These terms and conditions of sale apply to your purchase of Seer products and services.
Last updated January 5, 2022.
“Consumables” or “Consumables Kit” means Seer’s Proteograph™ Assay Kit, including, without limitation, Nanoparticles (“NPs”) and/or associated reagents, labware, any other item identified as a “Consumable” on any price list, quotation, sales order, or other document.
“Documentation” means user manuals, technical manuals, and/or any other materials provided by Seer in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of a Product.
“Instrument” means a Seer-branded instrument, any accessories or spare parts, or any other item identified as an “Instrument” on any price list, quotation, sales order, or other document, including, without limitation, the SP100 Automation Instrument (“SP100”).
“Proteograph™ Product Suite” or “Product” means, individually or collectively, any Instrument, Consumables, Software, Seer proprietary library or libraries, application, or any other product or offering (including any custom products) listed on any price list, quotation, sales order, or other document, including, without limitation, the SP100, Consumables Kits, NPs, ICS, or PAS.
“Seer”, or “we” means Seer, Inc., a Delaware corporation, or any of its subsidiaries.
“Software” means the Proteograph™ Instrument Control Software (“ICS”) software and/or firmware, and (ii) the Proteograph™ Analysis Suite (“PAS”) data analysis software and/or service, including, without limitation, proteomic, proteogenomic and other libraries, and analysis and visualization functions, in each case licensed (not sold) by Seer to Customer in conjunction with Customer’s purchase or use of an Instrument, in object code or executable form only.
2.0 GENERAL TERMS
2.1 These terms, together with any price quotations, sales orders, end-user licenses, conditions of use, or any other terms and conditions agreed to in writing by the parties (the “Terms”) constitute the complete, exclusive, and entire agreement for the purchase and/or license of Products and services and supersede all previous or contemporaneous understandings, whether oral or written. Our offer to sell Products or provide services is expressly limited to the Terms which will supersede and take precedence over all other understandings or agreements written or oral, and any of your additional or different terms and conditions, which are hereby rejected and will have no force or effect.
2.2 Your submission of a purchase order or other document for the purchase of Products or services from us, whether or not in response to our price quotation, sales order, or any other Seer document, will be deemed an acceptance of and agreement to the Terms to the exclusion of any other terms or conditions contained in and/or referenced by such purchase order or other document, whether or not specifically accepted by us in writing or otherwise, and notice of objection to, and rejection of, them is hereby given. Any acceptance by us of any offer or counteroffer from you is expressly conditioned on your assent to and acceptance of the Terms. Upon acceptance by us, unless otherwise agreed to in writing by us, no purchase order or other instrument for the purchase of Products or services may be changed or cancelled in whole or in part.
3.1 License. Subject to these Terms, and to any restrictions (i) printed on any Product packaging, label, insert, Product user manuals or instructions, whether provided with the Products or available for download, (ii) appearing in or included with the Software or any Documentation, or (iii) listed on our website, we grant to you a non-exclusive, non-transferable, non-sublicensable license to use the Products sold and/or licensed to you by us or our authorized distributor only in accordance with the applicable, then-current Documentation, and no other use (an “Excluded Use”) is authorized hereunder. You are authorized to use standard laboratory reagents, tools and equipment ancillary to the use of such Products, only as provided in the Documentation, provided that no grant is made, by implication, estoppel or otherwise, to use such reagents, tools, equipment or protocols per se. Except as expressly stated in this section, no right, license or ownership interest under any intellectual property rights of Seer or its affiliates is or are granted, expressly, by implication, or by estoppel, to you, and any such rights are expressly reserved by Seer and its affiliates. The contents and methods of operation of, and any trade secrets in, the Products are proprietary to Seer.
3.2 Restrictions. (a) Except as otherwise provided in the Documentation, each Product may be used only with other Products; (b) Consumables are sold only for the purpose intended, are for SINGLE USE ONLY, and MAY NOT BE REUSED; (c) use of any Consumables applies to the Consumables Kit as a whole and does not extend to any individual component part of such kit, and (d) any substitution of a Consumables Kit component, or an Instrument component, including, without limitation, CO-RE technology tips, with a third-party or non-Seer component, is prohibited. You are not licensed or authorized to, and you will not: (i) use any Products or services other than as set forth in the Terms and Documentation, including, without limitation, any use for clinical or diagnostic purposes or to develop any product or service that competes with Seer’s Products, (ii) refurbish and/or remanufacture any Products, (iii) resell or otherwise transfer any Products to any third party; (iv) adapt, modify, disassemble, reproduce or reverse engineer any Products, or (v) relocate out of state or country without our advance written consent any installed Instrument. All license restrictions apply to the maximum extent permissible under applicable law.
