NANOPORE PRODUCT SUPPLEMENTAL TERMS

NANOPORE PRODUCT SUPPLEMENTAL TERMS

1. Defined Terms . Capitalized terms used herein shall have the meaning set forth in Exhibit A.

2. Goods

2.1. Devices in a Starter Pack .  Except as provided in Section 2.1 (“Devices Purchased as CapEx Devices”) below, Devices are leased, and made available hereunder for use by Customer for so long as Customer has an active L&W as further described in Section 4.4 below. Devices are made available with an initial one-year L&W term, unless otherwise expressly specified in the Order. Additional one-year L&W terms may be purchased as provided on the Oxford Website. Customer shall keep the Device in Customer’s possession at the Delivery Location until Customer returns the Device to Oxford or destroys the Device in accordance with Oxford’s instructions. Customer shall not sell, distribute, or transfer the Device to any third party. Customer shall, as soon as reasonably possible (and not longer than sixty (60) days) after the expiration of the applicable L&W or termination of this Agreement, return to Oxford at Oxford’s expense all leased Devices it had received in good condition (ordinary wear and tear excepted). Oxford reserves the right to recover from Customer the then current purchase price for any Device not returned inclusive of one-year of L&W for such Device, or the value of the Starter Pack associated with that Device in the event the Device is not then currently offered for sale.

2.2. Devices Purchased as CapEx Devices . Devices (but not the embedded software) made available under an order for a CapEx sale are sold. The embedded software is licensed under and for the term of the L&W. Devices are made available with an initial one-year L&W, unless otherwise expressly specified in the Order. Additional one-year L&Ws may be purchased. Continuation of L&W is necessary for continued use of all Devices.

2.3. Flow Cells. Flow Cells are leased, not sold, and made available hereunder for use by Customer in conjunction with the Devices. Customer shall return to Oxford, using the prepaid packaging provided by Oxford, the Flow Cells as soon as reasonably possible and not longer than sixty (60) days) after use, expiration of the Useful Life of the Flow Cells, or termination of this Agreement (whichever is sooner) in good condition (ordinary wear and tear excepted), except that Customer shall not r2eturn Contaminated Flow Cells to Oxford, and instead shall provide Oxford proof of legal and appropriate destruction of Contaminated Flow Cells. Oxford reserves the right to recover from Customer the then current price of an individual Flow Cell, or individual pack of Flow Cells if a single Flow Cell is not offered by Oxford, for any Flow Cell not returned (excepting any Contaminated Flow Cells for which proof of legal and appropriate destruction has been provided to Oxford). Customer shall keep the Flow Cell in Customer’s possession at the Delivery Location until Customer returns the Flow Cell to Oxford or destroys the Flow Cell in accordance with Oxford’s instructions. Customer shall not sell, distribute, or transfer the Flow Cell to any third party.

2.4. Useful Life . Flow Cells are Approved for multiple experiments (following directions provided in the Documentation) during their respective useful life as stated on the Oxford Website or as otherwise stated on the Order (“Useful Life”). Consumables are Approved for the number of experiments provided in the Documentation during their respective Useful Life. Customer agrees that the Goods will not be handled other than by qualified and trained Persons.

2.5. Development of Components and Applications by Customer . The Flow Cells will be delivered with pre-loaded nanopores, membranes (that hold the nanopores) and electrochemistry on top of a modified chip surface. None of these components either individually or collectively are allowed to be modified, derivatised, replaced or removed. The Sequencing Kits will include other components: enzymes and adaptors that enable sample preparation methods, molecular ‘tethers’ that enable improved analyte to nanopore binding through interactions with the membranes, enzymes that allow for controlled transport of analytes through nanopores, buffered solutions for improved ionic conductance, solutions for washing the Flow Cells between samples and other components as provided by Oxford from time to time. Devices require use of Software that enables control of the Device and/or data. Customer may not analyse, modify, or reverse engineer these components, but may develop and use alternative versions (“Nanopore Chemistries”). In addition, Customer is encouraged to develop and use: (a) new application protocols, (b) sample preparation methods, (c) data analysis tools, such as, software written to APIs (application programming interfaces) published by Oxford (but not the Software itself) and/or (d) new uses of the Goods or Software (“Nanopore CONFIDENTIAL Extensions”). Customer’s right to create, distribute and use Nanopore Extensions and Nanopore Chemistries is conditioned on Customer’s compliance with the Nanopore Extension Requirements.

