Terms and conditions of GMP & OEM sales

1. General. The Quote, Purchase Order, and these Terms and Conditions constitute the entire agreement (collectively, the "Agreement”) for the sale by Integrated DNA Technologies, Inc. ("IDT"), or a company affiliated with IDT, to the purchaser identified on the Quote or Purchase Order (the "Customer") of the goods and services described therein (the "Products"). The Agreement represents the entire understanding and agreement between IDT and Customer (collectively, "the Parties") and is the complete and exclusive statement of the terms and conditions applicable to purchases from IDT by Customer. Any and all oral representations, promises, warranties, or statements shall be given no force or effect. Any provision of any purchase order or confirmation submitted by Customer that conflicts with any term of the Agreement shall not be binding upon IDT. The Agreement may be modified only by a writing signed by both Customer and IDT. Acceptance of any order or orders by IDT shall not constitute an agreement by IDT to accept any future orders from Customer. IDT may discontinue accepting orders from Customer at any time, in IDT’s sole discretion. No waiver by IDT of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by IDT. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Unless otherwise set forth herein, all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Iowa without giving effect to any choice or conflict of law provision or rule (whether of the State of Iowa or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Iowa.


2. Pricing and Shipment. Unless otherwise stated expressly on the applicable Purchase Order, the price for the Products shall be IDT’s price and charges in effect at the time of each shipment. IDT reserves the right to change its prices at any time without notice. Prices do not include sales, excise, use, VAT, GST/HST, or other taxes measured by the sales price. Shipping fees are itemized and billed to Customer at then applicable rates. Customer shall pay all costs of transportation, FCA IDT’s facility (the “FCA Point”). Customer shall not transfer, directly or indirectly, any Products to any person whatsoever if to do so would be inconsistent with (a) any export or reexport law, regulation, or other control; (b) any trade or economic sanctions law, regulation, or other control, whether relating to any person, to an organization or group, or to a country; or (c) any applicable export or trade licensing law, regulation, or requirement, any of which are imposed by or derivative of the law of the United States of America, Belgium, the European Community or European Union, Singapore, or of any other country, supranational entity, or legal authority exercising jurisdiction where Customer operates or does business.


3. Title and Risk of Loss. Title and risk of loss passes to Customer when IDT delivers the Products to the carrier at the FCA Point. As collateral security for the payment of the purchase price of the Products, Customer hereby grants to IDT a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Iowa Uniform Commercial Code.


4. Payment. All payments shall be in the currency indicated on IDT’s invoice. Terms of sale are net 30 days of the date of invoice, unless otherwise agreed in writing by IDT prior to order acceptance. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse IDT for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with IDT, whether relating to IDT’s breach, bankruptcy or otherwise.


5. Inspection. Customer shall promptly inspect the Products upon receipt. Customer shall accept any tender of Products by IDT substantially in conformity with terms of the Purchase Order. Customer's acceptance will be conclusively presumed if Customer fails to give IDT written notice of rejection within 10 days after receipt of the Products. Any such notice shall describe the rejected Products and the reasons upon which rejection is based.


6. Disclaimer and Limitation of Warranties; Limitation of Remedies.



6.1 Limited Warranty. IDT warrants that the Products shall materially conform to the specifications for identity, purity, and yield, as measured under normal laboratory conditions, indicated in the Quote, specifications and other materials (including, where applicable, the Certificate of Analysis and Oligo Master Record) provided by IDT to the Customer (hereinafter the “Specifications”).

6.2 Disclaimer of Other Express or Implied Warranties. IDT MAKES NO OTHER WARRANTY THAN THE LIMITED WARRANTY CONTAINED IN THIS SECTION AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS, INCLUDING ANY: WARRANTY OF MERCHANTABILITY; WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WARRANTY OF TITLE; AND ANY WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF THIRD-PARTIES. IDT’s limited warranty made with this sale shall not be effective if IDT has determined, in its sole discretion, that Customer misused the Products in any manner, failed to use, store, or maintain the Products in accordance with industry standards and practices, or failed to use, store, or maintain the Products in accordance with instructions, if any, furnished by IDT.

