NANOSTRING TECHNOLOGIES, INC.

  • Click here to navigate to the terms and conditions below for sales of all NanoString instruments and consumables other than Prosigna® kits, Roche FFPET RNA Isolation kits, and Elements™ TagSets for diagnostic or investigational use.
  • Click here to navigate to the terms and conditions below for sales of system service plans.
  • Click here to navigate to the terms and conditions below for sales of sample processing and proof of principle study services.
  • Click here to navigate to the terms and conditions below for protein barcoding services.
  • The terms of sale for Prosigna kits and Roche kits are located on a separate page available at http://prosigna.com/terms-of-sale.

TERMS AND CONDITIONS OF SALE FOR PRODUCTS

Last Updated: June 24, 2016

These Terms and Conditions of Sale for Product (these “Terms and Conditions”) constitute a binding legal agreement between NanoString Technologies, Inc. (“NanoString”) and the purchaser (“End User”) or authorized distributor (“Distributor”), as applicable, identified on its order to NanoString for the products set forth below, unless other terms applicable to this sale are specifically agreed to by the parties in a written agreement signed by both parties. “Buyer” as used herein will refer to either End User and/or Distributor, as applicable. These Terms and Conditions govern the sale and license to the End User or Distributor by NanoString of the following types of products included in Buyer’s order (the “Products”):

  • NanoString’s instruments (such as the nCounter® Analysis System, nCounter® Dx Analysis System, and nCounter SPRINT ™ Profiler),
  • NanoString’s consumables labeled for Research Use Only or For Laboratory Use, including but not limited to, panel CodeSets, custom CodeSets, and nCounter Elements™ TagSets to be used in research applications; and
  • the products listed in Section 8 below.

Except for the nCounter Dx Analysis System and the Products listed in Section 8 below: (a) no Products sold under these Terms and Conditions may be used in clinical diagnosis, patient management, or an investigational study involving patient treatment decisions; and (b) the sale of assays, consumables, and kits for diagnostic use (such as the Prosigna™ Breast Cancer Gene Signature Assay), any assays and consumables for investigational use, and nCounter Elements™ TagSets for diagnostic use or investigational use, shall be governed by a set of different terms and conditions between Buyer and NanoString. NanoString’s acceptance of Buyer’s order is conditioned upon Buyer’s consent to these Terms and Conditions, and any additional or different terms, including those on Buyer’s order, are hereby rejected by NanoString. By placing an order, Buyer accepts and agrees to be bound by these Terms and Conditions. For Distributors, these Terms and Conditions are hereby incorporated into the International Distributor Agreement entered into by and between NanoString and Distributor, as may be amended from time to time (“Distributor Agreement”). To the extent that the terms and conditions set forth in these Terms and Conditions conflict with the terms of the Distributor Agreement, the terms set forth in these Terms and Conditions will govern. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify these Terms and Conditions.

1. Price. Unless otherwise stated on the face of the attached quote, prices exclude all insurance, freight, taxes, fees, tariffs, duties, and levies.

2. Delivery. Delivery. Products will be packed in NanoString’s standard shipping packages. NanoString may make partial deliveries. Shipping and delivery dates provided by NanoString are approximate and are based upon prompt receipt of all necessary payment and information. Any delivery date, “ship no later than” date, “required by” date, etc., specified on a purchase order by Buyer will be of no force and effect. NanoString will not be liable for failure to ship Products in connection with a Force Majeure event (as defined below), including inability to obtain labor or other materials or other product delays, in which case NanoString may postpone delivery or shipment at its option without liability.

a. For End Users: Unless otherwise set forth in writing by NanoString or otherwise agreed by the parties, all shipments are made EXW (Incoterms 2010) NanoString’s manufacturing facility, except for shipments to member countries of the European Union, which are made DDP (Incoterms 2010) excluding VAT. NanoString will ship via carrier selected by NanoString. In all cases, title to the Products (except for software, in which case NanoString shall retain title) and risk of loss shall pass to Buyer on delivery to the carrier. A reasonable fee will be added to the invoice and paid by Buyer to cover shipping and handling. NanoString is not responsible for damage caused in transit. It is the responsibility of Buyer to file damage claims directly with the freight company. If errors or shortages are detected in any shipment, Buyer must notify NanoString within three (3) business days of receipt.

b. For Distributors: Unless otherwise set forth in writing by NanoString or otherwise agreed by the parties, all shipments are made EXW (Incoterms 2010) NanoString’s manufacturing location or NanoString’s authorized logistics or warehouse location, for pick up by Distributor’s carrier of choice. Title (except for software in which case NanoString shall retain title) to the Products and risk of loss shall pass to Distributor on delivery to the carrier. NanoString shall use reasonable efforts to present the Products for pick up on the date agreed upon by Distributor and NanoString. All freight, insurance, and other shipping expenses, import and export fees and costs, as well as any special packing expense, shall be paid by Distributor.

3. Cancellation. Buyer may not cancel any custom CodeSet order once NanoString has accepted Buyer’s target sequence list (the “target acceptance date”). Buyer will be responsible for, and immediately pay, any fees incurred by NanoString or payments owed by Buyer with respect to Buyer’s order in the case of a cancellation after the target acceptance date.

4. Payment. Buyer will be invoiced at the time of shipment of each Product. Buyer shall make payment in full within thirty (30) days of the date of the invoice. Late payments may incur a charge at the rate of one percent (1.0%) per month, or the maximum allowed by law, whichever is less. Further shipment of Products may be declined without advance notice if Buyer fails to make any payment when due, or if the financial condition of Buyer becomes unsatisfactory to NanoString. NanoString may require payment on an irrevocable letter of credit reasonably acceptable to NanoString.

