EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

Items

1.            General. These Fluidigm Corporation (“Fluidigm”) Sales Terms and Conditions, all Addenda attached hereto, if any, and the accompanying Sales Quote, if any (collectively, the “Agreement”) shall exclusively govern Fluidigm’s sale and license of certain integrated fluidic circuits (with or without carriers, collectively known as “CHIPs”), instruments, software and reagents and other products, if any (“Products”) and provision of certain services relating thereto, if any (“Services”), to the purchaser (“Buyer”) - all as described on Fluidigm’s or its representative’s Sales Quote. If Buyer’s order of Products is deemed an offer, Fluidigm’s acceptance is expressly conditional on Buyer’s acceptance of these terms (except non-preprinted quantity, price and payment terms in the Sales Quote); if these terms are deemed an offer by Fluidigm, Buyer’s acceptance is expressly limited to these terms. Any additional or different terms or conditions (preprinted or otherwise) proposed by Buyer shall not become part of this Agreement. If a purchase order or other form containing terms and conditions is used by Buyer, Fluidigm objects to any proposed changes hereto. Fluidigm may substitute or modify Products provided they comply with applicable Fluidigm specifications. All listed prices and specifications are subject to change without notice, except as set forth in Section 2 below. All reorders of Products hereunder are subject to acceptance by Fluidigm.

2.            Price. The price(s) for the Products will be those listed on the accompanying Sales Quote and expire on the date specified on the Sales Quote. If the Sales Quote does not include price(s) for the Products or if such price(s) have expired, the price(s) for the Products shall be their total cost increased by the gross margin percentage of the applicable product class for the previous fiscal year. Except as otherwise stated on the accompanying Sales Quote or agreed in writing between Fluidigm and Buyer:  (i) prices for shipments within the continental U.S. and Canada exclude all insurance, freight, taxes, fees, duties and levies, which shall be payable by Buyer; and (ii) prices for shipments outside the continental U.S. and Canada exclude all overseas (e.g., non-U.S.) insurance, freight, taxes, fees, duties and levies, which shall be payable by Buyer. Without limiting the foregoing, Products shipped within the U.S. and Canada shall otherwise be FOB (California Commercial Code) origin and to all other destinations shall otherwise be CIP (Incoterms 2010) destination chosen solely by Fluidigm, with Buyer being the importer for the Products and responsible for paying the import VAT or similar tax(es) levied outside the U.S., including within Buyer’s country.

3.            Delivery. Products will be packed in Fluidigm’s standard packaging or as Fluidigm otherwise deems suitable. Stated shipping dates are approximate. Fluidigm or its representative may make partial deliveries or delivery in installments, and each installment shall be deemed to be a separate sale. For each installment, Fluidigm may render a separate invoice, which shall be paid without regard to prior or subsequent installments. Fluidigm or its representative will ship via the carrier selected by Fluidigm or its representative to any Buyer address shown on the front of the Sales Quote. If shipment is delayed at Buyer’s request, Buyer will reimburse Fluidigm for all costs of storage, if any.

 

4.            Acceptance. All Products shall be conclusively and irrevocably deemed accepted without qualification by Buyer upon delivery. Buyer, however, will notify Fluidigm or its representative in writing of any nonconformity to Fluidigm’s extant specifications promptly after delivery, describing the nonconformity in detail. By accepting Products, Buyer acknowledges that Products are provided as follows:  For Research Use Only.  Not for use in diagnostic procedures.

5.            Payment. Buyer will be invoiced at the time of shipment of each Product. Except as otherwise agreed by Fluidigm in writing, payment shall be made in full within thirty (30) days of the date of the invoice. Payments for Products are not subject to Buyer’s inspection or acceptance of the Products. Late payments shall incur a charge at the rate of [* * *] per month, or the maximum allowed by law, whichever is less. Further shipment of Products may be declined if Buyer fails to make any payment when due, or if the financial condition of Buyer becomes unsatisfactory to Fluidigm. Payments on sales by Fluidigm shipped outside the U.S. must be made on a clean, irrevocable letter of credit issued by a bank acceptable to Fluidigm, which must be issued within ten (10) days of placement of any order and provide for draws upon presentation of Fluidigm’s invoice and without any other condition upon Fluidigm or the bank upon which such letter is drawn.

