STx™ Online Purchase Terms & Conditions
These online purchase terms and conditions (“Purchase Terms”), together with the quotation which references or links to these online purchase terms and conditions (the “Quotation”, and together with the Purchase Terms, the “Agreement”) form a binding contract with the entity listed in the Quotation (“Company”) and MaxCyte, Inc., a Delaware corporation having its principal place of business at 9713 Key West Avenue, Suite 400, Rockville, Maryland 20850, United States of America (“MaxCyte”). Company and MaxCyte are each referred to herein as a “Party” and collectively as the “Parties.” All capitalized terms shall have the meaning defined herein.
THIS AGREEMENT TAKES EFFECT WHEN YOU ACCESS OR USE ANY MAXCYTE TECHNOLOGY (AS DEFINED BELOW) (THE “EFFECTIVE DATE”). BY ACCESSING OR USING THE MAXCYTE TECHNOLOGY YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY THE TERMS AND CONDITIONS HEREIN.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THESE PURCHASE TERMS, YOU MAY NOT ACCESS OR USE MAXCYTE TECHNOLOGY, INCLUDING ANY PRODUCTS (AS DEFINED BELOW).
1. Products.
(a) MaxCyte hereby sells to Company one or more of the following products, as set forth in the Quotation, in exchange for the fees listed in the Quotation:
(i) The ExPERT STx® Scalable Transfection instruments (“Instrument(s)”),
(ii) The related processing assemblies (“PAs”) and
(iii) The consumables (e.g., buffers, reagents, and other related consumables) (“Consumables”)
(collectively the Instrument(s), PAs, Consumables, and Know-How shall be referred to as “Products”). Company’s purchase of Products includes a non-exclusive license to use MaxCyte’s proprietary know-how with respect to cell handling, processes, workflows, and other technical and scientific information related to the Products (“Know-How”).
(b) All Products must be operated in accordance with MaxCyte’s standard specifications for the applicable Product. MaxCyte reserves the right to make substitutions and modifications in the specifications of any Products, provided that such substitutions or modifications do not materially affect the performance of the Products or the purposes for which they can be used. Company shall inspect the Products delivered by MaxCyte immediately upon delivery to Company as provided under this Agreement and shall be deemed accepted if not rejected by Company in writing within ten (10) days of receipt.
2. Permited Uses.
(a) Preclinical Research Use Only. Upon full payment of the full amounts listed on the Quotation, pursuant to Section 6, MaxCyte hereby grants to Company, subject to the terms and conditions of this Agreement, a non-exclusive, worldwide, fully paid-up, royalty-free, non-transferable license, without any rights to sublicense, to use the Products, Support Program and other Know-How supplied by MaxCyte, Software, and other services and products supplied to Company by MaxCyte hereunder (“MaxCyte Technology”) solely at facilities owned and controlled by Company, or other third party facilities that are communicated to MaxCyte in writing (by email will suffice) (“Company Facility”), solely for Company’s internal, pre-clinical research purposes during the Term (“Research Use”). Any use of MaxCyte Technology other than for Research Use will constitute a material breach of this Agreement.
(b) Additional Permission Required. In the event Company wishes to use the Products for Clinical Use or Commercial Use (each as defined below), prior to the initiation of such Clinical Use or Commercial Use, Company must enter into a separate license agreement with MaxCyte (with different financial considerations). Clinical Use or Commercial Use under such separate license agreement with MaxCyte will not result in additional charges, fees, or license fees for the Products purchased under this Agreement.
3. Restrictions.
(a) use the Products for Clinical Use or Commercial Use as defined herein:
(i) “Clinical Use” shall mean (A) treatment of patients with any cell or protein for human or veterinary therapeutic or diagnostic use (“Cell Therapy”) in a study approved by the U.S. Food and Drug Administration or equivalent non-U.S. Regulatory Authority and shall be deemed to begin upon the first to occur of a (1) request by Company to reference the U.S. FDA master file or its successor master file, or its equivalent in any non-U.S. jurisdiction, or (2) filing of an Investigational New Drug (IND) Application (or equivalent); or (B) use of MaxCyte Technology to perform research intended to support Cell Therapy; and
(ii) “Commercial Use” shall mean any and all activities directed to marketing, promoting, distributing, commercial manufacturing, importing, offering for sale, and sale of any product for any purpose;
(b) use the MaxCyte Technology except pursuant to the Software License (as defined below) and Research Use;
(c) use the MaxCyte Technology except in accordance with applicable cell culture, handling, and processing related procedures and protocols and operating instructions provided by MaxCyte;
(d) use the MaxCyte Technology except through properly trained employees, agents, or representatives of Company having a need consistent with the licenses, permitted uses, restrictions, and other terms and conditions of this Agreement to access the MaxCyte Technology;
(e) use the MaxCyte Technology to produce data or materials, including but not limited to the sale or provision of antibodies, Virus-Like Particles (VLPs), or other proteins, whether therapeutic or otherwise, or to provide services for any third party (other than (i) any third parties with whom Company is engaged in joint research, development, or commercialization of products pursuant to a written agreement, and only after notice of such third party is provided to MaxCyte, or (ii) providing data or materials to appropriate regulatory agencies);
(f) attempt to reverse engineer, open, disassemble, analyze, change, alter or modify the MaxCyte Technology or any component thereof;
(g) use each component of the MaxCyte Technology except in compliance with this Agreement, any written instructions provided by MaxCyte, the protocols, and applicable laws;
(h) use any PAs and/or Consumables more than once (as PAs and Consumables are designed for single use only, and MaxCyte cannot guarantee performance or results from multiple use of any PAs or Consumables);
(i) attempt to tamper with or open any Instrument or PAs and any attempt to do so shall entitle MaxCyte to the presumption of bad faith against Company and any additional damages that would be awarded therewith, and Company agrees that it will surrender any Instrument and PAs in its possession upon determination that an attempt to tamper with or open any Instrument or PA has occurred;
(j) access any specific instrument settings, or design and characteristics of electroporation buffer or PAs, including voltage, pulse width, number of pulses, flow rate or amount of fill volume in PAs; and
(k) relocate the Instrument to any location other than the Company Facility without notifying MaxCyte.
