Sales Terms & Conditions
Last Updated: November 21, 2022
1. General. These LevitasBio, Inc (“Levitas”) Sales Terms and Conditions, all Addenda attached hereto, if any, and the accompanying Sales Quote, if any (collectively, the “Agreement”) shall exclusively govern Levitas’s sale and license of certain instruments including the LeviCell™ 1.0 instrument and the LeviCell™ EOS instrument (“Instruments”), cartridges, 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 Levitas’s or its representative’s Sales Quote. If Buyer’s order of Products is deemed an offer, Levitas’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 Levitas, 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, Levitas objects to any proposed changes hereto. Levitas may substitute or modify Products provided they comply with applicable Levitas 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 Levitas.
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. Except as otherwise stated on the accompanying Sales Quote or agreed in writing between Levitas 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 FCA (Incoterms 2010) 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 Levitas’s standard packaging or as Levitas otherwise deems suitable. Stated shipping dates are approximate. Levitas 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, Levitas may render a separate invoice, which shall be paid without regard to prior or subsequent installments. Levitas or its representative will ship via the carrier selected by Levitas 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 Levitas 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 Levitas or its representative in writing of any nonconformity to Levitas’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 Levitas 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 one and one-half percent (1.5%) 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 Levitas. Payments on sales by Levitas shipped outside the U.S. must be made on a clean, irrevocable letter of credit issued by a bank acceptable to Levitas, which must be issued within ten (10) days of placement of any order and provide for draws upon presentation of Levitas’s invoice and without any other condition upon Levitas or the bank upon which such letter is drawn.
6. 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. 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 cartridge or other Products to any third party; or (ii) use a cartridge, other Products or data therefrom in a clinical diagnostic or therapeutic setting, such as where data from an individual’s sample is given to such individual or used by a physician care giver for the purpose of diagnosis or treatment of a medical condition; or (iii) 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 6, 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 Levitas protocol for use of a Product, each Product may be used only with other Levitas Products. For example, and without limitation, Levitas cartridges may not be used with any non-Levitas instrument, and Levitas Instruments may not be used with any cartridge other than Levitas cartridges. Levitas cartridges are SINGLE USE ONLY and MAY NOT BE REUSED unless otherwise specifically authorized in writing by Levitas. Further restrictions may apply; for details, please see any label license accompanying Products.
7. 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 CARTRIDGES OR ANY OTHER PRODUCT IS CONVEYED OR IMPLIED WITH THE CARTRIDGES, INSTRUMENTS, SOFTWARE, REAGENTS OR ANY OTHER ITEMS PROVIDED HEREUNDER. ALL PRODUCTS (INCLUDING THE CARTRIDGES, INSTRUMENTS, SOFTWARE, AND REAGENTS) DELIVERED HEREUNDER ARE LICENSED TO BUYER FOR RESEARCH USE ONLY IN BUYER’S NORMAL COURSE OF BUSINESS. “RESEARCH USE ONLY” SPECIFICALLY EXCLUDES, WITHOUT LIMITATION, DIAGNOSTIC OR CLINICAL USE WITH HUMAN OR VETERINARY SUBJECTS. 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 LEVITAS OR ITS AUTHORIZED REPRESENTATIVE. EXCEPT AS SPECIFIED IN LEVITAS 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 CARTRIDGES, (ii) NO RIGHT TO MAKE, HAVE MADE, IMPORT, DISTRIBUTE, OR USE CARTRIDGES IS CONVEYED OR IMPLIED BY THE PURCHASE OR USE OF INSTRUMENTS OR SOFTWARE, AND (iii) EXCEPT IN ACCORDANCE WITH LEVITAS PROTOCOLS, NO RIGHT TO USE CARTRIDGES IN COMBINATION WITH INSTRUMENTS OR SOFTWARE IS CONVEYED UNLESS ALL COMPONENT PARTS HAVE BEEN PURCHASED FROM LEVITAS OR ITS AUTHORIZED REPRESENTATIVE. FURTHERMORE, CARTRIDGES DELIVERED HEREUNDER ARE LICENSED FOR ONE (1) TIME USE ONLY AND MAY NOT BE REUSED UNLESS OTHERWISE SPECIFICALLY AUTHORIZED IN WRITING BY LEVITAS. The Products do not have FDA approval. Buyer agrees not to use the Products in any setting requiring FDA or similar international regulatory approval or exploit the Products in any manner not expressly authorized in writing by Levitas in advance.
