STRATEOS

GENERAL TERMS

These General Terms, (collectively, the “Terms”) govern the use of any website owned or operated by Strateos, Inc., and all content, services and products (collectively, the “Services”) made available to the entity (“Customer”) executing the Order (defined in Section 1) by Strateos, Inc. ("Strateos").  The Services are offered subject to your acceptance without modification of all of the terms and conditions set forth in these Terms, as well as Strateos’s Security Guidelines and Privacy Policy, each as may be revised and published from time to time on www.strateos.comand which are hereby incorporated into these Terms by reference.  These Terms, the incorporated Security Guidelines and Privacy Policy, and the Order described in Section 1 comprise the "Agreement".  Each of Customer and Strateos is a “Party”, and together the “Parties” to the Agreement.

Please read the Agreement carefully before accessing or using the Services.  By accessing or using any part of the Services (including the Strateos website), you agree to be bound by the terms and conditions of Agreement.  If you do not agree to all of the terms and conditions set forth in the Agreement, then you may not access the Services.  If the Agreement is considered an offer by Strateos, acceptance is expressly limited to the terms and conditions set forth in the Agreement.  If Customer has entered into a separate written agreement with Strateos for use of the Services, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions set forth in the Agreement.

The Services are provided in a rapidly and constantly evolving market, and therefore, Strateos reserves the right in its sole discretion to update and change any or all of these Terms at any time. When these Terms are changed, the “Last Updated” date above will be changed accordingly.  If any change to these Terms constitutes, in our sole, good faith and reasonable discretion, a material change to the Agreement, we will notify you.  You are responsible for regularly reviewing the most current version of these Terms, which are available at www.strateos.com/terms.  Your continued use of any of the Services after any changes have been made to these Terms shall constitute your consent to be bound by such changes.  If you object to any of these Terms, or any changes hereto, whether material or otherwise, your sole and exclusive remedy shall be to terminate your use and any applicable Orders to the Services according to these Terms.

1.        SERVICES

a. License.  Subject to Customer’s timely payment of all fees set forth in the Order (as defined in subsection 1.b) and compliance with the terms and conditions set forth in the Agreement, Strateos hereby grants to Customer a non-exclusive, non-transferable, limited right and license to use (and permit your authorized users to use) the Services to which you have subscribed, as set forth on the Order, solely for your internal business purposes during the period set forth on the Order.

b. Order.  Subject to the terms and conditions set forth in the Agreement, Strateos will use commercially reasonable efforts to (a) provide the Services ordered by Customer (and, as accepted by Strateos, the “Order”) via Strateos’s website, quotation or statement of work (“Statement of Work” or “SOW”) in accordance with the Protocol (defined below); and (b) deliver the Resulting Deliverables (defined below) as specified in such Order. The Order, which includes any “Statement of Work”, shall be considered part of and issued pursuant to the terms of the Agreement.  “Protocol” means the Services configurations and specifications specified by the Customer in the Order. “Resulting Deliverables” means the information, records, raw data and specimens generated as a direct result of Customer’s use of the Services.

c.  Restrictions.  You are only entitled to use the Services for which you have paid all applicable fees and are current and in compliance with all applicable Terms.  You acknowledge and agree that Strateos shall not be liable to you or to any third party for any modification of the Services. Strateos reserves the right to have all or any portion of the Services performed by its subcontractors or strategic partners.

d. Additional Services.  You may subscribe to additional Services, including new services made available to you by Strateos from time to time, by executing an additional Order.  Each Order will include the price and billing date(s) of the Services being added at that time.  All new Services are subject to these Terms.

