Terms and Conditions

Spatial Biology Terms & Conditions

Edition October 2024

These are the Spatial Biology Terms and Conditions (“Terms”) under which Lunaphore Technologies, S.A, Lunaphore Technologies, Inc. and Advanced Cell Diagnostics, Inc,. as well as any other entities within Bio-Techne Corporation (collectively, “Lunaphore”) sell Products and Services (as defined below). Any party purchasing Products (“Customer”) will be subject to these Terms regardless of what method is used to submit its offer to purchase Products and/or Services (“Order”). Some of the Products and Services are subject to intellectual property licenses, software licenses, or other contract terms that Customer will not find here (“Supplementary Terms”). If such Supplementary Terms exist for the Products and Services being purchased, they will be found in a quotation, order acknowledgment, Product insert, or written agreement that accompanies or is associated with the Products and Services. The Order, these Terms, and Supplementary Terms (if any) are collectively and individually referred to herein as the Agreement (“Agreement”). Any reference to other business terms is void and null. LUNAPHORE’s acceptance of any Order by Customer is expressly conditioned on Customer’s agreement to these Terms. LUNAPHORE will not be bound by, and specifically objects to and rejects, any term, condition, or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) which is proffered by Customer in any order, receipt, acceptance, confirmation, correspondence, or otherwise, unless LUNAPHORE specifically agrees to such provision in a written instrument signed by LUNAPHORE.

Definitions

“Product/s” means any product manufactured and/or sold by Advanced Cell Diagnostics, Inc., Lunaphore Technologies, S.A., Lunaphore Technologies, Inc. and/or any other entity within Bio-Techne Corporation.
“Services” means installation, training, maintenance, repair of instruments, access to the laboratory of Lunaphore Technologies, S.A. and/or Lunaphore Technologies, Inc., and any other services provided by Lunaphore Technologies, S.A. and/or Lunaphore Technologies, Inc. or any authorized third party on behalf of Lunaphore Technologies, S.A. and/or Lunaphore Technologies, Inc.
“Software” means any software or firmware programs (including without limitation the associated source code and material) which are included in the Products and available by license to Customer.
“Third-Party Product” means a Product manufactured or edited by a third party.

1. Purchase and Sale. LUNAPHORE shall sell to Customer, and Customer shall accept and pay for, all Products and Services ordered by Customer pursuant to an Order that has been accepted by LUNAPHORE. All Orders are subject to acceptance by LUNAPHORE either in writing or by shipping Products or providing Services. LUNAPHORE may accept any Order in whole or in part. Once Customer places an Order, the Order will only be cancellable within a period of twenty-four (24) hours after submission of the Order. By placing an Order for Software, when applicable, Customer acknowledges and agrees to the Supplementary Terms specified in the corresponding Software license agreement. By placing an Order for any Third-Party Product, Customer acknowledges and agrees to adhere to any applicable Supplementary Terms provided by the original manufacturer. It is understood that such Supplementary Terms take precedence over the provisions outlined in these Terms. By placing an Order for Software, when applicable, Customer acknowledges and agrees to the Supplementary Terms specified in the corresponding Software license agreement, also available through this link.

2. Shipment and Delivery. Unless otherwise specified in the Order, Products shall be shipped via carrier selected by LUNAPHORE FCA Incoterm 2020 shipping point, freight prepaid and added. Customer shall pay or reimburse LUNAPHORE for all transportation, freight, import, export, customs, insurance, loading, packaging and handling charges, taxes, duties, fees, storage and all other charges applicable to the delivery of the Products. All shipments are subject to availability, and LUNAPHORE may ship in instalments. Title to the Products will pass to Customer upon LUNAPHORE’s delivery of the Products to the carrier, subject to the limitations provided in these Terms. Risk of loss or damage shall pass to Customer upon delivery of Products to the carrier. Any claims concerning damage or loss in transit shall be placed through the delivering carrier or agent by Customer. Shipping dates are approximate. LUNAPHORE shall not be liable for any claim, loss or damage attributable to any delay in or failure to make delivery. Software may be made available by LUNAPHORE through electronic download, contingent upon LUNAPHORE receiving any necessary documentation. Software delivery shall be deemed complete on the date when LUNAPHORE furnishes download instructions to Customer.

