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TERMS AND CONDITIONS OF SALE

Thank you for your interest in purchasing our products. We value your business and our goal is to make your purchasing experience as smooth as possible. Unless otherwise expressly agreed in writing, in consideration for the value you receive, your purchase of products is subject to the following terms and conditions below.

 

  1. Agreement Terms
    • General Terms. These terms and conditions (“Terms”), our quotation (if any) and Supplementary Terms (defined below), if any, comprise the agreement (“Agreement”) between you and Oncocyte Corp. (“Oncocyte”). Unless your order is subject to a valid, written, executed agreement between you and Oncocyte, in which case such agreement applies, you agree to accept and be bound by the Agreement by ordering products from Oncocyte or if you receive ordering or sales documents that reference these Terms. This Agreement is the complete and exclusive contract between us with respect to your purchase of the products.
    • Supplementary Terms. Some of our products and services are subject to additional software licenses, limited use label licenses, third party licenses, or other written contract terms that you will not find here (“Supplementary Terms”). You will find Supplementary Terms, if any, that apply to your purchase in our quotation to you, on Oncocyte.com, or in literature and labels that accompanies the product or service.
    • Terms Conflict. If any conditions within the Agreement documents conflict with each other, we will give them the following priority: (a) the quotation; (b) any applicable Supplementary Terms; and (c) finally these Terms. We expressly reject any different terms or provisions contained in any document you provide, and if the terms and conditions in this Agreement differ from the terms of your offer, this Agreement will serve as the governing terms for our contract.
    • When Agreement takes Effect. The Agreement between us is created when you receive confirmation that we have accepted your order for products or services.
  2. Price
    • Determining Price. We may change our prices at any time without notice. Prices that we quote you are valid for 30 days, unless we state otherwise in writing. If no price has been specified or quoted to you, the price will be the product price on our website that is in effect at the time we accept your order.
    • Taxes and Fees. Our product prices do not include any taxes (including VAT), duties, levies or other government fees that may apply to your order. If they apply, it will be your responsibility to pay them. If we pay them, we will add them to your invoice. If you claim any exemption, you must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.
    • Delivery Fees; Freight Policy. You are also responsible for standard delivery and handling charges, if applicable, and our product prices do not include such charges unless expressly stated. Unless we waive such right in writing, if we pay such charges, we will also add these to your invoice.
  3. Cancellation and Changes

Once you have placed your order, you cannot cancel or change it without our written consent.

  1. Payment
    • Payment Terms. We will invoice you for the product price and all other charges due. Unless you are required to pay at the time of placing an order, you will pay us within 30 days from your receipt of invoice. Each order is a separate transaction, and you may not off-set payments, including from one order against another. We reserve the right to require you to make full or partial payment in advance, or provide other security to our satisfaction. You will make all payments in the currency specified in our invoice to you. You may make payments via ACH or other electronic interface that directly exchanges funds between your bank account and ours; checks mailed to one of our lockbox remittance locations; or a credit card at the time of purchase.
    • Late Payment. If you are late in making payment then, without affecting our other rights you will make payment to us, upon our demand, of a late-payment charge. The late payment charge will be calculated as interest on the sums due from the payment due date until you make payment in full, at the rate of 1.5% per month, or, if less, the maximum amount allowed by law and will also include our reasonable costs of collection (including collection agency fees and attorneys’ fees). We also reserve the right to cancel or stop delivery of products in transit and withhold shipments in whole or in part if you do not pay us when due, or if you otherwise do not perform your obligations in this Agreement.
  2. Delivery
    • Delivery. We will ship products to the destination you specify in your order, FCA Incoterms 2010 our shipping point. By agreeing to these Terms, you (i) give your consent for us to arrange for carriage for all products supplied hereunder on your behalf; and (ii) waive your right to arrange carriage or to give us any specific instructions regarding carriage. We may, in our discretion, make partial shipments and invoice each shipment separately. Our shipping dates are approximate only, and we will not be liable for any loss or damages resulting from any delay in delivery. You may not refuse delivery or otherwise be relieved of any obligations as the result of such delay. If our delivery of a product to you is delayed due to any cause within your control, we will place the delayed products in storage at your risk and expense.
  3. Risk of Loss and Title

Excluding (1) software incorporated within or forming part of a product or (2) third party items subject to a license, which we or our licensors continue to own, title to and risk of loss of the products will pass to you when we load them onto the commercial carrier at our facility.