3.3 Research Use Only. Products are manufactured, labeled, and marketed for “RESEARCH USE ONLY. NOT INTENDED FOR USE IN DIAGNOSTIC PROCEDURES”, and have not been approved, cleared, or licensed by the United States Food and Drug Administration or any other regulatory entity whether foreign or domestic for any specific intended use, whether research, commercial, diagnostic, or otherwise. You must use the Products for research use only and not for diagnostic procedures and only by qualified professionals in strict accordance with the Documentation. Unless otherwise expressly stated by us in writing, no claim or representation is made or intended by us (i) as to any diagnostic use of a Product; (ii) that any Product has any approval for use in any diagnostic procedure, or for any clinical or other use requiring compliance with any law, regulation or governmental policy concerning medical devices, laboratory tests or the like; (iii) that any Product will satisfy the requirements of the FDA or any other domestic or non-domestic regulatory agency; or (iv) that any Product or its performance is suitable or has been validated for diagnostic use, for safety and effectiveness, for any specific use or application, or for importation into your jurisdiction. You are solely responsible for obtaining any required approvals and otherwise ensuring that the importation of the Products into your jurisdiction and your use of the Products complies with all such laws, regulations, and policies.
3.4 No Implied License. Except as expressly granted in the Terms, we retain all proprietary rights in and to all intellectual property, including, without limitation, designs, engineering details, Documentation, and data regarding the Products, and no implied right or license is granted or conveyed by implication, estoppel or otherwise.
4.1 Shipment. All deliveries to destinations within or outside the United States are FCA (Incoterms 2020) at our or our designee’s facility, or such other Incoterm as the parties agree in writing. Title (except for Software, which is only licensed, never sold), and all risk of loss passes to you, and our liability as to delivery ceases, when we load the commercial carrier at our or our designee’s facility. The price for Products does not include any costs for shipping, freight, handling, duties, insurance and/or related costs and you are responsible for such costs, and unless waived, if we incur any such costs, we will invoice you separately. We do not guarantee delivery or any delivery dates and will not be responsible for any loss or damage of any kind or nature whatsoever caused by delivery or any delay in delivery irrespective of the cause of such delay. Any provision in your terms indicating a delivery date and/or that time is “of the essence” (or other terms of similar import) for delivery or other performance by us will be void and of no effect. Delivery of Products will be in accordance with our then applicable manufacturing and delivery schedule. We may reprioritize scheduling of any deliveries in our sole discretion.
4.2 Inspection. You must notify us of any damaged or missing Products within five (5) days of receipt. Products rejected by you will be held by you and may be returned only upon our written authorization. We may inspect, repair, replace, or offer credit in respect of any damaged, missing, and/or rejected Products in our sole discretion. These are your sole and exclusive remedies for rejected Products. You will take photographs of any damaged shipping crate immediately upon delivery, refuse delivery from the carrier if any damage to the crate is evident, promptly unpack and visually inspect any Products, and immediately notify us of any crate damage or damaged or missing Products or components, in writing within five (5) days of receipt. You must also inspect the exterior of any instrument crate for activated “shock” or “tipping” sensors (“Sensors”) at time of delivery. Activated Sensors or visible damage must be reported to the carrier on the bill of lading, which must be signed by you and given to the driver at the time of delivery, and you must provide us with a copy of the signed bill of lading together with photographs of the activated Sensors within five (5) days of delivery and retain all containers and packing materials. Hazardous materials authorized for return must be packed, labeled, and shipped in accordance with regulations governing transportation of hazardous materials and any other applicable requirements.