3. Quality Control. Customer shall, immediately prior to using any Flow Cell and in any event within the Warranty Period for the Flow Cell, run a quality control check on the Flow Cell in accordance with the Specifications. Customer may make a claim under the Warranty provided in Sections 6.1 and 6.2 for any Flow Cell that does not pass such quality control check provided that (i) the applicable Device is connected to the internet at the time the quality control is performed such that instrument and run report data is available to Oxford; and (ii) Customer informs Oxford’s Customer Solutions group of such failure within two (2) business days of the date of completion of such quality control check. If Customer does not contact Oxford within two (2) business day period, Oxford will deem the Goods accepted by Customer.

4. License Grant and Obligations

4.1. Grant of License to Data . Oxford hereby grants, under Oxford Group’s Intellectual Property Rights, to Customer, a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable license to access, use, process Instrument Data to analyse biological samples to generate Biological Data using the Software and any services provided via the Metrichor Cloud-based Environment in connection with the use of Goods and Software solely for the Specific Use (the “Data Licence”). Customer shall not and shall not permit any third-party commercial entity or any third party commercial software to, disclose, transmit, use or process Instrument Data, or attempt to do any of the foregoing. Customer shall grant and hereby grants, the Oxford Group a worldwide, irrevocable, non-exclusive and fully paid-up license to all Rights to any Feedback. Customer agrees not to make available to any third-party Biological Data or Instrument Data or use any third-party commercial software (unless Approved) to process Biological Data generated through use of a Device or Software, whether or not for processing on Customer’s behalf, within the first forty-eight (48) hours after such Biological or Instrument Data is first written to a disk at Customer’s direction other than in connection with the use of Metrichor services, Cloud-based Environment or Interface. Customer’s access to, download of, and/or use of the Goods, Software, Metrichor Cloud-based Environment or Metrichor Interface may require that Instrument Data and Biological Data be transmitted, processed, or stored offline, outside of the Software, Metrichor Cloud-based Environment or Metrichor Interface or outside of Customer’s state or country solely as required to provide to Customer or improve the Goods, the Software or services or manage Oxford’s business.

4.2. Pseudonymized Health Data . Customer shall not upload, transmit, store or modify data that contains the information of any Person, including without limitation, data consisting of human genomic information, whether or not Instrument Data, unless Customer has pseudonymized such data and obtained informed prior written consent of the subject and does not make available to Oxford information that permits such Pseudonymized Data to be re-identified. Except with respect to contact information of Customer and its relevant personnel, Customer shall not make available to Oxford personal data, protected health information or personal information as defined by applicable law.

4.3. Acknowledgement . The Goods and Software are intended for the Specific Use only. Customer acknowledges and agrees that (a) the Goods and Software have not been approved, cleared or licensed by the United States Food and Drug Administration or other regulatory entity, whether foreign or domestic, for any specific intended use; (b) the Goods and Software are not for use in diagnostic, therapeutic or clinical procedures where validation or registration of the Goods and Software with regulatory authorities is required; (c) the Goods and Software should be used in strict accordance with applicable instructions and Documentation and (d) Customer must ensure it has any regulatory approvals necessary for Customer’s intended use of the Goods and Software. Customer further agrees to comply with all applicable Laws when using, maintaining, and disposing of the Goods and Software.

