All sales are subject to and expressly conditioned upon the terms and conditions contained herein, and upon purchaser's assent thereto. If purchaser submits any acknowledgment of the order or other document that contains terms and conditions that are inconsistent with or in addition to the order or these terms and conditions, those additional or inconsistent terms are specifically rejected by PepMetric and PepMetric hereby objects to any such terms and conditions. No variation of these terms and conditions will be binding upon PepMetric unless agreed to in writing through non-electronic means and signed by an officer or other authorized representative of PepMetric and shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.

Order changes and cancellations

Orders arising hereunder may be changed or amended only by written agreement signed by both purchaser and PepMetric, setting forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery.
Purchasers of PEP-ARRAYSM, PEP-TAILORSM and PEP-HITSM services which involve the manufacture and delivery of membrane, reagent or any other physical products based on customer provided design, can only make cancellation of an order by providing actual notice to PepMetric prior to the start of product production. Payment, if made, will be fully refunded. Cancellation of an order during of after completion of product production shall not be allowed. Orders of PEP-ARRAYSM, PEP-MATCHSM and PEP-HITSM services which involve probing, screening, delivery of discoveries of peptide sequence(s) made by PepMetric shall not be cancelled or refunded once the sequence(s) or discovery related information is delivered to the purchaser.

Delivery and acceptance

PepMetric' shipping point. Products shall be deemed accepted upon delivery. Purchaser may revoke acceptance of any shipment of products which are not within the specifications and warranties as provided herein. In order to revoke acceptance, purchaser must pay for the shipment.

Allocation of goods

If PepMetric is unable for any reason to supply the total demands for non-custom products specified in purchaser's order, PepMetric may allocate its available supply among any or all purchasers on such basis as PepMetric may deem fair and practical, without liability for any failure of performance which may result therefrom.

Payment

Purchaser shall pay all invoices for products ordered by and delivered to purchaser within thirty (30) days of the receipt thereof in Canadian dollars or US dollars. If an invoice balance is overdue, without waiving any other rights and remedies at law or under this agreement, PepMetric may (a) refuse to accept additional orders; (b) refuse to ship ordered products; and/or (c) seek collection from purchaser, including all legal fees and other costs of collection. If the financial condition of purchaser results in the insecurity of PepMetric, in its sole discretion, as to the ultimate collectability of the purchase price, PepMetric may, without notice to purchaser, delay or postpone the delivery of the products; and PepMetric, at its option, may change the terms of payment to payment in full or in part prior to shipment of the entire undelivered balance of said products. In the event of default by purchaser in the payment of the purchase price or otherwise, purchaser agrees to pay the balance then due to PepMetric on demand. Purchaser agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by purchaser in any of the terms hereof.

Limited warranty

PepMetric warrants to purchaser for a period of thirty (30) days from the date of delivery, that the products, when shipped to purchaser by PepMetric shall conform in all material respects to the specifications of PepMetric, as provided on PepMetric' web-site or in other literature provided to purchaser by PepMetric and shall contain the requested sequence; provided however, that (a) the products must be stored under the prescribed conditions during such warranty period and (b) products including custom peptides are also subject to the appropriate limitations or restrictions provided as peptide clauses found in the specifications. Except for the foregoing warranty, PepMetric does not warrant the merchantability or fitness for a particular purpose of the products or the performance or noninfringement thereof, does not make and hereby expressly disclaims any warranty, express or implied, with respect to the products, specifications, support, service or anything else relating to the products and does not make any warranty to purchaser, purchaser's customers or their agents concerning the products. In addition, PepMetric does not warrant that the use or sale of the products delivered hereunder will not infringe intellectual property rights covering the product itself or the use thereof in combination with other products or in the operation of any process.

Limited liability

Purchaser acknowledges and agrees that PepMetric' sole liability and purchaser's sole and exclusive remedy hereunder shall not exceed the amount paid by purchaser for such products under the order. Such limitations on PepMetric' liability hereunder shall apply even if PepMetric' liability is due in whole or in part to its own negligence. In order to obtain such remedies, purchaser shall afford PepMetric prompt and reasonable opportunity to inspect all products as to which any claim is made that such products do not conform to the warranties provided herein. At PepMetric' option, and a condition to any warranty claims hereunder, purchaser shall allow PepMetric to take control of such products and direct their disposal. Upon receipt of shipping instructions from PepMetric, purchaser shall return to PepMetric, at PepMetric' cost, all products allegedly not conforming to the specifications; provided, however, in the event that it is subsequently determined that such products do in fact conform to the specifications, purchaser shall reimburse PepMetric for all such shipping costs incurred by PepMetric.