3. Quality Inspection. Customer is responsible for a quality and completeness check of a Product delivery immediately upon arrival, except when the Product package is marked with a notice specifying “Do Not Open – This package may only be opened by LUNAPHORE or an LUNAPHORE authorized agent” or similar instructions; when a package is thus marked, Customer shall only perform a visual check of the quality of the external packaging immediately upon arrival, as opening the package contrary to such instructions will automatically void the Product warranty. Any claims for damaged, missing or defective Products must be reported in writing to LUNAPHORE within ten (10) business days from the date of receipt of the Products; otherwise the Products will be deemed to have been received in good condition and accepted by Customer. If directed by LUNAPHORE, Customer must promptly return a rejected Product to LUNAPHORE, at LUNAPHORE’s cost, unused and in a condition no worse than that delivered to Customer and in the Product’s original containers and packing material. LUNAPHORE may refuse any returned Product not timely rejected in writing. If Customer rejects any portion of the Products for a valid defect or nonconformity, LUNAPHORE shall, at its option, repair the Product or replace the Product with an identical or substantially similar Product. The foregoing shall be Customer’s sole and exclusive remedy for damaged or missing Products, and, except for the following express warranty rights, for defective Products. No return of a Product ordered and shipped shall be permitted unless the Product has been reported as defective in accordance with this paragraph and the return has been authorized in writing by LUNAPHORE.

4. Services

4.1. General. Services may be provided at Customer’s site and/or remotely. Each party is responsible for ensuring timely and effective collaboration with the other party. Customer shall furnish LUNAPHORE with adequate resources, information, and access to the site and equipment necessary for the proper provision of Services; Customer’s failure or delay in meeting this obligation may lead to delay of the Services and additional costs to Customer.

4.2. Installation & Training. When an Order includes installation Services for any instrument manufactured by Lunaphore Technologies, S.A. (“Installation”), Customer agrees to: (i) following delivery, facilitate Installation at the specified installation site address provided in the Order; (ii) ensure, at its own expense, that all necessary conditions are in place for Installation; (iii) notify LUNAPHORE once the preparatory work for Installation has been completed; and (iv) designate a competent contact person on-site, available at the agreed-upon time of Installation. After the date of Installation (“Installation Date”), Customer must designate at least one responsible user, and all Customer users of the Product must attend a mandatory training session at Customer’s site (“Training”). Customer shall not use the instrument until Customer’s users have attended the Training.

4.3. Acceptance. Immediately after Installation and Training, Customer shall sign LUNAPHORE’s acceptance protocol (the “Acceptance”); the dates of Installation and Training shall be specified in the Acceptance. The Acceptance shall be deemed executed by Customer three (3) business days after completion of the Training; only a defect that substantially impairs the use of the installed Product, without any feasible workaround solution, may result in Customer’s non-acceptance, and LUNAPHORE undertakes to promptly rectify any such defect. For clarity, the Acceptance shall not affect LUNAPHORE’s warranty obligations.

4.4. Maintenance & Repair. When included in an Order, the start date and initial term or duration of LUNAPHORE’s maintenance services and repair services on a Product (“Maintenance Services” and “Repair Services”) will be explicitly specified. Upon request, Maintenance Services provide Customer with one on-site preventive visit per contracted period, encompassing a functional check of the Product, recalibration of components, and replacement of necessary parts. Maintenance Services and Repair Services explicitly exclude consumables, third-party products, and software upgrades (i.e., changes in version). Customer shall strictly adhere to any recommended practices provided by LUNAPHORE and the instructions outlined in the user manual for the Product; failure to comply with such obligations may result in additional charges for Maintenance Services and Repair Services.