4.4. Grant of Rights to Hardware and Software . Oxford hereby grants, under the Oxford Group’s patents and copyrights, other than Application Specific IP, to Customer a non-exclusive, non-transferable, limited, personal, revocable license to use Hardware and Software, without the right to sublicense, solely for the Specific Use for so long as Customer has purchased and remains covered by a license and warranty (“L&W”), as further described in the L&W Contract Addendum set forth in Exhibit B, including the right to use in object code form (a) the Software configured to operate with the Customer’s Flow Cells and/or Customer’s Devices, and (b) the Oxford Group’s Epi2me Labs Software, which when initially registered shall be linked to one validated Customer email address (from which multiple agents and/or laptops may access the Metrichor Interface and Metrichor Cloud-based Environment) (the “License”). The Software shall be used only in conjunction with Devices covered by an active L&W. Except as CONFIDENTIAL otherwise specified in an Order, Customer may not install more than one instance of the Software per laptop, personal computer, workstation, or other suitable computing system owned by Customer. The Software and the Devices may only be used in accordance with the Oxford Group’s usage instructions as stated in the Documentation or in the Order. Use of the Devices may involve use of certain third-party software which is subject to the terms of the applicable license(s). Information and third-party license terms with respect to specific Devices and Software are available on the Oxford Website or available in the software splash page.

5. Ownership; Confidential Information

5.1. Ownership of Intellectual Property . The Oxford Group or its licensors, as applicable, are the sole and exclusive owners of (or have licenses to) the Intellectual Property Rights in the Oxford Proprietary Information and in all media, printouts, papers, support materials, or hard copies containing or bearing such Intellectual Property Rights and reserves all rights not expressly granted herein. Except where prohibited under applicable law, Customer agrees not to contest the Oxford Group’s ownership or rights in any copyright or other applicable Intellectual Property Right in the Goods or Software. Customer will retain and acquire rights in (without any assignment from Oxford) the Biological Data resulting from Customer’s use of the Goods and Software. The Goods and Software made available under this Agreement incorporate commercial computer software programs developed exclusively at private expense. Use, duplication, and disclosure by any government shall be in accordance with, and subject to these terms and conditions that are customarily provided to the public. If Customer is a government entity and/or Customer’s use is funded by the government, Customer is hereby on notice that any data provided by Oxford pursuant to this Agreement is developed exclusively at private expense and are trade secrets, confidential and privileged, or are commercial or financial data and are confidential or privileged. To the extent required under applicable law, this data may be reproduced and used by the government with the express limitation that it will not, without written permission of Oxford, be used for purposes of manufacture nor disclosed outside the government and that the applicable rights legends shall be marked on any reproduction of any technical data, whether reproduction is in whole or in part. Oxford reserves all rights and licenses not expressly granted under this Agreement, including, without limitation, all rights in trademarks and associated goodwill.

5.2. Confidential and Proprietary Information . Customer agrees not to disclose to third parties and to use Customer’s best efforts to keep confidential Oxford Confidential Information Customer receives from any member of the Oxford Group. Customer agrees not to use Oxford Confidential Information other than for the purposes contemplated by this Agreement. Customer shall permit only authorized users who possess rightfully obtained License(s) and/or access keys to use the Software.

6. Limited Warranties . All warranties are personal to Customer and may not be transferred or assigned to a third party, including an Affiliate of Customer, and do not cover any third party to which Customer provides services using the Goods and Software in accordance with this Agreement. All warranties are specific to the Delivery Location and do not transfer if the Goods are moved from the Delivery Location.

6.1 Warranty . Oxford warrants to Customer, during the applicable Warranty Period: (a) Devices and Flow Cells will perform according to Specifications in all material respects and (b) the number of Single Pores per Flow Cell shall be greater than or equal to the number of active pores for each type of Flow Cell at the time of purchase as provided on https://store.nanoporetech.com (Safety and Legal Headers) or as otherwise described in the Order, solely as determined by reference to Instrument Data collected by Oxford’s Software from completion of the quality control testing required under Section 3. The foregoing warranty does not apply to the extent non-conformance is due to (a) abuse, misuse, neglect, negligence, accident, improper storage or use contrary to the Documentation, Specifications or this Agreement, including, without limitation, provisions regarding Useful Life; (b) improper handling, installation, maintenance or repair (unless performed by Oxford’s personnel); (c) unauthorized alterations; (d) Force Majeure events or (e) use with a third party’s good not provided by Oxford. Device and Flow Cell warranties are conditioned on Oxford’s access to real-time telemetry data or in the case of Devices, provision of telemetry data to Oxford per Oxford instructions in the event real-time telemetry is not provided by Customer.