2.        CUSTOMER MATERIALS

a. Customer Materials.  Customer will provide Strateos with sufficient amount of its information, materials, compounds, substances, samples, devices and protocols as may be deemed necessary or desirable by Strateos to complete the Services (“Customer Materials”), as well as comprehensive data or information concerning the stability, storage, health and safety information of Customer Material required by Strateos to complete the Services. Customer will bear the risk of any damage or loss to the Customer Materials while in transit to Strateos.

b. Use of Third Parties.  Strateos reserves the right to transfer Customer Materials to third-party service providers with or without Customer’s prior written consent as may be deemed necessary or desirable to Strateos in order to fulfill the Order.

c.  No Hazardous Materials.  Customer will not send Strateos any known or suspected bio-hazardous, radioactive or other contaminant that may be present in the Customer Materials and may pose a risk to Strateos’s premises, instruments, personnel, representatives or to other Strateos customer products or materials.  Customer will ensure, and hereby represents and warrants, that no sample poses any danger, during transportation, in the laboratory or otherwise, to Strateos premises, instruments, personnel, representatives or to other Strateos customer products or materials, unless prior written agreement between Customer and Strateos has been executed.

d. Description of Customer Materials.  Customer will provide Strateos with complete and accurate data to apprise Strateos of the identity, strength, purity, stability, composition or other characteristics, and safe handling requirements of the Customer Material, including Material Safety Data Sheets or equivalent documentation.  Failure to provide sufficient information for the foregoing may result in delay of execution of Services, denial of Services, denial of shipment or destruction of Customer Materials.

e. Disposition of Customer Material    At the completion of the Services or end of a ninety (90) day period of inactive use thereof (“Inactive Period”), Strateos will contact Customer to prepare Customer Materials for disposition as follows, each at Customer’s expense: (i) return to Customer; (ii) disposal; or (iii) extend storage.  If Customer fails to provide guidance regarding the disposition of Customer Materials within thirty (30) days of notification, Strateos will be entitled to elect option (i) or (ii), at its sole discretion.  Customer Material identified in a Protocol as “discard” during the execution of the Services will be destroyed after completion of such Protocol.  Customer Materials that are perishable, including but not limited to bacterial growth and agar plate and media, may be discarded if beyond their useable life or contaminated as determined by Strateos, without prior notice to Customer.

g. Storage.  If Customer Materials require special or extended-term storage beyond the completion of the Services or end of the Inactive Period, Strateos will invoice Customer for the applicable additional charges for storage of same, which charges will be promptly paid by Customer in accordance with Section 7.

3.        CUSTOMER DATA

a. Uploaded Customer Data.  Customer may upload to the Services electronic data supporting Customer’s projects (“Customer Data”) in connection with the Services.  Moreover, Customer shall not describe or assign project names in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of other parties, and Strateos may change or remove any description or project name that it considers inappropriate or unlawful, or likely to result in liability to Strateos.  Customer will ensure, and hereby represents and warrants, that no such Customer Data is considered sensitive or proprietary information of Customer or violates the rights of any third party.  STRATEOS SHALL HAVE NO RESPONSIBILITY OR LIABILITY RELATED TO CUSTOMER’S FAILURE TO ENSURE THE FOREGOING.

b. Disposition of Customer Data.  Strateos will retain all Customer Data for one year following the date of the final project run or for such longer period as may be required by applicable law.  At the end of such period, Strateos may, in its sole discretion: (i) extend storage of the Customer Data at Customer’s expense; or (ii) delete the Customer Data.  It is Customer’s responsibility to ensure Customer Data has been retrieved from the Services prior to deletion; provided, however, that Strateos will make reasonable efforts to contact Customer prior to deleting Customer Data.

4.        CUSTOMER REPRESENTATIONS AND COMMITMENTS

a. Protocol.  Customer is solely responsible for the Protocol, and the Services are being performed for, on behalf of and as specified by Customer in the Protocol. Accordingly, Customer represents, warrants and covenants (i) that it has all rights and licenses necessary to perform the Protocol and produce, ship and use the Resulting Deliverables anywhere in the world and that such rights and licenses extend to Strateos’s activities hereunder; and (ii) neither the Protocol or Resulting Deliverables, nor the performance or production, shipment or use thereof by or on behalf of Strateos or Customer anywhere in the world do or will infringe or violate any right of any third party, or any law or regulation of any country or authority, or pose any danger or safety risk.