8. Warranty, Support, and Service.
8.1 Limited Warranty. Levitas warrants to and only to Buyer for thirteen (13) months from the date of shipping (Warranty Period”) that the Instruments are free from defects in material and workmanship, and conform to Levitas’s published specifications at the time of purchase in all material respects. Service will be provided pursuant to Levitas’s standard service terms. Levitas’s sole and exclusive liability (and Buyer’s sole and exclusive remedy) under the foregoing warranty shall be for Levitas to repair or replace Products as solely determined by Levitas. Nonconforming Instruments will be serviced at Buyer’s facility or, at Levitas’s option, Levitas’s facility. If service is performed at Levitas’ facility, Levitas 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 Levitas cartridges and Products (except as may be set forth in the extant applicable Levitas protocol for use of a Product, with associated standard laboratory tools and equipment ancillary to use of such Product). For example, use of a Levitas Instrument with non-Levitas cartridges or with non-Levitas software voids the warranty for that Instrument, unless specifically authorized in writing by Levitas. 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 Levitas’s and/or a third party’s intellectual property rights. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LEVITAS, 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.
8.2 Support. During the Warranty Period set forth in Section 8.1 for a given Levitas Instrument, Levitas shall use commercially reasonable efforts to (i) provide Levitas software upgrades as officially released by Levitas and as are applicable to Buyer’s Levitas Instrument, and (ii) respond to Buyer’s requests for technical support for such Levitas Instrument. Levitas reserves the right to provide such software upgrades by any method in its sole discretion, including by internet download, provision of electronic files via e-mail or physical storage medium, or by deploying service personnel to Buyer’s site to install such software upgrades. Levitas reserves the right to provide such technical support by any method in its sole discretion including, but not limited to, remote instruction via telephone, internet or e-mail, mailing to Buyer replacement parts, components or test equipment, exchanging Buyer’s Levitas Instrument with a replacement Instrument or a loaner Instrument while repairs are being made, and deploying service and/or support personnel to Buyer’s site for on-site services.
8.3 Service. Warranty service for Instruments shall be provided as set forth in Section 8.1 of this Agreement. Except to the extent covered by a separate agreement, for Instrument maintenance and/or repair not covered by a warranty (collectively “Unwarranted Service”) as set forth herein, Levitas shall, upon inspection and diagnosis of an Instrument submitted for such Unwarranted Service, provide Buyer with an estimate of the cost for performing such Unwarranted Service in accordance with Levitas’s then current service rate schedule and parts pricing. Buyer shall bear all costs associated with shipping any Instrument(s) to Levitas or its authorized service center for performance of such Unwarranted Service, including without limitation, any costs associated with Levitas’s handling, repackaging and shipping of such Instrument.
8.4 Extended Service and Warranty. Upon payment by Buyer of the amount stated in an applicable Quotation for a Levitas Instrument for the purchase of an extended warranty, then the applicable Warranty Period set forth in each of Sections 8.1 and 8.2 of this Agreement shall be extended for such period of time as is set forth in such Quotation.
9. Liability Limitation. EXCEPT TO THE EXTENT (i) CAUSED BY LEVITAS’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (ii) REQUIRED BY APPLICABLE LAW, LEVITAS 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 LEVITAS OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, LEVITAS’S LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY BUYER TO LEVITAS 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.
