4D-Nucleofector™ Manual –
Bioscience Solutions
37
5 Purchaser Notification
Purchaser Notification
The purchase of the 4D-Nucleofector™ System (the “Purchased Device”) conveys to the buyer
a limited non-transferable, non-exclusive license (the “License”) for the use of the Purchased
Device and Lonza’s proprietary Nucleofector™ process and methods (the “Licensed Process”)
without the right to sublicense.
The License is limited to research use only. The License does not include the right to use the
Purchased Device, its components or materials, or the Licensed Process for any Commercial
Purpose, as defined below. Notwithstanding the foregoing, the License permits the buyer
to use the Purchased Device in combination with the Licensed Process to perform services
internally for affiliates, subsidiaries, sections, departments or scientific collaborators, pro-
vided that such services are not for any Commercial Purpose.
Under no circumstances shall the Purchased Device or the Licensed Process be used for
testing or treatment in humans. The buyer, through the purchase of the Purchased Device,
acknowledges that the Purchased Device and Licensed Process are not diagnostic or thera-
peutic tools and shall not be used as an accessory or complement to such tools.
“Commercial Purposes”, as used herein, means the sale, license, lease, export, transfer or
other distribution of the Purchased Device, its components or materials, or the Licensed
Process to a person or entity other than the buyer for financial gain or other commercial
purposes and/or the use of the Purchased Device, its components or materials, or the Li-
censed Process: (1) in manufacturing or producing a product for general sale or products
for use in the manufacture of products ultimately intended for general sale; (2) to provide
a service, information, or data to a person or entity other than the buyer for financial gain;
or (3) for therapeutic, diagnostic or prophylactic purposes.
The License does not permit the buyer to manufacture, copy, reproduce, transmit, distrib-
ute, sell, lease, transfer or sublicense the Licensed Process and/or the Purchased Device.
For information on obtaining a license to the Purchased Device or the Licensed Process for
purposes other than research, contact our Licensing Department, at +49 221 99199 0 or
e-mail: [email protected]
Representations and Warranties
Lonza represents and warrants that, it is the holder of intellectual property, including patents,
patent applications, copyrights, trademarks and technical and scientific knowledge with
respect to the Purchased Device and the Licensed Process and that, to its knowledge, it has
the right to grant the License provided herein. Lonza further represents and warrants that
it has no knowledge of any rights of third parties which supersede its intellectual property
rights to the Purchased Device and the Licensed Process and that Lonza has full corporate
power and authority to grant the License provided hereunder.
Lonza does not warrant that the information and data pertaining to the Licensed Process
and/or the Purchased Device is correct and without defects, that the use of such informa-
tion or data is adequate for the use of the Licensed Process and/or the Purchased Device
or that the technical information or data for the Licensed Process and/or the Purchased
Device is complete.
Lonza does not warrant either that the use of the License does not infringe third parties’
rights or does not cause damages to third parties. Any liability for later invalidation or lapse
of Lonza’s intellectual property is excluded.
THE EXPRESS WARRANTY PROVIDED ABOVE IS LONZA’S ONLY WARRANTY RELATING TO THE
PURCHASED DEVICE OR THE LICENSED PROCESS AND IS IN PLACE OF ALL OTHER WARRANTIES,
EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES AS TO MERCHANT-
ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY EXCLUDED.
BUYER AGREES THAT LONZA HAS MADE NO UNDERTAKINGS, AGREEMENTS OR REPRESENTA-
TIONS, EXPRESSED OR IMPLIED WITH RESPECT TO THE PURCHASED DEVICE OR THE LICENSED
PROCESS, OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, IN NO EVENT WILL LONZA
BE LIABLE FOR LOST PROFITS, DAMAGE TO REPUTATION, OR LOSS OF DATA, OR FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, ON ANY
THEORY OF LIABILITY AND WHETHER OR NOT LONZA HAS BEEN ADVISED OF THE POSSIBIL-
ITY OF SUCH DAMAGES, ARISING UNDER ANY CAUSE OF ACTION AND ARISING IN ANY WAY OUT
OF BUYER’S USE OF THE PURCHASED DEVICE OR THE LICENSED PROCESS. BUYER HEREBY
AGREES THAT TO THE FULLEST EXTENT PERMITTED BY LAW, LONZA’S LIABILITY TO BUYER FOR
ANY AND ALL INJURIES, CLAIMS, LOSSES, EXPENSES, OR DAMAGES WHATSOEVER, ARISING
UNDER ANY CAUSE OF ACTION AND ARISING IN ANY WAY OUT OF BUYER’S PURCHASE OR USE
OF THE PURCHASED DEVICE OR LICENSED PROCESS SHALL BE LIMITED IN THE AGGREGATE,
IN LONZA’S SOLE AND ABSOLUTE DISCRETION, TO REPAIR, REPLACEMENT, OR REFUND OF THE
EQUIPMENT OR EQUIPMENT PART, AS APPLICABLE, OR THAT PORTION OF THE PURCHASE PRICE
APPLICABLE TO THE EQUIPMENT OR THE EQUIPMENT PART, AS APPLICABLE, WHICH VIOLATES
AN EXPRESS WARRANTY PROVIDED HEREUNDER. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, THE LIABILITY OF LONZA WITH RESPECT TO A CLAIM OF ANY KIND WHATSOEVER,
SHALL NOT EXCEED THE INVOICE PRICE OF THE PARTS, REPLACEMENT PARTS OR SERVICE AS
TO WHICH THE CLAIM IS MADE.
Buyer assumes all responsibility and liability for injury or damages resulting from its hand-
ling, possession, use or sale of the Purchased Device or Licensed Process including, but not
limited to any injury or damage resulting from the use of the Purchased Device or Licensed
Process in Buyer’s operations or in combination with other substances, materials or products.
Buyer agrees to defend, indemnify and hold Lonza and its affiliates and their respective
directors, officers, employees, agents harmLess from and against all claims, losses, dam-
ages, liabilities and expenses (including attorneys’ fees and other litigation or settlement
costs) arising out of (a) Buyer’s handling, possession, use or sale of the Purchased Device
or Licensed Process, (b) any material breach of any Agreement between Lonza and Buyer or
other terms and conditions relating to the use of the Purchased Device or Licensed Process
provided to Buyer by Lonza, or (c) the gross negligence or willful misconduct of Buyer or any
of its affiliates in performing any activity relating to the subject matter hereof.
Lonza does not assume any liability that the Licensed Process, the Purchased Device or
any product resulting from the use of the Licensed Process or use of the Purchased Device
shall be approved by governmental authorities or any other institution or supervisory board
or similar agencies.
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