5. Limited Warranty.

a. For the nCounter Analysis System, nCounter Dx Analysis System, and nCounter SPRINT Profiler, NanoString warrants that the instrument will conform in all material respects to NanoString’s published specifications in the product data sheets supplied by NanoString to Buyer for a period of 12 months after its shipment date from NanoString, unless the instrument includes NanoString-provided installation, in which case the warranty period begins on the date of installation or 30 days after the date it was delivered, whichever occurs first. NanoString’s sole and exclusive liability under the foregoing warranty shall be to repair or replace the instrument at no cost or provide Buyer a refund, as solely determined by NanoString. Nonconforming instruments will be serviced at Buyer’s facility or, at NanoString’s option, NanoString’s facility. If warranty service is performed at NanoString’s facility, NanoString will bear shipping costs. Except as provided above, this warranty does not apply to any defect caused by Third Party Software (as defined below) or to any Replacement Parts (as defined below). NanoString warrants that Replacement Parts will conform to their specifications for a period of 90 days from the date the Replacement Parts are installed. Replacement Parts do not extend the warranty for the underlying instrument. “Replacement Parts” means NanoString provided components, modifications, or enhancements to an instrument that was previously acquired by Buyer.

b. For CodeSets (panel and custom), reagents (such as nCounter Elements™ TagSets to be used in research applications), and consumables, NanoString warrants the CodeSets, reagents, and consumables will conform in all material respects to NanoString’s published specifications in the product data sheets supplied by NanoString to Buyer until the later of (i) 3 months from the date of shipment from NanoString, or (ii) the end of the shelf life pre-printed on such Products by NanoString. CodeSets, reagents, and consumables reasonably determined by NanoString after investigation to be defective, independent of user error, shall be replaced by NanoString on a 1:1, like-kind basis at no cost to Buyer provided that such defective CodeSets, reagents, and consumables were used by Buyer prior to their expiration date or shelf life date pre-printed on such Products. Replacement Products come with a 90-day warranty.

c. In order to be eligible for repair, replacement, or refund, as applicable, under these warranties, Buyer must (i) promptly contact NanoString’s technical support department to report the non-conformance, (ii) cooperate with NanoString in confirming or diagnosing the non-conformance, and (iii) return the Product, transportation charges prepaid to NanoString following NanoString’s instructions or, if agreed by NanoString and Buyer, grant NanoString’s authorized repair personnel access to the Product in order to confirm the non-conformance and make repairs.

d. The foregoing warranties do not apply to the extent a defect or non-conformance is due to (i) misuse, neglect, negligence, accident, improper storage, or use contrary to the documentation or specifications, (ii) improper handling or maintenance, (iii) unauthorized alterations, (iv) a Force Majeure event, or (v) use with a third party’s goods not provided by NanoString (unless the Product’s documentation or specifications expressly state such third party’s goods are for use with the Product). The foregoing warranties apply only to Buyer, and not third parties, and only to NanoString-branded Products.

e. The foregoing warranties shall be Buyer’s sole and exclusive remedy for non-conforming or defective Products. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NANOSTRING AND ITS SUPPLIERS DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.

6. Limited Software License. Subject to these Terms and Conditions, and to the terms and conditions of any license provided by NanoString that is specific to a particular Product (which shall govern with respect to such Product in the event of conflict with these Terms and Conditions), NanoString hereby grants to Buyer a limited, non-exclusive, non-transferable, non-sublicensable license to use any software or firmware provided as part of the Product(s), if any, only in accordance with the manuals and written instructions provided by NanoString and only as part of the Product and not on a stand-alone basis. The Products may be distributed with or contain or use certain open source or other third party software that may be covered by the terms of a different license (“Third Party Software”). Third Party Software is subject to and governed by (and licensee agrees to, and will indemnify NanoString for noncompliance with) the respective licenses for such Third Party Software. The notices, license terms, and disclaimers applicable to Third Party Software are contained in the user manual supplement for each instrument.

7. Products Marketed and Labeled for Research Use Only. Products that are labeled For Research Use Only (“RUO”) do not have the approval or clearance of the U.S. Food and Drug Administration (“FDA”) or other global regulatory approval, clearance, or registration for in vitro diagnostic (“IVD”) use and are not for use in diagnostic procedures. No license is conveyed or implied for Buyer to use, and Buyer agrees not to use Products labeled RUO, as well as any nCounter Elements sold under these Terms and Conditions, in clinical diagnosis, patient management, or an investigational study involving patient treatment decisions, or in any manner requiring FDA or other global regulatory approval, clearance, or registration relating to IVD use.

8. Permitted Use of Selected nCounter Gene Fusion Panels. Notwithstanding anything herein to the contrary, the nCounter Lung Gene Fusion Panel and the nCounter Leukemia Gene Fusion Panel, each labeled For Laboratory Use, solely when sold to Buyers located outside of the United States, are not subject to the prohibition under these Terms and Conditions against use of the Products hereunder in clinical diagnosis or patient management. Buyer is solely responsible for (a) using such Products in compliance with all applicable laws and regulations and (b) the validation of any clinical assays it develops using such Products, including verification of raw materials, establishing acceptance criteria, and final acceptance.