b. Customer Assistance.  In the Order, Customer will designate an employee as its “Primary Contact;” the Primary Contact will be responsible for all matters relating to the Agreement.  Customer will cooperate with Strateos in the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Strateos may reasonably request.  Customer will also cooperate with Strateos in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.

c.  Account Security.  Customer will be responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer’s account with or without Customer’s knowledge or consent.  Customer shall immediately notify Strateos of any unauthorized uses of Customer’s account or any other known breaches of security.

d. Indemnification by Customer.  Strateos will not be liable for any acts or omissions by Customer, including any damages of any kind incurred as a result of such acts or omissions. Customer will indemnify and hold harmless Strateos and its officers, directors, personnel, contractors, stockholders, affiliates, representatives and agents from all damages, settlements, costs, legal fees and other expenses in connection with any breach of the Agreement.

5.        OWNERSHIP

a. Customer Ownership.  As between the Parties, Customer shall be and remain the exclusive owner of Customer Materials, Customer Data and any Resulting Deliverables.

b. Strateos Ownership.  Notwithstanding anything to the contrary, Strateos and its licensors retain exclusive ownership, right, title and interest in: (i) all intellectual property that preexisted the Parties’ relationship and which is incorporated or used in association with the design and development of a Protocol or Resulting Deliverable; (ii) all works created by Strateos pursuant to its performance of the professional and/or protocol design Services, including, but not limited to, any proposal, draft or preparatory materials; (iii) ideas, concepts, know-how, and techniques, that Strateos may use, conceive of or first reduce to practice in connection with the professional or protocol design Services that are not uniquely applicable to Customer or that have general applicability in the art; and (iv) all derivatives, improvements, enhancements or extensions of any of the foregoing.  Items set forth in (i) through (iv), above, are referred to herein as “Strateos IP”.

c.  License to Strateos IP.  Upon payment when due of all fees set forth in an applicable Order, Strateos will grant to Customer a non-exclusive, non-transferable, royalty-bearing license to use the Strateos IP as incorporated in the Resulting Deliverable, provided that Customer will have no right to use such Strateos IP separate or apart from exploiting its rights in a Resulting Deliverable.

6. CONFIDENTIALITY

a. Confidential Information.  Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose certain Confidential Information (defined below) in connection with the Services.  "Confidential Information" is confidential and proprietary information including but not limited to technology and software developments related to the automation of various analytical workflows and biological assays, ideas, techniques, sketches, drawings, works of authorship, mask works, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services, and including, without limitation, information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and information a Party provides regarding third parties; in each case, whether owned by such Party or an affiliate, vendor, licensee, customer or other business partner of such Party, and whether orally, electronically, in writing, in any type of storage medium or otherwise, and which a Party either designates as being confidential in writing, or which a reasonable person would understand, given the nature of the information or the circumstances under which it was disclosed, is confidential.  Confidential Information does not include any information that the Receiving Party can show, using tangible evidence: (i) is or becomes generally available to the public without any action or inaction of the Receiving Party; (ii) was in the Receiving Party’s lawful possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to the Receiving Party by a third party without restriction; or (iv) was independently developed by Receiving Party without use of the Confidential Information.

b. Use and Protection of Confidential Information. The Receiving Party agrees with respect to the Disclosing Party’s Confidential Information: (i) to use such Confidential Information solely in connection with the Services and this Agreement; (ii) not to divulge to any third party any of such Confidential Information without prior written consent from the Disclosing Party, (iii) to give access to such Confidential information solely to its personnel with a need to have access thereto for purposes of the Agreement, and (iv) to take the same precautions to protect such Confidential Information against unauthorized disclosure or use that the Receiving Party takes with its own similar Confidential Information, but in no event less than reasonable precautions.

