CUSTOM ENVIRONMENTAL ISOLATE CONTROLS SERVICE TERMS AND CONDITIONS

These Terms of Use govern your use of the web site operated by Micro Bio Logics, Inc. at www.microbiologics.com (the "Site"). Micro Bio Logics may modify these Terms of Use and such modifications become effective immediately upon posting by on the Site.

1. Applicability

a. ALL PURCHASES OF PRODUCTS AND SERVICES (INCLUDING STORAGE SERVICES) FROM MICROBIOLOGIC & IT’S SUBSIDARIES (“Microbiologics”) ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS (“Terms”), AND BY PURCHASING ANY PRODUCTS & SERVICES (“Products”), THE CUSTOMER (“Customer”) AGREES TO BE BOUND BY ALL SUCH TERMS AND CONDITIONS, UNLESS EXPLICITLY AGREED OTHERWISE.

b. The accompanying quotation (the "Sales Confirmation" and these Terms (collectively, this "Agreement")) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer's general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Delivery of the Products does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.

2. Payment Details

a. Payment terms are Net 30 days from issuance of invoice unless otherwise indicated in a Microbiologics proposal or quote or in a written contract or SOW signed by both parties covering the sale of the products. Payment terms, such as those included under a customer PO, are expressly disclaimed. Any change to the quote or SOW after the development process for the product has been initiated will result in additional charges.

b. A non-refundable development fee may be required, at Microbiologics’ discretion, to confirm and initiate the project upon commencement of work.

c. The remaining balance of the project cost will be due upon project completion and delivery of the final product.

d. All projects are subject to a cancellation fee. If the client cancels the project at any time, the client will be responsible for all development costs incurred up to the date of cancellation, including administrative costs, preparation, and work performed.

3. Pricing

a. All prices are in US Dollars and checks are to be drawn on a US bank. Customer is responsible for all wire fees. Prices are subject to change without notice. Duties, taxes, and fees are not included and are the sole responsibility of the Customer. Storage services may be subject to additional charges and are the responsibility of the Customer.

b. For custom projects and services, in the event that a procedure fails to provide adequate quantity or quality of an order, charges may still apply but no extra charges will be added without prior approval.

U.S. Government Users. Use, duplication, or disclosure by the United States Government is subject to the restrictions set forth in DFARS 252.227-7013(c)(1)(ii) and FAR 52.227-19 and any other successor regulations that may be applicable.

4. Taxes

a. Prices do not, and will not, include any governmental taxes (including, without limitation, sales, use, excise, withholding, consumption, or VAT), or other duties imposed by governmental authorities that are applicable to the import or purchase of the Product(s), and the Customer shall bear all such taxes and duties.

5. Limitations on Warranty or Sale

a. Since this is a custom product, Microbiologics can only warrant that the product meets internal quality standards and specifications. The custom products produced are specific to the Customer and unless found to have a defect are the property of the Customer and the Customer is responsible to pay Microbiologics for the customized product. Microbiologics warrants that the products are free of defect if used as intended and stored as directed.

b. Microbiologics agrees to replace or give credit equal to the purchase price for any product that is defective if used as intended and stored as directed. Should any product be determined defective within 21 days, the customer must provide Microbiologics with:

• i. the product description, and the lot number;
• ii. the nature of the problem; and,
• iii. the number of product units involved.

c. No product can be returned for credit or replacement without prior return authorization from Microbiologics. Should any products arrive in a damaged condition, the carrier must note the condition on the delivery receipt. All claims for products damaged during shipment must be made to Microbiologics within five (5) business days of receipt. Storage services are subject to the same return and claim policies outlined within this Agreement.

d. MICROBIOLOGICS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; AND (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

e. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

f. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO MICROBIOLOGICS FOR THE PRODUCTS AND SERVICES SOLD HEREUNDER.

6. Shipping

a. Microbiologics shall deliver the Products using Microbiologics standard methods for packaging and shipping. Customer acknowledges that final shipping costs may vary from the estimate and additional shipping charges may apply. All Products and other materials provided by Microbiologics are delivered “Ex Works” (Incoterms 2010) at Microbiologics facilities. Microbiologics will designate the freight carrier and will add to the invoice any corresponding reasonable freight charges incurred in shipping to the location identified as the “ship to” address. Customer is responsible for all other charges and costs, including without limitation, handling, insurance (if any), sales or value added taxes, and export and import clearance. Title to the products will pass to Customer when Microbiologics delivers the products to the designated carrier at Microbiologics’ designated facility.

7. Compliance with Law

a. The customer will use the above purchased material in conformance with all local, regional, providential, state, and/or federal regulations, ordinances, or accreditation requirements and your institution’s standard procedures. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Customer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Customer. Customer assumes all responsibility for shipments of Products requiring any government import clearance. Microbiologics may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.