6.3 Limitation of Damages. IDT SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF IDT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF CUSTOMER OR OTHER USE, OR ANY LIABILITY OF CUSTOMER TO A THIRD-PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE, OR LOSS OCCASIONED BY SUCH PRODUCT, INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE, UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE WAS CAUSED BY IDT’S GROSS NEGLIGENCE. IN NO EVENT SHALL IDT BE LIABLE TO CUSTOMER OR TO ANY THIRD-PARTY FOR ANY DAMAGES OF ANY KIND, DIRECT OR INDIRECT, ARISING OUT OF OR RELATING TO A DELAY, WHETHER ACTUAL OR ALLEGED, IN THE DELIVERY TO CUSTOMER OF PRODUCTS ORDERED FROM IDT.

6.4 Limitation of Remedies for Defective Products. Any claim by Customer on account of breach of IDT’s limited warranty herein must be in writing and received by IDT within 30 days after Customer’s receipt of Products. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF IDT’S LIMITED WARRANTY SHALL BE LIMITED TO IDT’S CHOICE OF: (a) the repair or replacement of defective Products with conforming Products at the FCA Point provided herein; or (b) the refund of the purchase price received by IDT for the defective Products. IDT shall be given reasonable opportunity to investigate all warranty claims and to inspect allegedly defective Products.

7. No Design Input. The Parties hereto acknowledge that Customer, and not IDT, designed and developed all Products for their use or potential use in any and all types of applications. The Parties further acknowledge that IDT did not engage or otherwise contribute to, or participate in, any of the following acts of product design or development: (i) target and/or analyte sequence selection, including oligonucleotide sequence design and selection; (ii) assay design and optimization; (iii) clinical trial design, implementation, or reporting; (iv) the establishment of any clinical testing procedure or standard; (v) the performance of any false positive or false negative risk analysis or mitigation; (vi) the establishment of any product labeling requirements; or (vii) the performance of any other act that is in any way related to the design of the product or service in which the Products are or may be used, hereafter collectively (“Product Design“). Customer acknowledges that IDT’s obligations and responsibilities with respect to the performance of Products are expressly limited to IDT manufacturing Products in compliance in all material respects with the Specifications incorporated and referred to herein, and all laws, rules, and regulations applicable to the manufacture and shipment of Products. Subject to the limited warranty provided by IDT herein, Customer accepts sole and absolute responsibility for any Product Design involving IDT’s Products.


8. Customer Indemnity. CUSTOMER HEREBY AGREES TO INDEMNIFY AND HOLD IDT HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS BY ANY THIRD-PARTY FOR PROPERTY DAMAGE, PERSONAL INJURY, INTELLECTUAL PROPERTY INFRINGEMENT, LOST PROFITS, OR OTHER LOSSES OR DAMAGE BASED UPON ACTUAL OR ALLEGED WARRANTIES OR REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED) BY CUSTOMER TO ANY PARTY, BASED UPON CUSTOMER’S NEGLIGENCE, HAVING ANY RELATIONSHIP TO “PRODUCT DESIGN“ DEFINED HEREIN, OR BASED ON CUSTOMER’S VIOLATION OF ANY APPLICABLE LAWS, REGULATIONS, OR ORDINANCES, INCLUDING BUT NOT LIMITED TO ANY IMPORT OR EXPORT LAWS.


9. Dispute Resolution; Arbitration Agreement. If a dispute arises from or relates to the Agreement or the breach thereof, and if the dispute cannot be settled through direct discussions, the Parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The Parties further agree that any unresolved controversy or claim arising out of or relating to the Agreement, or breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s), which shall be final and binding on the Parties, may be entered in any court having jurisdiction thereof. Claims shall be heard on an individual basis (and not via class representation) by a single arbitrator mutually agreed upon by the Parties, unless the Parties are unable to agree on an arbitrator or the claim amount exceeds $100,000, in which case the dispute shall be heard by a panel of three arbitrators. Within 15 days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within 10 days of their appointment. If the arbitrators selected by the Parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association. The place of arbitration shall be Iowa City, Johnson County, Iowa. The Parties agree to share in equal parts the costs of any arbitration. This arbitration agreement and any arbitration shall be governed by the Federal Arbitration Act, Chapters 1 and 2, to the exclusion of any Iowa law inconsistent therewith.


