Last Updated on March 13, 2025
1. Applicability.
1.1 As used herein, “Syncell” shall mean the entity listed on the document to which these Terms are attached and/or referenced. These terms and conditions of sale (the “Terms”) are the only terms which govern the sale of Products (as defined below) by Syncell to the customer purchasing the Products (“Customer”).
1.2 Syncell’s offer to sell products and provide any related services is expressly limited to these Terms, which supersede all other understandings or agreements, whether written or oral. Any additional or different terms and conditions proposed by Customer are hereby rejected. Customer’s submission of a purchase order for the purchase of Product(s) or related services from Syncell shall be deemed acceptance of and agreement to these Terms.
1.3 Except as otherwise provided in these Terms, in the event of an inconsistency between these Terms and the terms appearing on Syncell’s Quotation, the terms appearing on the Quotation shall supersede and take precedence over the inconsistent provision(s) of these Terms, and all other provisions of these Terms shall remain in full force and effect.
1.4 Acceptance of Orders. No purchase order shall be binding upon Syncell unless and until accepted by Syncell in writing, and Syncell shall have no liability or obligation to Customer for orders not accepted. No partial shipment of an order shall constitute acceptance of the entire order absent written acceptance of the entire order. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions, whether or not contained in any of Customer’s business forms or Customer’s website, and does not serve to modify or amend these Terms, and Customer’s terms and conditions are expressly rejected.
2. Definitions
2.1 “Documentation” means Syncell’s user manual, package insert, and similar technical documentation for the Products in effect on the date that the Product ships from Syncell. Documentation may be provided with the Product at the time of shipment or electronically from Syncell.
2.2 “Product” means each item, including any Syncell Instrument, Syncell Software, and/or Syncell Consumable, as listed in the applicable written sales quotation issued by Syncell (“Quotation”) or, in the event a Quotation is not issued, listed in Syncell’s then-current price list applicable to Customer’s jurisdiction, and identified in Customer’s purchase order.
2.3 “Syncell Consumables” means Syncell reagents, consumables, kits, and labware, or any individual components of the foregoing, intended by Syncell for use with Syncell Instruments.
2.4 “Syncell Instrument” means a Syncell-branded piece of equipment used for scientific testing and/or experimentation and associated accessories.
2.5 “Syncell Software” means (i) the Syncell Instrument operating system software and/or firmware, including Syncell Instrument control software and/or firmware, and (ii) the Syncell data analysis software, including without limitation any specific functions related to proteomics analysis, imaging, or other data processing, provided by Syncell to Customer or made available for download in conjunction with Customer’s purchase of a Syncell Instrument, in object code or executable form only.
3. Limited License and Regulatory Compliance
3.1 Limited License. Subject to these Terms, Syncell grants Customer a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable license to use the Syncell Software provided to Customer in connection with the Syncell Instrument solely in accordance with the applicable, then-current Documentation. Syncell reserves the right to alter features, functions, capabilities, specifications, general availability and release dates, licensing terms, Documentation and any other characteristics of the Syncell Software, provided that such alterations will not materially decrease the overall functionality of the Syncell Software licensed under these Terms.
3.2 Use Restrictions. Each Product may only be used in accordance with its Documentation. Syncell Consumables are for single use only and may not be reused. Customer shall not: (i) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Syncell Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (ii) allow any person or entity other than Customer and its affiliates to access or use the Syncell Software; (iii) sublicense, distribute, sell, or as software as a service, lease, rent, loan, or otherwise transfer the Syncell Software to any third party; (iv) remove, alter, or obfuscate any copyright notices or other proprietary rights notices included in the Syncell Software or Documentation; (v) make use of the Syncell Software that violates any applicable local, state, national, international or foreign law; or (vi) otherwise use or copy the Syncell Software except as expressly permitted hereunder. No license is granted for repackaging, rebranding, or refurbishing any Product. Documentation is proprietary to Syncell and may only be used in connection with the associated Product(s).