  1. Returns and Shortages
    • Returns. Customer Services must pre-authorize all product returns. Customer Services will approve return of any product that is damaged or defective on receipt, provided you contact Customer Services within five (5) business days after receiving the product and provided such damage or defect has not been caused by any failure by you or the carrier to handle or store products using reasonable care or as otherwise indicated on the label. If you do not contact us within this five (5) business day period, we will deem the product to be accepted, but you will not lose any warranty rights.
    • Product-Credit Eligibility. If we exercise our discretion to authorize a product for return, then the product must arrive at our facilities in a condition satisfactory for resale. Any return not due to our error is subject to a restocking charge of 25% of the sale price. We do not credit shipping charges. You will not receive credit for any product returned without our prior consent.
  2. Warranties
    • Limited Warranty. Unless a different warranty is included in applicable Supplementary Terms, product literature and labels, or on the relevant oncocyte.com product pages, we warrant that each product or service will meet its specifications in our published catalogs or associated Supplementary Terms. This warranty lasts from the time we ship the item until the earlier of: (a) the item’s expiry or “use by” date; or (b) its specified number of uses. If we do not specify the expiry date, the number of uses, or a different warranty period, the warranty will last for twelve (12) months from the date of manufacture.  
    • Exclusions. In addition to our exclusion for third party products as set out in Section 8.3of these Terms, our warranties do not apply to (a) normal wear and tear; (b) accident, disaster or event of force majeure; (c) your misuse, tampering, fault or negligence, including but not limited improper storage, failure to follow product instructions, or use of the product other than as intended; (d) causes external to the products such as, but not limited to, power failure, electrical power surges, or equipment failures; (e) installation, removal, use, maintenance, storage, or handling in an improper, inadequate, or unapproved manner by you or any third party (including the carrier), such as, but not limited to, failure to follow our instructions or operating guidelines, or protocols, operation outside of stated environmental or use specifications, or operation or contact with unapproved software, materials, chemicals or other products; or (f) products manufactured or altered in accordance with specifications you gave us. ADDITIONALLY, ANY REPAIR, SERVICE, ALTERATION, OR OTHER TAMPERING WITH, REVERSE ENGINEERING OR ATTEMPED REVERSE ENGINEERING OF THE PRODUCTS, PERFORMED BY ANY PERSON OR ENTITY OTHER THAN US WITHOUT OUR PRIOR WRITTEN APPROVAL, OR ANY USE OF UNAUTHORIZED PARTS, SUBSTANCES, OR COMPONENTS, WILL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.

If we determine that products for which you requested warranty services are not covered by the warranty, or if we provide parts that are not covered by this warranty, you will pay or reimburse us for all costs of investigating and responding to such request at our then prevailing time and materials rates.

