CLARITY LIMS TERMS & CONDITIONS
Section 1
1.1

DEFINITIONS & INTERPRETATION

Definitions. In these Terms & Conditions:“Access Date” means the date on which Illumina first provides Customer with access to the Cloud
Software;“Additional Services” are defined in Section 4.7;
“Affiliate(s)” means an entity controlling, controlled by, or under common control with a Party;“Aggregated Data” is defined in Section 5.7;
“Business Hours” is defined in Section 4.1;
“Claims” means any and all losses, liabilities, suits, actions, causes of actions, judicial or administrative
proceedings, claims, demands, damages, penalties, settlements, fines, costs and expenses of whatsoever
kind or character (including but not limited to all costs and fees for investigation and defense);“Cloud Software” means the Software installed on servers by, or on behalf of, Illumina to which
Illumina provides Customer access;“Confidential Information” is defined in Section 9;“Contact Point” is defined in Section 4.2;
“Customer Data” is defined in Section 5.6;
“Customer Indemnitee(s)” is defined in Section 8.1;
“Default” is defined in Section 11.1(a);“Disclosing Party” is defined in Section 9;“Documentation” means Illumina’s then current, generally available user manuals and similar technicaldocumentation for the Software;“Excluded Claim(s)” is defined in Section 8.2;
“Excluded Use(s)” means any and all use(s) of the Software that (a) is not in accordance with theSoftware’s Documentation or Specifications, (b) is the disassembling, reverse-engineering, reversecompiling, or reverse-assembling of the Software, (c) is a modification, alteration, or creation ofderivative works of the Software; (d) gains access to or determines the methods of operation of the
Software; (e) use of Illumina’s Intellectual Property and Confidential Information to develop a productthat is similar to the Software; (f) is a sublicense, resale, sublease, or other use of the Software for the
benefit of any third party or to operate a service bureau for the benefit of a third party. Except withrespects to the On-Premise version(s) of the Software, the term Excluded Use(s) shall also be understoodto mean (g) is a use of the Software on any processor or equipment not provided by Illumina; and/or (h)involves removal of any proprietary notice from any Software, Documentation, or Specifications;“Error” means a failure of the Software to conform in any material respect to the then-current Software
Specifications. Error does not include a failure arising from Customer’s misuse, improper use, oralteration of the Software, Customer’s damage to the Software, or Customer’s combining or merging theSoftware with any hardware or software not supplied by Illumina or identified by Illumina in writing as
compatible;“Feedback” is defined in Section 5.7;
“Illumina” means Illumina, Inc.;“Illumina Infringement Claim” is defined in Section 8.1;
“Important Problem” is defined in Section 4.1;
“Improvements” is defined in Section 5.5;
“Intellectual Property” means any and all of the following proprietary rights of a party: all rights inpatent, copyrights (including rights in computer software), trade secrets, know-how, trademarks, service
marks and trade dress rights and other industrial or intellectual property rights under the laws of any
jurisdiction, whether registered or not, and including without limitation all applications or rights to apply
therefor and registrations thereto, and those that may provide a right in works, hardware, software, source
code, object code, formulae, algorithms, techniques, or methodologies.

“License” is defined in Section 5.1;
“Maintenance & Support” is defined in Section 4.3;
“Major Release” means a version of the Software that includes significant function and featureenhancements. A Major Release is identified by an increase in the major number of the version
accompanied by the minor number being reset to zero (for example 8.8 to 9.0);“Minor Release” means a version of the Software that includes updates, modifications, or corrections to
the Software. Minor Releases are identified by an increase in the second set of digits of the version (forexample 8.1.0 to 8.2.0);“Non-Production” means Customer’s use of the Software for validation, workflow development andtraining purposes only and not for any commercial purpose;“Notice” is defined in Section 12.5;“On-Premise” means a version of the Software as specified in the Quote in which the Software will be
installed, and from which Customer will use the Software at a Customer site.
“Party” means Customer or Illumina, as the context requires, and “Parties” means both Customer andIllumina;“Patch(es)" means a modification or addition to the Software by Illumina that corrects an Error. Patches
are identified by an increase in the third set of digits of the version (for example 8.1.1 to 8.1.2);“Payment Terms” means the payment terms set out in the Quote;“Production” means the day-to-day use of the Software by Customer in a clinical, research or production
environment, as applicable;“Purchase Order” is defined in Section 5.8;
“Quote” means the Illumina-issued quotation listing Clarity LIMS as a quoted item;“Receiving Party” is defined in Section 9;“Releases” means Major Releases, Minor Releases and Patches;“Specifications” means Illumina’s then-current written technical specifications for the Software and/or
Additional Services;“Software” means:(a)the Illumina proprietary software programs listed in the Quote:(b)
all Releases;(c)the licensed third-party software incorporated in Illumina’s proprietary software;(d)the Documentation; and(e)any modifications to, extracts from, derivative works of, or collective works including,any of the items described in (a), (b), (c) and (d);“Stopper” is defined in Section 4.1;
“Subscription Fees” means the fees set out in the Quote for the Subscription Services;“Subscription Services” means:(a)the grant of the License; and(b)the provision of Maintenance & Support;“Term” means the period starting on the Access Date and ending after the number of months specified in
the applicable Quote;“Terms & Conditions” means these terms & conditions and any written amendment to them; and“Updates” means updates, version upgrades, and patches to the Software; and“Warranty Period” means the sixty calendar-day period starting on the first day of the Term.
1.2
Costs, Expenses and Risk. Except as expressly stated, each Party is solely responsible for all
costs, expenses and risks incurred by it and by any of its personnel, employees and agents in connection
with the performance of its obligations.
1.3
Affiliates. The Software may be provided by an Illumina Affiliate. If an Affiliate provides
Customer with the Software, all refences to “Illumina” in these terms and conditions shall be deemed torefer to such Illumina Affiliate with respect to such Software. Customer agrees Illumina may delegate orsubcontract any or all of its rights and obligations under these terms and conditions to one or more of its
Affiliates. Illumina invoices may be issued by an Illumina Affiliate and Customer shall honor suchinvoices.
1.4
Reasonable Efforts. Neither Party shall be liable to make more than a reasonable commercial
effort to perform its obligations.
1.5
Headings. Headings have been inserted in these provisions for convenience of reference only andshall not affect their construction.
SECTION 2