4. Software License.
(a) Software License Grant. Upon full payment of the price(s) set forth on the Quotation, pursuant to Section 6, MaxCyte hereby grants to Company, subject to the terms and conditions of the Agreement, a royalty-free, non-exclusive, non-transferable license, without any rights to sublicense, to use the Software (as defined below) solely with the MaxCyte Technology for the permitted uses set forth in Section 2, in object code form (the “Software License”).
With respect to any Software incorporated in or forming any part of the Products hereunder (i.e., firmware), MaxCyte and Company intend and agree that under the terms of the Software License, such Software is being licensed and not sold, and that the words "purchase", "sell" or similar or derivative words are understood and agreed to mean "license", and that the word "Company" or similar or derivative words are understood and agreed to mean "licensee". Notwithstanding anything to the contrary contained herein, MaxCyte or its licensors, as the case may be, retains all rights and interest in Software provided to Company hereunder. Company shall preserve all copyright and other proprietary rights notices in the Software incorporated in or forming any part of the Products hereunder, except as expressly permitted in writing by MaxCyte. MaxCyte hereby grants to Company a royalty-free, non-exclusive, non-transferable license, without power to sublicense, to use Software licensed hereunder only on the Product in which it was initially installed and solely for Company's own Permitted Use and to use the related documentation solely for Company's own internal business purposes. This license terminates when Company's lawful possession of the Products provided hereunder ceases, unless earlier terminated as provided herein. Company agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the Software and related documentation provided hereunder. Company shall not disassemble, decompile or reverse engineer, copy, reproduce, modify, make derivative works of, translate, adapt, enhance or otherwise change or supplement any part of the Software provided hereunder without MaxCyte’s prior written consent. Company shall not rent, lease, distribute, host, publish, or disclose the Software incorporated in or forming any part of the Products hereunder or make such Software available to any third party other than as expressly permitted by this Agreement. MaxCyte will be entitled to terminate this license if Company fails to comply with any term or condition herein. Company agrees, upon termination of this license, to immediately stop using all Software and related documentation provided hereunder and all copies and portions thereof. Certain of the Software provided by MaxCyte may be owned by one or more third parties and licensed to MaxCyte or may be stand-alone Software products, which Company hereby agrees are subject to a separate browse-wrap, shrink-wrap or click-thru end user license agreement (EULA). Accordingly, the warranty and indemnification provisions herein do not apply to such Software, which are exclusively provided in the applicable EULA.
(b) Software Protocols. MaxCyte shall provide to Company the applicable software protocols (“Software Protocols”) to enable loading of the applicable target molecules and cells. Company may request Software Protocols for additional target molecules and cells, which shall be supplied at no additional cost, by notifying MaxCyte via email to [email protected] referencing the additional target molecules and cells.
(c) Restrictions. Company may not copy the Software. The Software License terminates when Company’s lawful possession of an Instrument or hardware product provided hereunder ceases, unless earlier terminated as provided herein. Company agrees not to modify, sell, transfer, license, loan or otherwise make available to third parties the Software and related documentation. Company may not modify, enhance or otherwise change or supplement the Software, or the operations controlled by the Software, without MaxCyte’s written consent. The source code for the Software will not be disclosed to Company, and Company may not disassemble, decompile or reverse engineer the Software. Company agrees to hold in confidence the Software and related documentation supplied hereunder and not to disclose or make available in any form the same, except to MaxCyte and Company employees and agents as required. MaxCyte may terminate the Software License if Company fails to comply with any material term or condition herein including, without limitation, the terms and conditions contained in this Section. Company agrees, upon termination of the Software License, immediately to return to MaxCyte all Software and related documentation provided hereunder and all copies and portions thereof. MaxCyte expressly disclaims any and all warranty and indemnification obligations resulting from any defect or alleged defect in any Software, except for the limited obligation provided for in Section 11, below. Company shall not use the Software in connection with the MaxCyte Technology for any use other than under the Software License and Research Use. Company shall not modify, enhance or otherwise change or supplement the Software, or the operations controlled by the Software. Company will not attempt to derive or gain access to the source code of the Software, or bypass or breach any security device or protection used or contained in the Software. Company will not copy, replicate, disassemble, decompile or reverse engineer the Software.
