Illumina Switzerland GmbH
Terms and Conditions – Services (Non-Clinical Laboratory)
February 2014
1.
Definitions; Interpretation. “Agreement” means either (i) the
Quotation, including these terms and conditions and the applicable Service
Description which is hereby incorporated herein by reference; (ii) allelectronic information and terms of Illumina Switzerland GmbH (hereinafter:
Illumina) referenced during an Electronic Order, including these terms andconditions and the applicable Service Description which is hereby
incorporated herein by reference in the case of an Electronic Order; or (iii)
all terms referenced in an Order Confirmation, including these terms andconditions and the applicable Service Description which is hereby
incorporated herein by reference in the case of an order placed without a
Quotation and that is not an Electronic Order. “Customer” means thepurchaser of the Services hereunder. “Deliverables” means the Results as
described in these terms and conditions. “Electronic Order” means an orderplaced by Customer utilizing Illumina’s electronic commerce system (e.g.,iCom). “Intellectual Property Rights” means all patent rights, copyrights(including rights in computer software), trade marks, trade names, get up andlogo, service marks, business names (including internet domain names), design
rights, database rights, rights in undisclosed or confidential information (suchas know-how, trade secrets and inventions (whether or not patentable)) and allother intellectual property or similar proprietary rights of whatever nature,
current or future, under the laws of any jurisdiction, whether registered or not
and including all applications or rights to apply therefore and registrations
thereto. “Order Confirmation” means a sales order confirmation document
provided by Illumina. “Quotation” means a written quotation provided by
Illumina to Customer. “Results” are the data that are generated throughperformance of the Services as specifically described in the applicable Service
Description. “Results Work Product” means, subject to section 7, the Results
and all discoveries and inventions, including without limitation discoveries andinventions relating to expressions, that arise directly out of the Results,
including without limitation, any diagnostic or therapeutic discoveries orinventions. “Sample(s)” means the sample(s) to be provided by Customer toIllumina as described in the applicable Service Description and/or Quotation.
“Sample Requirements” means the quantity, quality, and other requirements
for each Sample as specified in the applicable Service Description and requiredin order for Services to be successfully performed on a given Sample.
“Services” as used herein refers to the activities to be performed hereunder as
described in and subject to the specific terms found in the Service Description.
“Service Description” means the document that describes the Services (e.g.,
FastTrack Genotyping, FastTrack Sequencing, Whole Genome Sequencing,etc.). “Specifications” means the written specifications for Services that arecontained in the Services Description.
Sections, titles and headings in this Agreement are for convenience only andare not intended to affect the meaning or interpretation hereof. Wheneverrequired by the context, the singular term shall include the plural, the plural
term shall include the singular, and the gender of any pronoun shall include allgenders. As used in this Agreement except as the context may otherwise
require, the words “include”, “includes”, “including”, “such as”, “e.g.” or“example(s)” are deemed to be followed by “without limitation”, whether or
not they are in fact followed by such words or words of like import, and “will”
and “shall” are used synonymously. Except as expressly stated, any reference
to “days” shall be to calendar days, and “business day” shall mean all days
other than Saturdays, Sundays or a bank holiday recognised in Switzerland.
2.
Information Transfer; Samples. In order to ensure timely andsatisfactory performance of the Services, it is critical that Customer provide all
relevant information and materials in a timely manner to Illumina. Customer
agrees to provide the Samples and all other information and materials as
specified in the Service Description in accordance with the guidelines set forth
therein. Customer acknowledges that any failure to provide the Samples,
information, and any other materials in accordance with the Service
Description may result in delays in the project and Illumina shall not be inbreach of this Agreement nor liable to the Customer in respect of any such
failure of the Customer. After receipt of the purchase order from Customer,
Customer shall promptly provide to Illumina the number of Samples as set
forth in the Quotation in accordance with the Sample Requirements set forth in
the applicable Service Description. Customer agrees that each Sample shallmeet the Sample quality criteria established by Illumina that applies to such
Service. Illumina reserves the right to change the Sample quality criteria in its
sole discretion, and Illumina will provide Customer with written notification of
any such changes. See the applicable Service Description for additional
information concerning Sample quality requirements.
3.
Delivery. Delivery shall have occurred by one of the following means,
to be determined by mutual agreement of the parties: (a) if Results are to bedelivered electronically, once Illumina has transmitted an electronic filecontaining all or a portion of the Results to Illumina’s FTP web site or othersite as mutually agreed and has notified Customer that such file is available, or(b) if Results are to be delivered in one or more hard drive(s) or other physicalmaterial, upon shipment FOB origin of such hard drive(s) or material
containing all or a portion of the Results. Customer acknowledges that
Illumina does not typically retain a copy of the Results beyond Delivery andthe Results may not be recoverable from Illumina’s systems after Delivery.
