Clear Dx™ Services Program

Clear Labs, Inc. provides Services to its end user customer (“Customer”) during the Term consisting of Warranty Services, Preventive Maintenance, Installation, Training, Validation Services and other services as Clear Labs offers from time to time for the Clear Dx Platform (“Platform”) exclusively in accordance with this Clear DX Services Program (“Program”).  This Program governs any conflict with any other terms, conditions or agreements relating to its subject matter and may be updated by Clear Labs from time to time.

 1. Clear Dx Platform Limited Warranty Services. Clear Labs will provide the following services at no additional charge during the standard Warranty Period, so the Platform performs materially as described in the Documentation when used in accordance with the applicable agreement and Documentation. “Warranty Period” means the twelve months following the date on which the Platform is installed.  “Defects” means reproducible errors or failures of the Platform to perform materially in conformity with the Documentation when used in accordance with the Documentation and this Agreement. “Documentation” means documents, guides, instructions for use, and manuals describing features, functionality, and use of the Platform (“Specifications”) excluding marketing and sales collateral.  

• On-site Service visits scheduled during normal Business Hours of 5:00 a.m. to 5:00 p.m. PT, Monday through Friday (excluding Clear Labs holidays).
• Technical Support Specialists are available during Business Hours to assist in troubleshooting remotely.
• Limited on-call technical support on weekends and holidays.
• Parts and travel and labor to install parts.
• Labor, travel, and Preventive Maintenance kits for 1 Preventative Maintenance visit.
• Remote access connectivity for problem identification, resolution, and monitoring.
• Reagent replacement due to Platform failure.
• Limited hardware and software updates

 2. Service Plan. Clear Labs offers a 1-, 2-, or 3-year Service Plan for purchase by the Customer. The Service Plan extends the standard Warranty Period for the purchased term after the expiration of the standard Warranty Period. Service Plans provide the same services listed under the standard Warranty except for each annual period purchased, there is one annual Preventive Maintenance visit.

3. Installation Services. For an additional charge, Clear Labs provides installation services for the Platform as scheduled during Business Hours.  At least 30 days before the scheduled delivery date of Platform hardware, the Customer, at its sole cost and expense,  will complete a site evaluation and provide responses to requested information to Clear Labs, in writing, of all latent and patent hazards and hazmat on or around the Site and otherwise ensure the Site (and access to the Site) is safe for access and prepared for installation of the Platform including but not limited to ensuring the required physical, environmental, power, and internet connectivity are available and suitable for proper delivery and installation.

4. Training and Validation Services. For an additional charge, a Clear Lab Field Application Scientist will provide operator training during Business Hours in the use and validation of the Platform. Verification and Validation includes Installation Qualification (“IQ”), Operational Qualification (“OQ”), and Performance Qualification (“PQ”). These Services will provide documented evidence that the Platform is installed and operating in accordance with the Specifications when used in accordance with the Documentation and applicable agreement

5. Registered Users and Requesting Services. Customer’s Registered Users may request Services by email or telephone (“Service Request”). Contact and correspondence information is available in the Support section of the Clear Labs website www.clearlabs.com.  In addition, the Platform may send a Run Alert message to Clear Labs Technical Support notifying them of a potential run error which may be addressed remotely and of which Customer will be notified. “Customer’s Registered Users” are designated by Customer as its authorized point(s) of contact for the Services and are trained and knowledgeable of the Platform and will provide assistance to plan and complete Services.

6. RMA Process.

• RMA Request. Clear Labs will generate a Return Authorization Number (“RMA”) in response to a customer request for service that results in the return of alleged nonconforming product and or components. Customer must obtain Clear Labs authorization and comply with Clear Labs’ return RMA instructions prior to returning any items.
• Return of Defective Components. If covered by the Warranty or Service Contract, Clear Labs will arrange for return shipment of the defective component at Clear Labs’ cost if: (a) Customer packages the defective component in the original packing material or equivalent and includes the applicable required forms or other documentation; (b) Customer writes the RMA number on the outside of the package; (c) Customer ships the returned Defective component using Clear Labs’ designated courier service within 14 days after receipt of the replacement component or will pay the purchase price for the replacement component and all associated duties, taxes, and shipment costs on receipt of Clear Labs’ invoice.
• NDF or Outside of Warranty or Service Contract coverage period . Customer will pay all fees on a time and materials basis and all costs relating to or resulting from “No Defect Found” with any returned component.