  • Limitations.
  • OUR WARRANTIES EXTEND ONLY TO YOU, THE ORIGINAL PURCHASER AND YOU CANNOT TRANSFER OR ASSIGN THEM, IN WHOLE OR IN PART. OUR OBLIGATION TO REPAIR OR REPLACE A PRODUCT IS YOUR SOLE REMEDY. EXCEPT AS OTHERWISE STATED IN WRITING, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES (A) OF MERCHANTABILITY; (B) OF FITNESS FOR ANY PARTICULAR PURPOSE; AND/ OR (C) THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
    • Remedies. During the applicable warranty period only, for products not meeting our warranty, we agree, in our sole discretion, to repair or replace the non-conforming product and/or provide additional parts as reasonably necessary to comply with our warranty obligations, but you must first promptly notify us in writing when you discover any defect or non-conformance, and include in the notice clear details of your warranty claim. For warranty matters, please contact us at service@oncocyte.com. After our review, assuming we authorize the product return, we will provide you with service data and/or a Return Material Authorization (“RMA”), which may include biohazard decontamination procedures and other product-specific handling instructions that you must follow. For valid product warranty claims timely made in accordance with this Agreement, you must return the non-conforming products to us, unless we agree otherwise, and we will prepay the shipping costs.
    • Third Party Products. We do not support or make any warranties about products manufactured or supplied by third parties that you purchase through any of our sales channels. When you buy a third party product, we will let you know that this purchase is governed by the third-party’s own contract terms. You must look directly to the relevant third-party manufacturer for product support, warranties, and to make warranty claims.

 

  1. Indemnification
    • Our Infringement Indemnity. We will defend and indemnify you against infringement damages finally awarded in any legal action brought by a third party against you alleging infringement of any intellectual property rights owned by third parties arising directly and solely from a product or service, as manufactured and provided by us to you, but always excluding use and/or combination of such product with other products or components. This infringement indemnity does not apply to (a) claims that arose based on your failure to comply with the Agreement; (b) claims that arose based on your failure to acquire any applicable additional intellectual property or other rights related to your use of the products (“Additional Rights”); (c) products that we made, assembled or labeled in reliance upon your instructions, specifications, or other directions; (d) your use, transfer, or resale of products; (e) modifications made by you or any third party; or (f) products originating from third parties.

THIS INDEMNITY IS OUR ONLY LIABILITY TO YOU, AND, SUBJECT TO THE TERMS AND CONDITIONS OF THIS SECTION, YOUR ONLY REMEDY, FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY OR IN CONNECTION WITH ANY PRODUCT.

  • Conditions to Our Indemnity. As a condition to our indemnification obligations you must (a) notify us in writing, as soon as you become aware of any claim; (b) not admit any liability or take any other action in connection with the claim that could affect the defense; (c) allow us to solely control the defense or settlement of the claim; (d) give us your reasonable information, co-operation and assistance; and (e) take all reasonable steps to mitigate losses incurred, including allowing us to exercise any and all of options set out in Section 11.4of these Terms.
  • Your Indemnity of Us. If a third party makes a claim against us for infringement of its intellectual property rights based on (a) our manufacture or sale of a product or custom product we make under your instructions, specifications, or other directions, or using materials that you provide to us (b) your failure to comply with the Agreement, (c) your failure to acquire any applicable Additional Rights, or (d) your modification, use or resale of a product, then you will indemnify and hold us harmless from and against any and all claims, losses, damages, liabilities and expenses (including reasonable attorneys’ fees and other costs of defending and/or settling any action) that we may have to pay as a result of the claim.

 

  1. Software
    • Definitions. With respect to any software products incorporated in, forming a part of our products, or used in connection with the product, you understand and agree that we are licensing such software products and not selling them, and that the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “you” is understood and agreed to mean “licensee”. We, or our licensor, as applicable, retain all rights and interest in software products we provide to you.
    • License. We hereby grant to you a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use software we provide to you under this Agreement solely for your own internal business purposes, and to use the related documentation solely for your own internal business purposes. This license will automatically terminate upon the earlier following: (1) expiration or “best by” use date of the product; (2) return of the product; (3) the product has been consumed/used for its purpose; or (4) one year from the date of sale if the product has no expiration or “best by” use date.
    • Restrictions. You agree to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related documentation provided hereunder. You may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without our prior written consent. We will be entitled to terminate this license if you fail to comply with any term or condition herein.
    • Return of Software and Documentation. You agree, upon termination of this license, immediately to return to us all software products and related documentation provided hereunder and all copies and portions thereof.
    • Third Party Software. The warranty and indemnification provisions set forth in this Agreement will not apply to third party owned software products we provide you.