In the event of loss of the Results by the Customer after Delivery, Illumina
shall have no further obligation to deliver the Results to the Customer.
4.
Pricing; Payment. Prices for the Services shall be as specified in the
Quotation, Electronic Order or Order Confirmation and are valid solely
during the period set forth therein. Unless otherwise specified in the
Quotation, Electronic Order or Order Confirmation prices specified therein
are for the number of Samples and specific Services stated therein. Anychanges to the number of Samples or the scope or performance of theServices will affect pricing, and will therefore require mutual writtenagreement of the parties. Illumina will send invoices to Customer upondelivery of Results or portions thereof. All invoices shall be paid in full by
the Customer within thirty (30) days from the date of invoice. Any amounts
not paid when due will accrue interest at the rate of one and one half percent(1.5%) per month, or the maximum amount allowed by law, if lower. In theevent that any payment is not made within the time period specified in thisAgreement, Illumina may suspend providing the Services and delivering theResults until all payments are made current. Customer shall pay for all costs(including reasonable legal fees) incurred by Illumina in connection with thecollection of late payments. The amount of credit authorized by Illumina
may be changed or entirely withdrawn at any time, and Illumina reserves theright to require alternative payment terms, including but not limited to aletter of credit or full or partial payment in advance.
All amounts payable to Illumina are exclusive of and are payable without
deduction for all sales, use, excise, value added, withholding and other taxes,
and all customs duties and tariffs claimed or imposed by any governmental
authority upon the performance of the Services or delivery of the Results.
Any such charges will be added to the price or subsequently invoiced to theCustomer by Illumina or Customer shall gross up any payment to Illumina in
respect of which deduction is required to be made.
Customer shall pay the total price as set forth in the Quotation, in CHF
unless otherwise specified. Each accepted purchase order is a separate,
independent transaction, and Customer herewith waives his right to set-off
against other purchase orders or other transactions with Illumina.
In the event the Customer terminates the Agreement prior to the delivery of
all the Results, the Customer will be charged a cancellation fee equal to thecosts reasonably incurred by Illumina up to that point and for which an
invoice has not been sent, including but not limited to Illumina’s thencurrent list price of all materials used or produced, including, without
limitation, flow cells and reagents.
5.
Ownership of Samples; Regulatory Compliance.
Customer
represents and warrants that it owns or otherwise controls the Samples andthat it has the right to provide the Samples to Illumina for the purpose
described herein. Illumina shall use the Samples solely for the purpose of
performing the Services. Illumina agrees that it will promptly return or
destroy, in Customer’s sole discretion, any unused Samples or portions
thereof following the delivery of the Results. Customer shall obtain andmaintain all necessary licenses and consents and comply with all applicablelaws and regulations in relation to the transfer of the Samples to Illumina
and the performance of the Services.
6.
Intellectual Property. The Results Work Product shall be owned by
Customer and all right, title, and interest in, to and under the Results Work
Product, including without limitation all Intellectual Property Rights therein,
shall vest immediately upon their creation in the Customer. Results Work
Product shall not include any discoveries or inventions, including without
limitation discoveries and inventions relating to expressions, that were in
Illumina’s possession or known by Illumina or its affiliated entities prior toperformance of the Services, and any materials, processes, or methods usedby Illumina in the performance of the Services and any Intellectual Property
Rights owned by or licensed to Illumina prior to the performance of theServices, including without limitation in each case any modifications or
improvements thereto and Intellectual Property Rights therein. Customer
shall at all times retain all right, title, and interest in the Samples provided
hereunder.
7.
Research Use Only. Customer acknowledges that the Services areprovided for research use only and are not being performed in a clinicallaboratory The Services are not an article or accessory intended to be used
specifically for the medical purpose of: diagnosis, treatment, prevention,
monitoring or alleviation of a disease, injury or disability; compensation for
an injury or disability; investigation, replacement or modification of the
anatomy or a physiological process or state; or control or support ofcontraception; and the Results are not intended to be medical advice. The
Services have not been subjected to any conformity assessment or otherregulatory review or certified, approved or cleared by any conformity
assessment body or other regulatory body in any country for diagnostic use
or any other purpose.
8.