CUSTOMER ACTIVITIES.

Customer shall be responsible for ensuring that the necessary Customer infrastructure, as set out in the“Technical Requirements” section of the Software Specifications, is in place so that Illumina can perform
its obligations. Customer agrees neither it nor its representatives and agents shall use the Software or
Customer’s access to the Software for any unauthorized activity or malicious illegal, or harmful purpose(including, without limitation, a denial of service attack, unlicensed software installation, unauthorizedaccess attempts, and/or port scanning).
SECTION 3

INSTALLATION, TRAINING & INTEGRATION.

Illumina shall provide Customer with access to the Cloud Software in a cloud environment or; if
applicable, an On-Premise version at the Customer site. Illumina shall perform the integration withadditional compatible products, if any, or remotely assist with On-Premise installation on customer
request and the training as specified in the Quote. In order to be entitled to the training specified in the
Quote, Customer must promptly request and schedule for remote training to occur within ninety days of
the Access Date; Customer’s failure to complete the remote training within ninety days of the Access
Date shall cause Customer to forfeit its right to receive such training and any exception shall only be
granted in Illumina’s sole and absolute discretion.
SECTION 4
4.1

MAINTENANCE & SUPPORTMaintenance & Support Definitions.

“Business Hours” means:12:00 am to 5:00 pm Pacific, Monday through Friday, excluding Illumina
corporate holidays and shut down periods. Illumina may update this time frame from time-to-time upon
notice to Customer.
“Important Problem” means an Error which materially affects Production but for which a work-around
exists such that the Production can substantially continue; and“Stopper” means a severe Error in the Software that causes the Software to fail or to substantially cease
Production and for which no workaround exists and work cannot continue.
“Maintenance Window” means a timeframe where Illumina may update Customer’s instances.
The Maintenance Window for each region is as follows:(a)
For customers located in Asia or the Middle East: Fridays at 4:00-6:00 PM PST or PDT(as applicable); and(b)
For customers located in North America or Europe: Sundays at 4:00-6:00 PM PST or
PDT (as applicable).

Maintenance Window Updates. Illumina may provide Updates, from time-to-time, at Illumina’s
discretion during the Maintenance Window. Customer shall permit Updates related to maintenance and/or
security as Illumina deems reasonably necessary. These updates will be performed during theMaintenance Window except when deemed urgent by Illumina. These updates may include, but are notlimited to, Operating System patch updates, Clarity LIMS application patch updates, configuration
changes, mandatory security patching, and updates to embedded software. Illumina shall not initiate
application backup during patching, but will check for successful backup in the prior four hours before
proceeding. Additional time may be required to execute any applicable backup plan in case any issues arefound during the update process.