9. Use Restrictions. End User agrees not to (a) resell any NanoString-supplied CodeSet, consumable, or reagent, or (b) transfer, or distribute any NanoString-supplied CodeSet, consumable, or reagent, directly or indirectly, to any third party for any purpose or use, except as otherwise approved by NanoString in writing. Buyer agrees not to use and agrees not to allow anyone else to use any NanoString-supplied consumable more than once, or dilute any NanoString-supplied reagent. In addition, Buyer agrees not to, nor authorize any third party to, engage in any of the following activities: (i) separate, extract, or isolate components of the Products, as applicable, (ii) subject the Products or components thereof to any analysis not expressly authorized by a Product’s documentation, or (iii) reverse engineer, disassemble, decompile, remove, redistribute, or repackage any software or firmware provided as part of the Product(s). Buyer further agrees that the contents of and methods of operation of the Products are proprietary to NanoString and that the Products contain or embody trade secrets of NanoString. Buyer understands and agrees that except as expressly set forth in these Terms and Conditions, no right or license to any patent or other intellectual property owned or licensable by NanoString is conveyed or implied by these Terms and Conditions or any Product. In particular, no right or license is conveyed or implied to use any Product provided hereunder in combination with a product not provided, licensed, or specifically recommended by NanoString for such use. Buyer shall be solely responsible for all claims, losses, demands, damages, and liabilities arising under or in connection with the design, development, marketing, and sale of a product developed by Buyer which (i) is based on or derived from NanoString’s Products, or (ii) results from any modification made by Buyer to any of NanoString’s Products, except to the extent such claims, losses, demands, damages, and liabilities are directly resulting from gross negligence or willful misconduct of NanoString or a design defect in a NanoString product.

10. Prosigna Starter Kits. If NanoString provides Buyer with any Prosigna Starter Kits containing tests for Buyer’s validation of its nCounter Dx Analysis System, Buyer agrees not to use the Prosigna Starter Kits for IVD use, or to submit test results from the Prosigna Starter Kits for reimbursement. The Prosigna Starter Kits shall be used for validation purposes only.

11. Target Sequence Confidentiality for Custom Products. If Buyer discloses to NanoString a confidential set of nucleic acid target sequences (“Target Sequences”) for which Buyer desires NanoString to design and manufacture custom CodeSets pursuant to these Terms and Conditions, NanoString agrees to not to disclose or use such confidential information disclosed to it by Buyer for any purpose other than designing and manufacturing such Products, supplying them to Buyer and/or other parties designated by Buyer, or otherwise performing its obligations to Buyer (and any obligations NanoString may have to such other parties), and for other purposes authorized by Buyer. The provisions of this Section shall not apply to any information which (a) is known or used by NanoString prior to Buyer’s disclosure to NanoString, (b) is disclosed to NanoString by a third party under no obligation of confidentiality to Buyer, (c) is or becomes published or generally known to the public through no fault of NanoString, or (d) is independently developed without reference to such confidential information disclosed to NanoString by Buyer. Notwithstanding the foregoing, NanoString shall be permitted to disclose such information in order to comply with applicable laws, a court order, or governmental regulations, provided that NanoString has provided Buyer with prior notice of such disclosure, to the extent reasonably practicable. NanoString’s obligations under this Section shall terminate three (3) years following the date of disclosure.

12. Target Sequence Responsibility. Buyer shall be fully responsible for the Target Sequences, and Buyer agrees to indemnify NanoString and its employees, officers, directors, representatives, contractors, and suppliers and hold each of them harmless from and against any losses, liabilities, demands, damages, costs and expenses, including without limitation reasonable legal fees and expenses, arising from or relating to the Target Sequences or their use. Buyer agrees to cooperate fully with NanoString and its counsel in its defense and preparation for any such action or proceeding.

13. RUO PAM50, RUO LST CodeSet and Secondary Analysis Orders. If an End User is (i) purchasing or otherwise receiving a CodeSet containing (a) at least 75% of the genes in the PAM50 gene signature (such portion of the CodeSet, the “PAM50 CodeSet”) or (b) 12 or more of the 15 classifier genes in the Lymphoma Subtyping Test gene signature (such portion of the CodeSet, the “LST CodeSet”), or (ii) purchasing or otherwise receiving secondary analysis services from NanoString using NanoString’s proprietary algorithms to analyze the gene expression data resulting from End User’s use of the PAM50 CodeSet or LST CodeSet (“Secondary Analysis”), End User agrees to use the PAM50 CodeSet, LST CodeSet, or Secondary Analysis only for the research purpose approved by NanoString in writing. In the event that End User publishes the results of such research, End User shall provide NanoString with a draft of the proposed publication and/or public presentation (including abstracts, seminars, slides, etc.) for review at least thirty (30) days prior to submission for publication and/or public presentation to provide comments. End User shall consider such comments and provide a response to NanoString explaining whether such comments have been incorporated into the publication or presentation and, if not, provide an explanation. End User shall inform NanoString of any inventions related to or arising out of its use of the PAM50 CodeSet, LST CodeSet, or Secondary Analysis (“Inventions”) within 30 days of any such Invention and NanoString shall have an option for one hundred eighty days (180) days from the date NanoString receives notice by End User of such Invention to enter into a license agreement with End User for any Inventions and associated patent filings on commercially-reasonable terms to be agreed upon in good faith by the parties. NanoString reserves the right to discontinue sales of PAM50 CodeSets, LST CodeSets, and Secondary Analyses to End User if End User fails to comply with the foregoing conditions of sale or receipt. NanoString’s sale of a PAM50 CodeSet, LST CodeSet, or Secondary Analysis to End User for an approved research purpose does not obligate NanoString to sell a PAM50 CodeSet, LST CodeSet, or Secondary Analysis to End User (or any other Buyer) for the same or different research purpose.

14. Quality Control Reserve CodeSets. If Buyer purchases from NanoString a Quality Control Reserve CodeSet (“QC Reserve”), which is fulfilled using residual raw materials from a previous and identical CodeSet purchased by Buyer, where such residual materials were sequestered for potential troubleshooting activities, then this section applies. To the extent that any provision in this Section is in conflict with any other term or condition in these Terms and Conditions, this Section shall supersede such other term(s) and condition(s) with respect to the QC Reserve, but only to the extent necessary to resolve the conflict. QC Reserves are sold to Buyer “as is”. To the extent permitted by applicable law, NanoString and its suppliers disclaim all other representations and warranties, express or implied, with respect to QC Reserve CodeSets (including the limited warranty set forth above in these Terms and Conditions), and all liability obligations to Buyer of any kind. Following the purchase of a QC Reserve CodeSet, NanoString will no longer provide technical support for troubleshooting the original CodeSet purchased by Buyer and it will not provide technical support for the QC CodeSet.

