Terms and Conditions
STEM GENOMICS INC.

These general Terms and Conditions (“Terms”) shall apply to any genetic testing services and other services (the “Services”), as well as the testing kits (the “Kits”) that Stem Genomics SAS, a privately-held company located at the IRMB-Hôpital St Eloi, 80 avenue Augustin Fliche, 34295 Montpellier Cedex 5, France (“Stem Genomics”), provides to its clients (the “Client”: any physical or legal person to whom Stem Genomics renders the Services). The parties agree to the following Terms:

Definitions

“Services”: this term indicates all genetic testing services that Stem Genomics Inc. provides to its clients, such as iCS-digital™ PSC, iCS-digital™ MSC, iCS-digital™ Aneuploidy, Duo iCS-Karyo, Stem-Seq™, Ed-digital, Myco-digital or iCS-digital™ Custom services.

“Kit”: this term indicates all genetic testing products that Stem Genomics Inc. provides to its clients, such as iCS-digital™ PSC kits or iCS-digital™ controls.

“SaaS”: this term indicates the Software as a Service owned by Stem Genomics and dedicated to the analysis of the iCS-digital™ kit results.

“User”: this term indicates any physical or legal person using the SaaS.

“Personal Data”: this term indicates the data provided by the User for the creation and management of his online account.

“Purchase Order” means the document that may be entered between Client and Stem Genomics, from time to time, to set forth certain fees and other material terms associated with these Terms and accepted by Stem Genomics.

“Analysis Data”: this term indicates the data loaded on the SaaS by the User, as well as the data produced either by the SaaS or resulting from the Services analysis.

“Materials”: this term indicates the SaaS content, features and functionality, including, but not limited to, text, graphics, logos, images and video clips.

1. Applicability.

1.1 These Terms are the only terms that govern the provision of Services or Kits by Stem Genomics to its Clients.

1.2 The accompanying Purchase Order 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. In the event of any conflict between these Terms and the Purchase Order, these Terms  shall govern, unless  otherwise expressly agreed by Stem Genomics.

1.3 These Terms prevail over any of Client’s general terms and conditions regardless whether or when Client has submitted its request for proposal, order, or such terms. Provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.

2. Services.

2.1 Standard of Performance. Stem Genomics will use all reasonable efforts to successfully complete the Services, using due care in accordance with the generally prevailing applicable industry standards, taking into consideration Stem Genomics level of experience in the required techniques. Client is aware and acknowledges that the methods of performing the Services rely on statistical sampling. It is therefore, the Client’s responsibility to verify the plausibility and validity of results, and if appropriate to request retesting, possibly using a different confirmatory method.

2.2 Sample Materials. Client will send, at his/her own expenses, to Stem Genomics sufficient quantities of anonymized sample materials, compounds, or substances to perform the Services. Stem Genomics will use reasonable care in handling and storing such samples, but shall not be held responsible for any loss or destruction thereof.

2.2.1. For the iCS-digital™, Myco-digital and Ed-digital test range: Stem Genomics will destroy any unused samples one (1) month after sending the final results.

2.2.2. For the duo iCS-karyo test: the microscope slides and the fixed cells will be kept for six (6) months. Stem Genomics reserves the right to refuse to process any sample(s) for analysis in the following cases: 1) in absence of prior notification of sample shipment by the Client, which should occur at least one (1) week in advance, 2) if the samples are received on Thursdays or Fridays, 3) if more than 5 samples are shipped at the same time and 4) if samples are not sent in accordance with the Sample Collection Instructions.

2.3 Confidentiality. During the performance of the Services and thereafter, each party will treat all non-public, confidential or proprietary information of Stem Genomics, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”) provided by the other in connection with the Services as proprietary and confidential, and will not knowingly disclose, divulge, reveal or report the same to any third person other than the disclosing party or its designated representatives. It is excluded from the confidentiality obligations any information that the receiving party can demonstrate to be (i) independently developed or discovered by the receiving party without the disclosing party’s confidential information; (ii) already known to the receiving party; (iii) in the public domain, other than through breach of these Terms, or any of the receiving party’s obligations to the disclosing party; (iv) disclosed to the receiving party by a third party not in breach of a duty of confidentiality owed to the disclosing party; or (v) required to be disclosed by law, or court or administrative order; provided that the receiving party uses reasonable efforts to give prompt notice to the disclosing party and provides reasonable cooperation with the disclosing party’s efforts to seek confidential treatment for the information.