6.2 Remedy and Procedure for Warranty Coverage . Oxford will, at its sole option, repair a non-conforming Device covered by the warranty in Section 6.1 or replace it with functionally equivalent, reconditioned, or new Device. Oxford will, subject to Customer’s compliance with Section 3, replace a non-conforming Flow Cell covered by the warranty in Section 6.1. To be eligible for repair or replacement under the warranty, in addition to compliance with CONFIDENTIAL Section 3, Customer must (a) promptly contact Oxford’s Customer Solutions group to report the non-conformance, (b) cooperate with Oxford in confirming or diagnosing the non-conformance, (c) return the non-conforming piece of Hardware to Oxford following Oxford’s instructions and at Oxford’s expense or, if agreed by Oxford and Customer, grant Oxford’s authorized Customer Solution personnel access to the non-conforming Hardware in order to confirm the non-conformance and make repairs and/or arrange replacements. To the maximum extent permitted by applicable law, these are Customer’s sole remedies and Oxford’s sole warranty obligations.

6.3 Consumables . During the term of this Agreement, Oxford will replace any Consumables that do not perform in accordance with Oxford’s then-current Specifications for the same; provided that, any nonconformance is not attributable to (a) abuse, misuse, neglect, negligence, accident, improper storage or use contrary to the Documentation, Specifications or this Agreement, including, without limitation, provisions regarding Useful Life; (b) improper handling including use beyond the Useful Life; (c) Force Majeure events or (d) use with a third party’s good not provided by Oxford.

6.4 Third Party Goods/Software and Warranty . Oxford makes no warranty or representation and gives no indemnity in respect of any third party's products or software, whether or not obtained from the Oxford group. Oxford’s supply of any such third party-produced products may be subject to separate terms and conditions of the manufacturer or licensor, which will be specified at the time such product is provided to the Customer pursuant to the applicable Order.

6.5 Limitations . Except for any warranty, condition or guarantee that cannot be excluded by law, all warranties implied or otherwise not stated in this Section 6 are excluded. To the maximum extent permitted by applicable law, the Oxford Group does not make, and hereby disclaims, any representation or warranty, express or implied, regarding the accuracy, adequacy, timeliness, completeness, merchantability, fitness for a particular purpose or non-infringement of any kind with respect to the goods or the software (except with respect to the software’s compliance with the respective documentation), including but not limited to, warranties of fitness for any particular purpose (except with respect to the software’s compliance with the respective documentation) (including any purpose relating to a customer’s legal or regulatory compliance obligations). Customer assumes responsibility for the results obtained from Customer’s use of the Goods and the Software. Customer acknowledges that Customer has not relied on any statement, promise, representation, assurance, or warranty made or given by any member of the Oxford Group or its agents which is not set out in this Agreement.

6.6 Export Controls and Sanctions . Customer represents and warrants that it will not use the Goods or Software for, and will not allow the Goods or Software to be used for, WMD End-Use or Military End-Use. The Goods or Software may only be used in the jurisdiction to which they are delivered and may not be redistributed.

L&W Contract Addendum

“Capitalized terms used but not defined in this Addendum (this “L&W Contract Addendum”) shall have the meanings set forth in the Nanopore Product Supplemental Terms.

Terms and Provisions

Requirement to have L&W

Devices may be procured on either a licence/lease (Starter Pack) or purchase (CapEx) basis.

• The software in the Device is licensed to the Customer under the L&W, regardless of whether the Customer procured it through a Starter Pack or a CapEx transaction.
• The Customer may use the Device only for so long as it has an active L&W, regardless of whether the Customer procured it through a Starter Pack or a CapEx transaction.
• The Customer must also maintain a L&W to purchase additional Devices, Flow Cells or Consumables.