15. Pre-Release Products. If any Product is a beta, technology access, early access, or other pre-commercial release version (“Pre-release Product”), then this Section applies. To the extent that any provision in this Section is in conflict with any other term or condition in these Terms and Conditions, this Section shall supersede such other term(s) and condition(s) with respect to the Pre-release Product, but only to the extent necessary to resolve the conflict. Buyer acknowledges that the Pre-release Product is a pre-release version, does not represent final product from NanoString, and may contain defects, bugs, errors, and other problems that could cause system or other failures, sample loss, and data loss. Consequently, the Pre-release Product is provided to Buyer “as is”, and NanoString disclaims all warranties (including the limited warranty set forth above in these Term and Conditions) and all liability obligations to Buyer of any kind. Buyer acknowledges that NanoString has not promised or guaranteed to Buyer that Pre-release Product will be announced or made available to anyone in the future, that NanoString has no express or implied obligation to Buyer to announce or introduce the Pre-release Product and that NanoString may elect not to introduce a product similar to or compatible with the Pre-release Product. Accordingly, Buyer acknowledges that any research or development that Buyer performs using the Pre-release Product or any product associated with the Pre-release Product is done entirely at Buyer’s own risk.

16. nCounter Reports (applicable only to sales of an nCounter Dx Analysis System or an nCounter Dx Enablement Package). The nCounter Dx Analysis System is designed to generate an “nCounter Usage Report,” which may be used by NanoString for its internal product development and business purposes and to better provide customers with products that meet their needs. If Buyer’s purchase hereunder includes the installation of an nCounter Dx Analysis System or the Dx enablement of an nCounter Analysis System, then, by agreeing to such installation or Dx enablement, Buyer agrees and consents to NanoString’s collection, use, and disclosure of the nCounter Usage Report as further described herein. The nCounter Usage Report will contain the following information: (a) on an aggregate basis by month: the number of cartridges run on Buyer’s nCounter; the number of samples run in total; and the number of samples successfully run; and (b) on a cartridge-by-cartridge basis for the report period: assay type; the cartridge ID; the number of samples allowed in the cartridge; any configuration flags; the number of samples run; the number of samples successfully run in the cartridge; and the test configuration code ID. There will be no patient-identifiable information or any other personal information collected in the nCounter Usage Report. NanoString will treat the information from Buyer’s nCounter Usage Report as confidential and will not disclose it to any third party, except as required by law or to an employee or contractor that requires the information on NanoString’s behalf, so long as the employee or contractor is obligated to maintain the confidentiality of the information. If outgoing email is enabled on Buyer’s nCounter Dx Analysis System, the nCounter Usage Report will be automatically emailed to NanoString once a month, at midnight on the last day of each month, until such time as NanoString discontinues this function. Buyer may revoke its consent to NanoString’s collection of the nCounter Usage Report at any time, and may do so by deselecting “Enable Auto Reports” in the Usage Report tab of the System Settings menu of the nCounter web application while logged into the application as the administrator. Buyer may contact NanoString customer support at dxsupport@nanostring.com for any assistance with disabling this functionality.

17. Reporting of Discounts. Buyer shall comply with applicable provisions of 42 U.S.C. §1320a-7b(b)(3)(A) (the “anti-kickback law” discount exemption) and 42 C.F.R. 1001.952(h) (the discount safe harbor) by properly disclosing and appropriately reflecting all discounts, rebates and other reductions in price provided in connection with a purchase under these Terms and Conditions to representatives of Medicare, Medicaid, and other Federal health care programs (as defined in 42 U.S.C. § 1320a-7b(f)). Specifically, to the extent applicable and required by law, including, but not limited to, 42 U.S.C. 1320a-7b(b) and 42 C.F.R. 1001.952(h): (a) if Buyer reports its costs to a Federal health care program, Buyer will accurately reflect all discounts or other price reductions received hereunder, and (b) whether or not Buyer reports its costs to a Federal health care program, Buyer will retain this agreement and other documentation provided by NanoString pertaining to the discounts provided hereunder, and provide such documentation to authorized representatives of the U.S. Department of Health and Human Services or a state health care program on request.

18. Liability Limitation. NEITHER NANOSTRING NOR ITS SUPPLIERS WILL HAVE ANY LIABILITY FOR ANY LOSS OF USE OR PROFITS, PROCUREMENT OF SUBSTITUTE GOODS OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND REGARDLESS OF FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF NANOSTRING OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AS TO ANY LIABILITY NOT LEGALLY SUBJECT TO THE FOREGOING, EXCEPT TO THE EXTENT CAUSED BY NANOSTRING’S WILLFUL MISCONDUCT, OR AS REQUIRED BY APPLICABLE LAW, NANOSTRING’S AND ITS SUPPLIERS’ LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY BUYER TO NANOSTRING FOR THE PRODUCTS UNDER THESE TERMS AND CONDITIONS IN THE PRIOR TWELVE (12) MONTHS. BUYER AND ITS END USERS ARE RESPONSIBLE FOR, AND NANOSTRING AND ITS SUPPLIERS WILL BEAR NO LIABILITY FOR, ANY TREATMENT AND CARE THAT IS RECOMMENDED OR PROVIDED BASED ON THE DATA GENERATED FROM THE PRODUCTS OR THE RESULTS OF SUCH TREATMENT OR CARE. BUYER UNDERSTANDS THAT THE RISKS OF LOSS HEREUNDER ARE REFLECTED IN THE PRICE OF THE PRODUCTS AND THAT THESE TERMS WOULD HAVE BEEN DIFFERENT IF THERE HAD BEEN A DIFFERENT ALLOCATION OF RISK. THE LIMITED REMEDIES AND LIABILITY LIMITS IN THESE TERMS AND CONDITIONS WILL APPLY EVEN IF THEY CAUSE A PROVISION TO FAIL OF ITS ESSENTIAL PURPOSE.