3.3 Intellectual Property Ownership.
i. “Intellectual Property Rights” means all proprietary and other intellectual property rights comprising or relating to: (a) patents, patent applications, inventions, and trade secrets; (b) trademarks, service marks, trade dress, logos, trade or brand names, domain names, together with the goodwill symbolized by any of the foregoing; (c) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, data, data files, and databases and other specifications and documentation; and (d) all other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction in any part of the world.
ii. Ownership. Customer acknowledges and agrees that: (a) any and all Intellectual Property Rights owned by or licensed to Syncell are the sole and exclusive property of Syncell or its licensors, and Customer shall not acquire any ownership interest in any of Syncell’s or its licensors’ Intellectual Property Rights under these Terms; (b) any goodwill derived from the use by Customer of Syncell’s Intellectual Property Rights inures to the benefit of Syncell or its licensors, as the case may be; and (c) if Customer acquires any Intellectual Property Rights in or relating to any Product by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Syncell or its licensors, as the case may be, without further action by either of the parties.
iii. Prohibited Acts. Customer shall not: (a) take any action that might interfere with any of Syncell’s rights in or to Syncell’s Intellectual Property Rights, including Syncell’s ownership or exercise thereof; (b) challenge any right, title, or interest of Syncell in or to Syncell’s Intellectual Property Rights; or (c) make any claim or take any action adverse to Syncell’s ownership of Syncell’s Intellectual Property Rights.
iv. Notwithstanding any other provision of these Terms to the contrary, for any Dispute related to Syncell’s Intellectual Property Rights, Customer hereby acknowledges and agrees that Syncell is likely to suffer irreparable injuries for which monetary damages are insufficient. In addition to any other remedies provided at law, equity, statute or these Terms, Syncell shall be entitled to seek injunctive relief, including without limitation specific performance of Customer obligations under this Section.
3.4 Modifications: use of other hardware.
i. Customer must receive written consent from Syncell before attaching or using any non-Syncell instrument, accessory, component, or feature with the Products. Syncell reserves the right to withdraw consent if such use adversely affects the functionality of the Products or Syncell’s ability to perform maintenance services.
ii. Customer shall not modify, adjust, move, or repair any Product without Syncell’s prior consent. Syncell may revoke consent if such actions affect the functionality of the Product or Syncell’s ability to provide maintenance services.
3.5 Regulatory Compliance. Customer acknowledges that Products are labeled and intended for research use only and not for use in diagnostic procedures. Customer assumes all regulatory responsibilities for any use of the Products outside the intended use as defined by Syncell.
4. Prices, Taxes, and Payment
4.1 Prices. The price for any Product or service shall be as stated in Syncell’s Quotation to Customer or, if no Quotation is issued, as listed in Syncell’s current price list applicable to Customer’s jurisdiction. Prices do not include taxes or shipping charges unless otherwise indicated in the Quotation.
4.2 Taxes, Shipping Charges, Insurance, Import Duties. Customer is responsible for all applicable taxes (unless tax-exempt status is provided), shipping charges, insurance, and import duties.
4.3 Payment. Payment terms are thirty (30) days from the date of invoice. Amounts unpaid after thirty (30) days may be subject to a late fee of the lesser of: a) 1% per month, or b) the highest legally permissible late fee under the applicable jurisdiction’s laws. Syncell reserves the right to require prepayment or modify credit terms at its discretion. Customer shall pay such costs, collection agency commissions, expenses and reasonable attorney fees (including at trial, on appeal, and in any bankruptcy proceeding) as Syncell may incur in any manner of collection of any sums past due.
4.4 Security Interest. AS COLLATERAL SECURITY FOR THE PAYMENT OF THE PURCHASE PRICE OF PRODUCTS, CUSTOMER HEREBY GRANTS TO SYNCELL A LIEN ON AND SECURITY INTEREST IN ALL OF THE RIGHT, TITLE AND INTEREST OF CUSTOMER IN, TO AND UNDER THE PRODUCTS, WHEREVER LOCATED, AND WHETHER NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED FROM TIME TO TIME, AND IN ALL ACCESSIONS THERETO AND REPLACEMENTS OR MODIFICATIONS THEREOF, AS WELL AS ALL PROCEEDS (INCLUDING INSURANCE PROCEEDS) OF THE FOREGOING. THE SECURITY INTEREST GRANTED UNDER THIS PROVISION CONSTITUTES A PURCHASE MONEY SECURITY INTEREST UNDER THE UNIFORM COMMERCIAL CODE.
