TERMS AND CONDITIONS
BlueCube Bio, Inc
These Terms and Conditions (these “Terms”) set forth the terms and conditions for the provision by BlueCube Bio, Inc. (“BlueCube”) of certain quantities of Cell Cryopreservation Materials and Kits (the “Product”) to the person or entity identified as “Customer” in the order form attached to these Terms or identified in an on-line order (such person or entity, “Customer”; such order form or on-line order, a “Sales Order”).
BY SUBMITTING A SALES ORDER, CUSTOMER AGREES TO BE BOUND BY THESE TERMS. IF CUSTOMER IS AN ENTITY, THE INDIVIDUAL PLACING THE SALES ORDER REPRESENTS AND WARRANTS THAT THEY HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS.
1. ACCEPTANCE OF ORDERS; ALLOCATION; DELIVERY. No Sales Order will be binding upon BlueCube until it is accepted by BlueCube in writing or fulfilled by BlueCube, whichever occurs first. BlueCube retains the right in its sole discretion to allocate available supply of Products among its customers. BlueCube will use commercially reasonable efforts to meet the dates scheduled for delivery of Products, but such dates are estimates only and BlueCube will not be deemed in breach of these Terms solely as a result of failure to meet such dates.
2. NO USE IN HUMANS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PRODUCT IS FOR RESEARCH USE ONLY AND IS NOT INTENDED FOR USE, AND SHOULD NOT BE USED, IN HUMANS.
3. LICENSE. Subject to these Terms, BlueCube grants to Customer a limited, non-exclusive, non- transferable, non-sublicensable license to use the quantities of Product purchased by Customer from BlueCube solely for Customer’s own internal non-commercial research purposes in accordance with these Terms.
4. LIMITATIONS. Without limiting the generality of the limits on the license granted under Section 3, Customer may not (a) share, sell, license, lease, export, transfer or otherwise distribute the Product to any third party person or entity, for financial gain or otherwise; (b) use the Product to provide a service to any third party person or entity, for financial gain or otherwise; (c) attempt to reverse engineer or otherwise determine the components or structure of the Product or how the Product is produced; or (d) use the Product in any manner that would result in any third party obtaining any intellectual property or other rights relating to the Product.
5. RESERVED RIGHTS. Except as expressly stated in Section 3, BlueCube reserves all right, title and interest in and to the Product and Customer obtains no right or license, expressly or by implication, estoppel or otherwise, from BlueCube regarding the Product including under any patent, copyright or other intellectual property right of BlueCube. Customer will not take any action and will cause its employees and representatives not to take any action, that is inconsistent with BlueCube’s ownership of the Product.
6. IMPROPER USE. If Customer uses the Product for any purpose not expressly permitted in these Terms, all results of such use, including all data or inventions, discoveries, or works, and all related intellectual property rights, arising directly or indirectly from such use (collectively, “Out-of-Scope Results”) will be solely owned by BlueCube. Customer does and will, at its expense, assign to BlueCube all right, title and interest in and to any such Out-of-Scope Results
and will take all steps, and execute all documents, necessary to document and perfect such assignment.
7. COMPLIANCE WITH LAWS. Customer’s use of the Product, including the conduct of all research involving the use of the Product and storage and disposal of the Product, will be done in accordance with all applicable federal, state, local, import/export and other laws, regulations, and ordinances governing such use, including applicable NIH guidelines. Customer will be solely responsible for obtaining any necessary governmental permits or approvals to receive and handle the Product.
8. ASSUMPTION OF RISK. Customer assumes all risk and responsibility in connection with Customer’s receipt, handling, use, storage and disposal of the Product, including taking all appropriate safety and handling precautions to minimize health or environmental risk. THE PRODUCT IS PROVIDED TO CUSTOMER “AS-IS,” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (A) BLUECUBE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONDITIONS AND REPRESENTATIONS, RELATING TO THE PRODUCT, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, AND (B) BLUECUBE DOES NOT WARRANT THAT PRODUCT WILL (i) MEET CUSTOMER’S REQUIREMENTS, (ii) BE ACCURATE OR ERROR FREE, OR (iii) THAT ANY ERRORS CAN BE CORRECTED.