4.5. Scientific Lab Services. When included in an Order, the start date, duration, and the number of hours for scientific consulting laboratory Services (“Scientific Lab Services”) will be clearly specified. The Scientific Lab Services grant Customer access to a predetermined package of hours provided by LUNAPHORE’s scientific team upon Customer’s request. The specific purpose of these services will be mutually agreed upon and detailed in the Order. The need for a separate consulting service agreement for such services will be determined by the parties. If the parties decide to conduct on-site Scientific Lab Services at Customer’s premises, the number of hours will be calculated in eight (8) hour blocks. Customer is responsible for reimbursing any reasonable professional expenses, including travel and accommodation incurred by LUNAPHORE’s personnel. LUNAPHORE reserves the right to accept, reduce, or refuse on-site Scientific Lab Services based on its workload capacity and personnel availability. LUNAPHORE will maintain a record of the hours spent on Scientific Lab Services, which will be shared with Customer upon request. Upon the conclusion of Scientific Lab Services, Customer acknowledges and agrees that any unused remaining hours will be forfeited, with no right to reimbursement or compensation. At its discretion, LUNAPHORE may issue a credit note for unused Scientific Lab Services. Notwithstanding Section 6.1, unless expressly stated in the Order or agreed upon in a separate written contract between the parties, Customer retains exclusive ownership of the data generated during Scientific Lab Services, along with any derivatives or modifications of Customer materials produced as a direct result of such services. Unless otherwise agreed in writing by the parties, the know-how gained during the performance of Scientific Lab Services, such as the optimization of instrument settings, is the exclusive property of LUNAPHORE. This know-how may be reused for any purpose, including product development, commercialization, and the creation of marketing materials.

4.6. Instrument Access Lab Services. The type of instrument evaluation services, nature, and the number of sample staining Services (“Instrument Access Lab Services”) shall be specified in an Order. Through Instrument Access Lab Services, LUNAPHORE will process sample slides provided by Customer and subsequently return the resulting digital images to Customer. Residual sample slides will either be (i) destroyed or (ii) sent back to Customer upon request and at Customer’s expense. Customer is responsible for arranging the shipment of the samples at its own cost. Customer represents and warrants that it possesses all rights and has obtained all necessary consents, approvals, licenses, and/or certifications as required by applicable laws to collect and transfer any sample slide or clinical patient data to LUNAPHORE, and that LUNAPHORE’s use of such slides and data solely for the purposes of providing Instrument Access Lab Services will not constitute an infringement of third-party intellectual property or privacy rights. To the extent applicable, all sample slides and patient data shall be coded and de-identified by Customer prior to transfer to LUNAPHORE in accordance with HIPAA privacy standards under 45 CFR § 164.514 (a), (b) and (c) and similar applicable legislation. Digital images, data, and results generated through Instrument Access Lab Services are the property of Customer. LUNAPHORE has the right to retain archives of Customer’s digital images. With the written consent of Customer, LUNAPHORE may use these images for scientific marketing materials. Unless otherwise agreed in writing by the parties, the know-how gained during the performance of Instrument Access Lab Services, such as the optimization of instrument protocol parameters, is the exclusive property of LUNAPHORE. This know-how may be reused for any purpose, including product development, commercialization, and the creation of marketing materials. The expected completion time for Instrument Access Lab Services will be specified in the Order. Both parties acknowledge and agree that Instrument Access Lab Services may not commence until LUNAPHORE receives Customer’s sample slides. Unless otherwise agreed, Customer shall not use Access Lab Services for the purpose of comparing and publishing technology results obtained through the use of any competing product.

5. Payment

5.1. Prices. The price for any Product and/or Service shall be the price stated in LUNAPHORE’s unexpired quote to Customer. Product prices mentioned in the initial quotation are not final and may be subject to change based on the shipping conditions specified by the Customer in a subsequent purchase order. Unless the Order explicitly specifies otherwise, Customer is responsible for paying all relevant charges, including VAT and other taxes, customs duties, levies, and/or fees imposed by any authority or any costs related to special packaging requests, all of which are payable by Customer. In the event LUNAPHORE is required to pay any such taxes, customs duties, levies, fees, and/or other costs, Customer shall promptly reimburse LUNAPHORE. By default, Order amounts are stated exclusive of VAT, and any applicable VAT will be added to the invoice. If Customer claims an exemption from tax, Customer shall provide LUNAPHORE, at the time the Order is submitted, an exemption certificate or other document acceptable to the authority imposing the taxes, fees, duties and levies.

