/or feasibility reasons prevent or are likely to prevent the performance of the Services, or (d) Customer is or is deemed by law to be unable to pay its debts or perform its obligations under the Agreement. Customer will have the right to terminate any SOW upon 30 days prior written notice to Loop. Termination of Services in progress will result in a partial charge commensurate with the percentage of Services completed at the time of cancellation, in addition to any other termination or cancellation charges specified in the SOW.

  14. Assignment: This Agreement may not be assigned by either party without the prior written consent of the other party.  Notwithstanding the foregoing, either party may assign, without consent, its rights and obligations hereunder to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise); provided, however, that the assigning party provides written notice of said assignment to the other party and said successor agrees in writing to be bound by the terms of this Agreement.  Any attempted assignment contrary to this Agreement is null and void.  This Agreement will be binding upon and inure to the benefit of the successors, representatives, and permitted assigns of the parties.

  15. Governing Law. This Agreement and performance of the parties hereunder will be governed by and interpreted in accordance with the laws of the United States and the State of Delaware, without reference to choice of law provisions. The parties agree that any application of the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded and will NOT apply to this Agreement. Any dispute, controversy, or claim arising out of or relating to this Agreement or to a breach hereof, including without limitation its interpretation, performance or termination, and the determination of the scope or applicability of this agreement to arbitrate, will be finally resolved by arbitration in San Diego, California before one arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules, unless the claim is for less than $100,000, in which case the arbitration will be pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. The parties will keep confidential: (i) the fact that any arbitration occurred; (ii) any awards awarded in the arbitration; (iii) all materials used, or created for use in the arbitration; and (iv) all other documents produced in the arbitration and not otherwise in the public domain, except, with respect to each of the foregoing, to the extent that disclosure may be legally required (including to protect or pursue a legal right) or necessary to enforce or challenge an arbitration award before a court or other judicial authority. The arbitrator(s) will award to the prevailing party, if any, its costs and expenses, including its attorneys’ fees. The prevailing party will also be entitled to its attorneys’ fees and costs in any action to confirm and/or enforce any arbitration award in any judicial proceedings. Judgment on the award may be entered in any court having jurisdiction. Nothing in the Agreement shall prevent either party from seeking provisional relief, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The parties agree that the exclusive jurisdiction for such relief will be the state or federal courts located in San Diego, California.

  16. Notices: Any and all notices, requests, demands, or other communications that relate to the other party’s failure to perform or which otherwise affect either party's rights under this Agreement will be deemed properly given when furnished by receipted hand-delivery to the other party, deposited with an express courier, or deposited with the postal service (postage prepaid, certified mail, return receipt requested).  Except in situations involving hand-delivery, the sender will address all notices, requests, demands or other communications to the address located on the Purchase Order and/or SOW, as applicable.

  17. Publicity: Except as required by law or deemed necessary under applicable federal or state securities laws or regulations, Customer will not use the name of Loop, nor the name of any member of Loop’s staff, in connection with any publicity without the prior written approval of Loop.

  18. Force Majeure: Except for payment obligations, each party will be relieved of its obligations under this Agreement to the extent that fulfillment of said obligations is prevented by acts of war, labor difficulties, riots, fire, flood, hurricane, windstorm, acts or defaults of common carrier, governmental laws, acts, or regulations (including the inability to obtain any necessary permits), pandemics, epidemics, shortages of materials or any other occurrences, whether or not similar to the foregoing, beyond the reasonable control of the affected party; provided, however, that said relief will only continue for so long as the force majeure condition exists.

  19. General. This Agreement is the final, complete, and exclusive statement of the understanding between Loop and the Customer with respect to the subject matter hereof. This Agreement will expire upon completion of the Services. No terms, conditions, usages of trade, courses of dealing or agreements purporting to modify, vary, explain, or supplement this Agreement will be binding. This Agreement may not be waived, amended, or otherwise modified except by a writing signed by both Loop and the Customer. If any provision of this Agreement is held invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the remainder of this Agreement will continue in full force and effect. The relationship of the parties is that of independent contractors, and nothing herein will be construed as establishing one party or any of its employees as the agent, legal representative, joint venturer, partner, employee, or servant of the other. There are no third party beneficiaries to this Agreement. No remedy herein provided will be deemed exclusive of any other remedy allowed by law or in equity. All rights and obligations of the parties set forth herein that expressly or by their nature survive the expiration or termination of this Agreement will continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement until they are satisfied or by their nature expire and will bind the parties and their legal representatives, successors, and permitted assigns.