(d) Ownership. For purposes of Section 117 of the Copyright Act of 1976, as amended, and for all other purposes, MaxCyte is the owner of the Software and related documentation and any copies thereof, and of all copyright, trade secret, patent, trademark and other Intellectual Property rights therein. With respect to the software products, or software components of Instruments, provided by MaxCyte, including all source code, object code and documentation thereto (“Software”), MaxCyte and Company intend and agree that such Software is being licensed and not sold, and that the words “purchase,” “sold,” or similar words are understood and agreed to mean “license” and that the word “Company” or similar words is understood and agreed to mean “Licensee”. MaxCyte retains ownership of and title to all Software provided hereunder, notwithstanding anything to the contrary stated herein. All rights not expressly granted hereunder are reserved to MaxCyte and there are no implied licenses granted herein.
5. Support Program; SSC Program.
(a) MaxCyte’s Support Program applies for an initial period of twelve (12) months following the purchase date of each Instrument and for any subsequent twelve (12) month period for which the extended Support Program Fee has been timely paid (“Support Program Term”). If a Support Program lapses due to non-payment, reinstatement will be subject to an additional reinstatement fee plus additional costs for any individual repairs. MaxCyte’s Support Program consists of the following services, including parts and labor, during the Support Program Term (“Support Program”):
(i) Initial Installation. MaxCyte will send a field service representative (“Representative”) to initially install and test the Instrument at the Company Facility to ensure that the Instrument meets Instrument specifications. The Representative shall provide training for Company personnel during the installation visit. Company must provide an appropriate installation site and mutually agree with MaxCyte regarding scheduling of installation, setup, and training.
(ii) Repair of the Instrument. As reasonably requested by Company, MaxCyte will send a Representative to the Company Facility, to repair any Instrument not performing in accordance with the applicable specifications of the Instrument; provided, however, MaxCyte shall not be responsible for any damage incurred because of relocation of the Instrument. During each Support Program repair visit the Representative will perform preventative maintenance as deemed necessary by MaxCyte to maintain the Instrument operation substantially in accordance with the applicable specifications for the Instrument.
(iii) Comprehensive MaxCyte Protocol Update. During the annual calibration and maintenance site visit, the Representative will install a comprehensive update to include all newly developed protocols by MaxCyte and any updates to existing protocols currently made generally available to Instrument users.
(iv) All Software Updates to the Instrument. MaxCyte will install the most recent software update for the Instrument during the annual calibration visit. Each prior version of the Software will be supported for up to one (1) year after a new version is available.
(v) Technical Support. MaxCyte shall provide the Company technical support for Instrument operation troubleshooting via e-mail or live phone during normal U.S. business days and during the following hours: (9 a.m. – 5 p.m. United States Eastern Time). Company shall contact MaxCyte for technical support by e-mail or telephone ([email protected]), 1-877-MAXCYTE (1-877-629-2983) for U.S. domestic calls and 1-301-944-1700 for all others or such other phone number(s) or email address(es) as MaxCyte may post on its website (www.maxcyte.com).
(b) Service Support and Calibration Program. Company may elect, for any twelve (12) month period, to purchase the MaxCyte Service Support and Calibration Program (“SSC Program”), consisting of the services set forth below. MaxCyte’s SSC Program applies for any twelve (12) month period for which the SSC Program Fee has been timely paid (“SSC Program Fee Term”). If an SSC Program lapses due to non-payment, reinstatement will be subject to an additional reinstatement fee plus additional costs for individual repairs. The SSC Program consists of all the services of the Support Program set forth above in Section 5(a), plus the following services, which shall be provided once per SSC Program Term:
(i) Annual calibration of the Instrument. MaxCyte will send a Representative, at a time agreed with the Company, to test and perform all necessary maintenance and calibration at the Company Facility to ensure that the Instrument meets Instrument specifications. As requested by Company and agreed by the Representative, the Representative shall provide training sessions for Company personnel at the time of the visit.
(ii) Annual preventative maintenance service. MaxCyte will send a Representative, at a time agreed with the Company, to perform preventative maintenance on the Instrument.
(c) Company will provide MaxCyte with full and free access to the Instrument for the performance of any support program and any other inspections at least annually or on an as-needed basis. All defective parts are the property of MaxCyte. If at the request of Company MaxCyte provides repair services or replacement parts that are not covered by a support program provided for in this Section, or is not otherwise quoted in the Quotation, Company shall pay MaxCyte for such services or parts at MaxCyte’s then prevailing time and materials rates.
(d) MaxCyte shall not be obligated to provide any support program in the event Company is in material breach of the Research Use or the Agreement, in addition to any other relief available under the law or in equity. Nothing herein shall be construed to limit the remedies available to MaxCyte in the event of a breach of this Agreement or any action arising from this Agreement or Company’s use of the Instrument. MaxCyte reserves the right to discontinue support for obsolete Products.