5.2. Invoicing and Payment Terms. Unless otherwise specified in the Order, LUNAPHORE’s invoicing schedule will be the following: (i) for Products, upon shipment of the Product; (ii) for one-time Services, within thirty (30) days of completion of the Services, and if the Services are recurring, periodically as agreed with Customer. LUNAPHORE may require advance payment or securities from Customer for certain Products and Services. Unless the Order specifies otherwise, all amounts are due and payable without any set-off or deduction within thirty (30) days from the invoice date.

5.3. Late Payment. In the event of late payment for an instrument Product manufactured by Lunaphore Technologies, S.A., a reminder fee of 40,000 USD, or the equivalent in other currencies, shall become immediately due. For all Products and Services, the total outstanding amount will be increased at the rate of one and a half percent (1.5%) per month or the maximum allowed by law, whichever is less, from the date payment is due until the date payment is actually received. Customer agrees to immediately pay these late payment charges upon request by LUNAPHORE. In case of payment not received when due, LUNAPHORE reserves its right to cancel Services and pending Orders.

5.4. Securities. LUNAPHORE may choose to retain a security interest in all instrument Products manufactured by Lunaphore Technologies, S.A. and sold to Customer to secure all of Customer’s obligations to LUNAPHORE under this Agreement. Upon Order confirmation, Customer will execute any necessary documents to create and perfect this interest.

5.5. Validity of the Offer. An Offer made by LUNAPHORE is irrevocable during the term stated in the Offer. If no term is stated in the Offer, the Offer shall remain valid for a period of thirty (30) calendar days from the date of Offer submission.

6. Intellectual property rights

6.1. General. As between the parties, all intellectual property rights relating to any Products and/or Services are solely and exclusively owned by LUNAPHORE. Customer shall not dispute LUNAPHORE’s ownership of any such intellectual property rights at any time. Illustrations, drawings, user manuals, and other documents provided with the Products and/or Services may not be utilized, copied, reproduced, or shared with third parties without the prior written consent of LUNAPHORE. Customer acknowledges that LUNAPHORE is free to use, for any purpose, any knowledge (such as ideas, concepts, know-how, and techniques, among others) acquired during the performance of Services in intangible form, which may be retained in the unaided memories of the personnel performing the Services. Unless expressly stated or agreed otherwise, nothing in these Terms or in the Order shall be construed as granting any rights to Customer regarding any intellectual property rights related to Third-Party Products.

6.2. LUNAPHORE Software. Unless otherwise agreed by the parties, all Software will be licensed (not sold) to Customer. LUNAPHORE grants Customer a limited, non-transferable, and non-exclusive right to use the Software for its intended application, contingent upon the payment of all related fees and charges and subject to a specific Software license agreement governing the terms and conditions of the license.

6.3. LUNAPHORE Products. With respect to any Product, Customer shall: i) adhere to and reproduce copyright notices and other markings as indicated by LUNAPHORE; and (ii) avoid using any components of the LUNAPHORE Product or related licensed material separately from the LUNAPHORE Product.

6.4. Patent Disclaimer/Indemnity. LUNAPHORE does not represent or warrant that the use or sale of the Products or Services delivered hereunder does not or will not infringe the claims of any United States or other patent covering the use thereof in combination with other products or in the operation of any process. Additionally, Customer shall indemnify LUNAPHORE and its affiliates from any legal action that may result from Customer’s use of any Product under this Agreement.

7. Warranties

7.1. Limited Product Warranty. During the Warranty Period (as defined below), LUNAPHORE warrants that Products will operate in substantial conformance with their specifications and will be free from material defects under normal use; for Products subject to an expiration date, such as consumables, LUNAPHORE warrants that these Products will substantially conform to the standard specifications up to the expiration date.

7.2. Coverage. Unless an additional warranty service is expressly contracted, LUNAPHORE shall provide Customer with a default 12-month period from delivery (“Warranty Period”) warranty on LUNAPHORE Products. In case of instruments manufactured by Lunaphore Technologies, S.A., the Warranty Period commences on the Installation Date. In case of consumables or Software, the Warranty Period commences on the delivery date. Following the conclusion of Warranty Period, any additional contracted warranty service period will begin (“Extended Period”).