4.3 Installation. Your failure to agree on an Instrument delivery and installation schedule within thirty (30) days of the order, or failure to permit a delivery, installation, and validation of an Instrument, will be deemed a material breach of these Terms. It is your responsibility and cost to have the installation site prepared and available for installation in accordance with our site requirements and free of hazardous or unsafe conditions. You must have appropriate Customer personnel present at any such installation. You will not request Seer personnel to work in biosafety level 3 or level 4 laboratories without our prior written consent. Networking of stand-alone computers is your responsibility. Installation and acceptance of the Products are deemed to be complete after the successful completion of our installation specifications. We may provide you a notice of completion of Instrument installation and validation which you will sign and return within five (5) business days.
5.1 Order Process. Our price quotations for Products and/or services will incorporate these Terms, and your acceptance of a quotation or submission of a Customer Order will constitute acceptance of the Terms even if you fail to acknowledge or sign the quotation. You may submit to us written orders (each a “Customer Order”) which we may accept or reject in whole or in part via written notification, including e-mail. You may not cancel Customer Orders after acceptance by us unless otherwise agreed upon by both parties in writing.
5.2 Payment. We will invoice you for Instrument(s) typically upon shipment but no later than installation and validation, for Consumables upon shipment, and for other Products or services upon our acceptance of a Customer Order or as otherwise determined by us. You will pay each invoice within thirty (30) days of the date of invoice. Payments are not refundable. You will be liable for, and will pay any taxes and related charges, however designated, unless you provide us with a valid tax-exempt certificate. If any such taxes and related charges are paid by us, you will reimburse us promptly after receiving written invoice(s) from us. In addition to any other remedy available to us for late payment, you will pay us interest on the overdue amount at the rate of one and a half percent (1.5%) per month, or the maximum rate allowed under law, whichever is less, for each month, or partial month, calculated from the date such payment was due until the date paid, and we may suspend our performance of the Terms until all outstanding amounts are received.
6.1 Instrument Warranty. We warrant, only to you, that each Instrument purchased by you, as delivered and under normal use will: (1) conform in all material respects to our specifications in effect at the time of delivery; and (2) for a period of twelve (12) months from installation and validation, be free from material defects in material and workmanship under normal use and service; in either case unless the applicable specifications, quotation or Documentation states that a different warranty or no warranty is provided. Your exclusive remedy, and our sole liability and obligation, under this warranty is limited to repairing, replacing (including parts, labor, and shipping to and from us or our authorized designee) or giving credit for, at our sole discretion, any Instrument for which written notice of the nonconformity is provided to us for a period of twelve (12) months from installation and validation, (the “Warranty Period”). Warranty repairs and/or service may, at our sole option, be conducted by our personnel, or our authorized service provider, on-site at your facility, or at another Seer-authorized location. Notwithstanding the foregoing, in performing any warranty service hereunder, we reserve the right, at our sole option, to repair or replace the Instrument or any component thereof. Without limiting the foregoing warranty, repairs and replacements may be performed prior to acceptance or during the Warranty Period with reconditioned or refurbished products, parts, or subassemblies. This warranty expressly does not cover damage caused by normal wear and tear maintenance performed by you or a third-party’s failure to observe the Documentation, operation instructions, or installation not carried out by us or our authorized vendors, or replacement costs of any Consumables. This limited warranty is subject to certain exceptions listed below.
6.2. Consumables Warranty. We warrant, only to you, that Consumables purchased by you will be free from material defects in material and workmanship upon delivery to you, for use as set forth in the Documentation. All Consumables warranty remedies are subject to the condition that warranty claims must be received by us in writing no later than thirty (30) days after the earlier of any shelf-life date, expiration date, “use by” date, “guarantee date” or other end of recommended use date, or the date stated on the Consumables’ label or in the Documentation. Your exclusive remedy, and our sole liability and obligation, under this warranty is replacing, or, at our option, giving credit for, any Consumables not meeting the above warranty for which written notice is provided to us within the applicable period. If the defect(s) in material and workmanship diminished but did not prevent performance of the Consumables, any amount refunded may be apportioned according to our reasonable allocation of the value of the diminished performance. The decision of whether to replace Consumables or give credit will be made by us in our sole discretion. Notwithstanding the foregoing, custom Consumables made to specifications of Customer are sold “AS IS”, without any warranty whatsoever, express or implied, except to the extent set forth in any separate express written limited warranty included in the Documentation or in the quotation. Except as set forth above, expiration dates, shelf life, “use by,” guaranty or other end of recommended use dates are included for informational purposes only and will not be deemed as a period of warranty. This limited warranty is subject to certain exceptions listed below.