Commencement of L&W

• All Devices come with an initial one-year L&W, unless otherwise expressly specified on the Order.
• The L&W commences one month after the Device is shipped.
• The Customer may purchase additional one-year L&Ws for any Device.
• Once a L&W expires, an additional one-year L&W will be automatically added to new Orders for additional Flow Cells or Consumables.

Software License

• Oxford grants to the Customer a license to use (a) the Software and (b) the Oxford Group’s Epi2me Labs Software, in object code form.
• The Software License is non-exclusive, non-transferable, limited, personal and revocable. It is granted without any right to sublicense.
• Oxford only licenses the Software to the Customer and does not sell it to the Customer.
• The Customer may not install more than one instance of the Software per computer or workstation, except if otherwise specified in an Order.

Support provided with License

Terms and Provisions
Together with the grant of the License, Oxford undertakes an obligation to provide the following support for Software:

• The Customer is given access to support information and reference materials in a password-protected section of Oxford’s website.
• If errors arise which cause Software to malfunction, Oxford will undertake commercially reasonable efforts to fix the errors. Oxford may, at its discretion, also provide additional support at no additional cost or for a mutually agreed fee.
• Oxford will release patches or new releases of the Software to the Customer. The Customer will be required to install them as soon reasonably possible and otherwise within ninety (90) days after release.

Hardware Support provided with License
Together with the grant of the License, Oxford undertakes an obligation to provide the following support for Goods:

• The Customer is given access to frequently asked questions, support forums and Documentation in a password-protected section of Oxford’s website.
• Oxford will make available technical support services, including reasonable remote assistance with installation and configuration (but not including assistance with sample preparation or data analysis), to the extent applicable in the region in which the Goods are delivered.

ONT Commitment
      (a) Consumables, Devices and Flow Cells will perform according to Specifications in all material respects; and
      (b) Flow Cells will at the time of purchase have at least the number of Single Pores as provided on Oxford’s website or as otherwise             described in the Order.

• ONT’s commitment does not apply in the following particular circumstances:

      (a) abuse, misuse, neglect, negligence, accident, improper storage or use contrary to the Documentation, Specifications or the Nanopore Product Supplemental Terms; improper handling, installation, maintenance or repair; (b) unauthorized alterations; (c) Force Majeure events; (c) use with third party goods not provided by Oxford; or (d) when devices are run offline or when Oxford does not have access to telemetry data at the time the quality control check is performed under Section 3 of the Nanopore Product Supplemental Terms.

• The commitment is personal to the Customer. It may not be transferred or assigned to a third party, including Affiliates of the Customer. The commitment does not cover any third party to which Customer provides services using the Goods and Software. The commitment is specific to the Delivery Location. It does not transfer with the Goods if they are moved to another location.
• At its sole option, Oxford will repair or replace non-conforming Devices.
• Oxford commits to replacing non-conforming Flow Cells subject to the circumstances listed above.
• Oxford will replace Consumables that do not perform in accordance with then-current Specifications subject to the circumstances listed above.
• To the maximum extent permitted by law, these are the Customer’s sole remedies and Oxford’s sole warranty obligations.
• Oxford makes no warranty or representation and gives no indemnity in respect of products or software of any third party.
• Oxford makes no warranty or representation regarding accuracy, adequacy, timeliness, completeness, merchantability, fitness for a particular purpose or non-infringement (except with respect to the Software’s compliance with the respective Documentation).
• Oxford makes no warranty regarding security of data or of the Customer’s communications, and assumes no liability for delay, failure, interruption or corruption of data or information.

Limitation on Liability

• Oxford’s liability under this Addendum is limited to the fees paid for L&W.
• The fee for the initial one-year term of the L&W is included in the price of the Goods and/or Software and/or services shown in the Order or may be itemised separately.
• Subsequent one-year terms of the L&W shall be subject to separate invoicing and settlement unless otherwise expressly specified on the Order.

Early Termination of L&W

• Either Party may terminate the initial one-year term of the L&W for the other party’s uncured material breach, or any subsequent one-year term, prior to its expiration for the other party’s uncured material breach, but all fees are prepaid and non-refundable.