19. Export Controls. Buyer acknowledges that the Products and related materials may be subject to export controls under the U.S. Export Administration Regulations and related U.S. laws. Buyer will (a) comply strictly with all legal requirements established under these controls, (b) cooperate fully with NanoString in any official or unofficial audit or inspection that relates to these controls and (c) not export, re-export, divert, transfer or disclose, directly or indirectly, any Product or related technical documents or materials or any direct product thereof to any country (or to any national or resident thereof) which the U.S. Government determines from time to time is a country (or end-user) to which such export, re-export, diversion, transfer or disclosure is restricted, without obtaining the prior written authorization of NanoString and the applicable U.S. Government agency.

20. Unforeseen Events. NanoString shall not be liable for delay or failure in performance of any obligations hereunder if performance is rendered impracticable by the occurrence of any condition beyond the reasonable control of NanoString (“Force Majeure”). In the event of any such delay or failure in performance, NanoString shall have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances.

21. Miscellaneous. Both parties will perform their obligations under these Terms and Conditions in compliance with all applicable laws and regulations. These Terms and Conditions and Buyer’s order are governed by the laws of the State of Washington, USA, without reference to conflict of law principles. All disputes arising out of or related to these Terms and Conditions or Buyer’s order will be subject to the exclusive jurisdiction of the courts located in Seattle, Washington and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Buyer will not assign this agreement, directly or indirectly, by operation of law or otherwise, without the prior written consent of NanoString other than to a successor entity to which the assigning party transfers or assigns all or substantially all of its assets. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions. These Terms and Conditions constitute the entire agreement between Buyer and NanoString with respect to the subject matter hereof and Buyer’s order, and are the final, complete, and exclusive statement of the terms of the parties’ agreement, superseding all other agreements, communications, and understandings with respect to the subject matter hereof. The waiver of any provision or any breach of a provision of these Terms and Conditions shall not affect any other provision herein.


SERVICE PLAN TERMS AND CONDITIONS

Last Updated: June 24, 2016

1. General Terms. These Service Plan Terms and Conditions shall govern all orders for purchases from NanoString Technologies, Inc. (“NanoString”) of services and parts under a NanoString service plan (a “Service Plan”) and other services relating to the Covered Equipment (as defined below), including Maintenance Service (as defined below) and training, and set forth the binding legal agreement (the “Agreement”) between NanoString and the customer identified on its order (“Customer”), unless other terms are specifically agreed to by the parties in a written agreement signed by both parties. NanoString’s provision of the services hereunder is expressly conditioned upon Customer’s acceptance of the terms and conditions contained in this Agreement. By placing an order for the Service Plan hereunder, Customer accepts and agrees to be bound by the terms and conditions in this Agreement. If a purchase order or other form containing terms and conditions is used by Customer, NanoString objects to any such terms and conditions. Any additional or different terms or conditions (pre-printed or otherwise) proposed by Customer will not become part of the Agreement.

2. Covered Equipment. “Covered Equipment” under this Agreement shall include only (a) the nCounter® Analysis System or nCounter® Dx Analysis System, in each case comprising the nCounter Digital Analyzer and nCounter Prep Station, or (b) the nCounter® Sprint System, in each case as applicable to Customer. User-serviceable parts not covered under this Agreement include, without limitation, o-rings and grease for the Prep Station, and electrode assemblies. In no event shall NanoString be obligated hereunder to service instruments, attachments, components, accessories, features, or devices other than Covered Equipment.

3. Consent Requirements.

a. Customer must receive NanoString’s written consent before any instrument, accessory, component, feature, or device is attached to or used in conjunction with the Covered Equipment during the term of this Agreement. NanoString may withdraw this consent at any time if it determines, using its sole discretion, that such attachment or use in conjunction with the Covered Equipment adversely affects NanoString’s ability to perform maintenance service hereunder. Upon receipt of Customer’s request for such written consent, NanoString shall, at its election take one of the following actions: 1) provide written consent for the use or attachment of said instrument, accessory, component, feature, or device, and, if appropriate, make an additional charge therefor, 2) approve the inclusion of said instrument, accessory, component, feature, or device in the Covered Equipment from the date of such consent and, if appropriate, make an additional charge therefor; or 3) decline to provide consent for the use or attachment of said instrument, accessory, component, feature, or device.

b. Customer is not to make or participate in any modification, adjustment, movement, or repair of the Covered Equipment without the prior consent of an authorized NanoString representative. NanoString may withdraw this consent at any time if it determines, using its sole discretion, that such modification, adjustment, movement, or repair adversely affects NanoString’s ability to perform maintenance service hereunder.

4. Maintenance Service. NanoString will provide Customer with Maintenance Service during the term of the Service Plan. “Maintenance Service” shall include: (a) Remedial Maintenance of malfunctioning Covered Equipment that does not perform within NanoString’s published specifications. “Remedial Maintenance” means providing service assistance via telephone, at a NanoString service center, or by an on-site visit by a NanoString technical representative, at NanoString’s sole discretion, to resolve Covered Equipment malfunctions. Such maintenance shall be furnished on an on-call basis within four (4) Regular Business Days after an authorized NanoString representative receives notice of malfunctioning from Customer; (b) a minimum of one (1) “Preventative Maintenance” which includes use of procedures during which NanoString service engineers will inspect the defective parts and correct if applicable; update software if applicable; and clean, lubricate, adjust, and exercise the Covered Equipment in all of its operational modes to ensure continuing optimum performance. This subparagraph (b) does not apply to instruments without an existing NanoString service agreement; (c) installation of such engineering changes or software bug fixes in Covered Equipment as NanoString, in its sole discretion, shall deem appropriate or which are required by regulatory authorities; and (d) except as provided herein, replacement of parts deemed appropriate, in NanoString’s sole discretion, for preventive or remedial maintenance furnished under this Agreement.