7. Terms and Conditions.

7.1 Customer Responsibility. The success and scheduling of the Services depends substantially on the Customer’s participation. Any delay caused by unavailability of the Registered User(s) or scheduled Customer resources or failure to notify Clear Labs of any previously known issues or scheduled activities that could reasonably be expected to impact the Service schedule are the Customer’s responsibility and may result in delays in delivery of Services and/or additional costs. Customer is responsible solely for providing backup of data and otherwise protecting data and all systems and networks against loss or destruction prior to the provision of any Services and accepts all risk of loss and damage its systems, networks and information that may result from the performance of any Support Services.

7.2 Conditions Precedent to Services.  To receive Services, Customer must: (i) pay all applicable fees; and, (ii) meet all of its obligations under the applicable license agreement and the Services Program including, by way of example, designating and training Registered User(s).

7.3  Site Access. Customer grants Clear Labs’ employees and contractors (“Personnel”) access to the Site for: (i) Installation; (ii) Warranty Services; (iii) Preventive Maintenance; (iv) Training; (v) Relocation and Deinstallation; and (vi) for providing other services or for such other purposes reasonably relating to use of the Platform and the Services Program. Personnel are entitled to rely on the accuracy and completeness of the site survey and all information Customer submits to Personnel which Customer will update from time to time as appropriate.  On-site Services may be suspended and/or delayed if, in Personnel’s reasonable discretion, the Site is not safe or adequately prepared; in which case, Customer is responsible for all resulting fees, costs and expenses.  Personnel are entitled to rely on the accuracy and completeness of the Site Survey and all information Customer submits to CL Personnel and Customer agrees to update such information as appropriate

7.4   Services Limited Warranties.  Clear Labs warrants Services will be performed by Clear Labs or its contractor in a good and workmanlike manner in conformity with industry standards and this Program. Clear Labs, as its sole obligation and Customer’s sole remedy, will re-perform nonconforming Services of which Customer notifies Clear Labs in writing within 30 days of the affected Services being performed. These limited warranties are made to Customer are non-transferrable.

7.5  Replacement Components.  Clear Labs may substitute, replace or discontinue any or all components of the Platform at any time and such components may be new or equivalent to new.

7.6   Exclusions to Clear Dx Platform Limited Warranty and Services Limited Warranties.  Clear Labs is not liable for and the limited warranties do not apply to Defects or nonconformities in the Platform or Services caused by: (i) improper installation, use or maintenance; (ii) improper operating or storage conditions including out-of Specification environmental conditions; (iii) improper sample preparation; (iv) improper loading of Reagents; (v) failure caused by spills, abuse, misuse, negligence or improper operation; (vi) failure to follow instructions; (vii) failure to use proper microbiological techniques consistent with the industry standard of care for the proper collection, storage, handling and preparation of the sample; (viii) force majeure events such as electrical outages or surges; (ix)  use of consumables or reagents not supplied by Clear Labs; (x) modifications, service or repairs made other than by Clear Labs or its authorized representatives; (xi) problems and environmental conditions external  to the Platform; or (xii) lost, damaged or corrupt data.  Customer is responsible for backing up or otherwise always protecting data.  Services performed to address exclusions may result in additional charges at applicable T&M rates.

7.7   Disclaimers. 

(i) The Warranty does not apply to: (A) Warranty claims not made within the Warranty Period and/or not covered by the Warranty; (B) Hardware, consumables and reagents returned without Clear Labs’ prior written authorization and not in compliance with Clear Labs’ RMA procedures and instructions; (C) use, transported, installation, operation, maintenance, storage contrary to the Documentation or Clear Labs’ written instructions or recommendations.