7.3. Reporting Defects. During the Warranty Period and any Extended Period, any defects in LUNAPHORE Products must be reported to LUNAPHORE in writing and as soon as reasonably possible, but no later than thirty (30) days from the date of discovery. Provided Customer reports the defect in a timely manner, LUNAPHORE, at its sole discretion, will either repair, replace, or prorate reimbursement for defects. LUNAPHORE shall determine whether the LUNAPHORE Product is to be repaired at Customer’s site or off-site. Repair or replacement will not suspend or prolong the original Warranty Period. LUNAPHORE’s warranty applies only if Customer’s use of the Product is in conformity with standard specifications, user manuals, and LUNAPHORE-provided instructions. If LUNAPHORE determines that the warranty claim by Customer is not justified (i.e., not covered by the LUNAPHORE warranty), belated, or not formally correct, Customer shall be responsible for all related investigation, remedy, reasonable expenses (including travel and accommodation expenses), and shipping fees. Products reasonably determined by LUNAPHORE to be defective, independent of Customer’s error, shall be replaced by LUNAPHORE, provided that such defective Products were used by Customer prior to expiration date or, if there is no expiration date, the Products were used within six (6) months of receipt, and the defect was promptly reported with appropriate detail to LUNAPHORE’s technical support. For Third-Party Products, any third-party warranties will be forwarded to Customer for its direct benefit with regard to the third-party manufacturer. In these cases, LUNAPHORE will assist during the warranty claim process, but Customer must pursue such warranties with the applicable third-party manufacturer.

7.4. Limited Services Warranty. LUNAPHORE warrants that Services will be performed in a skillful and workmanlike manner by professionally qualified personnel in conformance with generally accepted professional standards of care and conduct. For clarity, Services are provided without any warranty other than as set forth in this Section 7.4. LUNAPHORE makes no other warranties, express or implied, regarding any matter whatsoever, including without limitation the condition, originality, or accuracy of such Services, or of any discovery or development relating to such Services, or as to the accuracy, merchantability, or fitness of any such result based on Services for any particular purpose.

7.5. Exclusions. LUNAPHORE does not warrant uninterrupted or error-free operation of a Product or Service, and it disclaims responsibility for third-party disruptions or unauthorized third-party access to a Product or Service. LUNAPHORE does not guarantee any delivery dates and shall not be held responsible for any loss or damage arising from any delay in delivery, regardless of the cause of such delay. Any instrument Product whose installation, calibration, maintenance, other modification, or repair has not been performed by LUNAPHORE or an authorized agent is not covered by any LUNAPHORE warranty. LUNAPHORE warranties do not apply in cases of damage not caused by LUNAPHORE, defects and faults attributable to natural wear and tear, accidents, neglect, misuse, failure of utility supply, improper storage or operating environment, transportation, or cleaning, failure to comply with instructions, specifications, or user manuals provided by LUNAPHORE, or use of the Products for a purpose or in a manner other than that for which they were designed. Unless otherwise stated in the Order, Customer is responsible for damages or defects caused during the transportation of Products. Any suggestions by LUNAPHORE regarding use, selection, application or suitability of Products shall not be construed as a warranty. The warranties identified in this Section 7 are LUNAPHORE’s sole and exclusive warranties with respect to Products and Services and are in lieu of all other warranties. To the extent permitted by applicable law, LUNAPHORE disclaims all other representations, conditions and warranties, expressed or implied, with respect to the Products and Services, including but not limited to any implied warranties of merchantability, satisfactory quality, non- infringement or fitness for a particular purpose.

7.6. Remedies for Breach of Warranty. Subject to this Section 7, with respect to any breach of any LUNAPHORE warranty during the Warranty Period or Extended Period, repair or replacement, at LUNAPHORE’s option, shall be Customer’s sole and exclusive remedy for any breach of warranty claim.