(e) Other Services. Consumables orders or other inquiries may be directed to [email protected]. For any periods other than a support program term, Company may purchase instrument repair or training services at MaxCyte’s then current hourly services rate plus parts, supplies, travel and expenses.
6. Financial Terms; Shipment; Delivery.
(a) Expiration of Pricing. The pricing set forth on the Quotation or any offer letter automatically expires sixty (60) days from the date issued unless set forth otherwise in the Quotation or such offer letter. All other pricing is subject to change at any time without notice.
(b) Taxes. All prices are exclusive of all excise, sales, use, transfer, VAT and other taxes and duties imposed with respect to the products or their sale or license, by any federal, state, municipal or other governmental authority, all of which must be paid by Company. Company is responsible for providing MaxCyte with any documents required to exempt any sale from sales, use or similar tax liability.
(c) Terms of Payment. Company will reimburse MaxCyte for all duties, withholding, and other taxes, transit insurance, freight costs, and transportation, lodging, and meal expenses for personnel incurred by MaxCyte in performance of services or delivery of materials set forth herein, with the exception of the initial installation and the performance of the Support Program during the Support Program Term. Payment is due in U.S. dollars (or, if listed in the attached Quotation, in Euros (EUR) or British Pounds Sterling (GBP)) at the address of MaxCyte stated on the first page of the Agreement. Payment terms shall be net 30 days from date of invoice. To the extent permitted by applicable law, overdue payments will be subject to finance charges computed at a periodic rate of 1.5% per month (18% per year). Company shall pay all costs, including, without limitation, reasonable attorney and accounting fees and other expenses of collection, resulting from any default by Company in any of the terms hereof.
(d) Packaging and Shipment. Unless otherwise agreed between the Parties, all packaging and methods and routes of shipment will be selected by MaxCyte. All shipping dates are approximate only.
(e) Delivery. All sales are FCA (Incoterms 2020) MaxCyte’s Rockville, MD facility. MaxCyte will use reasonable efforts to meet requested delivery dates. Company shall inspect the Products delivered by MaxCyte immediately upon delivery to Company as provided under this Agreement. MaxCyte will not be liable for any loss or damage in excess of its insurance coverage. Company shall return shipping containers to MaxCyte upon request and MaxCyte shall pay the costs of such return shipment of containers.
(f) Cancellations. Orders may not be cancelled after shipment.
7. Intellectual Property Rights.
(a) Restrictions. Company agrees that any violation of Sections 3(b), (c), (e), (f), (g), (i), and (j) shall be presumed to be not only a breach of this Agreement but shall be evidence of theft of trade secrets and other intellectual property rights of MaxCyte and shall be sufficient grounds for equitable relief by MaxCyte to prevent the use of any MaxCyte Technology in perpetuity as well as attorneys’ fees and other relief as allowed by law.
(b) Prior Intellectual Property. All Intellectual Property owned by each Party, respectively, as of the Effective Date (“Prior Intellectual Property”) remains such Party’s Intellectual Property. For purposes of this Agreement, “Intellectual Property” means works of authorship, data, databases, software, ideas, concepts, discoveries, inventions, developments, know-how, trade secrets, techniques, methodologies, modifications, innovations, improvements, writings, documentation, electronic code, data and rights (whether or not protectable under state, federal or foreign patent, trademark, copyright or similar laws) or the like, whether written or otherwise fixed in any form or medium, regardless of the media on which contained and whether or not patentable or copyrightable and whether or not registered or unregistered. No right or license is granted to the Company under any Intellectual Property except the Permitted Uses defined in Section 2.
(c) Improvements. MaxCyte is the sole and exclusive owner to any improvement to, or modification of, the MaxCyte Technology, irrespective of inventorship. Company hereby assigns and transfers to MaxCyte all of its right, title, and interest in and to such improvements and agrees to take all further acts reasonably required to evidence such assignment and transfer to MaxCyte, at MaxCyte’s reasonable expense. Company shall have a perpetual, non-exclusive license to use any such improvement provided and only so long as Company is not in breach of this Agreement. Any improvement, modification, or process related to Company Prior Intellectual Property developed during Company’s use of the MaxCyte Technology shall be exclusively owned by Company, irrespective of inventorship.
(d) No Implied License. Except as explicitly set forth in this Agreement, neither Party shall be deemed by estoppel or implication to have granted the other Party any license or other right to any Intellectual Property of such Party. MaxCyte retains all rights in and to the MaxCyte Technology not expressly granted to Company hereunder.
8. Confidentiality.
(a) Confidential Information. All information, Know-How, programming, Software, trade secrets, plan drawings, specifications, designs and patterns furnished or created by MaxCyte or by its agents or contractors (other than Company) and any and all property rights embodied therein (“Confidential Information”) are and shall remain the sole property of MaxCyte and neither Company nor any other party shall have or acquire any interest therein. Company agrees to preserve and protect the Confidential Information and will not use or disclose Confidential Information except as expressly authorized herein.