6.3 Software Warranty. We warrant, only to you, that as of the date of delivery of an Instrument that includes Software, that for the Warranty Period, such Software, when properly installed and used as set forth in the applicable Documentation, will function substantially in accordance with the functions and features described in such Documentation. Your exclusive remedy, and our sole liability and obligation, under this warranty are limited to using reasonable efforts, commensurate with the severity of the nonconformity, discrepancy, or failure, to correct, or, at our option, giving credit for, any material nonconformity, discrepancy, or failure of the Software for which written notice is provided to us within the Warranty Period. WE DO NOT WARRANT THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY SOFTWARE WARRANTY NONCONFORMITY, DISCREPANCY, OR FAILURE WILL BE CORRECTED, OR A WORKAROUND PROVIDED, WITHIN ANY PARTICULAR TIME FRAME. This limited warranty is subject to certain exceptions listed below.
6.4 Exceptions. The foregoing warranties will not apply to: (i) instances in which any Product or component thereof was (a) subject to improper or abnormal use or storage, abuse, neglect, negligence, accident, including without limitation failure to properly perform routine maintenance and maintain the Product or any component thereof in accordance with our site requirements, or (b) used with any non-Seer product or contrary to the Documentation; (ii) any Product or component thereof that has been repaired, altered, disassembled, reassembled or removed from your lab or facility by persons other than us or our designee; (iii) use of the Product in any manner other than its intended use or other than for research use only purposes; or (iv) instances in which a Product or component thereof has failed due to externally caused short circuits, incorrect voltages, failure or fluctuation of electrical power, lightning, static or other improper external inputs. Use of an Instrument with consumables other than Consumables, or use of Consumables with other than an Instrument, will void the warranty for both the Instrument and the Consumables. Any attempt to repair or otherwise alter a Product or any component thereof, except as may be specifically pre-authorized by us in writing in each case, and except for cleaning and replenishment or replacement of specific elements, as may be provided in the Documentation, will void the warranty. Without limiting the foregoing, and regarding software, these warranties will not apply to any nonconformity, discrepancy, or failure that is caused by the use or operation of the software in an environment other than that intended or recommended by us, or modifications to the software not made or authorized by us. We make no standalone warranty regarding the Software. These warranties are not transferable or assignable, including without limitation, in any re-sale of an Instrument or third-party computing system, if any, and any such attempt to transfer or assign these warranties will be void for any unit to which they apply. Repair or replacement of a Product or component thereof will not extend the original Warranty Period. Our warranties do not cover de-installation, re-installation, or transportation of a Product or component thereof, and do not cover the operation or use of third-party products. We recommend that you use trap and elute LCMS workflow for peptide analysis. We hereby disclaim any responsibility or liability, including, without limitation, any incidental or consequential damages, with respect to the use of, or failure to use, any recommended procedures or third-party equipment, including, but not limited to, trap and elute LCMS workflow.
6.5 Procedure for Coverage. To be eligible for repair or replacement under this warranty you will: (i) promptly contact our support department to report the non-conformance, (ii) cooperate with us in confirming or diagnosing the non-conformance, and (iii) return the Instrument or Consumables, as applicable, if requested by us, transportation charges prepaid to us following our instructions or, if agreed by us and you, grant our authorized repair personnel access to the Instrument to confirm the non-conformance and make repairs. Any different or additional warranty terms stated by you will be void and of no force or effect.
6.6 Disclaimer. THE EXPRESS WARRANTIES AND THE REMEDIES SET FORTH HEREIN ARE IN LIEU OF, AND WE HEREBY DISCLAIM, ALL OTHER REMEDIES AND WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR REGARDING RESULTS OR DATA OBTAINED THROUGH THE USE OF ANY SOFTWARE, PRODUCT, OR SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS OR DATA), IN EACH CASE HOWEVER ARISING, INCLUDING WITHOUT LIMITATION FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE, OR OTHERWISE. IN NO EVENT WILL WE BE LIABLE FOR COSTS OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, DIRECT, INDIRECT OR OTHER DAMAGES FOR BREACH OF WARRANTY. ANY SOFTWARE, PRODUCT, OR SERVICE PROVIDED WITHOUT A WRITTEN WARRANTY FROM US IS PROVIDED “AS IS” WITHOUT (AND SEER HEREBY DISCLAIMS) ANY WARRANTY, STATUTORY, EXPRESS, IMPLIED OR OTHERWISE.