8. Limitation of Liability. EXCEPT TO THE EXTENT CAUSED BY LUNAPHORE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR REQUIRED BY APPLICABLE LAW, LUNAPHORE SHALL HAVE NO LIABILITY FOR ANY LOSS OF USE OR PROFITS, LOST DATA, EQUIPMENT DOWNTIME, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND REGARDLESS OF FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF LUNAPHORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LUNAPHORE’S AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER TO LUNAPHORE FOR THE PRODUCTS OR SERVICES. CUSTOMER UNDERSTANDS THAT THE RISKS OF LOSS HEREUNDER ARE REFLECTED IN THE PRICE OF THE PRODUCTS AND SERVICES AND THAT THESE TERMS WOULD HAVE BEEN DIFFERENT IF THERE HAD BEEN A DIFFERENT ALLOCATION OF RISK. LUNAPHORE DOES NOT WARRANT THIRD PARTY PRODUCTS. Support for third-party instrumentation and product is provided by the original manufacturer of the product. Should a third party bring an action against LUNAPHORE relating to defects in a delivered Product or rendered Service, LUNAPHORE shall be entitled to determine the scope of the actions necessary for a defense irrespective of the responsibility to assume the costs. Customer undertakes to support LUNAPHORE in such defense in every respect.

9. Indemnification. Customer agrees to defend, indemnify and hold harmless LUNAPHORE and its affiliates, and its and their directors, employees, agents, successors and assigns from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorneys’ fees) that LUNAPHORE or its affiliates may incur as a result of any claim or action arising out of Customer’s use of the Products, off label use, improper handling of materials (including sample slides) or non-observance of the instructions and user manuals on part of Customer.

10. Insurance. LUNAPHORE shall maintain standard insurance coverage for the industry. This coverage shall include, but is not limited to, general liability that incorporates product liability, with a minimum amount of USD 2,000,000 for any loss resulting from the conduct of LUNAPHORE pursuant to this Agreement. Additionally, LUNAPHORE shall maintain errors and omissions insurance, with limits of at least USD 2,000,000 for any one occurrence or series of occurrences arising from any one incident or accident. Upon Customer’s request, LUNAPHORE shall provide evidence of such insurance and, if required subject to separate agreed conditions, may name Customer as an additional insured.

11. Delays. LUNAPHORE shall not be liable for delay or failure in performance of any obligations hereunder if performance is rendered impracticable by the occurrence of any condition beyond the reasonable control of LUNAPHORE. In the event of any such delay or failure in performance, LUNAPHORE shall have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances.

12. Regulatory Terms

12.1. Products Marketed “Research Use Only”. Products referred to or labelled as “Research Use Only” are intended solely for research use and, in particular, are not intended for use in clinical LUNAPHORE makes no claim that such Products provide information for, or are suitable for use in, diagnosis, prevention, monitoring, prediction, prognosis, treatment, or alleviation of disease.

12.2. Products Marketed for “In Vitro Diagnostic Use”. Products marketed by LUNAPHORE for IVD use have been cleared by the FDA, and CE marked in the European Union, for IVD use. No license is conveyed or implied for Customer to use, and Customer agrees not to use, such Products in any manner requiring other regulatory approval, clearance or registration relating to IVD use.

12.3. Chemical Purposes only. Products which are or may be drugs, food additives or diagnostic reagents, as described in the federal food, drug and cosmetic act, are for investigational use only in laboratory research animals or testing in vitro, and are not for drug, new drug, veterinary drug, food, food additive or human use. Unless otherwise indicated, all products are distributed and sold for “Chemical Purposes Only”, not for drug use or for application to or ingestion by humans or for commercial horticulture use, for pesticide use, for application to or ingestion by animals or for veterinary drug use. All products sold by LUNAPHORE to Customer shall be used by qualified professionals only.

12.4. Beta and early access Products. If any Product is a beta, technology access, early access, or other precommercial release version (“Pre-release Product”), then this section applies, and shall supersede any conflicting term in the Agreement. Customer acknowledges that the Pre-release Product is a pre-release version, does not represent final product from LUNAPHORE or its affiliates, and may contain defects, bugs, errors and other problems that could cause system or other failures, sample loss and data loss. CONSEQUENTLY, ANY PRE-RELEASE PRODUCT IS PROVIDED TO CUSTOMER “AS IS”, AND LUNAPHORE DISCLAIMS ALL WARRANTIES (INCLUDING THE LIMITED WARRANTY SET FORTH IN SECTION 7.1) AND ALL LIABILITY OBLIGATIONS TO CUSTOMER OF ANY KIND. Customer acknowledges that LUNAPHORE has not promised or guaranteed to Customer that the Pre-release Product will be announced or made available to anyone in the future, that LUNAPHORE has no express or implied obligation to Customer to announce or introduce the Pre-release Product, and that LUNAPHORE may elect not to introduce a product similar to or compatible with the Pre-release Product. Accordingly, Customer acknowledges that any research or development that Customer performs using the Pre-release Product or any product associated with the Pre-release Product is done entirely at Customer’s own risk.