c.  Compelled Disclosure.  Notwithstanding the foregoing or any other restriction, the Receiving Party may disclose that portion of Confidential Information which is required to be disclosed pursuant to proper governmental or judicial process, provided that, to the extent permissible, notice of such process is promptly provided to the Disclosing Party, and the Receiving Party, at the Disclosing Party’s expense, cooperates with the Disclosing Party to limit or seek appropriate protective measures to limit the disclosure of or protect such Confidential Information.

d. Anonymized Data.  Notwithstanding anything to the contrary, Strateos shall have the right, on an anonymized and aggregated basis, to review, collect, analyze and use data with respect to, and report on any metrics associated with, Customer Materials, Customer Data and the Resulting Deliverables to derive models, provide predictions of material properties, optimize user experiences and improve and develop the services offered by Strateos.

7.        PAYMENT; SHIPPING

a. Fees.  Customer shall pay Strateos the amounts specified in the Order (the “Fees”) in accordance with the payment schedule and method of payment specified in the Order.  If not specified, Fees are due in U.S. Dollars within thirty (30) days of the date of invoice.  Late payments are subject to a finance charge of the lesser of one percent (1.0%) per month and the maximum permitted by law, plus all expenses of collection, including reasonable attorneys’ fees.

b. Taxes.  Fees are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any.  Customer agrees to pay such taxes (excluding U.S. taxes based on Strateos's net income) unless Customer has provided Strateos with a valid exemption certificate.  In the case of any withholding requirements, Customer will pay any required withholding and not reduce the amount paid to Strateos on account thereof.

c.  Shipping.  Shipping is F.O.B. Strateos’s point of shipment.  Customer will pay any costs of shipping and all risk of loss will pass to Customer at the time of delivery to the shipper.

8.        TERM AND TERMINATION

a. Term.  Each Order shall commence and expire on the dates set forth therein (the “Term”).

b. Termination.  Either Party may terminate any Order:

(i)      without cause by giving the other Party sixty (60) days’ prior written notice of termination;

(ii)     In the event of any material breach of these Terms or any Order, the non-breaching party may terminate the Order by giving thirty (30) days’ prior written notice to the breaching party (“Cure Period”); provided, however, that if such breach is susceptible to cure, the Order will not terminate if the breaching party has cured the breach prior to the expiration of the Cure Period;

(iii)    if the Customer fails to pay any amount due within ten (10) days of the payment date, unless and to the extent the Customer has notified Strateos that such payment is subject to a good-faith dispute and the Parties are acting reasonably, diligently and in good faith to resolving such dispute; or

(iv)    with immediate effect upon giving notice to the other Party if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, provided, however, that a Party shall have sixty (60) days from the receipt of notice to cure any involuntary petition in bankruptcy.

c.  Effect of Termination.  Upon termination for any reason:

(i)      Customer shall immediately pay to Strateos all outstanding unpaid invoices and interest;

(ii)     unless Customer has initiated the termination by providing notice pursuant to Section 8(b)(i) or (ii), no refund of monies paid to Strateos for the subject Services will be made;

(iii)    the Customer shall no longer have access to the Services and Customer’s license to use the Services shall immediately terminate;

(iv)    each of the Parties shall return to the other Party any Confidential Information disclosed pursuant to these Terms (or certify as to the destruction thereof); and

(v)     all terms and conditions which by their nature should survive termination will survive such termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, representations, warranties, covenants, indemnities, warranty disclaimers and limitations of liability.

9.        WARRANTY DISCLAIMERS

a. As-Is Basis.  EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THESE TERMS, THE SERVICES, RESULTING DELIVERABLES, STRATEOS CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THE AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY IMPLIED WARRANTIES OF ANY KIND.  STRATEOS AND ITS LICENSORS AND VENDORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.  STRATEOS DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

b. Third-Party Websites.  Strateos has not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which the Services link, and that link to the Services.  Strateos does not have any control over those non-Strateos websites and webpages, and is not responsible for their content or their use.  By linking to a non-Strateos website or webpage, Strateos does not represent or imply that it endorses such website or webpage.  STRATEOS AND ITS LICENSORS AND VENDORS DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR USE OF NON-STRATEOS WEBSITES AND WEBPAGES.