6.7 Third Party Disclaimers. Notwithstanding any provision to the contrary herein, and unless otherwise expressly indicated in a quotation or Documentation, none of our suppliers or licensors of the Product or any component thereof, or other item provided by us, or any portion thereof (under these Terms or otherwise) provides ANY WARRANTY WHATSOEVER, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE TO YOU, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE DISCLAIMED. EXCEPT AS OTHERWISE EXPRESSLY INDICATED IN THE QUOTATION OR DOCUMENTATION, IN NO EVENT WILL ANY SUPPLIER OR LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, DIRECT, INDIRECT OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR SALE OF THE PRODUCTS.
6.8 Service Plan. Following the expiration of a Warranty Period for a particular Instrument, you will be eligible to purchase one or more annual service plans covering such Instrument at your sole cost and expense at our then-current prices.
7.0 TERM OF AGREEMENT. The Terms will continue in effect for one (1) year from the purchase of a Product or if an Instrument, the installation and validation of the Instrument commensurate with the Warranty Period for that Instrument (the “Term”), and, unless one party gives the other party thirty (30) days’ advance written notice of termination, continue for additional one-year periods without warranty subject to section 6.8.
8.0 MATERIAL BREACH. Either party has the right, without prejudice to any other remedies available to it at law or in equity, to terminate these Terms in the event the other party materially breaches any of its obligations hereunder and fails to cure such breach within thirty (30) days of receiving notice thereof.
9.0 PRODUCT IMPROVEMENTS
9.1 Improvements. All right, title and interest to any alterations, additions or improvements to Products or any elements thereof made or created by or on behalf of us or you (whether during the Term or thereafter), including all intellectual property rights related thereto (individually or collectively “Product Improvements”), are solely owned by us; and you will assign, and hereby agree to assign, to us all right, title, and interest in and to any Product Improvements develop by you or on your behalf. Further, you will ensure that all employees, consultants or other personnel using a Product on behalf of you assign any and all right, title and interest they may have in any Product Improvements to you, and you will, and will cause such employees, consultants or other third parties or permitted users to execute such documents, and take such other action as we may reasonably request to apply for, register, perfect, confirm, and protect our rights in Product Improvements.
9.2 Feedback. We may use for business purposes any feedback and other information you provide us with respect to the development, operation and use of the Products and services.
10.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE INSTRUMENTS, CONSUMABLES, SOFTWARE OR SERVICES, LOST PROFITS, DATA OR BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND, IN EACH CASE ARISING OUT OF OR IN CONNECTION WITH, WITHOUT LIMITATION, THE SALE OF PRODUCTS, THE PROVISION OF SERVICES, OR THE LICENSING OF SOFTWARE, THEIR USE, OR OUR PERFORMANCE OF THESE TERMS, HOWEVER ARISING OR CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE), AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR TOTAL AND CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, INCLUDING WITHOUT LIMITATION, THE PRODUCTS (INCLUDING USE THEREOF) AND OUR PERFORMANCE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WILL IN NO EVENT EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT DIRECTLY CAUSING THE HARM IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM IS MADE.
10.2 In no event shall a party be liable for any delay or non-performance of its obligations hereunder due to civil unrest, threat of or actual acts of terrorism or war, embargoes, governmental actions, acts of God, pandemics, earthquakes, floods, storms, fires, supplier delay, accidents, explosions, epidemics, quarantine restrictions, or other such contingencies beyond the reasonable control of the applicable party.
11.1 Indemnification by Seer. Subject to Section 10, we will (i) defend, indemnify, and hold harmless you against any third-party claim or action alleging that a Product when used in accordance with these Terms directly infringes the valid and enforceable intellectual property rights of a third party, and (ii) pay all agreed settlements and all final judgments and costs (including reasonable attorneys’ fees) awarded against you in connection with such infringement claim up to the purchase price of the Products, provided that within thirty (30) days of receiving notification of any intellectual property rights of a third party, you provide notice to us and allow us to assume full responsibility for the defense thereof. If any Product or any part thereof, becomes, or in our opinion may become, the subject of an infringement claim, we will have the right, at our option, to (A) procure for you the right to continue using the Product, (B) modify or replace the Product with a substantially equivalent non-infringing substitute, or (C) require the return of the Product and terminate the rights, license, and any other permissions provided to you with respect to the Product and refund to you the depreciated value (as shown in your official records) of the returned Product at the time of such return; provided that, no refund will be given for used-up or expired Consumables. This Section states our entire liability for any infringement of third-party intellectual property rights.