4.2
Contact Point. During the Term, Illumina shall maintain, and keep Customer advised of, acontact point (the “Contact Point”) for Error reporting. Customer must promptly notify the Contact Pointof all Errors it wishes Illumina to address.
4.3
Maintenance & Support. During the Term, Illumina shall provide maintenance and support for
the Software (the “Maintenance & Support”) as follows:(a)Releases.
(i)
Illumina shall provide Customer with all current and future Releases that
Illumina makes available to its Customers and does not separately price ormarket.
(ii)
Illumina shall install currently supported Releases in Customer’s cloud hosted
instances on customer request. On Customer request Illumina will remotely
provide assistance with On Premise installations. .
(b)Error Corrections.
(i)Severity 1: Stopper.
(1)
During Business Hours, Illumina shall acknowledge a Stopper within
two (2) hours of it being reported to the Contact Point.
(2)
Outside of Business Hours, Illumina shall acknowledge a Stopper that isreported to the Contact Point within two (2) hours of the commencementof the next working day.
(3)
Illumina shall commence resolution of the Stopper within one (1) hour of
its acknowledgement of the Stopper and shall continue until the Stopper
is resolved or Illumina provides a work-around. Where reasonably
necessary and commercially reasonable, Illumina may elect to workoutside of Business Hours to resolve the Stopper.
(ii)
Severity 2: Important Problem. Illumina shall, during Business Hours:(1)
acknowledge an Important Problem within two (2) hours of theImportant Problem being reported to the Contact Point;(2)
commence resolution of the Important Problem within four (4) hours ofsuch acknowledgement; and(3)
shall use commercially reasonable efforts until the Important Problem isresolved.
(iii)
Severity 3: Low. All problems that are not Stoppers or Important Problems,
including without limitation Errors in the Non-Production environment, minor
Errors that do not materially affect Production, and Documentation correction
requests, are “Low”. Illumina shall log Low problems and use commerciallyreasonable efforts to correct Low problems during Business Hours, but does notguarantee response or resolution time.
4.4Standard of Maintenance & Support. See Exhibit 1

4.5

Limitations on Maintenance & Support. Illumina:(a)shall maintain, and develop from, only the most recent Release.
(b)
shall not be liable to provide Maintenance & Support beyond the Term and/or for any
software other than the Software.

4.6
Backups. Illumina shall endeavor to perform an automatic backup of projects, sample meta data,
configuration, custom scripts and uploaded content every four hours, to retain: (a) all backups from theprevious twenty-four hour period, (b) a single backup per day for a calendar month, and (c) a single
backup for each calendar month for up-to a year.
4.7
Additional Services. During the Term, in addition to the Subscription Services, Illumina shall, if
the authorized representative of the Parties agree in writing and further subject to the payment ofapplicable fees, provide additional services such as, without limitation to, installation, training andconsulting (collectively the “Additional Services”).
4.8
Limitations on Installation of Additional Applications. Only those third party applications
which are expressly approved by Illumina in writing may be installed by Customer in the Software.
Illumina will share a list of approved applications for Customers installation, this will be in support
documentation provided to Customer.
SECTION 5

USE RIGHTS.

5.1
License. Subject to these Terms & Conditions, including payment of all applicable fees, during
the Term Illumina grants Customer a non-exclusive, non-transferable, non-sublicensable limited license
for Customer to access and use the Software in a Non-Production environment, or in a Production
environment up to the number of named users set forth in the Quote, in accordance with the applicable
Documentation and Specifications (the “License”). Customer shall not use the Software for any Excluded
Use. Certain elements of the Software may contain software, content, data, and other intellectual property
furnished by third parties and may be subject to certain third-party terms and conditions. Except for the
express licenses granted in these terms and conditions, Illumina and its licensors reserve all other right,
title, and interest in and to the Software and, if applicable, Additional Services, including allenhancements or modifications made thereto. No other rights or licenses are conferred upon Customer
under these Terms & Conditions. Customer expressly acknowledges and agrees it is not licensed to use:(a) the Software on any additional processor or equipment; (b) the Software for the business of any otherentity other than Customer, and any such additional use shall require an additional license from Illumina;and (c) the source code version of the Software.
5.2
Notices. Customer shall not obliterate, alter or remove any proprietary or Intellectual Property
notices from the Software and shall reproduce, on any copies of the Software that Customer is authorized
to make, all notices as they appear on the Software being copied.
5.3
License Restrictions. Customer shall not copy, adapt, transcribe, merge, reverse engineer,reverse assemble, reverse compile, sublicense, distribute, market, rent, lease, transfer or otherwise disposeof, or use as part of a service bureau, any part of the Software.
5.4
Intellectual Property in the Software. Customer acknowledges that except for the limited
License granted under Section 5.1: it acquires no right, title or interest in or to the Intellectual Property in
the Software; and all proprietary and Intellectual Property rights, title and interest including copyright inand to the original and all copies of the Software shall be and remain that of Illumina and third-party
licensors.

5.5

Ownership of Improvements.
(a)Creation of Improvements. Immediately upon creation, Customer expressly andirrevocably assigns to Illumina all right, title and interest in and to all Intellectual
Property and in and to all improvements to the Software that Customer conceives(collectively the “Improvements”). For greater certainty, Improvements do not include
scripts developed by, or on behalf of, Customer using the Software’s APIs.
(b)
Disclosure of Improvements. Customer shall promptly disclose to Illumina all
Improvements during the Term.
(c)
Assistance in Recordation. Customer shall, at Illumina’s expense, provide reasonable
commercial assistance, including the execution of documents, as is necessary for Illumina
to evidence its sole Intellectual Property in and to all of the Improvements.