 

  1. Intellectual Property
    • Use Limitations. As between you and us, we exclusively own all intellectual property rights relating to our products and services. Unless we expressly state otherwise in Supplementary Terms, our sale of products to you grants you only a limited, nontransferable right under our intellectual property to use the quantity of products purchased from us for your internal research purposes. No right to transfer, reverse engineer, decompile, disassemble, distribute, or resell our products or any of their components is conveyed expressly, by implication, or by estoppel. Unless expressly permitted by us in writing, you will not modify, change, remove, cover or otherwise obscure any of our brands, trade or service marks on the products. Nothing in the Agreement limits our ability to enforce our intellectual property rights.
    • Commercial Applications; Additional Rights. Except as set forth in any Supplementary Terms, we give no rights to use our products in any commercial application, including manufacturing, quality control, and commercial services. Where your use of our product is outside the scope of the Agreement or its intended use, it is solely your responsibility to acquire Additional Rights. You may contact us to discuss.
    • Intellectual Property Ownership. Unless otherwise specified in applicable Supplementary Terms, we exclusively own all intellectual property rights in any inventions (patentable or otherwise), discoveries, improvements, data, know-how, or other results that are conceived, developed, discovered, reduced to practice, or generated by or for us, or jointly by you and us, in relation to processes, designs and methods utilized in manufacture of a custom product. You agree to transfer and assign to us all your right, title, and interest in and to any joint intellectual property; provided that joint intellectual property shall not include any PHI as defined under the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”).  At our request and at our expense, you will help us secure and record our rights in such intellectual property.
    • Intellectual Property Infringement. We want to avoid claims of intellectual property infringement. If we believe a product we have sold to you may be subject to a claim for intellectual property infringement, you must allow us (at our option) to either (a) secure for you the right to continue using the product; (b) substitute the product with another suitable product with similar functionality; or (c) tell you to return the product to us and we will refund to you the price you paid.

 

  1. Limitations and Exclusions of Liability

(A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL NOT BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ALL COSTS OF COVER, LOST PROFITS, LOST DATA OR INFORMATION, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT YOU MIGHT INCUR UNDER THE AGREEMENT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH OUR PRODUCTS OR SERVICES, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.

 

(B) IN ADDITION, OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR ANY PRODUCT UNIT OR SERVICE, IS LIMITED TO 100% OF THE AMOUNT YOU PAID TO US FOR THE SPECIFIC PRODUCT PURCHASED THAT GAVE RISE TO THE LIABILITY.

 

(C) THE PROVISIONS ABOVE IN THIS SECTION 14 DO NOT LIMIT OUR LIABILITY THAT CANNOT BE LIMITED BY LAW, INCLUDING BUT NOT LIMITED TO LIABILITY FOR FRAUD AND DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE.

 