(b) Exceptions. Notwithstanding Section 8(a), Confidential Information excludes any information that Company can demonstrate by competent written evidence:
(i) was already known to Company, other than from a third party that is under an obligation of confidentiality to MaxCyte, at the time of disclosure by MaxCyte, or prior to its creation or discovery hereunder;
(ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to Company;
(iii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of Company;
(iv) was lawfully disclosed to Company, other than under an obligation of confidentiality to a third party, by a third party who had no obligation to MaxCyte not to disclose such information to others; or
(v) was independently developed by Company without using any Confidential Information of MaxCyte.
(c) Permitted Disclosure. Notwithstanding the limitations in this Section, Company may disclose Confidential Information to the extent such disclosure is reasonably necessary in the following instances, but solely for the limited purpose of such necessity:
(i) prosecuting or defending litigation;
(ii) complying with applicable laws, including disclosures related to the sale of securities, or valid court orders; provided that, to the extent legally permissible, Company provides MaxCyte with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist MaxCyte in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued; or
(iii) disclosure to directors, officers, employees, consultants, or agents, in each case solely who have a need to know such Confidential Information in connection with this Agreement; provided, however, that such individuals or entities have agreed in writing to be bound by terms of confidentiality and non-use at least equivalent in scope to those set forth in this Section.
(d) Standard of Care. Company agrees to use the same degree of care, but no less than a reasonable degree of care, as Company would use to protect its own confidential information to prevent the unauthorized use, dissemination, or publication of the Confidential Information.
(e) Publicity and Press Releases. Neither Party shall issue any press release or make any other disclosure in connection with, or disclosing the existence of, this Agreement or that names the other Party, without the consent of the other Party, which consent may not be unreasonably withheld; provided, however, that either Party may disclose the fact that Company is using the MaxCyte Technology pursuant to a purchase of the MaxCyte Technology. Subject to Company’s prior approval, not to be unreasonably withheld, MaxCyte may identify Company (together with its trademark or logo) as a customer on MaxCyte’s website and other marketing materials. If Company does not grant such approval within five (5) business days after MaxCyte’s request, it will be deemed granted; provided that Company may subsequently withdraw such approval upon written notice.
9. Company Responsibilities; Operation of Products.
Company’s rights, and MaxCyte’s obligations, including any and all installation and Support Program obligations, are contingent on full compliance by the Company with the following undertakings. In addition to all other remedies available to MaxCyte, Company’s failure to comply with the following undertakings will void this Agreement and all remaining installation or Support Program obligations of MaxCyte.
(a) Company shall be responsible for providing and will provide and maintain a proper environment, including utilities and site requirements, for any Instrument.
(b) Company understands that the Products incorporate the application of high electrical voltage and therefore are inherently dangerous. Company will comply with all warnings included in the specification for the Product, on the Product itself, or in printed or electronic manuals or other documentation related to the Product, or in any training provided by MaxCyte.
(c) One or more electroporation protocols may be supplied by MaxCyte (“User Selectable Protocols”) and made available for use by Company. Company shall not change, attempt to change, or alter specific Instrument settings, including settings relating to voltage, pulse width, number of pulses, flow rate or amount of fill volume in any PAs other than by selection between User Selectable Protocols and agrees that any changes or alterations of any parameter of any Instrument or PAs can be made only by MaxCyte.
(d) Company agrees to have the MaxCyte Technology operated at all times in accordance with any and all written instructions provided and in conformance with any MaxCyte provided training on their use.
(e) Company agrees to maintain a safe work environment and to comply with all applicable laws, rules and regulations relating to safety in order to ensure the safety of all Representatives and other MaxCyte employees and agents who enter Company’s premises. MaxCyte, its affiliates, personnel, agents and subcontractors shall not be required to enter potentially hazardous areas and MaxCyte reserves the right to determine whether and under what circumstances its personnel, agents or subcontractors shall enter any premises. In no event will MaxCyte be obligated to perform Support Program or services if it is not, in its sole discretion, satisfied with respect to safety.
(f) For safety purposes, in the event that any Instrument being serviced is, or has at any time, been operated in a location that falls into the category of a Biosafety Level 3 or 4 laboratory according to the then-current edition of “Biosafety in Microbiological and Biomedical Laboratories” published by the U.S. Department of Health and Human Services, or that would in MaxCyte’s opinion fall into such category, it shall be the responsibility of Company to remove from such laboratory or other facility the Instrument and decontaminate such Instrument to the satisfaction of MaxCyte, in its sole discretion, before any work is performed on the Instrument. All costs associated with such removal, decontamination, and re-installation shall be borne by Company. Company agrees and shall cooperate fully, including but not limited to affirmative disclosures, related to any hazards in such facilities.
(g) Company agrees that the Instrument shall be installed at the Company Facility and that it shall only be operated by employees of the Company. Company agrees that the Instrument shall not be operated by or in the presence of any other entity affiliated in any way with the Company, including any of the Company’s subsidiaries or affiliates, or any entity which (in whole or in part) owns, is owned by, or is under common ownership with Company, or any of its subsidiaries or affiliates (collectively, “Company Affiliated Entities”). Company further agrees that it shall facilitate a “firewall” preventing any Company Affiliated Entities or their employees, from (i) viewing, accessing, or operating the Instrument or its Software or any products purchased from MaxCyte or (ii) viewing or receiving data and results generated using the Instrument.