5. Delivery and Acceptance
5.1 Delivery. Syncell shall make reasonable efforts to meet delivery dates but does not guarantee them. Delivery shall be DAP (Delivered at Place) (Incoterms 2020) to a location agreed by the parties in writing prior to shipment, provided that Syncell’s standard delivery charges shall be included in the Quotation and payable by Customer. Syncell retains title (except for Syncell Software, which is only licensed) until delivery is completed at the agreed location. Syncell shall use its standard methods for packaging of the Products. Title and risk of loss passes to the Customer upon delivery of the Products at the specified destination.
5.2 Inspection and Claims. Customer must inspect Products upon receipt and notify Syncell in writing of any damage or missing Products within five (5) days of receipt. Any Products not rejected by Customer within five (5) days of receipt will be deemed accepted.
6. Limited Warranty
6.1. Syncell warrants to the Customer that new Syncell Instruments will be free from defects in material and workmanship for a period of one year, commencing on final acceptance at completion of install or thirty (30) days from shipping, whichever occurs first. This warranty covers the cost of parts and labor, including, where applicable, field service labor and travel required to restore the Syncell Instrument to normal operation. For Syncell Consumables, and other materials, Syncell warrants that these products will conform in all material respects to Syncell’s published specifications in the product data sheets supplied to the Customer until the later of: (i) ninety (90) days from the date of shipment from Syncell, or (ii) the end of the shelf life pre-printed on such products by Syncell.
Customer may purchase an extension of the above warranty period (the “Extended Warranty”) at any time. Customer’s purchase of an Extended Warranty does not alter the limited warranty or limitation of liability provided in these Terms, including without limitation, this Section 6, in any way other than with regard to the time in which the written notice specifying the nonconformity or defect must be submitted to Syncell by Customer. If Customer purchases an Extended Warranty, and if any Products covered by the Extended Warranty fail to conform to the limited warranty described in this Section 6, Customer must promptly give Syncell written notice specifying in detail the nonconformity or defect prior to the expiration of the Extended Warranty.
6.2. Syncell warrants to the Customer that any replacement parts provided will be new or of equal functional quality and warranted for the remaining portion of the original warranty or ninety (90) days, whichever is longer.
6.3. Syncell warrants to the Customer that Syncell Software will perform in substantial compliance with the accompanying Documentation. Syncell does not warrant that the Syncell Software will operate uninterrupted or error-free.
6.4. Syncell’s obligations under these warranties are limited to repairing or replacing, at Syncell’s option, defective non-expendable parts or Syncell Software. These services will be performed, at Syncell’s discretion, either at Syncell’s facility or the Customer’s business location. For repairs performed at Syncell’s facility, the Customer must contact Syncell in advance for authorization to return the Syncell Instrument and follow Syncell’s shipping instructions. Freight charges for shipping to Syncell are the responsibility of the Customer, while Syncell will cover the cost of return shipment.
6.5. Syncell’s warranty obligations do not extend to defects that do not impair service, and warranty service is provided only during normal business hours, Monday through Friday, excluding Syncell holidays. No claim for a defect will be accepted unless Syncell receives notice of the defect within thirty (30) days of its discovery by the Customer. Claims for Products damaged during shipment must be made within five (5) days of receipt of the Products by the Customer.
6.6. Expendable items, including but not limited to filters, lamps, fuses, mechanical pump belts, O-rings, and seals, are specifically excluded from this warranty.
6.7. All used Syncell Instruments, including demonstration Syncell Instruments, are sold “AS IS” and WITH ALL FAULTS, whether inherent, latent or patent. without any WARRANTY, EXPRESS OR IMPLIED.
6.8. Standalone computer and data storage equipment not manufactured by Syncell (such as computers, monitors, and printers) are excluded from this warranty and will carry only the original manufacturer’s warranty.
6.9. Syncell assumes no liability under these warranties for equipment or system failures resulting from: (i) abuse, misuse, modification, or mishandling; (ii) damage due to flooding, power surges, defective electrical work, transportation, other Acts of God, or Customer-supplied parts or services; (iii) improper operation or unauthorized maintenance; (iv) failure to perform preventive maintenance according to Syncell’s recommendations; or (v) used contrary to the Documentation. Additionally, this warranty is void if any Product or part has been modified without Syncell’s written permission or if any Syncell serial number has been removed or defaced.