(ii) Clear Labs’ sole obligation under the Services Program and Customer’s exclusive remedy for breach of the Services Program is to use commercially reasonable efforts to repair or replace Defects so that the Platform performs materially in accordance with the Documentation when used in accordance with the applicable license agreement and this Services Program.

(iii) THE PLATFORM, SERVICES AND DOCUMENTATION ARE PROVIDED ON AN AS-IS BASIS WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO DISCLAIMING EXPRESSLY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT OR THOSE ARISING BY LAW, STATUTE, REGULATIONS, STANDARDS, USAGE OF TRADE, OR COURSE OF DEALING. CLEAR LABS, ITS LICENSORS AND SUPPLIERS, DO NOT WARRANT THAT THE OPERATION OF THE PLATFORM OR THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, BE UNINTERRUPTED, ENTIRELY SECURE OR ERROR FREE OR THAT SERVICES WILL ADDRESS AND RESOLVE ALL DEFECTS. THE CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING IF THE PLATFORM WILL MEET ITS REQUIREMENTS. Customer assumes all risks and liabilities resulting from is use of the Platform alone or in combination with other products and services. This limited warranty may not be transferred or assigned, by operation of law or otherwise, without Clear Labs’ prior written consent. These warranty disclaimers constitute an essential part of the parties’ agreement.

7.8    Fees and Payment. Customer will pay Clear Labs the then current non-refundable fees for the Services, in advance, within 30 days of the date of Clear Labs’ invoice without set off or deduction and, once paid, are non-refundable.  Fees may be changed from time to time. Clear Labs will use reasonable efforts to notify Customer of any adjustments to the fees which change is effective for the renewal Term.  If Preventive Maintenance is purchased after expiration of the Warranty Period or if there is any lapse in Preventive Maintenance, an audit of the Platform may be required, and additional fees may be due and payable.

 7.9    Term.  Except for Warranty Services, Services are available once the applicable fees are paid and continues for the period of time, and successive periods of time, for which Services are ordered and applicable fees are paid (collectively, “Term”) unless earlier terminated.

7.10  Termination.  Either party may terminate this Program effective at the expiration of the then current Term by providing written notice to the other party at least 30 days prior to the expiration of the then current Term.  A party may terminate Services effective upon written notice to the other party if: (i)  the other party fails to cure a material breach within 30 days from receipt of the non-breaching party’ s written notice detailing the breach; (ii) if the other party: (A) becomes insolvent; (A) makes an arrangement with its creditors generally; (C) becomes (or its properties become) the subject of any insolvency, bankruptcy or similar proceeding which is not dismissed within 60 days; (D) goes into liquidation; or (E) otherwise ceases to function as a going concern. Notwithstanding any provision to the contrary, Clear Labs may suspend performance of Services until Customer cures any breach of the applicable license agreement or this Services Program.

 7.11  Effect of Termination. Upon expiration or termination for any reason, Services will stop. Within 30 days after the termination or expiration of Services, each party will return to the other all of the other party’s Confidential Information. Sections 8(d), (f), (g), (h), (k) through (s) survive expiration or termination for any reason.

 7.12. Confidential Information.  “Confidential Information” means non-public information, in any form or format, marked confidential, identified as Confidential Information at the time of disclosure or the nature of the information and the manner of disclosure are such that a reasonable person would understand it to be confidential or proprietary to the disclosing party. Recipient will use commercially reasonable efforts to maintain the confidentiality of the discloser’s Confidential Information. Recipient agrees to use disclosing party’s Confidential Information only for purposes consistent with the Services being performed under this Program. Recipient will not use the disclosing party’s Confidentiality Information in any manner detrimental to the disclosing party including by way of example and not limitation, recipient will not reverse engineer, disassemble, decompile or design around the disclosing party’s proprietary services, products and/or confidential intellectual property, will notify disclosing party promptly of any unauthorized use or disclosure of Confidential Information and will assist in the investigation, remediation, reporting and notification. Confidential Information may be disclosed and used by recipient’s employees, contractors, professional advisors and third parties having a need to know and who are under a similar obligation of confidentiality. Nothing in this provision will be construed to impose a confidentiality obligation on the recipient as to any information which is: (i) at the time of disclosure already known to the recipient without restriction; (ii) at the time of disclosure or subsequently becomes part of the public domain through no fault, act or omission of the recipient; (iii) subsequently disclosed to the recipient by a third party whose receipt and disclosure of such information does not constitute a violation of any confidentiality obligation; (iv) independently developed by or for the recipient by those having no access to or knowledge of the confidential information received; or (v) required to be disclosed by law or governmental regulation; in which case, except to the extent restricted, the recipient will notify the disclosing party promptly to allow disclosing party to seek to quash or otherwise limit or protect the disclosure of the Confidential Information. Disclosing party may seek injunctive or other equitable relief to enforce this provision in addition to other legal remedies.