5.6
Ownership of Scripts and Customer Data. Illumina acknowledges that it acquires no right, title
or interest in and to any intellectual property in or to any of the scripts developed by, or on behalf of,Customer using the Software’s APIs. Customer may provide Illumina with certain data and otherinformation in connection with the performance of these terms and conditions, including uploading datain connection with its use of the Software (the “Customer Data”). Customer grants Illumina a nonexclusive, world-wide, royalty-free license to use the Customer Data for purposes of performing its
obligations under these terms and conditions. Customer will be responsible for obtaining all rights,
permissions, and authorizations, to provide the Customer Data to Illumina for use as contemplated underthese terms and conditions, and Illumina’s privacy policy located athttps://www.illumina.com/company/legal/privacy.html. Except as set forth in this Section, nothing
contained in these terms and conditions will be construed as granting Illumina any right, title, or interestin the Customer Data. Customer Data shall be deemed Customer Confidential Information. Customer
understands and agrees that (a) the Software is not designed for use with personally identifiable
information, protected health information, or any other personal information subject to protection under
any applicable law); and (b) it is solely responsible for ensuring the Customer Data does not contain any
such data and shall not upload any such data into or using the Software.
5.7
Feedback; Aggregated Data. Customer may voluntarily provide Illumina with suggestions,comments or other feedback (collectively, “Feedback”) with respect to the Software. Illumina may use
Feedback for any purpose without obligation of any kind. To the extent a license is required under any
Customer intellectual property rights to make use of the Feedback, Customer grants Illumina anirrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with
Illumina’s business, products, and services, including the development and enhancement of the products
and services. Additionally, Customer grants Illumina a non-exclusive, perpetual, irrevocable, fully-paidup, royalty free license to use data derived from use of the Products and Services (the “AggregatedData”) for purposes of improving the products and services of Illumina and its Affiliates; provided theAggregated Data is combined with similar data from other Customers and not identifiable to Customer or
any individual. Customer agrees that Illumina may include Customer’s name on Illumina customer lists
that it makes available to third parties from time to time.
5.8
No Software Installation; No Malicious Activity. Customer shall not engage in any activity in
its utilization of the Software that interferes with, disrupts, damages, or accesses in any unauthorizedmanner the servers, networks, content thereof, or other properties or services of Illumina, its affiliates, or
any third party.
SECTION 6

FEES & PAYMENT

6.1
Invoices. Illumina shall issue an invoice for each amount due in accordance with the fees set
forth in the Quote. All invoices are payable as of the date of invoice and payments by Customer on suchinvoices are due within thirty days after the date of the invoice. Without limiting any remedies available
to Illumina, any amounts not paid when due will accrue interest at the maximum rate allowed by law.
Customer shall pay for all costs incurred by Illumina in connection with collection of late payments.
6.2
Purchase Orders; Payments. During the Term, Customer shall order licenses to the Softwareand any Additional Services using written purchase orders submitted under and in accordance with theseTerms & Conditions and the Quote (each, a “Purchase Order”). Each Purchase Order shall state the
Quote number and shall reference these Terms & Conditions. Acceptance of a Purchase Order shall bedeemed to have occurred when Illumina (or an Illumina Affiliate) provides Customer with a sales orderconfirmation. All Purchase Orders accepted by Illumina are non-cancelable by Customer and Customer
shall pay Illumina:(a)the Subscription Fees;(b)
the installation, integration and training fees set out in the Quote;(c)the fee agreed by the Parties for Additional Services, if any;(d)the travel expenses agreed by the Parties; and(e)all taxes (including sales, use, property, excise, value added and gross receipts but notincluding taxes based on Illumina’s income), import duties and fees and charges of any
kind levied or imposed by any federal, provincial, state or local governmental entity inconnection with the foregoing items;
Customer shall promptly notify Illumina in writing of any amounts in dispute. Furthermore, Customer
shall make all payments (which are not disputed in good faith) in accordance with the Payment Terms.
Where payment is made by wire or other electronic funds transfer, Customer shall be solely responsible
for any bank or other fees charged and will reimburse Illumina for any such fees.
6.3
Audit. During the Term, Customer shall, every twelve (12) months, permit Illumina and its
representatives and agents to conduct an annual audit of Customer’s relevant records and computer
systems in order to verify Customer’s compliance with the Terms & Conditions. Such audits shall be
conducted during Customer’s normal working hours with reasonable advance notice at Customer’s placeof business and where the Software licensed to Customer is, or was, located. Illumina shall pay for thecost of the audit unless Illumina reasonably determines from the audit that Customer has materiallybreached the Terms & Conditions, in which case Customer shall pay the cost of the audit and all
additional amounts owed to Illumina as determined by the audit. For greater certainty, a material breachof the Terms & Conditions for purposes of this Section 6.3 includes, but is not limited to: (a) Customer’s
use of more than the authorized number of operating copies of the Software; or (b) Customer exceeding(by ten percent or more) the authorized maximum number of named users for the Software.
SECTION 7

REPRESENTATIONS & WARRANTIES.