Waiver of consequential damages

In no event shall PepMetric or its affiliates or their respective officers, directors, representatives and employees be liable to purchaser or its affiliates or their respective officers, directors, representatives and employees, whether based in contract, tort, warranty or any other legal or equitable grounds, for any loss of the income, profit or savings or cost of capital of purchaser or its affiliates, for any indirect, incidental or consequential damages or for any exemplary, special or punitive damages of any kind, resulting from or relating to the order or the products delivered hereunder, even if PepMetric has been advised of the possibility of such damages.

Purchaser's use of products

PepMetric' products are intended primarily for laboratory research purposes and, unless otherwise stated on product labels, on PepMetric' web-site or in other literature furnished to purchaser by PepMetric, are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes, foods, drugs, medical devices or cosmetics for humans or animals. Purchaser acknowledges that the products have not been tested by PepMetric for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated in PepMetric' literature furnished to purchaser. Purchaser realizes that, since PepMetric' products are, unless otherwise stated, intended primarily for research purposes, they may not be on the toxic substances control act (TSCA) inventory. Purchaser assumes responsibility to assure that the products purchased from PepMetric are approved for use under TSCA, if applicable. Purchaser has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from PepMetric. Purchaser agrees to comply with instructions, if any, furnished by PepMetric relating to the use of the products and not misuse the products in any manner. No products purchased from PepMetric shall, unless otherwise stated, be considered to be foods, drugs, medical devices or cosmetics.

Purchaser's representations and indemnity

Purchaser represents and warrants that it shall use all products ordered in a lawful manner. Purchaser shall defend PepMetric, its employees, agents, affiliates and contractors (the "PepMetric indemnitees"), and shall hold the PepMetric indemnitees harmless from and against all suits, actions, or proceedings, at law or in equity, and from all claims, costs, damages, losses and expenses (including, without limitation, attorney's fees, consultants' fees, experts' fees) of third parties that are related to or in connection with (1) the product sequences, if applicable, being wrongfully disclosed by purchaser hereunder, (2) infringement, misappropriation, and/or conversion which are the direct result of PepMetric' possession and/or use of such sequences disclosed by purchaser, if applicable, or (3) the death or bodily injury of the purchaser or third party or the damage, loss or destruction of any tangible personal or real property arising from or related to purchaser's use of the products, or its manufacture or sale of any products or utilizing the products.

Relationships of the parties

No formal business organization or relationship of any kind is established by this agreement. The parties expressly agree that the relationship created by and arising out of this agreement is that of independent contractors entering into an arms-length transaction. Nothing contained in this agreement is intended nor is to be construed so as to constitute purchaser and PepMetric as partners, agents or joint ventures with respect to this agreement. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any agreement, agreement or undertaking with any third party.

Governing laws and venue

This agreement shall be subject to and construed in accordance with the laws of the Province of British Columbia, without regard to conflicts of law principles, as may be applicable to agreements made and performed entirely in the Province of British Columbia. The exclusive venue for proceedings arising under this agreement shall be a court of competent jurisdiction in the Province of British Columbia.

Force majeure

Delay in performance or non-performance of any obligation contained herein, other than purchaser's obligation to pay, shall be excused to the extent such failure or non-performance is caused by force majeure. For purposes of these terms and conditions, force majeure shall mean any cause or event preventing performance of an obligation under the order which is beyond the reasonable control of PepMetric or purchaser, as the case may be, including without limitation, fire, flood, power shortage, mechanical breakdown, sabotage, shipwreck, embargo, explosion, strike or other labor trouble, accident, riot, acts of governmental authority (including, without limitation, act based on laws or regulations now in existence as well as those enacted in the future), acts of god, and other events or conditions beyond the reasonable control of the affected party. If purchaser or PepMetric is affected by force majeure, the party affected shall promptly provide notice to the other party, explaining in detail the full particulars and the expected duration thereof. The affected party shall use its commercially reasonable efforts to remedy the interruption or delay if it is reasonably capable of being remedied. In the event a force majeure situation extends for more than thirty (30) days, the order may be terminated without any liability by either party upon written notice thereof to the other. In the event of a force majeure compelling PepMetric to allocate production and deliveries of products, PepMetric may allocate its available supply of products among PepMetric' customers (including purchaser) and PepMetric' internal uses in such manner as PepMetric deems fair and reasonable. Such allocation shall not be deemed a breach of this agreement.