The Terms and Conditions set forth below, along with any Genpathway document that may accompany any analysis services performed by Genpathway including, but not limited to, Chromatin Immunoprecipitation services (“Services”) constitute the entire Agreement between Genpathway and purchasers of Services (“Clients”).  The provisions herein supersede all prior proposals and understandings and all other terms and conditions submitted by Client, upon purchase orders or elsewhere. 

1.  Order and Delivery
     (a) Customer may order Services by issuing to Genpathway a written Purchase Order (“Order”).  If desired, Genpathway will issue a quote for requested Services.
     (b) Client shall be invoiced upon receipt of customer samples by Genpathway or 30 days from receipt of Order, whichever is sooner.  For Orders up to $7,500, Client shall be invoiced for the full amount. For Orders greater than $7,500, 50% of the amount shall be invoiced as above, and the remaining 50% shall be invoiced at completion of Services or within 90 days of Order, whichever is sooner.  For Orders outside the U.S., Client shall be invoiced immediately and payment must be received prior to Genpathway initiating Services.
     (c) Client must pay invoices within thirty (30) days of receipt of invoice.  Genpathway may impose a late payment charge equal to the lesser of 1.5% per month or the maximum rate allowed by law.

2.  Materials 
     (a) To perform certain Services, Genpathway may require that Client purchase specific pre-qualified materials from third parties at Client’s sole expense, such as DNA arrays, or other types of arrays (“Third Party Materials”) directly from third parties (“Third Parties”) and have such Third Party Materials shipped to Genpathway.  In such instances, any ordering, delivery, payment and other terms and conditions with respect to the Third Party Materials shall be between Client and the Third Party.
     (b) To perform certain Services, Genpathway may require that Client provide certain materials at its sole expense such as cell or tissue samples (“Client Materials”).  Client is responsible for proper preparation, including fixation of cells and freezing of tissues according to protocols provided by Genpathway, packaging and shipment of the Client Materials.  Genpathway will handle Client Materials in a professional manner and in accordance with any reasonable Client instructions provided in advance of shipment.  In the absence of Client instructions, Genpathway will use its standard procedures and professional judgment in handling Client Materials.
     (c) Client acknowledges that when performing Services, Genpathway may exhaust the supply of Client Materials, Third Party Materials or other necessary materials provided to Genpathway.  Genpathway reserves the right to request Client to provide additional amounts of Client Materials or Third Party Materials to perform the Services.  Genpathway does not warrant that the handling or use of Client Materials or Third Party Materials will be error-free.

3.  Taxes
Client will pay any tax or other such fees that Genpathway becomes obligated to pay or collect by virtue of any Services performed, exclusive of taxes based on the income of Genpathway.

4.  Order Changes
If Client desires to alter the scope of the Services prior to their completion, the parties agree to use reasonable efforts to work toward a mutually acceptable change, which may include alterations to the agreed upon price for the Services.  If the parties cannot mutually agree upon such changes, then: (a) if Genpathway has not yet begun the Services, any Client Materials submitted by Client will be returned to Client at Client’s expense or they will be destroyed; (b) if Genpathway has purchased Third Party Materials on behalf of Client and cannot return the Third Party Materials, Client will pay Genpathway for such materials, and; (c) if Genpathway has already begun rendering the Services, Client must pay a prorated amount of the agreed upon cost based on the portion of Services already completed.

5.  Ownership of Results and Data
Client shall retain all ownership rights over Client Materials.  Unless the parties otherwise agree in writing, Client shall retain all ownership rights to the results of the Services and any data generated by the Services. Genpathway shall retain the right to use the data generated by the Services for internal quality control purposes.  Genpathway shall also retain all ownership rights to any improvements or inventions pertaining to Genpathway’s techniques and processes.  Ownership right to Third Party Materials shall remain with Third Parties.