12.5. Disclaimer. LUNAPHORE does not undertake to perform any of Customer’s own regulatory obligations, nor assume any responsibility for Customer’s business or operations. Customer is solely responsible for its use of Services and Products. Customer is solely responsible for obtaining all necessary approvals, permissions and/or licenses or intellectual property rights from applicable third parties as may be required for Customer’s research and any other intended uses. It is solely Customer’s responsibility to make sure the Products and Services are suitable for Customer’s particular use. The burden for safe use and handling of all products sold by LUNAPHORE to Customer is entirely the responsibility of Customer. Absence of hazardous warnings does not imply nontoxicity.

13. Use Restrictions. Except as otherwise approved by LUNAPHORE in writing, Customer shall: (i) use Products in strict accordance with all applicable laws, rules, and regulations, applicable instructions, warnings and other information in user manuals and other Product documentation, and in the manner for which they were intended; (ii) ensure that anyone using the LUNAPHORE Products is adequately trained and does so exclusively for Customer’s authorized use, strictly in accordance with the LUNAPHORE Products’ designated use and license; (iii) not disassemble, reverse-engineer, reverse-compile, or reverse-assemble any of the Products, separate, extract, or isolate components of the Products or subject any of the Products or components thereof to any analysis not expressly authorized by LUNAPHORE, nor gain access to or attempt to determine the methods of operation of any of the Products; (iv) not transfer, resell, or modify any Product for resale without prior written consent of LUNAPHORE; and (v) not dilute any Product unless instructed to do so in the user manual of the Product.

14. Export Controls. Customer acknowledges that the Products and related materials may be subject to export controls under the U.S. Export Administration Regulations and related U.S. laws. Customer will (i) strictly comply with all legal requirements established under these controls, (ii) cooperate fully with LUNAPHORE in any official or unofficial audit or inspection that relates to these controls, and (iii) not export, re-export, divert, transfer or disclose, directly or indirectly, any Product or related technical documents or materials or any direct product thereof to any country (or to any national or resident thereof) which the U.S. Government determines from time to time is a country (or end-user) to which such export, re-export, diversion, transfer or disclosure is restricted, without obtaining the prior written authorization of LUNAPHORE and the applicable U.S. Government agency. Customer represents and warrants that it is not designated on, or associated with any party designated on, any of the United States government restricted parties lists, including without limitation, the United States Commerce Department Bureau of Industry and Security (“BIS”) Denied Persons List; Entity List or Unverified List; the United States Treasury Department Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons List; or the United States State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List. Customer shall comply with all applicable United States economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC. LUNAPHORE may terminate this Agreement and discontinue any ongoing supply to or business with Customer immediately, without notice and without liability, upon LUNAPHORE becoming aware that Customer, or any party associated with Customer, is named on any restricted party list.

15. Confidentiality. The parties agree that the Product and Service pricing as well as the terms and conditions offered herein, are confidential and proprietary to LUNAPHORE, and Customer shall maintain in confidence and not disclose such confidential information to any third party, except as required to do so by law or for the purposes of disclosing or providing to Customer’s employees, attorneys, accountants, consultants, group purchasing organizations, and other third parties retained by or related to Customer to the extent such disclosure is required in order for such recipient parties to perform their roles or responsibilities on behalf of Customer and provided that such persons and entities are subject to identical confidentiality obligations; Customer will be responsible for the compliance of such persons and entities with the obligations herein. If Customer breaches this section, LUNAPHORE may rescind or terminate any unexecuted quote or agreement or executed quote or agreement immediately and may seek any and all remedies available to it as a result of this breach including injunctive relief and damages. If further confidential information is disclosed among the parties, the parties shall enter into a separate confidentiality agreement. LUNAPHORE maintains the privacy of its customers’ information in compliance with relevant law and in accordance with its privacy policy, as posted on its website and amended from time to time.