7.1
Software Warranty. Illumina warrants that the Software shall perform in all material respects inaccordance with the Software Specifications.
7.2
Warranty Period Remedy. Illumina warrants that during the Warranty Period, it shall promptly
remedy any failure to meet the warranties set out in Section 7.1, and if it is unable to do so within ninety(90) days of the end of the Warranty Period, Customer may return to Illumina, or certify the destructionof, all copies of the Software, following which Illumina shall promptly refund to Customer a pro-rated
portion of the Subscription Fees, which pro-ration would be based on the amount of time between when
Illumina was unable to remedy the failure through the end of the Warranty Period.

7.3
Post Warranty Period Remedy. After the Warranty Period, Illumina’s obligations formaintenance and support are only as provided for in Section 4.
7.4
WARRANTY EXCLUSIONS. THE WARRANTIES SET OUT IN SECTIONS 7.1 – 7.3 ARE
IN LIEU OF ALL OTHER WARRANTIES, AND THERE ARE NO OTHER WARRANTIES,REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND WHATSOEVER,
EITHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THOSEREGARDING MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FORPURPOSE, CORRESPONDENCE TO SAMPLE, TITLE, DESIGN, CONDITION, OR QUALITY.
WITHOUT LIMITING THE FOREGOING, ILLUMINA DOES NOT WARRANT THAT SOFTWARESHALL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE OPERATION OF
SOFTWARE SHALL BE FREE FROM INTERRUPTION OR ERRORS.
7.5
WARRANTY RESTRICTIONS. ILLUMINA SHALL HAVE NO OBLIGATION TO REPAIR
OR REPLACE SOFTWARE DAMAGED BY ACCIDENT OR OTHER EXTERNAL CAUSE, OR
THROUGH THE FAULT OR NEGLIGENCE OF ANY PARTY OTHER THAN ILLUMINA.
7.6
ADDITIONAL REPRESENTATIONS & WARRANTIES. Each Party represents, warrants,
and covenants that it has the right and authority to enter into these Terms & Conditions without violating
the terms of any other agreement.
SECTION 8

INDEMNIFICATION.

8.1
Infringement Indemnification by Illumina. Subject to these Terms & Conditions, including
without limitation the “Exclusions to Illumina’s Indemnification Obligation” provided as Section 8.2
hereinbelow, “Indemnification by Customer” provided as Section 8.3 hereinbelow, and “Conditions to
Indemnification Obligations” provided as Section 8.4 below, Illumina shall: (a) defend, indemnify, andhold harmless Customer and Customer’s officers, directors, representatives and employees (each, a“Customer Indemnitee” and collectively “Customer Indemnitees”), against any Claims brought by a thirdparty alleging Customer’s use of the Software in accordance with these Terms & Conditions constituted
infringement of the valid and enforceable Intellectual Property rights of such third-party (an “Illumina
Infringement Claim”) and (b) Illumina shall pay all settlements entered into, and all final judgments andcosts (including reasonable attorneys’ fees) awarded against such Customer Indemnitee in connection
with such Illumina Infringement Claim. The foregoing obligation to indemnify, defend, and holdharmless shall not being applicable for any Claims brought a third-party who is or becomes or was an
Affiliate of Customer. If the Software or any part thereof becomes, or in Illumina’s opinion may become,the subject of an Illumina Infringement Claim or other action against Illumina (including its Affiliates) or
Customer and/or any other Customer Indemnitee, Illumina has the right, at its option, to (i) procure for
Customer the right to continue using such Software, (ii) modify or replace such Software, as applicable,with substantially equivalent non-infringing substitutes, or (iii) cease providing the Software that is or
may become the subject of an infringement claim or action and terminate the rights, license, and any otherpermissions given hereunder with respect thereto, no longer be obligated to provide the Software
hereunder, and refund to Customer the prorated portion of any prepaid, unused fees for such Software.
This Section 8.1 states the entire liability of Illumina for any allegation of Customer infringement of
third-party Intellectual Property rights, as well as Illumina’s entire obligation under these Terms &Conditions to indemnify, defend, and hold harmless any Customer Indemnitee.
8.2
Exclusions to Illumina Indemnification Obligations. Illumina shall have no obligation to
defend, indemnify, or hold harmless any Customer Indemnitee or pay any Claims, final judgments, or
costs whatsoever with respect to any Illumina Infringement Claim to the extent such Illumina

Infringement Claim is or arises from any one or more of the following (each, an “Excluded Claim” andcollectively, “Excluded Claims”):
(a)
(b)
(c)
(d)
(e)
(f)
(g)

the use of the Software in any unauthorized manner or for any purpose outside the scopeof the rights, license(s), or permissions conferred by Illumina upon Customer with respect
to the Software in accordance with these Terms & Conditions;the use of the Software in any manner or for any purpose not in accordance with or as
described in the Documentation;
the use of the Software in combination with any other hardware, software, materials,
assay-specific protocols, or products and services not supplied by Illumina;
Illumina’s compliance with specifications or instructions for Software furnished toIllumina by Customer or by a third party on behalf of Customer,
use of the Software in any manner or for any purpose that requires rights to third party
Intellectual Property rights to avoid infringing such rights;
Customer’s negligence, fraud, or willful misconduct; orCustomer’s breach of any term of these Terms & Conditions.