6.  Warranty & Disclaimer
     (a) Genpathway shall perform all Services in a professional and workmanlike manner.
     (b) Other than the foregoing warranty, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE.  GENPATHWAY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AS TO THE SERVICES, OR ANY RESULTS OR DATA GENERATED BY THE SERVICES, INCLUDING ANY WARRANTY THAT THE SERVICES, RESULTS OR DATA INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.  Genpathway does not warrant that the Services will yield any particular, expected or useful results, and the failure to do so will not alter Client’s payment obligations for any Order.
     (c) If Genpathway has available to it or is given (at Client’s sole expense) sufficient Client Materials, Third Party Materials or other materials necessary to re-perform the Services, Genpathway will re-perform any Services that do not comply with the warranties set forth herein. 
     (d) Genpathway makes no representation or warranty as to products or services provided by any third parties, including Third Party Materials.  Notwithstanding the foregoing, Genpathway may, at its option, work directly with Third Parties to assert warranty rights with respect to Third Party Materials on behalf of Client, but only to the extent that Genpathway is legally able to assert the warranty rights and the Third Parties are receptive to it.

7.  Limitation of Liability
     (a) Unless further limited elsewhere, the entire liability of Genpathway and Client’s exclusive remedy for damages from any cause related to or arising out of the Services will not exceed the payments made by Client for the specific Services from which the damages arise.
     (b) IN NO EVENT WILL GENPATHWAY BE LIABLE FOR: (i) ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, DATA, REVENUE, PROFITS OR SAVINGS, EVEN IF GENPATHWAY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBLITY OF SUCH DAMAGES, (ii) CLAIMS, DEMANDS OR ACTIONS AGAINST CLIENT BY ANY THIRD PARTY OR (iii) THE ACTS OR OMISSIONS OF CLIENT OR ANY THIRD PARTY.
     (c) Genpathway will not be liable for failure to fulfill its obligations when due to causes beyond its control.

8.  Termination/Cancellation
Without prejudice to other rights and remedies, Genpathway may cancel any Order issued at any time for any reason.  Genpathway shall not be entitled to any payment for Services terminated or cancelled unless Genpathway cancels such services based on: (a) Client’s default or refusal to pay for other services properly invoiced; (b) Client’s material breach of these terms and conditions or other obligations pertaining to Services; (c) Client’s adjudication as bankrupt, (d) the appointment of a receiver or trustee for Client, or (e) if Client makes an assignment for the benefit of creditors. 

9.  Notices
All notices required herein shall be sent by registered or overnight mail to Genpathway, attention CSO, and Client’s address as set forth on the Submission Form. 

10.  Customer Indemnity
Client shall indemnify and hold Genpathway harmless from any and all claims, obligations and liabilities, judgments, costs, expenses and fees (including attorneys’ fees) resulting from or relating to the acts or omissions of Client regarding the use of the Results or Data that stem from the Services as well as Client’s use or marketing of any substance or method which is the subject, result or outcome of any Services.

11.  Proprietary Information
Both parties shall keep in confidence and protect the Proprietary Information (including Client Materials) of the other party from use by and disclosure to third parties and restrict its use as provided herein.  Proprietary Information will not be reproduced, in whole or in part, except when express permission is granted.

12.  Miscellaneous
     (a) Client warrants that it will comply with all applicable laws, regulations and restrictions with respect to the Results and Data that stem from the Services.
     (b) Any failure or delay by either party in exercising any right or remedy will not constitute a waiver. 
     (c) Transactions hereunder will be governed by California State law, and any dispute arising hereunder shall be adjudicated in the courts of California State. 
     (d) These terms and conditions will be binding upon and inure to the benefit of Client’s successor in interest.  
     (e) Each provision herein is severable, and if one or more provisions are declared invalid, the remaining provisions will remain in full force and effect.
      (f) If any Order governed by these terms and conditions is cancelled, the provisions herein that by their nature for effect are meant to survive shall survive.