10. Intellectual Property. Except to the extent prohibited by applicable law, Levitas shall retain all ownership of its intellectual property rights with respect to the Products. Except to the extent prohibited by applicable law, Buyer grants Levitas, 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 Levitas. “Product Improvement Inventions” shall mean all inventions conceived or reduced to practice using Products that relate to the (a) use (e.g., protocols; cell separation and analysis methods 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 Levitas 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. Products may be covered by and/or sold under one or more U.S. or other patents licensed from third parties. LEVITASBIO, LEVICELL, LEVISELECT, LEVIPREP, and related logos are trademarks or registered trademarks of Levitas in the U.S. and/or other countries.
11. Indemnification. Buyer shall indemnify, defend, and hold Levitas harmless from and against any and all losses, damages and expenses (including reasonable attorneys’ fees and other costs of defending any action) that Levitas 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 Levitas in any investigation relating to any such claims and, at no charge to Levitas, make available to Levitas all related statements, reports and tests available to Buyer.
12. Arbitration. Levitas 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.
13.1 Entire Agreement. These terms and conditions of sale (including any accompanying Sales Quote) constitutes the entire agreement between Buyer and Levitas 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. Levitas’s failure to object to any such terms shall not constitute a waiver by Levitas, nor constitute acceptance by Levitas of such terms and conditions. Modifications may be made only in writing and signed by an authorized corporate officer of Levitas. 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.
13.2 Assignment. 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 Levitas, Levitas may terminate this Agreement without cause upon thirty (30) days written notice. Sections 6 through 13 (inclusive) and all attached Addenda, if any, shall survive termination. Time is not of the essence for Levitas’s obligations herein.
13.3 Severability. In the event that any provision of this Agreement or portion thereof is found to be illegal or unenforceable in any jurisdiction in which this Agreement is being performed, the remainder of this Agreement shall be valid and enforceable and the parties shall negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into this Agreement.
13.4 Export Controls. Buyer agrees that it will not export or transfer Product 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.
13.5 Purchases for the U.S. Government. If Buyer is placing an Order for the United States Government or in support of a contract with the U.S. Government, Buyer agrees that the Products purchased are “commercial items” as defined in the U.S. Federal Acquisition Regulations (“FAR”). If Buyer is placing this Order in the name of the U.S. Government and the Order is less than or equal to $3,000, then Buyer agrees that only these Terms shall apply to the Order. If the Order is greater than $3,000, then Buyer agrees that the Order is subject to FAR Part 12, and pursuant to FAR 12.301 and 12.302, only those mandatory provisions of FAR 52.212-1, 52.212-3, 52.212-4 and 52.212-5, and these Terms, shall apply. If Buyer is placing this Order in support of a contract with the U.S. Government, Buyer agrees that only those mandatory clauses listed in FAR 52.244-6 as well as these Terms shall apply to the Order. All other terms and conditions are expressly rejected. In the event of a conflict between the FAR provisions referenced herein and these Terms, these Terms shall take precedence to the maximum extent permitted by applicable law.
13.6 U.S. Government End Users. The LevitasBio software and documentation provided by Levitas pursuant to this Agreement are “commercial items,” as the term is defined at 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the commercial computer software and commercial computer software documentation are licensed to United States Government end users (i) only as commercial items and (ii) with only those rights granted pursuant to the terms of this Agreement.
13.7 Force Majeure. Except for the payment of money, neither party shall be liable to the other party for any failure or delay in the performance of any of its obligations under this Agreement for the period and to the extent such failure or delay is caused by civil unrest, threat of or actual acts of terrorism or war, embargoes, governmental actions, acts of God, earthquakes, floods, storms, fires, supplier delay, accidents, explosions, epidemics, quarantine restrictions, or other such contingencies beyond the reasonable control of the applicable party (“Force Majeure”). In the event of any such delay or failure in performance, Levitas shall have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances and Levitas shall have the right, to the extent necessary in Levitas’s sole judgment, to apportion the Products then available for delivery among its various customers in such manner as Levitas may consider appropriate. The party affected shall notify the other party as soon as practicable of any anticipated delay due to Force Majeure.