8.3
Indemnification by Customer. Customer shall defend, indemnify and hold harmless Illumina,
its Affiliates, their licensors, and collaborators and development partners that contributed to thedevelopment of the Products, and their respective officers, directors, representatives, employees,
successors and assigns against any and all Claims including without limitation, those Claims relating to or
arising out of personal injury or death or relating to or arising out of infringement of a third-party’sIntellectual Property rights, to the extent a Claim results from, relates to, or arises out: (a) any action
described in any Excluded Use or any Excluded Claim including, without limitation, any use or breachdescribed therein; (b) Illumina’s licensed use of the Customer Data; (c) Customer’s failure to obtain andmaintain approvals from any relevant authority governing its use of the Software; and/or (d) actions (orinactions) taken by individuals who receive (directly or indirectly) results from Customer’s use of the
Software.
8.4
Conditions of Indemnification. The Parties’ indemnification obligations under this Section 8 aresubject to the Party seeking indemnification (a) notifying the indemnifying Party promptly in writing of
the claim, (b) giving the indemnifying Party exclusive control and authority over the defense of suchclaim, (c) not admitting infringement of any Intellectual Property right, or any liability with respect to an
Subscriber Claim, without prior written consent of the indemnifying Party, (d) not entering into any
settlement or compromise of any such action without the indemnifying Party’s prior written consent, and(e) providing all reasonable assistance to the indemnifying Party that the indemnifying Party requests(provided that indemnifying Party reimburses the indemnified Party for its reasonable out-of-pocket
expenses incurred in providing such assistance).
SECTION 9

CONFIDENTIALITY.

Subject to the terms of any confidentiality agreement between Illumina and Customer and except to theextent required by securities or other applicable law, each Party (the “Receiving Party”) shall consider all
information furnished by the other Party (the “Disclosing Party”) that is not publicly available(“Confidential Information”), including (without limitation) any commercial information, transaction
terms, financial terms (such as pricing), instructions, drawings, specifications, and/or other documentation
provided by the Disclosing Party to the Receiving Party, to be confidential and the Receiving Party shallnot disclose any such Confidential Information to any other person or entity unless the Receiving Party
first obtains the Disclosing Party’s written consent. The restrictions on the disclosure of Confidential
Information shall not apply to the extent Receiving Party is able to evidence that the information: (i) at thetime of disclosure is, or thereafter becomes, generally available to and known by the public other than as aresult of any act or omission by the Receiving Party or any of its representatives; (ii) at the time of
disclosure is, or thereafter becomes, available to the Receiving Party on a non-confidential basis from athird-party source Receiving Party reasonably believes was not prohibited from disclosing such
Confidential Information; (iii) was known by, or was in the possession of, the Receiving Party prior todisclosure by the Disclosing Party; or (iv) was or is independently developed by the Receiving Party
without reference to, or use of, in whole or in part, any of the Disclosing Party’s Confidential
Information. Notwithstanding anything to the contrary herein, Receiving Party may disclose theConfidential Information to the extent required (as evidenced by the advice of Receiving Party’s counsel)
by court order, operation of law, or government regulation; provided, however, to the extent reasonably
practical Receiving Party shall promptly notify Disclosing Party of the requirement to disclose theConfidential Information so that Disclosing Party may have an opportunity to limit the release anddisclosure of the Confidential Information by means of a protective order or otherwise.
SECTION 10 LIMITATIONS OF LIABILITY.
NEITHER PARTY NOR ITS AFFILIATES NOR THEIR RESPECTIVE VENDORS AND
LICENSORS WILL HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY
FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR ANY TYPE OF INCIDENTAL,CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND
PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THESETERMS & CONDITIONS AND/OR THE QUOTE, INCLUDING USE OF, OR INABILITY TO USE,THE SOFTWARE, THE SUBSCRIPTION SERVICES, AND/OR ADDITIONAL SERVICES.
EXCEPT WITH REGARDS TO ILLUMINA’S OBLIGATIONS UNDER SECTION 8, THE TOTAL
LIABILITY OF ILLUMINA AND AFFILIATES AND THEIR RESPECTIVE VENDORS AND
LICENSORS TO SUBSCRIBER OR ANY THIRD PARTY ARISING OUT OF THESE TERMS &CONDITIONS, USE OF THE SOFTWARE, THE SUBSCRIPTION SERVICES, AND/OR
ADDITIONAL SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE(WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE
TOTAL FEES PAID HEREUNDER BY CUSTOMER DURING THE TWELVE (12) MONTHSIMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS
LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTHABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
SECTION 11 TERMINATION.
11.1