8. Authorized Uses

a. Unless otherwise expressly indicated in a Certificate of Analysis, label or other documentation accompanying the Products, the Products are intended for research use only and subject in each and every case to the condition that such sale does not convey any license, expressly or by implication, to manufacture, duplicate or otherwise copy or reproduce any of the Products. It is solely the Customer’s responsibility to determine whether any additional or third-party intellectual property or any other permissions rights for use or resale of the Products in any particular application or field of use. Customer acknowledges that the Products have not been tested by Microbiologics for safety or efficacy and are not intended for human or animal testing, unless expressly stated in the label or other documentation accompanying the Products. Without limiting the foregoing restrictions, Customer warrants to Microbiologics that should Customer use Products for any use other than research, Customer shall conduct all necessary tests, comply with all applicable regulatory requirements, issue all appropriate warnings and information to subsequent purchasers and/or users and be responsible for obtaining any required Intellectual Property rights. Customer represents and warrants to Microbiologics that any Products purchased from Microbiologics and any final articles made from them are managed in accordance with and in compliance with all applicable federal, state, and local statutes, rules, regulations, ordinances, and orders.

9. Biosafety

a. Customer on behalf of itself and its officers, directors, shareholders and employees, recognizes and acknowledges that this product requested from Microbiologics represents a potential infectious hazard to persons handling or in the vicinity of the material and to public health. Customer assumes all risk and responsibility in connection with receipt, handling, storage, use and disposal of this product as well as other products obtained from Microbiologics. Customer certifies that it will employ the appropriate biosafety standards, as indicated in the “Biosafety in Microbiological and Biomedical Laboratories,” CDC, HHS Publication no. (CDC) 21-21112. Only personnel trained in the use and handling of viruses will use viruses, and Customer assumes responsibility for providing work areas appropriate for handling, storage and disposal of this highly infectious agent which may require personnel immunization. Customer assures that all its users are cognizant of and comply with safety standards and good laboratory practices.

10. Termination; Effect of Termination

a. In addition to any remedies that may be provided under these Terms, Microbiologics may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Storage services provided by Microbiologics under this agreement may also be terminated with the understanding that Customer product will be destroyed.

b. Neither the expiration nor the termination of this Agreement shall affect any rights of Microbiologics which shall have accrued prior to the date of such expiration or termination, and in the event of the termination hereof by Microbiologics because of a breach by Customer, including pursuant to Section 4(a) above, Microbiologic shall retain its remedy for the breach of the entire Agreement or any unperformed portion. In particular, it is expressly agreed that the obligations regarding warranty, indemnity, and confidentiality shall survive termination. If this Agreement is terminated after Microbiologics has commenced performance on the development or manufacture of Product(s), Microbiologics shall complete the work in process and Customer is obligated to accept delivery and payment for the Product(s) and any manufactured, but unshipped Products(s).

11. Confidential Information

a. All non-public, confidential or proprietary information of Microbiologics, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Microbiologics to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Microbiologics in writing. Customer shall ensure all reasonable measures are taken to secure such confidential information so as to prevent any unauthorized disclosure, access, loss, alteration or destruction. Upon Microbiologics request, Customer shall promptly return all documents and other materials received from Microbiologics. Microbiologics shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non- confidential basis from a third party.

12. Intellectual Property

a. For purposes of this Agreement,

• i. “Intellectual Property” means all intellectual property and proprietary rights including, without limitation, all rights of inventorship and authorship, inventions, patents, patent applications, and know-how for any product, process, method, machine, manufacture, design, composition of matter, or any new or useful improvement thereof, as well as copyright, trademark, trade dress and service mark rights and all rights in trade secrets, computer software, data and databases, and mask works.
• ii. “Microbiologics Property” means: (1) Intellectual Property incorporated into the Products or any deliverables under this Agreement other than the Customer Property; (2) Intellectual Property conceived, produced or developed by Microbiologics, whether directly or indirectly or alone or jointly with others, in connection with or pursuant to Microbiologics’ performance under this Agreement; and (3) creations, derivatives and inventions that are otherwise made by Microbiologics through the use of Customer Property.
• iii. “Customer Property” means the biological materials supplied by Customer.

b. The Customer Property shall remain the sole property of Customer. The Customer hereby grants Microbiologics a royalty free, worldwide, nonexclusive, perpetual license to use the Customer Property unless the Customer expressly opts out of the license on the Quotation.

c. Microbiologics Property shall be the sole property of Microbiologics. Microbiologics reserves all rights not expressly granted under this agreement. Nothing in this agreement shall prevent Microbiologics from enforcing its intellectual property rights against Customer.

13. Force Majeure

a. Microbiologics shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Microbiologics including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

14. Assignment

a. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Microbiologics. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.

15. Governing Law

a. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Minnesota.

16. Submission to Jurisdiction

a. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Minnesota in each case located in the City of Minneapolis and County of Hennepin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

17. Notices

a. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

18. Severability

a. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

19. Survival

a. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order.

20. Prohibition on Resale

a. Customer acknowledges and agrees that the Product(s) are being developed and manufactured by Microbiologics for internal consumption by the Customer and are not being manufactured for resale to the general public. In the event the Customer resells the Products (other than for sale to a subsidiary or affiliate of the Customer), Microbiologics shall have the right, at its option and sole discretion, to (a) terminate this Agreement, or (b) elect to continue this Agreement and impose a royalty equal to 15% of the sale price of the Product(s) at the Customer’s sale price to the general public. Customer hereby agrees to remit such royalty to Microbiologics no later 30 days following each calendar quarter in which such Product(s) were sold. The royalty payment will be accompanied by a statement setting forth the number of Products sold, type of Products, the sales price to third parties, and the calculation of the royalty payment. Customer hereby grants Microbiologics the right each calendar quarter to inspect the books and records of the Customer during regular business hours to confirm the calculation of the royalty payment.