  1. Export Restrictions
    • Items. You acknowledge that each product and any related software and technology, including technical information we supply you, including those contained in product documents (collectively “Items”), may be subject to U.S., EU and local government export controls.
    • Export Controls. The export controls may include, among others, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries.
    • Compliance Requirements. You must comply with the EAR, and all other applicable laws, regulations, treaties, and agreements relating to the export, re-export, and import of any Item. You must not, directly or indirectly, without first obtaining the required license to do so from the appropriate U.S. government agency; (a) export, re-export, distribute or supply any Item to (a) any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government; (b) any person or entity who is involved in improper development or use of nuclear weapons or of chemicals/biological weapons, or missiles, or in terrorist activities. You will, if we request, provide information on the end user and end use of any Item you export or plan to export.
    • Audit Cooperation. You will cooperate fully with us in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and will indemnify and hold us harmless from, or in connection with, your or your consultants’, agents’ or employees’ violation of this section.
    • HIPAA Compliance. You agree to not send us any PHI, as such term is defined under HIPAA, or confidential information, including confidential information belonging to a third party.  To the extent any PHI may be disclosed, the parties agree to comply with HIPAA, and the regulations promulgated thereunder, and  shall implement, document, and use administrative, physical, and technical safeguards that prevent use or disclosure of PHI other than as permitted or required by the Agreement, and that reasonably and appropriately protect the confidentiality, integrity, and availability of any electronic PHI that a party creates, receives, maintains, or transmits on behalf of the other party, including without limitation reporting to the other party any security incident of which a party becomes aware. Each party shall be responsible for ensuring that appropriate administrative, physical and technical safeguards are implemented with respect to ePHI that it creates, receives, maintains, uses or discloses, in accordance with the Security Standards and other requirements under HIPAA as amended from time to time.  The parties agree to execute any other documents or instruments in furtherance of the intent of this section.
    • No Reverse Engineering.  You agree to not tamper, reverse engineer, dissemble, or decompile our products. You agree to not attempt to gain, without authorization, any trade secrets, know-how, formula, processes, or other confidential information that relates to our products and services. You agree to not apply for any intellectual property protections relating to our products and services, in the United States or elsewhere.  You represent and warrant that your purchase of our products and services is not for the purpose of developing, marketing, manufacturing, researching, selling, or investing in a similar or competitive product or service.
    • Product Use. Without limiting any other term or condition herein, you acknowledge and agree that: (1) Oncocyte’s products are provided for your internal research use only, and not for human therapeutic or diagnostic use; (2) Oncocyte’s products have not been validated for clinical or diagnostic use, safety and effectiveness, or any other specific use or application and have not received any governmental approval, clearance, or similar designation; (3) you are solely responsible for your compliance with any applicable laws, regulations and governmental policies that may pertain to your use of Oncocyte’s products; (4) all Oncocyte field personnel that train, assist with workflow setup and/or experimental consultation are for purposes of research use only as outline in 1 and 2 above. Oncocyte will not provide patient diagnostic services.
    • Regulatory Restrictions. In addition to the restrictions set out in these Terms: (a) you must use our products in accordance with our instructions; (b) you are solely responsible for making sure that the way you use our products complies with applicable laws, regulations and governmental policies; (c) you must obtain all necessary approvals and permissions you may need; and (d) it is solely your responsibility to make sure the products are suitable for your particular use.
  2. Miscellaneous
    • No Assignment. You may not delegate any duties nor assign any rights or claims hereunder without our prior written consent, and any such attempted delegation or assignment will be void.
    • Governing Law. The Agreement and performance under it will be governed by the laws of the state of California. In the event of any legal proceeding between you and us relating to the Agreement, neither party may claim the right to a trial by jury. Any action arising under the Agreement must be brought within one year from the date that the cause of action arose.
    • Uncontrollable Circumstances. We will not be responsible or liable for failing to perform our obligations under the Agreement to the extent caused by circumstances beyond our reasonable control. In certain situations, we may use our reasonable judgment and apportion products then available for delivery fairly among our customers.
    • No Waiver; Invalidity. Our failure to exercise any rights under the Agreement is not a waiver of our rights to damages for your breach of contract and is not a waiver of any subsequent breach. If any provision or part of the Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Agreement. No person other than you or us will have any rights under the Agreement.
    • Headings. Headings are for convenience only and shall not be used in the interpretation of these Terms.
    • Confidentiality. You agree to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions (including any gene sequences, oligo types or sequences) received from us as a result of discussions, negotiations and other communications between us in relation to our products or services.
    • Notices. Any notice or communication required or permitted under these Terms must be in writing and will be deemed received when personally delivered, or 3 business days after being sent by certified mail, postage prepaid, to a party’s specified address.
    • Requirement to Reduce to Writing. No waiver, consent, modification, amendment or changes to the terms of the Agreement will be binding unless in writing and signed by both of us. Our failure to object to terms contained in any subsequent communication from you will not be a waiver or modification of our Agreement.
    • Severability. Any provision of the Agreement which is prohibited or which is held to be void or unenforceable shall be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.

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