Termination Definitions. In this Section 11:“Default” means any of the following:(a)a Party becomes insolvent or bankrupt or makes an assignment for the benefit ofcreditors, or if a receiver or trustee in bankruptcy is appointed, or if any proceeding inbankruptcy, receivership, or liquidation is instituted against the Party and is not dismissed
within thirty (30) days following commencement;(b)a Party is in Material Breach and does not remedy the Material Breach within thirty (30)days of receipt of a notice from the other Party specifying the Material Breach; and“Material Breach” means a material breach of this Agreement, which would include, without limitation:(a)Customer failing to pay any amount not in dispute when due;(b)
A Party breaching, or having breached, Section 9; or(c)Illumina failing to provide Maintenance & Support.

11.2
Term. Unless otherwise terminated pursuant to these Terms & Conditions, these Terms &Conditions shall remain in effect throughout the Term. In the event Customer submits a Purchase Orderfor the Software or any Additional Services following any termination or expiration of these Terms &Conditions, these Terms & Conditions shall be automatically reinstated and shall govern any such
Purchase Order that is accepted by Illumina.
11.3
Termination for Default. If there is a Default, then the Party not in Default may immediately
terminate these Terms & Conditions and the agreement between the Parties for the Subscription Services
on written notice to the Party in Default, in which case: (a) the Party not in Default may claim any
remedies which it may have at law or in equity; and (b) the Party in Default shall pay all reasonable
attorney’s fees and disbursements incurred by the Party not in Default as a result of the termination. To
the extent there is a Default, if the defaulting Party cures such Default before the other Party exercises its
termination rights pursuant to this Section 11.3, then, absent a subsequent Default, the non-defaulting
Party shall not be entitled to terminate pursuant to this Section 11.3.
11.4
Effect of Termination. In the event of termination pursuant to Section 11.3 above, Customer
shall be liable to pay Illumina only for the Subscription Services and Additional Services provided andthe installation, integration and training completed as of the date of termination.
11.5
Non-exclusive Remedy. The right of either Party to terminate is not an exclusive remedy, andeach Party shall be entitled, alternatively or cumulatively, to damages for breach of the agreement
between the Parties for the Subscription Services, to an order requiring performance of the obligations of
the other Party, or to any other remedy available under the laws of any applicable jurisdiction.
11.5
Termination or Expiration. On the earlier of termination pursuant to Section 11.3 above or
expiration of the Term, all definitions, purchase commitments under open Purchase Orders, payment
obligations and those provisions of these Terms & Conditions that expressly or by their nature
contemplate performance or observance after termination or expiration of the Term shall survive suchtermination or expiration. For purposes of clarity, termination, or expiration of the Term, alone shall notrelieve the Parties of any liability or obligation that accrued hereunder prior to the effective date of suchtermination or expiration.
11.6
Return of Software. Upon termination of these Terms & Conditions and the agreement
between the Parties for the Subscription Services or expiration of the Term, Customer and its employees,
officers, agents, and representatives shall immediately cease using and/or accessing the Software in any
manner whatsoever, to and shall certify in writing to Illumina that Customer has done so.
SECTION 12 MISCELLANEOUS.
12.1
Complete Agreement. The entire agreement between Illumina and Customer for the provision of
the Software, the installation, integration and training, and the Subscription Services comprises thefollowing documents, in descending order of precedence: (a) any fully executed written amendment tothese Terms & Conditions; (b) these Terms & Conditions; and (c) the Quote. The foregoing documents
supersede and merge all prior representations, proposals, understanding and all other agreements, oral or
written, express or implied, between the Parties relating to the subject matter hereof. Neither the Terms &Conditions nor the Quote may be modified or altered except by written instrument duly executed by bothparties. The parties acknowledge that the Terms & Conditions are intended to supersede and replace any
pre-printed terms which may be included on any other commercial documentation exchanged between
them including, without limitation, purchase orders, order acknowledgements and invoices.