10.      LIMITATION OF LIABILITY

IN NO EVENT WILL STRATEOS, ITS LICENSORS, VENDORS, EXECUTIVES, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES OR AGENTS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, PROTOCOL, RESULTING DELIVERABLES OR ANYTHING PROVIDED IN CONNECTION WITH THE AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THE AGREEMENT OR OTHERWISE ARISING FROM THE AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF STRATEOS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.  THE TOTAL LIABILITY OF STRATEOS AND ITS LICENSORS AND VENDORS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) FIVE THOUSAND DOLLARS, OR (ii) THE FEES PAID TO STRATEOS UNDER THE RELEVANT ORDER IN THE THREE-MONTH PERIOD PRECEDING THE DATE UPON WHICH THE CIRCUMSTANCES GIVING RISE TO THE CLAIM OCCURRED.  THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

11.      MISCELLANEOUS

a. Parties in Interest; Assignment.  The Agreement shall bind, benefit and be enforceable by and against the Parties and, to the extent permitted hereby, their respective successors and assigns.  Strateos may transfer and assign any of its rights and obligations under the Agreement upon written notice to Customer.  Customer may not transfer or assign any of its rights and obligations under the Agreement except with Strateos’s prior written consent; provided, that Customer may assign this Agreement and its rights hereunder to any successor by merger or consolidation or to any person or entity that acquires all or substantially all of Customer’s capital stock or assets.

b. Flow-Down of Terms.  Customer shall flow all terms of the Agreement to any of its permitted collaborators, assigns, clients or partners.

c.  Compliance with Laws.  Each Party shall comply with all applicable federal, state and local laws and regulations in connection with their business, operations and obligations under the Agreement.

d. Modification and Waiver.  No modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in writing and signed by an authorized representative of both Parties.  No waiver of any breach of this Agreement, and no course of dealing between the Parties, shall be construed as a waiver of any subsequent breach of this Agreement.

e. Relationship of the Parties.  No agency, partnership, joint venture, or employment is created as a result of the Agreement, and Customer does not have any authority of any kind to bind Strateos in any respect whatsoever.

f.  Notices  All notices under the Agreement must be in writing and will be deemed to have been duly given: (i) when received, if delivered personally or by courier; (ii) when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and (iii) upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.

g. Force Majeure.  Except with respect to payment obligations, neither Strateos nor Customer shall be responsible for failure or delay in performance of any obligation related to the Services due to causes beyond its reasonable control, including but not limited to, acts of God, governmental actions, labor difficulty, shortages, civil or military authority, embargo, insurrection, war, transportation problems, outages of power or communications (including the Internet or other networked environment), failure of suppliers, pandemic or natural disasters.

h. Governing Law.  The Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws’ provisions.  Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled by arbitration in accordance with the rules and procedures of JAMS for commercial disputes, and each Party hereby consents to such arbitration in Santa Clara County, State of California, U.S.A. in the English language.  Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; provided, however, that each Party will have a right to seek injunctive or other equitable relief in a court of law.  The prevailing party will be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with the action or proceeding, whether or not the controversy is reduced to judgment or award.  The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issue(s).  If any provision of the Agreement is deemed to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable.

i.   Publicity.  Customer agrees to participate in press announcements, case studies, trade shows, or other forums reasonably requested by Strateos.  Strateos shall be permitted to disclose that Customer is one of its customers to any third party, and to display Customer’s name, trademarks, service marks and logos on Strateos’s website.

j.   Entire Understanding.  The Parties agree that the Agreement, which includes and incorporates Orders and any other schedules, exhibits and addenda attached to it, is the complete and exclusive statement of the mutual understanding of the Parties and supersedes all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement.  The terms and conditions of the Agreement shall prevail over any other writing, notwithstanding contrary or additional terms in any purchase order, sales acknowledgment, confirmation or any other document issued by either party regarding the subject matter of the Agreement.