(h) Company warrants that it will not import, export, or re-export any products sold or licensed hereunder in violation of this Agreement or of any applicable laws, rules or regulations of any country, state or jurisdiction. Except for noncompliance caused solely by MaxCyte, Company shall indemnify, defend and hold MaxCyte and its affiliates harmless from any and all liability of whatever kind or nature, which MaxCyte may become subject as a result of Company failure to so comply with such laws, statutes, rules and regulations and other requirements. MaxCyte shall not be liable to Company for any delay or failure to obtain the licenses or approvals that MaxCyte reasonably believes are necessary.
(i) Company and all of its affiliates agree not to disparage MaxCyte or the MaxCyte Instrument in any way, including in any manner in which it compares performance of the MaxCyte Instrument to any other Instrument. Company may not disclose the results of any Product testing, including but not limited to benchmarks, to any third party.
(j) Company shall take all reasonable measures to protect the MaxCyte Technology from misappropriation, theft, misuse, and unauthorized access.
(k) Company is responsible for any damage to the MaxCyte Technology caused by Company, its employees, agents, and representatives.
(l) Company shall ensure that its employees, agents, and representatives comply with this Agreement.
10. Exclusivity.
Company agrees to purchase all of its requirements for PAs for use with the Instrument from MaxCyte, and MaxCyte agrees to supply PAs to Company to meet Company’s reasonable requirements. Only PAs sold by MaxCyte can be used with the MaxCyte Technology.
11. Warranty; Indemnification; Limitation of Liability.
(a) During the Support Program Term, MaxCyte warrants solely to the Company that its Products will perform in accordance with their applicable specifications. MaxCyte agrees to repair at its expense, or replace at its option, in whole or in part, with new or refurbished parts, all Products, and to use reasonable efforts to correct any defects in Software or components of Products, reasonably shown to be not performing substantially in accordance with applicable product specifications, provided that Company has given MaxCyte written notice of such Support Program claim within the Support Program Term. If MaxCyte is unable, after reasonable efforts, to repair or replace such defective Products or to correct such Software not performing substantially in accordance with applicable product specifications, Company’s sole remedy shall be the refund of an amount not to exceed the actual payments received by MaxCyte for a Product reasonably shown to be defective. All repairs will be done during normal working hours and are subject to the limitations contained herein. MaxCyte may require the Products to be shipped to MaxCyte or elsewhere and returned to Company, at MaxCyte expense, for Support Program service to be performed. The foregoing is collectively referred to herein as the “Warranty.”
(b) MaxCyte shall have no Support Program obligation resulting, in whole or in part, from (i) normal wear and tear, (ii) fault or negligence of Company, or any catastrophe, whether natural or unnatural, (iii) improper or unauthorized use of the Products, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, acts of God, power failure or electric power surges, or (vi) use of the Products in combination with equipment or software not supplied by MaxCyte.
(c) The warranty contained in this Section shall not apply in respect of any Products: (i) supplied by MaxCyte as samples or prototypes for test or evaluation purposes (and in these circumstances MaxCyte’s only obligation shall be to endeavor to supply such Products in accordance with any specification, performance criteria, or drawings agreed with the Company); (ii) where any information, drawing, design, specification or instruction provided by the Company is inaccurate or incorrect; (iii) where all or part of the Products are supplied to MaxCyte by a third party nominated by the Company; or (iv) that have been subject to any unauthorized repair or replacement, modification or alteration.
(d) Where the Products are manufactured in accordance with information, drawings, designs, or specifications supplied by the Company, or where the Products are altered by the Company or in accordance with the Company’s instructions, then: (i) no warranty is given by MaxCyte as to the suitability or fitness for purpose of such Products; and (ii) the Company shall indemnify MaxCyte against all liabilities in relation to: (a) such Products infringing any intellectual property right, including but not limited to, patents, registered designs, software and copyright, and (b) any defect in the Products due to faults or omissions in such information, drawings, designs, specifications, alterations or instructions. For all goods made to Company’s specifications, Company warrants to MaxCyte that there is no Intellectual Property covering them or that Company has a right to have the goods made under any existing Intellectual Property. Company assumes all responsibility for, and MaxCyte shall not be liable for, use of any goods either alone or in combination with any other products or in the operation of any process, and for the use of any design, trademark, trade name, or part thereof appearing on the goods at Company’s request.