 

6.            Unforeseen Events. Fluidigm 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 Fluidigm’s reasonable control. In the event of any such delay or failure in performance, Fluidigm shall have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances and Fluidigm shall have the right, to the extent necessary in Fluidigm’s sole judgment, to apportion the Products then available for delivery among its various customers in such manner as Fluidigm may consider appropriate.

7.            Restrictions. Buyer agrees that it will use the Products provided hereunder only in the ordinary course of Buyer’s normal internal research and development activities and will ensure that no other person or entity uses such Products for any other purpose. Except to the extent such restrictions are prohibited by applicable law, Buyer agrees not to:  (i) transfer (including but not limited to resell, donate, or loan) a CHIP or other Products to any third party; or (ii) reverse engineer, adapt or modify any Product. Buyer agrees that it will not export or transfer for re-export in violation of any United States laws or the laws of any other jurisdiction, or to any denied or prohibited person, entity or embargoed country in violation of such laws. In the event of any ambiguity in applying this Section 7, the burden shall be on Buyer to reasonably demonstrate compliance with the terms herein. Except as may be set forth, with respect to standard laboratory tools and equipment ancillary to use of such Product, in the extant applicable Fluidigm protocol for use of a Product, each Product may be used only with other Fluidigm Products. For example and without limitation, Fluidigm CHIPs may not be used with any non-Fluidigm reader, and Fluidigm readers may not be used with any chip other than Fluidigm CHIPs. Fluidigm CHIPs are SINGLE USE ONLY and MAY NOT BE REUSED unless otherwise specifically authorized in writing by Fluidigm. Further restrictions may apply; for details, please see any label license accompanying Products.

 

8.            LIMITED LICENSE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NO RIGHT TO COPY, MODIFY, DISTRIBUTE, MAKE DERIVATIVE WORKS OF, PUBLICLY DISPLAY, MAKE, HAVE MADE, OFFER TO SELL, SELL, USE OR IMPORT CHIPS OR ANY OTHER PRODUCT IS CONVEYED OR IMPLIED WITH THE CHIPS, INSTRUMENTS, SOFTWARE, REAGENTS OR ANY OTHER ITEMS PROVIDED HEREUNDER. ALL PRODUCTS (INCLUDING THE CHIPS, INSTRUMENTS, SOFTWARE, AND REAGENTS) DELIVERED HEREUNDER ARE LICENSED TO BUYER FOR RESEARCH USE ONLY IN BUYER’S NORMAL COURSE OF BUSINESS. THIS LIMITED LICENSE PERMITS ONLY THE USE BY BUYER OF THE PARTICULAR PRODUCT(S), IN COMPLIANCE WITH APPLICABLE LAWS AND IN A MANNER NOT VIOLATIVE OF ANY THIRD PARTY RIGHTS, IN ACCORDANCE WITH THE WRITTEN INSTRUCTIONS PROVIDED THEREWITH, THAT BUYER PURCHASES FROM FLUIDIGM OR ITS AUTHORIZED REPRESENTATIVE. EXCEPT AS SPECIFIED IN FLUIDIGM PROTOCOLS, THE PURCHASE OF ANY PRODUCT(S) DOES NOT BY ITSELF CONVEY OR IMPLY THE RIGHT TO USE SUCH PRODUCT(S) IN COMBINATION WITH ANY OTHER PRODUCT(S). IN PARTICULAR, (i) NO RIGHT TO MAKE, HAVE MADE OR DISTRIBUTE OTHER INSTRUMENTS AND SOFTWARE IS CONVEYED OR IMPLIED BY THE PURCHASE OR USE OF THE CHIPS, (ii) NO RIGHT TO MAKE, HAVE MADE, IMPORT, DISTRIBUTE, OR USE CHIPS IS CONVEYED OR IMPLIED BY THE PURCHASE OR USE OF INSTRUMENTS OR SOFTWARE, AND (iii) EXCEPT IN ACCORDANCE WITH FLUIDIGM PROTOCOLS, NO RIGHT TO USE CHIPS IN COMBINATION WITH INSTRUMENTS OR SOFTWARE IS CONVEYED UNLESS ALL COMPONENT PARTS HAVE BEEN PURCHASED FROM FLUIDIGM OR ITS AUTHORIZED REPRESENTATIVE. FURTHERMORE, CHIPS DELIVERED HEREUNDER ARE LICENSED FOR ONE (1) TIME USE ONLY AND MAY NOT BE REUSED UNLESS OTHERWISE SPECIFICALLY AUTHORIZED IN WRITING BY FLUIDIGM. The Products are marketed for research use only and do not have clearance or approval from the U.S. Food and Drug Administration (“FDA”) or other regulatory approval for in vitro diagnostic (“IVD”) use. No license is conveyed or implied for the Buyer to use such Products for IVD use.