6.10. No individual is authorized to extend or alter these warranties on Syncell’s behalf without written authorization.
6.11. EXCEPT AS SET FORTH IN THIS SECTION ABOVE, SECTION 9 BELOW AND TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SYNCELL EXPRESSLY DISCLAIMS AND MAKES NO OTHER WARRANTIES WHATSOEVER, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY WARRANTY (I) OF MERCHANTABILITY; (II) OF FITNESS FOR A PARTICULAR PURPOSE; OR (III) AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. FURTHER, SYNCELL DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE, OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED. EXCEPT FOR THE LIMITED WARRANTY PROVIDED HEREIN, THE PRODUCTS, DOCUMENTATION AND ANY SERVICES ARE PROVIDED STRICTLY “AS IS” AND WITH ALL FAULTS. ALL USE OF THE PRODUCTS, AND THE DOCUMENTATION ARE ENTIRELY AT CUSTOMER’S OWN RISK. SYNCELL MAKES NO WARRANTY REGARDING RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS. TO THE EXTENT THAT, AS A MATTER OF APPLICABLE LAW, ANY IMPLIED OR STATUTORY WARRANTY MAY NOT BE DISCLAIMED, THE DURATION AND SCOPE OF SUCH WARRANTY SHALL BE THE MINIMUM PERMISSIBLE UNDER SUCH APPLICABLE LAW.
7. Support and Service
7.1. Syncell shall provide support and service during the applicable warranty period, and extended service plans may be available.
8 Limitation of Liability
EXCEPT FOR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS AS PROVIDED HEREIN, SYNCELL SHALL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SYNCELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SYNCELL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR THE USE OF THE PRODUCTS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SYNCELL FOR THE PRODUCTS IN THE APPLICABLE INVOICE GIVING RISE TO SUCH CLAIM UPON WHICH LIABILITY IS BASED.
9. Indemnification
9.1 Indemnification of Customer. Subject to Sections 9.2 and 9.3 below, Syncell agrees to defend Customer against any third party claim, proceeding or action against Customer (“Claim”) to the extent the Claim alleges that any Product sold to Customer hereunder, as delivered to Customer by Syncell, directly infringes any patent, copyright, or other Intellectual Property Right. Syncell’s obligations under this Section are conditioned on: (i) Customer providing Syncell with written notice of the Claim within thirty (30) days of receipt by Customer of the Claim, or such earlier time as required to avoid prejudice to Syncell or its ability to defend against the Claim, (ii) Customer allows Syncell to control the defense and settlement of the Claim, and (iii) Customer provides to Syncell reasonable assistance in connection therewith, at no charge to Syncell.
9.2 Exceptions. Syncell shall have no liability or obligation pursuant to this Section 9 with respect to Claims resulting from (i) modification of the Product other than by Syncell or its authorized service provider; (ii) combination of the Product with any item or method not supplied or specifically recommended in writing by Syncell, (iii) use of the Product other than in accordance with the Documentation and these Terms (including without limitation any non-research uses), (iv) Customer’s actions or inactions unrelated to the use of the Products, or (v) compliance with Customer’s instructions, specifications or design to the extent such instructions, specifications or design materially differ from comparable Products that Syncell makes generally available to its customers (collectively, (i)-(v), “Excluded Causes”).
9.3 Remedy. In the event there is a Claim, or Syncell believes a Claim is likely, alleging intellectual property infringement with respect to any Product sold to Customer hereunder, in addition to defending Customer against such Claim as set forth herein, Syncell shall be entitled, without obligation to do so, to (i) modify the Product so that it is no longer infringing, (ii) obtain a license with respect to the applicable Intellectual Property Rights, or (iii) require the return of each such Product purchased by Customer hereunder (except for contaminated Products that, in Syncell’s discretion, cannot be safely returned to Syncell) and in Customer’s possession and control, and provide to Customer a refund of the price paid by Customer to Syncell therefor, subject to reasonable deductions for damage, and depreciated on a straight line basis over three (3) years from the date of original delivery to Customer. Syncell will have no liability or obligation with respect to any alleged infringement occurring after the date Syncell makes any such remedy available to Customer.
9.4 Exclusive Obligation. Notwithstanding any other provision, the foregoing Sections 9.1-9.3 state Syncell’s sole liability and obligation, and Customer’s exclusive remedy, arising out of any actual or alleged intellectual property infringement of any kind, or any actual or alleged breach of any representation or warranty (statutory, express or implied) regarding non-infringement, anywhere in the world. To the extent Customer’s terms (if applicable) include any terms different from, or in addition to, those set forth above regarding indemnification by Syncell for intellectual property infringement claims, then such additional or different indemnity terms shall be void and of no effect.