(e) EXCEPT AS STATED IN SECTION 11(a) ABOVE, THE MAXCYTE TECHNOLOGY IS PROVIDED ON AN “AS IS” BASIS AND MAXCYTE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND LIABILITY WHATSOEVER, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO MAXCYTE TECHNOLOGY, INCLUDING, WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND/OR COMPLIANCE WITH GOOD MANUFACTURING PRACTICES. COMPANY BEARS ALL RISK RESULTING FROM THE USE OF MAXCYTE TECHNOLOGY. THE FOREGOING PROVISIONS STATE THE ENTIRE LIABILITY OF MAXCYTE WITH RESPECT TO INFRINGEMENT OR ALLEGED INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS, TRADE SECRETS AND OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY MAXCYTE TECHNOLOGY. MAXCYTE’S MAXIMUM LIABILITY ARISING OUT OF THE SALE OR LEASE OF MAXCYTE TECHNOLOGY OR ITS USE, WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL PAYMENTS RECEIVED BY MAXCYTE IN CONNECTION THEREWITH. IN NO EVENT SHALL MAXCYTE BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, ARISING HEREUNDER OR FROM THE SALE, DELIVERY, LEASE, USE, OR DEFECT, OF MAXCYTE TECHNOLOGY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. MAXCYTE’S LIABILITY AND COMPANY’S EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION ARISING IN CONNECTION WITH THIS AGREEMENT OR THE SALE OR USE OF THE GOODS, WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, BREACH OF CONTRACT OR EQUITABLE PRINCIPLES, IS EXPRESSLY LIMITED TO, AT MAXCYTE’S OPTION, REPLACEMENT OF, OR REPAYMENT OF THE PURCHASE PRICE FOR THE PORTION OF THE GOODS WITH RESPECT TO WHICH DAMAGES ARE ESTABLISHED. ALL CLAIMS OF ANY KIND ARISING IN CONNECTION WITH THIS AGREEMENT OR THE SALE OR USE OF THE PRODUCTS SHALL BE DEEMED WAIVED UNLESS MADE CONSPICUOUSLY AND EXPRESSLY IN WRITING WITHIN THIRTY (30) DAYS FROM THE DATE OF MAXCYTE’S DELIVERY, OR THE DATE FIXED FOR DELIVERY IN THE EVENT OF NON-DELIVERY. ANY CLAIM SHALL BE SUBJECT TO MAXCYTE BEING PROVIDED A REASONABLE OPPORTUNITY TO INVESTIGATE THE GOODS SUBJECT TO ANY CLAIM.
(f) Company acknowledges that it is fully responsible for its use of MaxCyte Technology, for the use of cells or proteins manufactured by cells transfected with MaxCyte Technology, and for the use of such cells themselves. Company agrees to indemnify, defend, and hold harmless MaxCyte and its affiliates, officers, directors, employees, and agents from and against any and all third party claims, liens, demands, liabilities, costs and expenses (including attorneys’ fees), losses, or other damages arising out of, resulting from, or attributable to: (i) the willful misconduct or negligence of Company, its employees, subcontractors, consultants, representatives, and agents; (ii) any use or modification of MaxCyte Technology by Company or use of proteins or cells manufactured by Company using MaxCyte Technology; or (iii) any breach of Company’s obligations under this Agreement, including Company’s representations, warranties or covenants set forth herein; provided Company shall not be liable hereunder to indemnify MaxCyte for personal injury claims caused by or resulting from the sole gross negligence or willful misconduct of MaxCyte.
(g) Company acknowledges that it is fully responsible for any scientific or regulatory decisions related to its use of the MaxCyte Technology and MaxCyte shall have no liability for any such decisions. Any regulatory or scientific advice provided by MaxCyte to Company is provided on an “as is” basis and MaxCyte provides no guarantee or warranty in connection with any such advice.
12. Term; Termination.
(a) Term. This Agreement commences on the Effective Date and continues so long as Company uses, or is in possession of, the MaxCyte Technology (“Term”).
(b) Termination for Breach. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party materially breaches this Agreement, and such breach (1) is incurable or, (2) if curable, remains uncured more than thirty (30) days after receipt of written notice of such breach.
(c) Termination by MaxCyte. MaxCyte may at any time terminate this Agreement if: (a) MaxCyte is required to do so by law (for example, where the provision of the Products to Company is, or becomes, unlawful); (b) the provision of the Products to Company by MaxCyte is, in MaxCyte’s opinion, no longer commercially viable; or (c) MaxCyte has elected to discontinue any Product.
(d) Effect of Termination. Upon termination of this Agreement, (i) all of the licenses and permissions granted to Company under this Agreement shall terminate; and (ii) the following sections will remain in full force and effect: Sections 3, 4(c), 4(d), 6 to 9, 11, 12(d), 13, and 15 to 21.
13. Exclusive First Option to Repurchase.
MaxCyte shall have the exclusive first option, but not the obligation, to repurchase any Instrument at a price that is mutually agreed upon by the Parties in good faith, reflecting current resale fair market value. In the event of resale of any Instrument to a third party, such third party will require a new agreement with MaxCyte for the use of the Instrument. MaxCyte will not provide any support to any third party purchaser absent such an agreement. Only PAs sold by MaxCyte can be used with the MaxCyte Technology pursuant to Section 10 of this Agreement.
14. Force Majeure.
MaxCyte shall not be liable for any delays or other failure to perform hereunder due to any cause beyond MaxCyte’s reasonable control, including, without limitation, acts of Company, governmental actions, laws or regulation, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, tornado, windstorm or other acts of God, transportation delays, or inability to obtain necessary fuel, materials, supplies or power at current prices.