5. Covered Location. Except as otherwise provided herein, on-site Maintenance Service shall be furnished under this Agreement only at the site where the Covered Equipment was originally installed by NanoString (“Covered Location”). The place of service for all mail-in maintenance service is the NanoString corporate address.

6. Removal of Covered Equipment. NanoString may temporarily remove from a Covered Location any Covered Equipment or part thereof for repair if NanoString, in its sole discretion, deems such removal appropriate to provide Maintenance Service. NanoString may provide Customer with temporary use of equipment to replace any Covered Equipment removed from a Covered Location on an “as available” basis, if requested to do so by Customer.

7. Provision of Services. Services are provided during normal working hours (Monday through Friday 8:00 AM to 5:00 PM, excluding holidays). Telephone support hours are 8:00 AM to 5:00 PM Pacific Standard Time, excluding U.S. holidays. Planned maintenance (“Planned Maintenance”) will be performed in accordance with NanoString’s Planned Maintenance procedures and checklist for the Covered Equipment being serviced. NanoString may require recertification of Covered Equipment on a time and materials basis as a condition to performing services if the Covered Equipment has not been under warranty or a service plan immediately prior to the time of service.

8. Replacement Parts. The decision to repair or replace any parts of the Covered Equipment will be made by NanoString on the basis of which approach will provide Customer with the best service. Parts and components replaced or otherwise utilized in the repair of the Covered Equipment may be either new or refurbished at the discretion of NanoString. NanoString warrants that Replacement Parts will conform to their specifications for a period of 90 days from the date the Replacement Parts are installed. Replacement Parts do not extend the warranty for the underlying instrument.

9. Scheduling. NanoString will use reasonable efforts under the circumstances to provide services as quickly as possible. The service will be scheduled at a time mutually agreed upon by NanoString and Customer.

10. NanoString Warranty; Disclaimer. NanoString warrants that it will provide its services at least in accordance with generally accepted standards prevailing in the instrument repair industry, or instrument training industry with respect to training services, at the time and place performed. Warranty claims must be made within ninety (90) days after services are performed. NANOSTRING MAKES NO OTHER WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY WITH RESPECT TO ITS SERVICES, WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED. NANOSTRING’S SOLE LIABILITY AND RESPONSIBILITY UNDER THIS AGREEMENT FOR BREACH OF WARRANTY IS RE-PERFORMANCE OF THE SERVICES WITHIN A REASONABLE TIME OR RETURN OF THE FEE PAID FOR THE DEFECTIVE SERVICES AT NANOSTRING’S OPTION. THESE ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY.

11. Plan Coverage.

a. Service Plans do not cover replacement of parts, costs, repairs, or adjustments for defects resulting from or necessitated by acts of nature, damage not caused by NanoString, accident, neglect, carelessness, misuse, including without limitation: operation with incompatible solvents or samples in the system; operation outside of the environmental or use specifications or not in conformance with the instructions for the Covered Equipment system, software, or accessories; improper or inadequate maintenance by the user; installation of software or interfacing, or use in combination with software or products not supplied or authorized by NanoString; or modification, repair, service transfer to another location of the Covered Equipment made by Customer, Customer’s employees, agent, or an unauthorized contractor, or intrusive activity, including without limitation computer viruses, hackers, or other unauthorized interactions with Covered Equipment or software that detrimentally affects normal operations. Service Plans also do not cover repair or replacement of parts that are radioactive or contaminated with biological, toxic, or other dangerous materials or substances.

b. Service Plans do not cover costs, repairs, or adjustments made necessary by connection of the Covered Equipment to electrical services or other utilities not in accordance with the installation requirements for the Covered Equipment or by any interruption or surge in voltage (see Instruction Manual for specifications).

12. Payment. Payment terms are net 30 days from date of NanoString’s invoice to Customer. If payment is not received by the due date, NanoString may assess and Customer agrees to pay a late payment charge at the rate of 1% per month (12% per year) or the maximum legal rate, whichever is less, of the amount due from the due date to the date of payment. If NanoString retains a collection agency and/or attorney to collect unpaid amounts, NanoString may invoice Customer for, and Customer will pay, all costs of collection, including without limitation reasonable attorneys’ fees.

13. Term and Termination of Service Plans.

a. NanoString may accept or reject at its discretion a purchase order for Maintenance Service or a Service Plan. Unless otherwise expressly stated by NanoString in writing or under the terms of the purchased Service Plan, the initial term of a Service Plan and this Agreement is one year, commencing on the date designated by NanoString in its quotation or otherwise specified to Customer. A Service Plan may be terminated by either party upon at least thirty (30) days written notice to the other party. Termination will be effective thirty (30) days after the receipt of such notice, or at a later date if one is so specified in the notice (“Termination Date”). Termination cannot be made effective prior to thirty (30) days after notice is received, provided, however, that NanoString may terminate a Service Plan immediately in the event that the Covered Equipment is transferred to another location. NanoString will cease Service under this Agreement and underlying Service Plan on the Termination Date unless Customer specifies a separate, earlier date in writing (“Cessation Date”). In that event, NanoString will cease providing Service under this Agreement and the underlying Service Plan on such Cessation Date.