 7.13  Ownership.  Clear Labs, its suppliers, lessors and licensors retain ownership of the leased components, software licensed for use with the Platform, Documentation, all know-how, data, feedback and results pertaining to or resulting from use thereof or the Services, all intellectual property rights appurtenant thereto, along with all copies, bug fixes, patches, upgrades, updates and derivatives thereof (excluding Customer Data).

 7.14  Customer Data.  “Customer Data” means all data Customer uses and/or provides to Clear Labs in conjunction with the use of the Platform excluding Clear Labs Data. Customer grants to Clear Labs the perpetual, irrevocable, transferable, assignable right to access and use Customer Data to provide services to the Customer and as necessary to monitor and improve the products and services offered by Clear Labs. To improve its products and services, certain subsets of the data in a fully anonymized and depersonalized format that cannot be distinguished, identified or attributed to Customer or individual may be used. Customer, not Clear Labs, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Data. Clear Labs will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data.

 7.15  Consumables and Reagent Kits.  Flow Cells. The Platform is designed to operate only with the Clear Labs Consumables and Reagent Kits listed on the Quotation (and as Clear Labs may update from time to time). All product claims, performance parameters, warranties and licenses are only valid when the Platform is operated with Clear Labs’ Consumables and Reagent Kits.  Clear Labs does not accept returns or offer refunds for expired Consumables and Reagent Kits purchased by Customer.  Customer return to Clear Labs, using the prepaid packaging provided by Clear Labs, the Flow Cells as soon as reasonably possible, except that Customer will not return contaminated Flow Cells to Clear Labs, and instead will provide Clear Labs proof of legal and appropriate destruction of contaminated Flow Cells. Additionally, Customer will, upon expiration or termination of this Agreement, if requested by Clear Labs, return to Clear Labs, using the prepaid packaging provided by Clear Labs, Flow Cells which remain in Customer’s possession or the possession of a third party at the time of such termination (except contaminated Flow Cells). Clear Labs reserves the right to recover from Customer monetary compensation for any Flow Cells not returned or for which proof of legal and appropriate destruction of contaminated Flow Cells have not been provided to Clear Labs.

 7.16  Limitation of Liability.  CLEAR LABS, ITS LICENSORS AND SUPPLIERS, ARE NOT LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR (A) LOSS, DAMAGE, CORRUPTION OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (B) DAMAGES RESULTING FROM USE OTHER THAN IN CONFORMANCE WITH THE DOCUMENTATION, APPLICABLE AGREEMENT BETWEEN THE PARTIES AND ALL APPLICABLE LAWS, REGULATIONS AND STANDARDS; (C) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO LOST REVENUES AND PROFITS, OR OTHER COMMERCIAL OR ECONOMIC; AND (D) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE AMOUNTS PAID AND PAYABLE HEREUNDER FOR THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE OR, IF GREATER, $1,000.00. The foregoing limits apply even if Clear Labs, its licensors, suppliers or authorized representatives, have been negligent or informed of the possibility of such damages and/or such damages are foreseeable. Clear Labs, its licensors, suppliers and representatives, do not and cannot know all of the potential consequences to Customer’s business of a failure of the Services to remedy Defects or the Platform to perform as expected or use other than in conformance with the Documentation and applicable agreement between the parties and all applicable laws, regulations and standards. That is why Clear Labs does not agree to be responsible for Customer’s incidental or consequential business losses in the event the Platform fails to perform as expected.