 

9.            Limited Warranty. Fluidigm warrants to and only to Buyer for thirteen (13) months from the date of shipping that the software and instruments are free from defects in material and workmanship, and conform to Fluidigm’s published specifications at the time of purchase in all material respects. Service will be provided pursuant to Fluidigm’s standard service terms. Fluidigm’s sole and exclusive liability (and Buyer’s sole and exclusive remedy) under the foregoing warranty shall be for Fluidigm to repair or replace software and instruments or provide Buyer a refund, as solely determined by Fluidigm. Nonconforming instruments will be serviced at Buyer’s facility or, at Fluidigm’s option, Fluidigm’s facility. If service is performed at Fluidigm’s facility, Fluidigm will bear shipping costs. This warranty does not apply to any Product to which any of the following apply, i.e., the warranty for any such Product unit shall be void:  a) failure to provide a suitable storage, use, or operating environment; b) use of non-recommended reagents; c) use of the Products for a purpose or in a manner other than that for which they were designed; d) modifications or repairs done by Buyer; or e) any other abuse, misuse, or neglect of the Products, including without limitation the use of the Product with any item other than Fluidigm chips and Products (except as may be set forth in the extant applicable Fluidigm protocol for use of a Product, with associated standard laboratory tools and equipment ancillary to use of such Product). For example, use of a Fluidigm reader with non-Fluidigm CHIPs voids the warranty for that reader, unless specifically authorized in writing by Fluidigm. This warranty applies only to Buyer and not third parties. Buyer acknowledges that failure to comply with any restriction of use set forth herein will (i) constitute a breach of these Terms and Conditions, (ii) invalidate any warranty provided herein and any applicable service agreement, and (iii) may constitute a violation or infringement of Fluidigm’s and/or a third party’s intellectual property rights. TO THE EXTENT PERMITTED BY APPLICABLE LAW, FLUIDIGM, ITS SUPPLIERS AND ITS REPRESENTATIVES DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

10.            Liability Limitation. EXCEPT TO THE EXTENT (i) CAUSED BY FLUIDIGM’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (ii) REQUIRED BY APPLICABLE LAW, FLUIDIGM AND ITS REPRESENTATIVES SHALL HAVE NO LIABILITY FOR (A) ANY LOSS OF USE, PROFITS, REVENUE, GOODWILL, BUSINESS, OR OTHER FINANCIAL LOSS, (B) COSTS OF SUBSTITUTE GOODS OR SERVICES, OR (C) ANY LOST PROFITS, 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 FLUIDIGM OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, FLUIDIGM’S LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY BUYER TO FLUIDIGM IN THE PRIOR TWELVE (12) MONTHS. BUYER UNDERSTANDS THAT THE RISKS OF LOSS HEREUNDER ARE REFLECTED IN THE PRICE OF THE PRODUCTS AND THAT THESE TERMS WOULD HAVE BEEN DIFFERENT IF THERE HAD BEEN A DIFFERENT ALLOCATION OF RISK.

 

11.            Intellectual Property. Except to the extent prohibited by applicable law, Fluidigm shall retain all ownership of its intellectual property rights with respect to the Products. Except to the extent prohibited by applicable law, Buyer grants Fluidigm, with the right to sublicense, a non-exclusive, fully paid-up, royalty-free, worldwide, irrevocable, perpetual license to make, have made, use, import, offer to sell or sell any Product Improvement Inventions when used in conjunction with any products sold by or on behalf of Fluidigm. “Product Improvement Inventions” shall mean all inventions conceived or reduced to practice using Products that relate to the (a) use (e.g., protocols; cell culture and analysis methods; and nucleic acid amplification, barcoding, and assays), design, manufacturing, layout and packaging of any Products; (b) interfaces between any Products and other devices, such as optical/detection systems, fluidic systems, material extraction systems, and robotics for use in connection with any Products; or (c) automated analysis techniques (e.g., computers, software, etc.) relating to the extraction of data from any Products and storing/analyzing such data, for example, in a computer file or other storage media. Product Improvement Inventions shall not include data resulting from using Products (i.e., results of assays using Products, provided that “Product Improvement Inventions” shall include all data pertaining to the Products or their development, design, use, or manufacture) or discoveries derived from such data (provided that “Product Improvement Inventions” shall include all discoveries pertaining to the Products or their development, design, use, or manufacture). Training provided by Fluidigm representatives on Products is subject to copyright and other protections under 17 U.S.C. § 101 et seq. and their international equivalents. Buyer agrees not to reproduce training sessions in whole or in part.