10. IDT Intellectual Property.



10.1 Generally. Unless otherwise specified herein, the sale of the Products shall not grant to Customer any right or license of any kind under any patent or trademark owned or controlled by IDT or under which IDT is licensed, provided that the foregoing shall not be understood to limit in any way the right of Customer to use and sell the Products. IDT does not represent or warrant that the use or sale of the Products will not infringe the claims of United States patents or trademarks, or other patents or trademarks, covering the Products themselves or the use of the Products in combination with other products or in the operation of any process. Customer agrees to indemnify and hold IDT harmless from any claims, expenses, or damages related to a claim that a Product infringes a third-party patent (or any other form of intellectual property right) if the claim is based upon the specifications provided to IDT by the Customer. Customer accepts the Products subject to the applicable use and licensing limitations and restrictions contained in the Agreement.

10.2 IDT’s Trademarks. IDT’s trademarks, which may not be used in commerce or licensed without the express permission of IDT, consist of the following: Alt-R, DECODED, DNaseAlert, Express DLP, gBlocks, Genomics Advocate, HOTplates, I-Linker, Iowa Black, LabLinker, Lockdown, Lotus, MAX, Megamer, Mini Gene, Oligo Analyzer, OligoCard, PrimerQuest, PrimeTime, Rapid HPLC, ReadyMade, rhAmp, rhAmpSeq, RxnReady, SameDay, SciTools, StarFire, TAO, TEX 613, TruGrade, TYE, Ultramer, xGen, Your Advocate for the Genomics Age, ZEN.

11. Usage.

    11.1 Use Restrictions. For purposes of publishing or otherwise disclosing any sort of comparative analysis, Customer may not sequence, reverse engineer, disassemble, decompile or otherwise use any Products, without IDT’s express written permission.

    11.2 Use of Name and Logo. Except as may be permitted by law, Customer will not use for publicity, promotion or otherwise any logo, name, trade name, service mark or trademark of IDT or its affiliates without IDT’s express prior written consent.

    11.3 EUA, RUO, and IUO Products. Customer may purchase Products that have not received clearance or approval by the United States Food and Drug Administration (“FDA”) as cleared or approved medical devices, but: (i) have received Emergency Use Authorization from FDA permitting certain distribution and use; or (ii) are distributed by IDT for purposes of “research use only” (RUO) or “investigational use only” (IUO). Customer acknowledges that: (a) requirements under applicable law for Products described in this section under (i) and (ii) may differ, or be exempt from, those applicable to medical devices cleared or approved by FDA; and (b) Products labeled “research use only” or “investigational use only” are not being sold by IDT for Customer’s use for clinical diagnostic purposes.

    11.4 Compliance with Applicable Law. Customer represents and warrants to IDT that it shall perform its obligations under these terms and conditions and the activities contemplated hereunder, including any use or distribution of the Products, in compliance with applicable law, the Products’ labeling, inserts, and manuals, and other Product-related information and materials published by IDT or any regulatory authority. Customer shall indemnify and hold IDT from and against all losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) to the extent arising from any breach of the foregoing.

12. Third-Party Intellectual Property.

12.1 Fluorescent labeled oligonucleotides and modified nucleotides.

12.1a Cy Dyes. Cy^® Dyes. Cy^® and CyDye^® are registered trademarks of GE Healthcare.

12.1b TYE™ Dyes. TYE™ Dyes are sold under license from Thermo Fisher Scientific (Milwaukee) LLC.

12.1c Yakima Yellow^®, Super G^®, and Super T^®. Yakima Yellow^®, Super G^®, and Super T^® are registered trademarks of Elitech Group and the respective modifications are sold under a licensing agreement with Elitech Group for use in any application, including without limitation, all commercial and diagnostic applications. Use of this product is covered by one or more of the following patents: U.S. 6,972,339; U.S. 7,112,684; U.S. 7,601,851; U.S. 8,569,516; U.S. 7,541,454; U.S. 7,671,218; U.S. 7,767,834; U.S. 8,008,522; U.S. 8,389,745; U.S. 8,163,910; JP 5,214,967.

12.2 RNaseAlert^®. RNaseAlert^® compositions and methods are protected under U.S. Patent No. 6,773,885 and other pending IDT patent(s). RNaseAlert is a registered trademark of Ambion, Inc.

12.3 StarFire^®. StarFire^® compositions and methods are protected under U.S. Patent No. 6,773,885 and other pending IDT patent(s).

12.4 SYBR^® Green and RNaseAlert^®. SYBR^® Green and RNaseAlert^® are registered trademarks of Life Technologies, Inc.