2.4 Client Representations. Client represents that: (i) it owns, or otherwise has the right to provide the samples to Stem Genomics for use in the performance of the Services; (ii) the samples, and the reception and use by Stem Genomics of such samples for the Services do not infringe any legal rights (including intellectual proprietary rights) of any third-party, and do not violate any applicable ordinance, law, or rule; and (iii) the samples are not hazardous and do not contain toxic materials.

3. Kits.

3.1 Restriction of use & copyrights. The SaaS shall be exclusively used for the analysis of the results obtained with the iCS-digital™ kit. The User agrees not to use the SaaS for any other purpose. By accepting these Terms and Conditions, the User acknowledges that the Kit and the SaaS will be used only for research purposes. The SaaS and its Materials used within or displayed by the instrument are either owned or licensed by Stem Genomics. The User may, view, print and/or download Materials from the SaaS, provided that the User keeps intact all copyright and other proprietary notices. The Kit and the SaaS should not be used to provide paid services to a third party without the prior consent of Stem Genomics.

3.2 Standard of performance. Stem Genomics will use all reasonable efforts to ensure the accurate completion of the analysis produced by the SaaS, taking into consideration Stem Genomics level of experience in the required techniques. The User is aware and acknowledges that the analysis methods rely on statistical sampling. Therefore, it is the User’s responsibility to verify the plausibility and validity of the obtained results.

3.3 Safety Policy. The User understands that some of Stem Genomics products may contain potentially harmful items and/or chemicals that could cause injury if misused as may be reported in the safety data sheets. The User agrees to use and store the products only as directed.

3.4 Confidentiality and results ownership. Stem Genomics undertakes to keep confidential and not to use any Analysis Data or Personal Data provided by the User, or produced by the SaaS. However, the User agrees that Stem Genomics has the right to access to the Analysis Data or Personal Data for maintenance or update purposes or to perform anonymous statistical analysis. Stem Genomics will only process the Personal Data to the extent, and in such a manner, as it is necessary for the provision of the SaaS. The Personal Data may be subject to processing in accordance with the General Data Protection Regulation (GDPR). On its side, the User is committed in keeping the Analysis Data confidential by anonymizing the sample names prior to uploading the input files on the SaaS.

3.5 Information Security and Privacy: The parties agree to take all necessary steps to safeguard and protect any confidential or proprietary information shared under this Agreement from unauthorized access, use, or disclosure. Each party will comply with all applicable data protection laws and regulations, including but not limited to the California Consumer Privacy Act and the General Data Protection Regulation (GDPR) where applicable. The parties will also implement and maintain appropriate technical and organizational measures to ensure the security and privacy of such information, including but not limited to encryption, access controls, and regular security assessments. In the event of a data breach or security incident, each party will promptly notify the other party and take appropriate remedial action to mitigate the effects of such breach or incident.

3.6 Stem Genomics responsibility. Stem Genomics is committed to ensure SaaS normal functioning, within the general measures in effect. Stem Genomics cannot guarantee that SaaS use will be uninterrupted. Stem Genomics retains the right to temporarily interrupt or modify the SaaS at any time without any prior notification.

4. Intellectual Property.

All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Client under this Agreement or prepared by or on behalf of Stem Genomics in the course of performing the Services (collectively, the “Deliverables”) except for any Confidential Information of Client or Client materials shall be owned by Stem Genomics. Stem Genomics hereby grants Client a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services. The Client hereby grants Stem Genomics a non-exclusive, non-transferable license to use the Deliverables solely for the purpose of conducting research to improve the Services and the Kits. This license includes the right to compile, store, and analyze the Deliverables, subject to the conditions outlined in this clause. Stem Genomics will systematically anonymize the Deliverables before using them for research purposes. Anonymization shall be conducted in a manner that ensures the removal or alteration of any personal identifying information, so that the data cannot be directly linked to any specific individual or to the Client.

5. Payment.

Client shall make payment in full for all invoiced fees and charges, with no right to set-off or reduction. Unless otherwise agreed in writing by Stem Genomics, the payment term is net thirty (30) days from the invoice date, and payment is done in Euro by bank transfer. Each party will cover the bank transfer costs of its own bank. If payment is not received by the due date, Stem Genomics reserves the right to levy an interest charge of 1.5% per month (18% annually) or the maximum allowed by law.