Limited Warranty. Illumina warrants to Customer that all Results

Illumina Switzerland GmbH
Muhlebachstrasse 23, 8008 Zurich
REG: CH-020.4.046.685-9……….VAT: CHE-402.501.551

delivered by Illumina hereunder shall conform to the Specifications. All otherwarranties are herewith, to the extent permitted by law, excluded.
9.
Indemnification.
Illumina shall indemnify and hold harmless
Customer, its affiliated entities and their respective directors, officers,
employees, agents, successors, and assigns from and against any liabilities,
expenses, or costs arising out of any claim, complaint, suit, proceedings, orcause of action brought by a third party pertaining to infringement of such third
party’s valid and enforceable Intellectual Property Rights resulting from themethods, materials, or processes specified by Illumina and used by Illumina inperformance of the Services and Illumina shall pay all settlements entered into,
and all final judgments and costs (including reasonable attorneys’ fees)
awarded against Customer (and Illumina, as the case may be) in connection
with any such action.
Customer shall indemnify and hold harmless Illumina, , its affiliated entities
and their respective directors, officers, employees, agents, successors, andassigns from and against any liabilities, expenses, or costs arising out of any
claim, complaint, suit, proceedings or cause of action brought by a third party
pertaining to (i) infringement of such third party’s valid and enforceableIntellectual Property Rights or other rights resulting from Customer’s (a)providing the Samples, information and other materials (b) specification or
selection of any methods, materials, or processes to be used in the performanceof the Services, other than those methods, materials, or processes that are
specified by Illumina in the Service Description and used by Illumina inperforming the Service, or (c) specification or selection of the SNP loci in thecase of genotyping or regions of interest in the case of targeted sequencing, or(ii) arising out of any actions Customer has taken based on its analysis,
interpretation, or use of the Results and any other information provided by
Illumina under this Agreement and Customer shall pay all settlements enteredinto, and all final judgments and costs (including reasonable attorneys’ fees)
awarded against Illumina (and Customer, as the case may be) in connection
with any such action.
Each party’s indemnification obligation pursuant to this Section 9 is subject tothe indemnified party (i) notifying the indemnifying party promptly in writingof such action, (ii) giving the indemnifying party exclusive control andauthority over the defense and settlement of such action, (iii) not admitting
infringement of any Intellectual Property Right without the indemnifying
party’s prior written consent, (iv) not entering into any settlement orcompromise of any such action without the indemnifying party’s prior writtenconsent, and (v) providing all reasonable assistance to the indemnifying party(provided that the indemnifying party reimburses the indemnified party for its
reasonable out-of-pocket expenses incurred in providing such assistance).
10.
Limited Liability. To the extent permitted by law, all of Illumina's
liabilities are herewith excluded.
11.
Privacy. Customer acknowledges that Illumina deems of utmost
importance the privacy and anonymity of any individual that is the subject of
the Samples. Therefore Customer shall not disclose or provide to Illumina in
any format, any information that might identify the source of a Sample, shallcomply with all legal, regulatory, and contractual obligations with respect tothe privacy of the individual that is the subject of such Sample, and shallinform Illumina in a timely manner of any requirements applicable toIllumina’s provision of these Services.
Illumina shall not sell, trade or otherwise disclose with any other customer of
Illumina any account information of Customer. Customer acknowledges andagrees that Illumina is entitled to maintain and use a database of orders andaccount information pertaining to Customer for purposes of order processing,maintaining records and assisting with future orders of Customer.
12.
Confidential Information. Except as provided herein, each party shallmaintain in confidence, and shall not use for any other purpose or disclose to
any third party, information (of whatever nature) disclosed by the other party
or its affiliated entities in writing and marked “Confidential” (or in a similarmanner to indicate its confidential nature) or that is disclosed orally as
confidential and confirmed in writing within thirty (30) days following suchdisclosure (collectively, “Confidential Information”). However, the source andidentity of Samples, the Results, and the details of the methods, materials orprocesses used by Illumina in the performance of the Services which, by theirvery nature or the circumstances in which imparted, would reasonably bedeemed confidential, shall be considered Confidential Information whether or
not so marked. Each party shall not disclose Confidential Information disclosedby the other party. The receiving Party shall disclose the Confidential
Information of the disclosing party solely on a need to know basis to its
directors, officers and employees and also agrees not to disclose to any third
party any terms of this Agreement without the consent of the other party,
except as required by securities or other applicable laws or regulations, inwhich case the Disclosing party shall seek confidential treatment to the extent
available, under conditions that reasonably protect the confidentiality thereof.