b. In the event of termination of a Service Plan under Section 13, if the termination is by Customer, NanoString shall calculate at its sole discretion the total price of service actually performed and expenses actually and reasonably incurred in servicing the Covered Equipment under the underlying Service Plan from its effective date until the Termination Date. Customer’s total payment obligation to NanoString under this Agreement shall equal (1) the amount so calculated or (2) the prorated price of the underlying Service Plan from its effective date until the Termination Date, whichever is greater, plus fifteen percent (15%) of the total fee paid for the underlying Service Plan, not to exceed the total amount paid. Any payments made by Customer to NanoString in excess of this amount shall be credited to Customer’s account within thirty (30) days after the Termination Date toward future purchases of NanoString instruments, consumables, or Service Plans. Any unpaid portion of this amount shall be immediately due upon Customer’s receipt of an invoice from NanoString. If the termination is by NanoString, other than for cause, NanoString will credit Customer with or refund to Customer one hundred percent (100%) of the fee paid by Customer for the underlying Service Plan, provided that if the underlying Service Plan is for a period of more than one year, NanoString will refund to Customer the amount paid by Customer for all periods after the most recent anniversary date of the Service Plan. If a Service Plan is terminated early in connection with the trade in of used NanoString Covered Equipment for new NanoString Covered Equipment, the credit may be applied toward purchase of a Service Plan for the new Covered Equipment. Contact your NanoString service representative for details. No cash refunds will be made on account of the early termination of any Service Plan or other agreement for services.

14. Indemnification. NanoString will indemnify and hold Customer harmless from and against any and all claims for injury or death of persons, or damage to tangible property, to the extent caused by the negligent acts or negligent omissions of NanoString personnel while they are on Customer’s premises performing services under a Service Plan, provided NanoString is given prompt notice of any such claim and the opportunity to control the defense and settlement of same.

15. Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL NANOSTRING BE RESPONSIBLE OR LIABLE, WHETHER IN CONTRACT, TORT, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS, FOR SPECIAL, INDIRECT, INCIDENTAL, MULTIPLE, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR FAILURE TO PERFORM SERVICES OR OTHERWISE, EVEN IF NANOSTRING IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; AND IN NO EVENT SHALL NANOSTRING BE LIABLE FOR ANY LOSS OR INJURY THAT IS THE RESULT OF COVERED EQUIPMENT OR PRODUCT ERROR OR THE FAILURE OF THE COVERED EQUIPMENT OR OTHER PRODUCT TO PERFORM IN ACCORDANCE WITH ITS SPECIFICATIONS. WITHOUT LIMITING THE FOREGOING, EXCEPT SOLELY FOR ANY PAYMENTS MADE UNDER NANOSTRING’S INDEMNITY SET FORTH IN SECTION 14, NANOSTRING’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS SERVICE AGREEMENT AND ANY UNDERLYING SERVICE PLAN, INCLUDING WITHOUT LIMITATION SERVICES RENDERED THEREUNDER, OR BREACH THEREOF OR FAILURE TO PERFORM IN CONTRACT, TORT, WARRANTY, OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO NANOSTRING FOR THE UNDERLYING SERVICE PLAN.

16. Non-Covered Equipment. Use of any non-NanoString parts or reagents that are reasonably determined by NanoString to have caused instrument failure or malfunction will require remedial repairs of the affected parts to be completed outside a Service Plan at NanoString’s then prevailing rates for billable service.

17. Compliance with Laws. NanoString makes no representation whatsoever that services provided by NanoString satisfy or will satisfy any requirements of any governmental body or other organization, including, but not limited to, any requirement of the United States Food and Drug Administration or the International Organization for Standardization. Customer agrees that it is Customer’s responsibility to ensure that such services are adequate to meet its regulation/certification requirements and that all requirements of any governmental body or other organization, including, but not limited to any requirement of the United States Food and Drug Administration or the International Organization for Standardization are the responsibility of Customer.

18. Assignment. Neither this Agreement nor any Service Plan is assignable or otherwise transferable by customer. Any assignment or transfer or attempt to assign or to transfer by Customer shall be void.

19. Customer Warranty. NanoString may require a completed Certificate of Decontamination, or transfer of Covered Equipment to a suitable safe and secure location reasonably determined by NanoString, as a condition to providing Maintenance Services for Covered Equipment. Customer warrants that any Covered Equipment or component to be serviced will be fully decontaminated of radioactive, biological, toxic or other dangerous materials or substances prior to servicing so that the service technician will not be exposed to any such materials.

20. Relocation. Service Plans do not include Customer training or services related to the relocation of Covered Equipment unless otherwise specifically stated in writing by NanoString in any particular case.

21. Force Majeure. Neither party shall be liable for delays in performance or nonperformance in whole or in part, or for loss, injury, delay, expenses, damages, or other casualty suffered or incurred on account of or due to, any causes that are beyond its reasonable control, such as, without limiting the generality of the foregoing, acts of God, fires, strikes, trade disputes, riots, embargos, earthquakes, storms, acts of the government, power losses or shortages, or inability to obtain parts or supplies, provided that the foregoing shall not apply to any obligation to pay money due.

22. Entire Agreement. These Service Agreement Terms and Conditions, together with NanoString’s quotation regarding the Service Plan(s) or other services subject to these terms and conditions, and NanoString’s description of the services provided under the Service Plan purchased by Customer, represent the entire agreement between the parties with respect to the subject matter herein and supersede and entirely replace (i) any previous agreements between the parties with respect to the subject matter herein and (ii) any pre-printed, standard, or other terms (except for the statement of Services or Service Plan selected and, if accurate, price) set forth in Customer’s purchase order (if accepted by NanoString) or any other document not signed by an authorized representative of NanoString and agreed to by NanoString, which are hereby rejected and shall be void. Except as otherwise provided in these terms, in the event of an inconsistency between these terms and the terms appearing on NanoString’s quotation or other agreement signed by an authorized representative of NanoString, the terms appearing on NanoString’s quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of these terms, and all other provisions of these terms shall remain in full force and effect.