9.5 Indemnification of Syncell. Customer agrees to defend Syncell against any Claim: (i) to the extent the Claim alleges infringement of any patent, copyright, or other Intellectual Property Right as a result of any Excluded Cause; (ii) that arises in connection with Customer’s use of Products (a) for any clinical purpose or application, (b) in violation of any applicable law or regulation, or (c) in the provision of services under any ‘fee for service’ agreement or other arrangement; or (iii) that arises in connection with Customer’s breach of these Terms. Customer shall pay all damages awarded, and settlements approved by Customer, in connection therewith, provided that (iv) Syncell provides to Customer written notice of the Claim within thirty (30) days of receipt by Syncell of such Claim, or such earlier time as required to avoid prejudice to Customer or its ability to defend such Claim, (v) Syncell allows Customer to control the defense and settlement of the Claim, and (vi) Syncell provides to Customer reasonable assistance in connection therewith, at no charge to Customer. Syncell may employ counsel at its own expense to assist it with respect to any such Claim, provided that this shall not obligate Customer or its counsel to consult with or advise such Syncell counsel, nor affect Customer’s control of the defense and settlement of the Claim. If Customer is a U.S. state, city, town or other municipality, or a public university, college or other not-for-profit institution chartered under the laws of a U.S. state, this Section shall apply to the maximum extent permitted by applicable law.
10. Customer Feedback & Improvements
10.1 Customer may from time to time provide Syncell with ideas, suggestions, comments, Product Improvements (as defined below), feedback or other input regarding Syncell’s Products or services (“Feedback”). Customer agrees that:
i. All Feedback is provided voluntarily and Syncell is free to use it without any obligation to Customer. Customer acknowledges it is under no obligation to provide Syncell with Feedback. Customer shall not include any Customer confidential information or intellectual property in the Feedback. Should Customer confidential information or intellectual property be disclosed in the Feedback, Syncell shall use such confidential information solely for the purpose of the Feedback.
ii. Syncell shall own all right, title and interest in and to any Feedback provided, including all Intellectual Property Rights therein. Feedback shall not be considered Customer’s confidential information and Syncell has no obligation to maintain the confidentiality of any Feedback provided.
iii. Customer hereby irrevocably assigns and transfers to Syncell all right, title, and interest in and to the Feedback, including all Intellectual Property Rights.
iv. At Syncell’s request and expense, Customer shall execute documents and take such further acts as Syncell may reasonably request to assist Syncell in acquiring, perfecting and maintaining its Intellectual Property Rights and other legal protections for the Feedback.
v. Customer waives any moral rights or other rights with respect to attribution of authorship or integrity of the Feedback.
vi. Syncell is free to use, modify, reproduce, license, distribute, and otherwise exploit the Feedback without any compensation or other obligation to Customer.
10.2 “Product Improvements” means all Intellectual Property Rights (including patent and similar rights like utility models) on inventions conceived or reduced to practice by or for Customer that arise out of the use of Products (or the adaptation, modification or reverse engineering of any Product(s), in violation of these Terms), and which relate to:
i. development, design, manufacturing, layout, packaging or protocols or methods for using any Products, alone or with other Products or other devices and/or reagents;
ii. interfaces between any Products and other devices, including but not limited to sequencing systems, thermal cycling systems, and robotics for use in connection with any Products.
Product Improvements shall not include data resulting from using Products (e.g., results of assays or sequencing of samples prepared using Products) or discoveries derived from such data (except to the extent covered by 10.2(i) or (ii) above).
For purposes of this Section, the term “Customer” shall include all persons that Customer permits to use the Products, irrespective of being legal employees of Customer, and Customer shall have the necessary agreements in effect with all such users and their employers to enable Customer to comply with this Section.