16. Disclosure. All discounts and other price reductions provided by LUNAPHORE are “discounts or other reductions in price” for purposes of 42 U.S.C. § 1320a-7b(b)(3)(A). To the extent applicable, Customer agrees to completely and accurately report the discounts provided hereunder in claims or cost reports submitted to federal and state health care programs in accordance with all applicable laws and regulations, including without limitation 42 C.F. R. § 1001.952(h). In addition, Customer shall retain these Terms and other documentation provided by LUNAPHORE regarding the discounts provided hereunder and provide such documentation to authorized representatives of the U.S. Department of Health and Human Services or a state health care program upon request.

17. Third-party subcontractors. LUNAPHORE may use personnel and resources in other locations or third-party contractors to support the delivery of Products and Services. LUNAPHORE remains responsible in the event that it uses third party contractors for Services.

18. Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other, except that each party may assign this Agreement in the event of a change of control relating to operations of sale, acquisition, merger, take-over, transformation, demerger, wind-up implying the transfer or liquidation of the majority of the assets, voting rights or stock of a corporation. Assignment of LUNAPHORE’s rights to receive payments is not restricted.

19. Anti-bribery & Anti-corruption. Each party shall comply with all applicable anti-corruption and anti-bribery laws and regulations, including but not limited to, the United States Foreign Corrupt Practices Act and United Kingdom Bribery Act (collectively, “Anti-Bribery Laws”). Neither party shall cause the other or its representatives or agents to be in breach of any Anti-Bribery Laws. In providing and purchasing the Products and Services, each party (i) agrees not to, directly or indirectly, offer to make, promise, authorize or accept any payment or anything of value, including bribes, gifts and/or donations to or from any public official, regulatory authorities or anyone else for the purpose of influencing, inducing or rewarding any act, omission or decision in order to secure an improper advantage, including to obtain or retain business, and (ii) shall comply with all Anti-Bribery Laws. Each party shall notify the other or its representatives or agents immediately upon becoming aware of any breach under this Section.

20. Notice. Any formal notice must be in writing and sent to the address on the Order, unless a party designates a different address in writing, with a copy to [email protected].

21. Applicable law and competent jurisdiction. If an Order is placed with Lunaphore Technologies, S.A, any dispute or claim arising out of or in relation to the Agreement shall be governed by and construed in accordance with the laws of Switzerland (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods). The sole jurisdiction and venue for actions related to the subject matter hereof shall be the courts located in Lausanne (Switzerland), provided that Lunaphore may elect, at its option, to bring action in the courts for the location of Customer’s principal office) and Customer consents to the jurisdiction of such courts with respect to any such action. If an Order is placed to a Bio-Techne Corporation entity specifying an address in United States, any dispute or claim arising out of or in relation to the Agreement shall be governed by and construed in accordance with the laws of the State of New York (without regard to the conflicts of laws provisions thereof). The UN Convention on the International Sale of Goods shall not apply to this Agreement. The sole jurisdiction and venue for actions related to the subject matter hereof shall be the federal and state courts located in New York, provided that LUNAPHORE may elect, at its option, to bring action in the courts for the location of Customer’s principal office, and Customer consents to the jurisdiction of such courts with respect to any such action. Any cause of action brought by Customer arising out of or relating to this Agreement or to Products and/or Services purchased from LUNAPHORE must be brought within one year after such cause of action arose. Actions not commenced by Customer within one year are permanently barred.

22. Entirety. If any provision of the Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect. Nothing in the Agreement affects statutory rights that cannot be waived or limited by contract. These Terms constitute the entire agreement between Customer and LUNAPHORE and is the final statement of the terms of the agreement, superseding all prior written and oral agreements, understandings and undertakings with respect to the Products and Services. No oral statements, recommendations or assistance given by a representative and/or distributor of LUNAPHORE to Customer or its representatives in connection with the use of the Products or Services will constitute a waiver by LUNAPHORE of any of the provisions hereof, or affect LUNAPHORE’s liability herein. LUNAPHORE’s failure to exercise any rights under this Agreement is not a waiver of its rights to damages for Customer’s breach of contract and is not a waiver of any subsequent breach.