TERMS & CONDITIONS

TERMS & CONDITIONS

GENERAL.  These terms and conditions shall govern the purchase by or transfer to customer or recipient (as listed below) (in either case a “Customer”) from Tempo Bioscience, Inc. (“Tempo” and/or “Seller”) of  products from Tempo consisting of inducible pluripotent stem cell derived cellular models and biosensors as more particularly described in the Tempo Product Catalog on the Tempo website (“Products”).  All current and future purchases from Tempo by Customer of Products shall be subject to these terms. Customer cannot cancel orders that have been processed for shipping by Tempo.

PRICE.  The price(s) for the Products provided to Customer will be those listed on the Tempo website or, if confirmed by Tempo, as provided by Tempo to Customer. Prices shown on the website are subject to change without notice.  Except as otherwise agreed to in writing between Tempo and Customer, all prices shall exclude shipping costs, insurance, freight, taxes, fees, import licenses, duties and levies, which shall be payable by and be the responsibility of the Customer.  Products are shipped Ex Works from Seller’s facility (ICC Incoterms 2010).  As appropriate, Customer shall provide Seller with a tax exemption certificate acceptable to the taxing authorities.

PAYMENT.  Except as otherwise agreed to in writing by Tempo payment shall be made, in U.S. Dollars, at the time of order of the Products.

INTELLECTUAL PROPERTY RIGHTS / USE RESTRICTIONS / LIMITED LICENSE.

A. OWNERSHIP.  Products are covered by issued and pending patents.  Customer acknowledges and agrees that the receipt or purchase of the Products by Customer shall not be construed as a transfer of any title or the grant of any rights in or to the intellectual property embodied in the Products owned or licensed by Tempo. Customer has a limited license to use the Products for internal research purposes for the sole benefit of the Customer, subject to the use restrictions and third party licenses included in these terms and conditions.  Customer hereby grants to Tempo a perpetual, royalty-free, fully paid up, non-exclusive, worldwide, license to use for any purpose any and all improvements made by Customer to the Products.  Such improvements may include, without limitation, improvements related to cell re-animation or thawing, cell plating, cell maintenance, cell differentiation, cell functionality, cell maturation, cell improvement assays, stimulation and/or detection of biosensor signals, or protocols relating to the same.  Customer is not granting any rights to and retains all rights to any and all existing intellectual property of the Customer, and findings and data relating to the performance of the Customer’s products, platforms, compounds or molecules used or tested with the Products.

B. USE RESTRICTIONS.  The Products must be used in accordance with any applicable Tempo’s Product User’s Guides and with any agreement or statement by Customer as to the Products’ intended use.  Customer shall not make, have made, offer to sell, or sell the Products and no rights to do so are implied by the transfer, sale or purchase of the Products.  Customer shall not either directly or through any other party, use the Products (or any modifications Customer makes to the Products or any cells derived, developed or expanded from the Products) in (i) the manufacture of any products, or (ii) any services, development, testing or research for any party.  Customer may not transfer the Products (or any modifications Customer makes to the Products or any cells derived, developed or expanded from the Products) to any third party without Tempo’s prior written consent; and may not store the Products or retain any Products after the use for them agreed to by Tempo is completed  Customer shall not reverse engineer the Products.  Customer shall not use the Products, components or modifications thereof, or any cells expanded or derived therefrom, in humans, in clinical trials, for diagnostic purposes involving human subjects, or for any therapeutic use.  Customer shall use the Products in accordance with all applicable laws and regulations and any applicable institutional review board approved protocol.  Customer has no right to use Tempo’s name or trademarks in any brochure, promotional materials, packaging, websites or any other publications; provided, however, that Customer may refer to Tempo or its trademarks in a scientific publication or patent in a manner approved in advance (before any publication or patent application is submitted) in writing by Tempo.

LIMITED WARRANTY

A. During the Warranty Period (as defined below), Tempo warrants that its Products conform to the specifications contained in the User Guide for the Product shipped to Customer.  Customer’s sole and exclusive remedy (and Tempo’s sole and exclusive liability) under this limited warranty shall be replacement of the defective Products by Tempo pursuant to this Section V.

B. Under no circumstances shall Tempo’s liability to Customer exceed the amount paid by Customer for the Products to Tempo.  Tempo will bear reasonable shipping costs if the Products are replaced pursuant to this warranty.  This warranty does not apply to any defect or nonconformance caused by (i) Customer’s use of the Products in breach of these terms or for a purpose or in a manner other than that for which they were designed, or (ii) the failure by Customer to follow Tempo’s User’s Guide for the use, storage, and handling of the Products; or (iii) as a result of any other abuse, misuse or neglect of the Products by Customer.  This warranty applies only to Customer and not to third parties.  This warranty is not assignable.

C. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TEMPO DISCLAIMS ALL OTHER REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.  CUSTOMER’S SOLE REMEDY FOR BREACH OF WARRANTY IS STATED ABOVE.

D. Within two (2) business days of thawing the Product but prior to the expiration date of the Product as listed in the User Guide and/or Product’s label (the “Exp. Date”), Customer must notify Tempo in writing of any nonconformity of the Products, describing the nonconformity in detail.  Customer’s failure to properly notify Tempo in the time period described in this Section D voids the limited warranty described above.

E. Customers who believe they have a warranty claim should email: support@tempobioscience.com to request a replacement Product based on a breach of the above limited warranty.  Any action by Customer for Tempo’s breach of this limited warranty, for which Customer has given timely and proper notice of the breach during the Warranty Period, must be commenced by Customer within 18 months following the date of such breach.

F. Tempo makes no warranty of any kind or nature, neither express nor implied, for any Products or parts of the Products that are not manufactured by Tempo.  Any such Products, or parts or accessories to the Products shall have the warranty, if any, that is offered and granted by the manufacturer of such other products and accessories.

G. Customer acknowledges and agrees that Tempo may fill Customer’s order with any number of units of Products.  Such units may be more units than Customer ordered.  Customer will not be charged extra for any adjustments made by Tempo. Tempo reserves the right to fill the order with that number of units which is sufficient to fill Customer’s order and such adjustments shall not constitute a breach of the warranty herein.

H. Customer shall indemnify and hold harmless Tempo against any and all claims or damages, including any court costs and attorney fees,  relating to Customer’s use of the Products, or any breach by Customer of the terms or warranties and representations herein.  Tempo has the right to appoint an attorney of its choice to prosecute all such indemnified claims or damages, and/or to seek an injunction against any ongoing or anticipated breach.  Customer hereby consents to the jurisdiction of the courts in San Francisco, California, in all disputes, claims or damages.

FURTHER LIABILITY LIMITATION.  TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, TEMPO SHALL NOT HAVE ANY LIABILITY FOR INCIDENTAL, COMPENSATORY, PUNITIVE, CONSEQUENTIAL, INDIRECT, SPECIAL OR OTHER SIMILAR DAMAGES, HOWEVER CAUSED AND REGARDLESS OF FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF TEMPO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

VII. FORCE MAJEURE.   Tempo shall not be responsible for delays in the shipment of any Products, or failure to ship such Products, and reserves the right to cancel or delay any order or contract for Products, if such delay or failure is due to causes beyond its reasonable control, including without limitation, shortages of supplies due to unforeseen conditions, orders or actions of government agencies, acts of nature, acts by Customer, fires, strikes, or other labor difficulties, wars, hostilities or terrorist acts, embargoes, equipment breakdown, inability to obtain necessary labor, material or manufacturing facilities due to causes beyond its reasonable control or any other cause beyond its reasonable control. In the event of such delay, and assuming that Tempo chooses not to cancel due to such cause, the date of delivery shall be extended for a period equal to the time lost by reason of the delay.

VIII.MISCELLANEOUS.

A.  Tempo reserves the right to make changes in design, production, manufacture, or characteristics of the Products or to improve the Product at any time and in any way, without incurring any obligations to replace or modify any Products previously sold or transferred to Customer.

B. Customer represents and warrants that it is the ultimate end-user of the Products, and further represents and warrants that it will not knowingly sell, export, re-export, transfer, divert, or otherwise dispose of the Products (including other materials or goods derived from or based on the Products) to any other destination, entity, or person without the prior authorization of any relevant U.S. federal government agency and Tempo.

ACKNOWLEDGEMENT AND AGREEMENT

Customer and Tempo agree that the above terms and conditions shall apply to the transfer and/or purchase of any and all Products by Customer from Tempo effective from the date agreed below.  By submitting a purchase order or accepting a product quotation from Tempo for the Products, Customer accepts and is bound to the above terms and conditions.  These terms and conditions may NOT be altered, supplemented, or amended by the use of any other document(s) unless agreed in writing by Tempo specifically referencing this provision.  Except as provided above, additional or different terms and conditions contained in any purchase order or other documents generated by, executed by, or sent by Customer either prior to or after these terms and conditions are executed will be null and void and are hereby expressly disclaimed by Tempo.  Customer agrees that the terms and conditions of sale above, Tempo’s product quotation, invoice, and order confirmation will control and be the sole terms governing the purchase or receipt of the Products by Customer.