Illumina GmbH
Terms and Conditions – Services (Non-Clinical Laboratory)
October 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 GmbH (hereinafter: Illumina)
referenced during an Electronic Order, including these terms and conditions
and the applicable Service Description which is hereby incorporated hereinby reference in the case of an Electronic Order; or (iii) all terms referenced inan Order Confirmation, including these terms and conditions and the applicable
Service Description which is hereby incorporated herein by reference inthe case of an order placed without a Quotation and that is not an Electronic
Order.
“Customer” means the purchaser of the Services hereunder.
“Deliverables” means the Results as described in these terms and conditions.
“Electronic Order” means an order placed 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 and logo, service marks, business names(including internet domain names), design rights, database rights, rights inundisclosed or confidential information (such as know-how, trade secrets andinventions (whether or not patentable)) and all other intellectual property orsimilar proprietary rights of whatever nature, current or future, under the lawsof any jurisdiction, whether registered or not and including all applications orrights 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 through performance of the Services
as specifically described in the applicable Service Description. “Results Work
Product” means, subject to section 7, the Results and all discoveries andinventions, including without limitation discoveries and inventions relating to
expressions, that arise directly out of the Results, including without limitation,
any diagnostic or therapeutic discoveries or inventions. “Sample(s)” means
the sample(s) to be provided by Customer to Illumina as described in theapplicable 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 required in order for
Services to be successfully performed on a given Sample. “Services” as usedherein refers to the activities to be performed hereunder as described in andsubject 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 these terms and conditions are for convenience
only and are not intended to affect the meaning or interpretation hereof.
Whenever required 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 all genders. As used in these terms and conditions except as thecontext 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 oflike 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 bankholiday recognized in the Federal Republic of Germany.
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 these terms and conditions nor liable to the Customer in respect ofany 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
shall meet the Sample quality criteria established by Illumina that applies tosuch 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 theseterms and conditions, Illumina may suspend providing the Services anddelivering the Results until all payments are made current. Customer shallpay for all costs (including reasonable legal fees) incurred by Illumina inconnection with the collection of late payments. The amount of credit
authorized by Illumina may be changed or entirely withdrawn at any time,and Illumina reserves the right to require alternative payment terms,
including but not limited to a letter of credit or full or partial payment inadvance.
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 € (EUR)
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 GmbH
Zeppelinstrasse 71-73, 81669 Munich, Germany
DE228451997

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 these terms and conditions and Customer shall pay all
settlements entered into, and all final judgments and costs (including
reasonable attorneys’ fees) awarded against Illumina (and Customer, as thecase 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 these terms and conditions without the consent of the otherparty, except as required by securities or other applicable laws or regulations,in which case the Disclosing party shall seek confidential treatment to theextent 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 theseterms and conditions, (iii) is disclosed to the receiving party by a third party

that the disclosing 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 these terms and conditions, and any remedies
available to Illumina under law, Illumina may, immediately upon noticeto the Customer, do any, all, or any combination of the following in theevent Customer breaches the terms of these terms and conditions: (i)cease performance hereunder, or (ii) terminate any remaining warranty
for the affected service. All provisions of these terms and conditions
including without limitation Sections 1 - 14, and all payment obligations
incurred hereunder shall survive termination for a an unlimited period oftime. All other rights and obligations of the parties under these terms andconditions shall cease upon termination or expiration of these terms andconditions.
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 these terms and conditions 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 these terms and conditions will continue in full force
and effect. The failure of either party to exercise any right granted
herein or to require any performance of any term of these terms andconditions or the waiver by either party of any breach of these terms
and conditions shall not prevent a subsequent exercise orenforcement of, or be deemed a waiver of any subsequent breach of,the same or any other term of these terms and conditions. Nothing inthese terms and conditions 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 these terms and conditions.
c.
All notices required or permitted under these terms andconditions shall be in writing.
d.
Customer shall not assign or transfer any rights or obligations
under these terms and conditions without the prior written consent of
Illumina; provided, however, that no consent shall be required for any
assignment in connection with any change of control or the sale of allor substantially all of the stock or assets of Customer to a party that(i) agrees in writing to be bound by the terms and conditions of theseterms and conditions, and (ii) is not, in Illumina’s reasonable
judgment, a competitor of Illumina or any of its affiliate entities.
Illumina may assign or transfer these terms and conditions to any (i)successor by way of change of control or sale of all or substantiallyall of its stock or assets relating to these terms and conditions, (ii) of
its affiliated entities. Illumina or any successor may assign all or partof the right to payments under these terms and conditions. Subject
to the foregoing, these terms and conditions shall be binding on andinure to the benefit of the parties’ respective successors and permitted
assigns.
e. These Terms and Conditions shall be governed by, and interpretedin accordance with the laws of Germany, without reference toconflict of laws principles. International purchase laws, in particular
the United Nations Convention on Contracts for the International
Sale of Goods (CISG) shall not apply.
f. Arbitration
Any dispute relating to the validity, performance,
construction or interpretation of these Terms and Conditions, whichcannot be resolved amicably between Customer and Illumina shall be
submitted to final and binding arbitration in accordance with the
Arbitration Rules of the German Institution of Arbitration (DIS).
Place of Arbitration shall be Munich, Germany. The number ofarbitrators shall be three (3). The language of the arbitration
proceeding shall be English provided, however, that written evidence
may be submitted in either German or English language. The awardof the arbitration shall be final, non-appealable and binding upon theparties and their respective successors and permitted assignees.
Judgement upon the award may be entered in any court having thejurisdiction thereof.
g. 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 orIllumina GmbH
Zeppelinstrasse 71-73, 81669 Munich, Germany
DE228451997

insurrection, 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 a period
equal to the time lost by reason of the delay.
h. These terms and conditions exclusively govern the ordering, purchaseand provision 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 GmbH
Zeppelinstrasse 71-73, 81669 Munich, Germany
DE228451997