12.            Indemnification. Buyer shall indemnify, defend, and hold Fluidigm harmless from and against any and all losses, damages and expenses (including reasonable attorneys’ fees and other costs of defending any action) that Fluidigm may incur as a result of Buyer’s use or resale or other transfer (authorized or unauthorized) of Products or by reason of Buyer’s breach of or failure to perform any of its obligations hereunder. Buyer shall fully cooperate with Fluidigm in any investigation relating to any such claims and, at no charge to Fluidigm, make available to Fluidigm all related statements, reports and tests available to Buyer.

 

13.            Arbitration. Fluidigm and Buyer agree that any dispute or controversy arising out of or in connection with this Agreement shall be finally settled by binding arbitration under the extant rules of the International Centre for Dispute Resolution, by one (1) arbitrator appointed in accordance with such rules. For sales originating in Asia, the venue of any such arbitration shall be Singapore; for sales originating in Europe, the venue of any such arbitration shall be Amsterdam, Netherlands; and for sales originating in all other regions, the venue of arbitration shall be San Francisco, California. The arbitration shall be conducted in English, and any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or a true copy thereof. The decision and/or award rendered by the arbitrator shall be written, final and non-appealable, and the parties agree that the decision and/or award of the arbitrator shall be the sole, exclusive and binding remedy between them regarding any and all disputes, controversies, claims and counterclaims properly before the arbitrator. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award, punitive or exemplary damages against any party. The costs of any arbitration, including administrative fees and fees of the arbitrator, shall be shared equally by the parties, and each party shall bear the cost of its own attorneys’ and expert fees, provided that the arbitrator may at his or her discretion award to the prevailing party the costs and expenses incurred by the prevailing party in connection with the arbitration proceeding. The decision and/or award of the arbitrator may be entered in any court of competent jurisdiction for a judicial recognition of the decision and applicable orders of enforcement (which may include, without limitation, permanent injunctive relief or orders for specific performance or for equitable relief), and either party may apply to any court of competent jurisdiction for appropriate restraining orders or temporary injunctive relief pending resolution of any arbitration proceeding. For avoidance of doubt, any such equitable remedies shall be cumulative and not exclusive and are in addition to any other remedies which either party may have under this Agreement or applicable law.

14.            Miscellaneous. This Agreement (including any accompanying Sales Quote) constitutes the entire agreement between Buyer and Fluidigm with respect to the subject matter hereof and is the final, complete, and exclusive statement of the terms of the Agreement, superseding all prior written and oral agreements, understandings and undertakings. This Agreement shall exclusively govern the ordering, purchase, and supply of the Products, and shall override any conflicting, amending, and/or additional terms contained in any purchase orders, invoices, or similar documents, which are hereby rejected and shall be null and void. Fluidigm’s failure to object to any such terms shall not constitute a waiver by Fluidigm, nor constitute acceptance by Fluidigm of such terms and conditions. Modifications may be made only in writing and signed by an authorized corporate officer of Fluidigm. The waiver of any term or condition or any breach thereof shall not affect any other term or condition of this Agreement. This Agreement shall be governed by and construed according to the laws of California, without regard to conflict-of-law provisions. Buyer may not assign this Agreement, and any change of control of Buyer shall be deemed to be an assignment. In any legal action commenced to enforce or interpret this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and expenses. Subject to filling any orders that have been accepted by Fluidigm, Fluidigm may terminate this Agreement without cause upon thirty (30) days written notice. Sections 6 through 14 (inclusive) and all attached Addenda, if any, shall survive termination. Time is not of the essence for Fluidigm’s obligations herein. In the event that any provision of this Agreement or portion thereof is found to be illegal or unenforceable, the Agreement shall be construed without the unenforceable provision or portion thereof. Products may be covered by and/or sold under one or more U.S. or other patents licensed from third parties, including without limitation the California Institute of Technology, The Regents of the University of California, and/or The President and Fellows of Harvard College. FLUIDIGM, the “F” logo, and related logos are trademarks or registered trademarks of Fluidigm in the U.S. and/or other countries.

[Revised 26DEC2013AF]