7.17  Government Use.  The Software and any documentation are commercial items, as that term is defined herein and in 48 CFR 2.101, consisting of commercial computer software and commercial computer software documentation, as those terms are used in 48 CFR 12.212. If the Software or any documentation is acquired by or on behalf of the U.S. government or by a U.S. government contractor (including without limitation prime contractors and subcontractors at any tier), then in accordance with 48 CFR 227.7202-4 (for Department of Defense licenses only) and 48 CFR 12.212 (for licenses with all federal government agencies), the government’s rights to the Software and such documentation are limited and subject to the commercial rights specifically granted in this Program and the agreement between the parties. The rights limited by the preceding sentence include, without limitation, any rights to reproduce, modify, perform, display, disclose, release, or otherwise use the Software or documentation. This provision does not grant Customer any rights not specifically set forth herein or in the applicable agreement between the parties.

7.18  Compliance with Applicable Laws.  Customer will comply with all applicable laws and regulations, including, without limitation: (i) all privacy laws and regulations; (ii) export laws and regulations; and,  (iii) the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and all similar laws and regulations which prohibit offering any inducement, whether money or goods or services, to any government official, employee, candidate or party. Customer will obtain any licenses or approvals the U.S. government or any agency thereof requires prior to exporting, directly or indirectly, any technical data acquired from Clear Labs or by use of the Platform including, by way of example and not exclusion, as applicable, complying with  the Export Administration Regulations of the Bureau of Industry and Security (“BIS”) of the U.S. Department of Commerce and the economic sanctions administered by the Office of Foreign Assets Control (“OFAC”), of the U.S. Department of the Treasury and to obtain any necessary license or other authorization to export, reexport, or transfer XONA Confidential Information or the Product(s). Without limiting the foregoing, Customer will not, and will ensure a third party will not, export, re-export, provide, or transfer Confidential Information or the Platform, in whole or in part, to  Crimea, Cuba, Iran, North Korea, Sudan, or Syria (and such countries updated), to the governments of these countries, wherever located, to any person or entity identified on BIS’s Denied Persons, Entity, or Unverified List or OFAC’s Specially Designated Nationals List or List of Consolidated Sanctions, to any end user with knowledge or reason to know that the Platform or Confidential Information will be used for nuclear, chemical, or biological weapons proliferation, or for missile-development purposes or to any person with knowledge or reason to know that they will export, re-export, provide, or transfer the Platform or Confidential Information other than in compliance with the foregoing restrictions.

 7.19  General.  Customer cannot assign or otherwise transfer its right or duties hereunder by operation of law or otherwise without Clear Labs’ prior written consent. Clear Labs may assign or transfer its rights or obligations hereunder to a successor agreeing to be bound to this Program. The relationship of parties hereunder is intended to be that of independent contractor. This Program is governed by and construed in accordance with the laws of the State of California without regard to the conflicts of law provisions. The prevailing party in any claim or cause of action arising from or relating hereto is entitled to be awarded its costs and reasonable attorneys’ fees. Clear Labs has all other rights and remedies provided at law, in equity and under this Services Program, and all of Clear Labs’ rights and remedies shall be cumulative and none shall be considered Clear Labs’ exclusive remedy. If any provision of this Services Program is held to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Services Program otherwise remains in full force and effect and enforceable. The failure of a party to enforce its rights hereunder will not be construed as a waiver of such rights. Written notices are effective once delivered to or rejected by a party at its specified address. The descriptions and the term set forth in this Program constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications and understandings, whether written or oral, relating to such subject matter superseding all of Customer’s standard terms and conditions posted or otherwise made available in any form or format. No change, amendment, modification or supplement hereto is binding unless made in writing and executed by authorized representatives of both parties. Other than payment obligations, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation strikes, shortages of supplies, riots, war, earthquake, fire, epidemics, criminal or malicious acts of third parties, failure of utilities or common carriers.

 

CG-0077 rev. A