11. Confidentiality
11.1 “Confidential Information” means all technical and non-technical information provided by or on behalf of Syncell to Customer, or observed by Customer during visits to or in interactions with employees or agents of Syncell, regarding Syncell or any of its affiliates, including without limitation patents and patent applications; trade secrets; proprietary information; ideas; samples; media; techniques; sketches; drawings; works of authorship; models; inventions; know-how; processes; apparatuses; equipment; algorithms; software programs; software source documents; formulae related to current, future and proposed products and services; information concerning research, experimental work, development, design details, design specifications and engineering; financial information; procurement requirements; customer lists; information concerning purchasing, manufacturing, investors, employees, and business and contractual relationships; business forecasts, sales, merchandising and marketing plans; and information Syncell provides regarding third parties. The term “Confidential Information” does not include information that Customer conclusively documents: (i) was in the public domain at the time it was communicated to Customer by or on behalf of Syncell; (ii) entered the public domain through no fault of Customer after it was communicated to Customer by or on behalf of Syncell; (iii) was in Customer’s possession free of any obligation of confidence at the time it was communicated to Customer by or on behalf of Syncell; (iv) was rightfully communicated to Customer free of any obligation of confidence after it was communicated to Customer by or on behalf of Syncell; or (v) was developed by employees or agents of Customer independently of and without reference to any information communicated to Customer by or on behalf of Syncell.
11.2 Customer agrees that it (i) shall use the Confidential Information only to perform Customer’s obligations under these Terms; (ii) shall keep the Confidential Information in strict confidence and shall not disclose to any third party the existence, source, content or substance of the Confidential Information, except as required by court order or other applicable law; (iii) shall disclose Confidential Information only to its employees, independent contractors or agents with a need to know; and (iv) shall require each such employee, independent contractor or agent to comply with this Section 11. Customer acknowledges and agrees that any breach of this Section 11 of these Terms by any employee, independent contractor or agent of Customer shall constitute a breach of these Terms by Customer.
11.3 If Customer is required to disclose any Confidential Information under any subpoena, interrogatory, request for production or other compulsory judicial or administrative process that calls for or may result in the disclosure of any Confidential Information, Customer shall immediately notify Syncell so that Syncell may seek protection of that Confidential Information if it wishes to do so. Only after giving such notice may Customer disclose such Confidential Information and then only to the extent Customer is legally compelled to do so. Customer shall immediately notify Syncell upon discovering any loss or unauthorized disclosure of any Confidential Information.
11.4 When Customer has fully performed its obligations under these Terms, or at any other time upon Syncell’s request, Customer shall return to Syncell the originals and all copies of Confidential Information that Customer received from Syncell and shall destroy the originals and all copies of all Confidential Information prepared by or on behalf of Customer for its internal use.
11.5 Customer’s obligations under this Section 11 will continue until the information no longer qualifies as Confidential Information.
12. Other General Terms
12.1 Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by first class mail (registered or certified if available; air mail if overseas), postage prepaid, or otherwise delivered by hand, commercial courier service, messenger, electronically, or by telecopy, addressed to the addresses listed in the Quotation (or to Customer’s address listed in its purchase order) or at such other address furnished with a notice in the manner set forth herein. Such notices shall be deemed to have been effective when delivered or, if delivery is not accomplished by reason of some fault or refusal of the addressee, when tendered (which tender, in the case of mail, shall be deemed to have occurred upon posting; and in the case of electronic communications which can be confirmed to have been received, shall be deemed to have occurred upon transmission). All notices shall be in English.
12.2 Governing Law and Venue. These Terms and any disputes arising out of or relating do these Terms(including its formation or termination) or Syncell’s Products or related services (“Disputes”) shall be governed by and interpreted in accordance with the laws of the State of California, U.S.A., (provided, however, that if Customer is a U.S. state, city, town or other municipality, or a public university, college or other not-for-profit institution chartered under the laws of a U.S. state, the law of such state shall govern), excluding in all cases choice of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. If Customer is located within the U.S., any Disputes may be brought in the state courts located in Alameda County, California or the U.S. District Court for the Northern District California, and each party consents to the personal and non-exclusive jurisdiction and venue of these courts. If any suit, action, or other proceeding is instituted to interpret or enforce any of the terms of these Terms, the prevailing party shall be entitled to recover its attorneys’ fees, whether incurred prior to or at any trial or other proceeding and on appeal, or in any bankruptcy or insolvency proceeding, as determined by the court or arbitrator. Nothing in this Section shall prevent either party from seeking, either prior to and/or during the Dispute process, an injunction or other equitable relief from a court for the purpose of protecting the rights or property of that party.