15. Audit.
During the Term and for two years thereafter, Company agrees to allow MaxCyte to audit the Company’s use of Products to ensure compliance with this Agreement, including the tampering provisions stated herein. Company will provide all assistance reasonably requested by MaxCyte in connection with such audit.
16. Assignment.
Neither Party shall assign this Agreement or any of its associated rights or obligations without the prior written consent of the other Party. However, a Party may assign this Agreement, along with its rights and obligations, to a wholly-owned subsidiary or successor without the need for the other Party’s prior consent in the event of a merger, acquisition, spin-off, sale of assets, or any other significant change of control. Upon such assignment by Company, the Company’s successor must provide written notice to MaxCyte within thirty (30) days, confirming the assignment and acceptance of all rights and obligations under the Agreement. Notwithstanding the foregoing, Company shall not have the right to assign or transfer its rights (including but not limited to any intellectual property rights) or obligations under this Agreement to any competitor of MaxCyte without prior written consent, which decision shall be in the sole discretion of MaxCyte. Any attempted assignment in violation of this provision shall be null and void.
17. General.
This Agreement is the complete and exclusive statement of the terms and conditions with respect to the purchase of the Products, licenses, and services being provided to Company by MaxCyte hereunder. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Company and MaxCyte. No waiver of rights under this Agreement by either Party shall constitute a subsequent waiver of this or any other right under the Agreement. This Agreement will be governed by the laws of the State of Maryland, without regard to any conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This Agreement is binding upon and shall benefit MaxCyte and Company and their respective successors and assigns. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby and shall remain binding on the Parties hereto. All documents will be in the English language unless otherwise required by applicable law.
18. Arbitration.
Any controversy, claim, or dispute arising out of or relating to this Agreement or the validity, interpretation, inducement, or breach thereof, shall be settled by arbitration before a single arbitrator in accordance with the Rules of Arbitration of the American Arbitration Association (“AAA”) then pertaining, except where those rules conflict with this Agreement, in which case this Agreement controls. The arbitrator shall be an attorney specializing in business litigation who has at least fifteen (15) years of experience with a law firm of over twenty-five (25) lawyers or was a judge of a court of general jurisdiction. The arbitration shall be held in Washington, DC, the arbitration shall be conducted in English, and the arbitrator shall apply the substantive laws of the State of Maryland. Within thirty (30) days of initiation of arbitration by an initial claim filed by a Party, the Parties shall reach agreement upon the choice of an arbitrator and upon procedures assuring that the arbitration will be concluded, and the award rendered within no more than six (6) months from selection of the arbitrator. Failing such agreement, the AAA will, as applicable, choose an arbitrator and design such procedures. Each Party has the right before or during the arbitration to seek and obtain from the appropriate court provisional remedies such as attachment, temporary restraining order, preliminary injunction, replevin, etc., to prevent breaches of this Agreement, to avoid irreparable harm, to enforce the provisions of this Section, to maintain the status quo, or to preserve the subject matter of the arbitration. Each Party shall have the right to discovery during arbitration. The award of the arbitrator shall be in writing and shall provide the reasons for the award. The arbitration award shall be final and binding on the Parties, and judgment thereon may be entered in any court of competent jurisdiction. The validity of this arbitration provision, the conduct of the arbitration, any challenge to or enforcement of any arbitral award or order, or any other question of arbitration law or procedure shall be governed exclusively by the arbitrator. The arbitrator shall have the authority to assess the costs and expenses of the arbitration proceeding (including the arbitrator’s fees and expenses) against any or all the Parties. The arbitrator shall also have the authority to award attorneys’ fees and expenses to the prevailing Party. To the fullest extent permitted by law, the arbitration proceedings and award shall be maintained in confidence by the Parties. This agreement to arbitrate shall not preclude the Parties from engaging in voluntary, non-binding settlement efforts including mediation.
19. Conflicting Terms.
Any term or condition of Company’s purchase order or any other document provided to MaxCyte by Company, including without limitation, any preprinted terms and conditions, whether provided prior to or subsequent to this Agreement, are hereby expressly rejected and will not become a part of the contract between MaxCyte and Company or be binding upon MaxCyte.
20. Injunctive Relief.
Each of the Parties hereto acknowledges that a breach by either Party of any material provision of this Agreement, including Company’s restrictions on the use of the Products, would cause irreparable injury to the aggrieved Party. Each of the Parties therefore agrees that in the event of such a breach hereof, the aggrieved Party may elect to institute and prosecute proceedings in any court of competent jurisdiction to seek temporary or permanent immediate injunctive relief, enforce specific performance, or to enjoin the continuing breach hereof without the necessity of proving actual damages or posting any bond or other security. By seeking or obtaining any such relief, the aggrieved Party shall not be precluded from seeking or obtaining any other relief to which it may be entitled.
21. Entire Agreement.
This Agreement constitutes the complete and final agreement between the Parties with respect to the subject hereof and supersedes any and all prior and contemporaneous oral or written communications relating thereto. This Agreement may not be modified or amended except by instrument in writing and signed by each of the Parties hereto.
Last Modified: March 18, 2025