Confidential Information shall not include any information that is: (i) alreadylawfully known to the receiving party at the time of disclosure hereunder, (ii)now or hereafter becomes publicly known other than through breach of thisAgreement, (iii) is disclosed to the receiving party by a third party that thedisclosing party reasonably concluded was under no obligation ofconfidentiality to the disclosing party with respect thereto, or (iv) is
independently developed by or for the receiving party without reliance on
the Confidential Information of the disclosing party. The obligations ofconfidentiality contained in this Section 12 shall remain in force for a periodof no less than three (3) years from the delivery of all the Results, whichshall in all events survive its earlier termination.
13.
Customer’s Breach; Survival. In addition to any remedies
specified elsewhere under this Agreement, and any remedies available
to Illumina under law, Illumina may, immediately upon notice to theCustomer, do any, all, or any combination of the following in the event
Customer breaches the terms of this Agreement: (i) cease performancehereunder, or (ii) terminate any remaining warranty for the affected
service. All provisions of this Agreement including without limitation
Sections 1 - 14, and all payment obligations incurred hereunder shall survive
termination for a an unlimited period of time. All other rights andobligations of the parties under this Agreement shall cease upon termination
or expiration of this Agreement.
14.
Miscellaneous.
a.
Customer acknowledges and agrees that any future products
and/or services (“Unreleased Products”) are subject to new partnumbers, pricing, and specifications. Customer agrees that its
purchase of the Services hereunder is not in reliance on theavailability of any Unreleased Products.
b.
If any provision of this Agreement is held invalid or
unenforceable, such provision shall be enforced to the maximum
extent permissible so as to effect the intent of the parties, and theremainder of this Agreement will continue in full force and effect.
The failure of either party to exercise any right granted herein or torequire any performance of any term of this Agreement or the waiverby either party of any breach of this Agreement shall not prevent a
subsequent exercise or enforcement of, or be deemed a waiver of any
subsequent breach of, the same or any other term of this Agreement.
Nothing in this Agreement shall constitute or create a joint venture,
partnership, or any other similar arrangement between the parties.
No party is authorized to act as agent for the other party hereunder
except as expressly stated in this Agreement.
c.
All notices required or permitted under this Agreement shall bein writing.
d.
Customer shall not assign or transfer this Agreement or any
rights or obligations under this Agreement without the prior writtenconsent of Illumina; provided, however, that no consent shall be
required for any assignment in connection with any change of control
or the sale of all or substantially all of the stock or assets of Customer
to a party that (i) agrees in writing to be bound by the terms andconditions of this Agreement, and (ii) is not, in Illumina’s reasonable
judgment, a competitor of Illumina or any of its affiliate entities.
Illumina may assign or transfer this Agreement to any (i) successor
by way of change of control or sale of all or substantially all of its
stock or assets relating to this Agreement, (ii) of its affiliated entities.
Illumina or any successor may assign all or part of the right topayments under this Agreement. Any assignment or transfer of thisAgreement made in contravention of the terms hereof shall be nulland void. Subject to the foregoing, this Agreement shall be bindingon and inure to the benefit of the parties’ respective successors andpermitted assigns.
e.
This Agreement and performance by the parties hereunder shallbe construed in accordance with the laws of Switzerland, without
regard to provisions on the conflicts of laws. The courts at the seat ofIllumina shall have exclusive jurisdiction regarding any dispute,
claim or controversy arising out of or relating to the breach,termination, enforcement, interpretation or validity of thisAgreement.
f.
Illumina shall not be responsible for any failure to perform or
delay attributable in whole or in part to any cause beyond its
reasonable control, including but not limited to acts of God, fire,
flood, tornado, earthquake, hurricane, lightning, government actions,actual or threatened acts of war, terrorism, civil disturbance orinsurrection, sabotage, labor shortages or disputes, failure or delay indelivery by Illumina’s suppliers or subcontractors, transportationdifficulties, shortage of energy, raw materials or equipment. In theevent of any such delay the delivery date shall be deferred for aperiod equal to the time lost by reason of the delay.
g.
This Agreement exclusively governs the ordering, purchase andprovision of Services provided to Customer by Illumina hereunder,and shall override any conflicting, amending, and/or additional terms
contained in any purchase orders, invoices, or similar documents
which are hereby rejected and shall be null and void. Illumina’s
failure to object to any such terms shall not constitute a waiver by
Illumina, nor constitute acceptance by Illumina of such terms andconditions.

Illumina Switzerland GmbH
Muhlebachstrasse 23, 8008 Zurich
REG: CH-020.4.046.685-9……….VAT: CHE-402.501.551