If Customer is located outside the U.S., any Disputes shall be resolved by final and binding arbitration under the rules and auspices of the International Centre for Dispute Resolution in Santa Clara County, California, in English language proceedings whereby either party can request a written opinion from the arbitrator(s) appointed in accordance with the rules, which shall award legal fees (including reasonable attorneys’ fees) to the party winning the proceedings, provided however, that either party may seek injunctive relief (including preliminary and permanent injunctive relief) before any court of competent jurisdiction.
12.3 Compliance with Trade Controls. Customer understands that the Products are subject to U.S. and other applicable sanctions and export control laws and regulations (“Trade Controls”) and, that the sale or distribution of the Products may constitute a regulated export, re-export or transfer of the Products and as such, must be conducted in accordance with such laws and regulations. Customer agrees to comply with all Trade Controls and undertakes to refrain from any activity in connection with these Terms that would constitute a violation of the Trade Controls. Customer covenants that it shall not, directly or indirectly, sell, transfer, export or re-export, divert, or otherwise dispose of any Products or information received from Syncell under these Terms to any destination (“Embargoed Country”), entity, or person (“Prohibited Person”), or use or allow the use of such Products or information prohibited by any Trade Controls. Customer certifies that all Products, services and technology supplied by Syncell will not be sold, re-transferred, re-exported or otherwise used in activities involving the development, production, use or stockpiling of nuclear activities of any kind, chemical or biological weapons or missiles, unmanned aerial vehicles or microprocessors for military use, or systems capable of delivery of such weapons, or in any related facilities. Customer represents and warrants that Customer is not a Prohibited Person, subject to debarment or any list-based designations under U.S. or other applicable export controls laws and regulations, or engaged in transactions, dealings or activities that might reasonably be expected to cause the Customer to become a Prohibited Person. Furthermore, no Prohibited Person, Embargoed Country, or person ordinarily resident in an Embargoed Country shall derive any benefit directly or indirectly from these Terms.
12.4 Compliance with Anti-Corruption Laws. Customer shall comply with the United States Foreign Corrupt Practices Act and any other similar laws, statute, rule or regulation of any country in which Customer operates. In addition, none of Customer, its owners, officers, directors, employees or agents have not and shall not pay, offer, promise, or authorize the payment, directly or indirectly, of any monies or anything of value to any government official or employee, or any political party or candidate for political office for the purpose of influencing that person’s acts or decisions to obtain or retain business. Customer shall sign annual or periodic acknowledgements of compliance with the Foreign Corrupt Practices Act and similar laws at Syncell’s request, which requests may be made by Syncell in its sole discretion. If Syncell has reason to believe that a breach of this Section has occurred or may occur, Syncell has the right to audit Customer in order to satisfy Syncell that no breach has occurred. Upon request by Customer, Syncell will select an independent third party to conduct an audit to confirm to Syncell that no breach has occurred or will occur. Customer shall cooperate fully in any audit conducted by or on behalf of Syncell. If this section is violated, the sale agreement or pending order shall automatically terminate without the requirement of any written notice or other action by Syncell. Customer shall further indemnify and hold Syncell harmless for any and all claims, losses or damages arising from a breach of this section, the cancellation of agreements and order, or both.
12.5 Severability. All terms and conditions of these Terms will be deemed enforceable to the fullest extent permissible under applicable law. If any term or provision of these Terms is ruled wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction, such invalidity or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such other term or provision. The headings in these Terms are for reference only and do not affect the interpretation of these Terms.
12.6 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 these Terms 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”). The party affected shall notify the other party as soon as practicable of any anticipated delay due to Force Majeure.
12.7 Assignment. Customer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Syncell. 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 these Terms.
12.8 No Third-Party Beneficiaries. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
12.9 General. These Terms (including without limitation all exhibits hereto and all attachments thereto, which are incorporated herein by this reference as though fully set forth in the body of these Terms), and any Quotation and invoice embodies the final and complete understanding of the parties with respect to the subject matter hereof, superseding all prior oral or written communications between them, and neither of the parties shall be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided herein. Each party acknowledges that it has not entered into these Terms in reliance on any statement or representation not expressly set out herein. No oral explanation or oral information by either party hereto shall alter the meaning or interpretation of these Terms. The English language shall govern the meaning and interpretation of these Terms.
END OF TERMS