12.2
Assistance in Recordation. Customer shall, at Illumina’s expense, provide reasonable
commercial assistance, including the execution of documents, as is necessary for Illumina to evidence its
sole Intellectual Property in and to the Documentation and the Software, excluding any licensed thirdparty software incorporated in Illumina’s proprietary software.
12.3
Force Majeure. Neither Party shall be in breach of these terms and conditions nor liable for any
failure to perform, impairment in performance, 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, pandemic, actual or threatened acts of war, terrorism, civil
disturbance or insurrection, sabotage, labor shortages or disputes, failure or delay in delivery by
Illumina’s suppliers or subcontractors, transportation difficulties, or shortage of energy, raw materials or
equipment (each a “Force Majeure Event”). In the event of any Force Majeure Event, the delivery date
for performance shall be deferred for a period equal to the time lost by reason of the delay.
Notwithstanding anything in these terms and conditions to the contrary, Customer’s payment obligations
are not affected by this provision except to the extent the Force Majeure Event affects financial
institutions and, as a result, the financial institutions cannot complete the transaction necessary for
Customer to satisfy its payment obligations.
12.4
Relationship. The Parties are independent contractors under these Terms & Conditions andnothing contained in these Terms & Conditions between the Parties shall make or be construed to makeIllumina and Customer partners or agents of each other or to create any other relationship by which theacts of any party may bind the others or result in any liability to the other.
12.5
Notices. Any notice, request, payment or communication (collectively, any "Notice") by either
Illumina or Customer to the other shall be made in writing and delivered personally or by confirmed
receipt email, registered mail, first-class postage fees prepaid, return receipt requested, to the addresses
first set out above, or at such other address as either party may designate from time to time. Any Notice
shall be deemed to have been received at the time it is personally delivered, or at the time it is received byor email, or on the 5th business day following the date on which it is dispatched by registered mail.
12.6
Arbitration. In Illumina’s sole discretion, any dispute, claim or controversy arising out of or
relating to these Terms & Conditions and Quote shall be resolved by confidential binding arbitration
conducted in the English language, under generally accepted arbitration rules and procedures in a venue
to be determined by Illumina. Neither party nor an arbitrator may disclose the existence, content, or
results of any arbitration without the prior written consent of both parties, unless required by law; thedecision of the arbitrator shall be final and binding on the parties, provided that, the arbitrator shall nothave the authority to alter any explicit provision of these Terms & Conditions and the Quote; andjudgment on the award may be entered in any court having jurisdiction. This clause shall not preclude theparties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
12.7
Governing Law; Jurisdiction. These terms and conditions, their interpretation, and theperformance of the parties shall be governed by the laws of (i) the State of California, U.S.A., if Customer
is located in the United States or (ii) the laws of the country where Illumina is located, if Customer is not
located in the United States. Illumina and Customer agree that the United Nations Convention on
Contracts for the International Sale of Goods shall not apply to these terms and conditions. In Illumina's
sole discretion, any dispute, claim or controversy arising out of or relating to these terms and conditions,shall be determined by confidential binding arbitration conducted in the English language, undergenerally accepted arbitration rules and procedures in a venue to be determined by Illumina. In all casesof arbitration each party shall bear its own costs and expenses and an equal share of the arbitrator's andadministrator's fees of arbitration; neither party nor an arbitrator may disclose the existence, content, or
results of any arbitration without the prior written consent of both parties, unless required by law; thedecision of the arbitrator shall be final and binding on the parties, provided that, the arbitrator shall nothave the authority to alter any explicit provision of these terms and conditions; judgment on the award
may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking
provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
12.8
Severability; Non-Waiver. If any provision of the agreement between the Parties shall be held to
be invalid, illegal or otherwise unenforceable, it shall be enforced to the maximum extent permissible so
as to effect the intent of the Parties, and the remainder of these Terms & Conditions will continue in fullforce and effect. The failure or delay of either Party to exercise any right or remedy (or part thereof)
provided herein or to require any performance of any term of these Terms & Conditions shall not be
construed as a waiver of such term.
12.9
Government End-Users. The Software is commercial computer software. If Customer is anagency, department, or other entity of the United States Government, the use, duplication, reproduction,
release, modification, disclosure, and transfer of the Software shall be governed by the Terms &Conditions in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense
Federal Acquisition Regulation Supplement 227.7202 for military purposes. Illumina asserts that it hasdeveloped the Software solely at private expense. All other use is prohibited.
12.10 Export Compliance. The Software, any related technology, or information provided to Customer
may be subject to restrictions and controls imposed by the United States Export Administration Act andthe regulations thereunder (or the export regulations and laws of another country). Notwithstanding
anything to the contrary in these Terms & Conditions, Customer agrees not to use the Software in, or
export or re-export the Software, any related technology or information provided to Purchaser into, any
country or to any person or entity, or in any manner, in violation of such controls or any other laws, rules
or regulations of any country, state or jurisdiction.
12.11 Assignment. Customer shall neither assign nor transfer these Terms & Conditions, or any rights
or obligations herein, without the prior written consent of Illumina. Illumina may, upon written notice toCustomer, assign: (a) its right to payment from Customer to a third party and (b) these Terms &Conditions and any associated Quote to a purchaser of all, or substantially all, of Illumina’s assets.
(End of Terms & Conditions)Exhibit 1
Illumina Support Obligations
In providing the Maintenance & Support, Illumina shall:(a)use reasonable commercial efforts to minimize disruption to Customer’s activities;(b)
be deemed to have commenced resolution of an Error when it logs in the reported Error; andcommits personnel and resources to correct, or work around, the Error;(c)
use commercially reasonable efforts to respond to and correct verifiable and reproducible Errors
when promptly reported to Illumina;(d)once it has provided Customer with a Patch, include the Patch in the next Minor Update.

Illumina shall not be liable to provide Maintenance & Support for Errors that Customer does not report to
the Contact Point.