11.2 Exclusions. We have no obligation to defend, indemnify or hold harmless for any infringement claim that arises from: (i) use of the Product for any Excluded Use, (ii) use of the Product in any manner not in accordance with the rights expressly granted to you under these Terms, (iii) use of the Product in combination with any third party products, materials, or services, (iv) use of the Product to perform any assay or other process not supplied by us, (v) our compliance with specifications or instructions for such Product furnished by, or on behalf of, you, (vi) your breach of any of these terms and conditions, or (vii) use of stand-alone third-party goods that may be acquired or used with the Products (each of (i) – (vii), is referred to as an “Excluded Claim”).
11.3 Indemnification by Customer. You will defend, indemnify and hold harmless us, our affiliates, our non-affiliate collaborators and development partners that contributed to the development of the Products, and their respective officers, directors, representatives and employees against any claims, liabilities, damages, fines, penalties, causes of action, and losses of any and every kind (including reasonable attorneys’ fees), including without limitation, personal injury or death claims, and infringement of a third party’s intellectual property rights, resulting from, relating to, or arising out of any Excluded Claim.
11.4 Conditions to Indemnification Obligations. The parties’ indemnification obligations are conditioned upon the party seeking indemnification (i) promptly notifying the other party in writing of such claim or action, (ii) giving the other party exclusive control and authority over the defense and settlement of such claim or action, (iii) not admitting infringement of any intellectual property right without prior written consent of the other party, (iv) not entering into any settlement or compromise of any such claim or action without the other party’s prior written consent, and (v) providing reasonable assistance to the other party in the defense of the claim or action; provided that, the indemnifying party reimburses the indemnified party for its reasonable out-of-pocket expenses incurred in providing such assistance.
12.0 NOTICES. All notices, consents, and other formal or legal communications will be in writing personally delivered, sent by registered or certified mail, return receipt requested, postage prepaid, or sent via facsimile, receipt confirmed, to Seer, Inc., 3800 Bridge Parkway, Redwood City, CA 94065, Attention: President, copy General Counsel at email@example.com.
13.0 ASSIGNMENT. You will not assign, delegate, or transfer the Terms or your rights or obligations hereunder, in whole or in part, without our prior written consent. Any assignment in violation of the foregoing will be null and void. The Terms together with any disputes are be governed by, and construed and interpreted in accordance with, the laws of the State of California, without regard to conflicts-of-laws principles if you reside in the United States, or the laws of the country where any Seer non-U.S. affiliate is making the sale if you do not reside in the United States. The United Nations Convention on Contracts for the International Sale of goods does not apply. All titles and section headings are inserted only as a matter of convenience and reference. The language of these Terms will not be interpreted in favor of or against any party as the drafter. Each party will comply with all applicable laws in its performance of these Terms including, but not limited, to export control, AML, FCPA, and patient privacy. You agree not to export, transfer, distribute, release, or use the Products or any related technology, samples, data, or other information to any person, entity, country, state, or jurisdiction in violation of their export control laws, rules, or regulations. These Terms may only be amended or any right or obligation waived with a written document signed by both parties. Sections 3, 5, 6.6, 6.7, and 9-14 will survive termination of the Terms. If any provision hereof should be held invalid, illegal, or unenforceable, all other provisions hereof will remain in full force and effect.
14.0 ARBITRATION. Any dispute or controversy arising out of or in connection with the Terms will be finally settled by binding arbitration in English under the rules of the AAA by one (1) arbitrator in San Mateo County, California. The decision and/or award rendered by the arbitrator will be written, final and non-appealable, and the decision and/or award of the arbitrator will be the sole, exclusive, and binding remedy. Costs of arbitration, including administrative fees and fees of the arbitrator, will be shared equally by the parties, and each party will bear the cost of its own attorneys’ and expert fees, unless the arbitrator awards the prevailing party its costs and expenses.