6. Disclaimer of Warranties.

EXCEPT AS EXPLICITLY SET FORTH IN SECTION 1.1 HEREOF, STEM GENOMICS MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND THE KITS, OR THE RESULTS GENERATED FROM THEM, AND STEM GENOMICS HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NATURE OF THE CONTENT, OR NON-INFRINGEMENT WITH RESPECT TO THE SERVICES AND THE RESULTS. THE INFORMATION CONTAINED IN ANY RESULTS IS INTENDED FOR INFORMATIONAL USE IN CONNECTION WITH, AND NOT AS A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL, AND JUDGMENT OF THE CLIENT. Regarding results generated from both the Kits and the Services, Stem Genomics will do its best to store the Analysis Data on its servers for two (2) years.

However, Stem Genomics cannot be held responsible for any direct or indirect damage or loss of any Analysis Data ensued from the use of the Kit, the SaaS, or ensued from server issues. The User can delete at any time its Analysis Data and Stem Genomics undertakes to permanently discard the Personal Data or Analysis Data upon the User request.

7. Limitation of Liability.

(a) IN NO EVENT SHALL STEM GENOMICS BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT [OR LOSS OF DATA OR DIMINUTION IN VALUE], OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, 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 STEM GENOMICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL STEM GENOMICS’ 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 ONE TIME THE AGGREGATE AMOUNTS PAID OR PAYABLE TO STEM GENOMICS PURSUANT TO THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

8. Indemnification.

Client shall indemnify and defend Stem Genomics and Stem Genomics’ employees, officers, and contractors (each an “indemnified party”) from and against any liability and costs (including reasonable attorneys’ fees) incurred in connection with any claim, demand, action, proceeding, or investigation (a “claim”) arising from the Client’s breach of any provision of these Terms; provided that the Client will not be responsible to the extent such claim is determined, by a court of competent jurisdiction, to be the result of any grossly negligent or intentional misconduct by Stem Genomics. Client may not settle any claim to the detriment of the indemnified party without the prior written consent of the indemnified party. The indemnified party may participate in any proceeding brought against the indemnified party with a counsel of their choice and at their own expense. Stem Genomics will promptly notify the Client of any claim(s) under this section. The contractual relationship shall be strictly between the Client and Stem Genomics. There shall be no third party beneficiary or collateral warranty.

9. Termination.

In addition to any remedies that may be provided under this Agreement, Stem Genomics may terminate this Agreement with immediate effect upon written notice to Client, if Client:

• fails to pay any amount when due under this Agreement and such failure continues for 30 days after Client’s receipt of written notice of nonpayment;
• has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
• 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.

10. Use of Final Report; Reliance Upon Results.

Client may use and reproduce the final report only in its entirety, or as may have been otherwise pre-approved in writing by Stem Genomics at Stem Genomics’ sole discretion. Client acknowledges that silence, delay or inaction by Stem Genomics with respect to approval will not constitute approval. The Services and the tests performed with the Kits are conducted for research use only (RUO). The results may not be used by the Client for any purpose other than research use.

11. How to cite Stem Genomics.

Clients are encouraged to cite Stem Genomics tests in their publications and we provide a guide for this on our website: https://www.stemgenomics.com/about/published-scientific-articles/.

12. Miscellaneous.

12.1 Independent Contractor. The relationship of the parties shall be that of independent contractors and nothing in these Terms shall be deemed or construed to create a joint venture, partnership, agent or representative relationship between Stem Genomics and the Client.

12.2 No Waiver. The waiver or the failure to act on a breach, delay, omission or default of any of the provisions of these Terms shall not in any way constitute or be deemed to be a waiver of any subsequent breach of any provision hereof. If any part, term, or provision of these Terms is determined to be invalid or unenforceable, the remainder of these Terms shall not be affected, and shall remain in full force and effect.

12.3 Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Client to make payments to Stem Genomics hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns or other industrial disturbances; and (h) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 180 consecutive days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon (ten) 10 days’ written notice.

12.4 Governing Law. These Terms shall be governed by and construed in all respects in accordance with the French laws. Any disputes arising under these Terms will be brought, heard, and determined exclusively in the competent courts of Paris, France.

13. Entire Agreement.

These Terms constitute the full understanding between the parties with reference to the subject matter hereof, and no statement or agreement by or between the parties, whether orally or in writing, made prior to or at the signing hereof, shall vary or modify these Terms. No term or condition stated by the Client, either verbally or in any document acknowledging or otherwise accepting these Terms, shall be binding upon Stem Genomics unless specifically agreed to by Stem Genomics in writing.