9. LIMITATION OF LIABILITY. BLUECUBE’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS AND/OR SALE OF PRODUCT, WHETHER FOR BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR OTHERWISE, WILL BE LIMITED TO THE AMOUNT RECEIVED BY BLUECUBE FROM CUSTOMER FOR THE PRODUCT THAT GIVE RISES TO SUCH LIABILITY OR CLAIMS. IN NO EVENT WILL BLUECUBE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM THESE TERMS, INCLUDING ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY CUSTOMER, OR FOR ANY LOST PROFITS, LOSS OF DATA,WHETHER OR NOT BLUECUBE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, HOWEVER CAUSED, AND REGARDLESS OF THE THEORY ON WHICH SUCH CLAIM IS BASED. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 9 ALSO APPLY TO ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST RECIPIENT. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF BLUECUBE ARISING OUT OF TERMS AND/OR SALE OF PRODUCT. THE LIABILITY LIMITATIONS CONTAINED IN THESE TERMS WILL CONTINUE TO APPLY EVEN IF AN EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. BLUECUBE DISCLAIMS ALL LIABILITY OF ANY KIND ON BEHALF OF BLUECUBE’S LICENSORSAND SUPPLIERS. NOTHING IN THESE TERMS AND CONDITIONS WILL IN ANY WAY LIMIT ANY APPLICABLE CONSUMER RIGHTS UNDER LOCAL LAW.
10. INDEMNIFICATION. Customer will indemnify, defend and hold harmless BlueCube, its affiliates, licensors and suppliers, and their respective employees, contractors and agents against all third party claims, losses, expenses and damages, including reasonable attorneys’ fees
(collectively “Claims”) arising out of or relating to Customer’s use, receipt, handling, storage, transfer, disposal and other activities relating to Product; provided that, Customer’s liability under this Section 10 will be limited to the extent that any such Claim arises out of BlueCube’s gross negligence or willful misconduct. All non-monetary settlements of any such Claims are subject to BlueCube’s prior written consent, such consent not to be unreasonably withheld.
11. PROPRIETARY INFORMATION. BlueCube may provide proprietary information to Customer solely for Customer’s use in connection with the Products. Such information will remain the exclusive property of BlueCube, and Customer will protect such information using the same measures that Customer uses to protect its own information of a similar nature, but not less than with a reasonable standard of care.
12. NO AUTHORITY TO BIND OR OBLIGATE. Nothing in these Terms will be construed as creating an association, partnership, or joint venture between the parties, it being understood and agreed that the parties are independent contractors and that neither will have the authority to bind the other in any way.
13. NO FURTHER OBLIGATIONS. Nothing contained in these Terms will be construed, by implication or otherwise, as an obligation for any party hereto to enter into any further discussions or any additional agreement with the other.
14. TERM AND TERMINATION
a. Term. These Terms will commence on the date of BlueCube’s acceptance of the Sales Order (the “Effective Date”) and, unless earlier terminated in accordance with Section 14.b, will expire on the earlier of: (i) completion of Customer’s proposed research studies with the Product, or (ii) three (3) years from the Effective Date.
b. Termination. Customer may terminate these Terms at any time upon thirty (30) days’ prior written notice to BlueCube. BlueCube may terminate these Terms if Customer fails to cure a breach of these Terms within thirty (30) days after receiving written notice from BlueCube of such breach.
c. Effect of Termination. Termination will not affect any rights or obligations of the parties that accrued prior to the effective date of termination. Upon any termination of these Terms:
i. Customer will immediately discontinue all use of the Product and will, at BlueCube’s option, as notified by BlueCube, return or destroy all remaining Product;
ii. Customer will, within ten (10) days after the effective date of termination, return to BlueCube all of BlueCube’ s proprietary information (including all copies) provided to Customer under Section 11, except for one (1) copy, which Customer may retain solely to monitor Customer’s surviving obligations of confidentiality and non-use; and
iii. The provisions of Sections 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14.c and 15 will survive any expiration or termination of these Terms.
15. GENERAL. These Terms and any attached order form constitute the complete and exclusive agreement between BlueCube and Customer with respect to the subject matter of these Terms, and supersede all prior oral or written understandings, communications or agreements regarding such subject matter. These Terms may not be amended except in writing and executed by both
parties. These Terms are not assignable by Customer without the prior written consent of BlueCube and will be governed by the laws of the State of Minnesota, without reference to any choice of law provisions that would result in the application of the laws of another jurisdiction. These Terms will not be strictly construed against either party. The Section headings are included solely for convenience of reference and will not control or affect the meaning or interpretation of any of the provisions of these Terms. The words “include,” “includes” and “including” when used in these Terms are deemed to be followed by the phrase “but not limited to”. If any provision of these Terms are held to be invalid, illegal or unenforceable, the remaining provisions will not be affected or impaired. Any notice under these Terms must be in writing and is deemed given upon receipt if mailed first class, postage prepaid or delivered by overnight express or other delivery service, to the receiving party at the address listed in the Sales Order. Any breach or threatened breach of these Terms by Customer, including to any breach of the scope of use provisions of these Terms, will entitle BlueCube to immediately cease further shipments of Product to Customer without notice and may create such irreparable injury as to entitle BlueCube to seek temporary restraining orders and other preliminary or permanent injunctive relief in addition to all other equitable and legal remedies that may be afforded under US or foreign laws.