23. Amendment; Governing Law. No amendment of these terms or modification thereof shall be binding unless in writing and signed by a duly authorized representative of both NanoString and Customer. A party’s failure to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights hereunder. Headings are included herein for convenience of reference only and shall not constitute a part of these terms for any other purpose. If any provision of these terms shall be held to be invalid or unenforceable for any reason, such provisions shall, to the extent of such invalidity or enforceability, be severed without in any way affecting the remainder of such provision or any other provision thereof, all of which shall continue in full force and effect. Nothing in this Agreement shall be deemed or construed as a license or grant of any intellectual property rights, whether express, implied, by estoppel or otherwise by NanoString, or to limit NanoString’s rights to enforce its patent or other intellectual property rights. No additions or modifications to this Agreement shall be valid unless specifically agreed to in writing by both parties. This Agreement and any underlying Service Plan shall be governed by the laws of the State of Washington, exclusive of its conflict of laws rules.

24. Paragraph Headings. The paragraph headings herein have been inserted for the convenience of Customer and NanoString and shall not be considered in any questions of interpretation or construction of this Agreement.


TERMS AND CONDITIONS FOR SAMPLE PROCESSING AND PROOF OF PRINCIPLE STUDY SERVICES

Last Updated: June 24, 2016

General. These Terms and Conditions for Sample Processing and Proof of Principle Study Services constitute the binding legal agreement (the “Agreement”) with respect to the provision by NanoString Technologies, Inc. (“NanoString”) to the purchaser identified on its order (“Customer”) of gene expression analysis services, proof-of-principle study services, and other sample processing services identified in NanoString’s quotation to Customer and any work plan related thereto (the “Services”), unless other terms are specifically agreed to by the parties in a written agreement signed by both parties. NanoString’s provision of the Services is expressly conditioned upon acceptance of the terms and conditions contained in this Agreement. By placing an order for the quoted services, Customer accepts and agrees to be bound by the terms and conditions in this Agreement. If a purchase order or other form containing terms and conditions is used by Customer, NanoString objects to any such terms and conditions. Any additional or different terms or conditions (pre-printed or otherwise) proposed by Customer will not become part of the Agreement.

1. Definitions

1.1 “Customer Information” means, to the extent that each of the foregoing is not NanoString Information, (a) all information, data, and other items supplied by Customer to NanoString (including the Material) and (b) all information developed by NanoString as part of the Services directly derived from the Customer Information.

1.2 “Inventions” means any inventions or discoveries, whether or not patentable, made by employees or agents of NanoString (either solely or jointly with employees or agents of Customer) that arise from the Services.

1.3 “NanoString Information” means all information, data, and other items relating to NanoString’s processes and technology (including tag identification, generation, and construction; assays; and techniques).

1.4 “Services” Following NanoString’s acceptance of Customer’s order, Customer will promptly deliver, at no cost to NanoString, quantities of genetic material (the “Material”) that are sufficient for NanoString to perform the Services. Customer hereby grants to NanoString the nonexclusive right to use the Material solely to perform the Services. NanoString must only use the Material to perform the Services. Without the advance written consent of Customer, NanoString will not transfer, deliver, or disclose to any third party the Material. NanoString will not use the Material in humans. NanoString will not reverse engineer the Material for any purpose, including to identify structures or properties. Any unused Material will be destroyed upon completion of the Services. If Customer’s order includes the purchase of reagents, CodeSets, or other consumables specifically for use in the performance of the Services (the “Service Reagents”), title and all risks of ownership to such Service Reagents shall pass to Customer upon the delivery of such Service Reagents by NanoString to NanoString’s service laboratory. These Service Reagents will be segregated and will not be used with the orders of any other customers. In the event that Customer has not delivered all of the Materials required for NanoString to perform the Services within ninety (90) days following NanoString’s acceptance of Customer’s order, NanoString may notify Customer and ship to Customer, at Customer’s expense (such shipping costs to be subsequently invoiced by NanoString and paid by Customer), the Service Reagents that were to be used in the performance of the Services. Customer may ship back to NanoString at Customer’s expense the Service Reagents, along with the Materials required for NanoString to perform the Services, at such time as Customer chooses.

2. Material

2.1 Delivery and Use. Following NanoString’s acceptance of Customer’s order, Customer will promptly deliver, at no cost to NanoString, quantities of genetic material (the “Material”) that are sufficient for NanoString to perform the Services. Customer hereby grants to NanoString the nonexclusive right to use the Material solely to perform the Services. NanoString must only use the Material to perform the Services. Without the advance written consent of Customer, NanoString will not transfer, deliver, or disclose to any third party the Material. NanoString will not use the Material in humans. NanoString will not reverse engineer the Material for any purpose, including to identify structures or properties. Any unused Material will be destroyed upon completion of the Services. If Customer’s order includes the purchase of reagents, CodeSets, or other consumables specifically for use in the performance of the Services (the “Service Reagents”), title and all risks of ownership to such Service Reagents shall pass to Customer upon the delivery of such Service Reagents by NanoString to NanoString’s service laboratory. These Service Reagents will be segregated and will not be used with the orders of any other customers. In the event that Customer has not delivered all of the Materials required for NanoString to perform the Services within ninety (90) days following NanoString’s acceptance of Customer’s order, NanoString may notify Customer and ship to Customer, at Customer’s expense (such shipping costs to be subsequently invoiced by NanoString and paid by Customer), the Service Reagents that were to be used in the performance of the Services. Customer may ship back to NanoString at Customer’s expense the Service Reagents, along with the Materials required for NanoString to perform the Services, at such time as Customer chooses.

2.2 Representation of Customer. Customer represents and warrants that (1) Customer’s delivery of the Material to NanoString complies with all applicable laws, rules, and regulations (“Applicable Laws”); (2) Customer has the full right to deliver the Materials to NanoString for use in connection with the Services; and (3) the Materials can be used as contemplated without any obligations or liability to any third parties. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN these standard terms, CUSTOMER MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO THE MATERIAL. CUSTOMER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE MATERIAL. NANOSTRING ACKNOWLEDGES THAT THE MATERIAL IS EXPERIMENTAL IN NATURE AND MAY HAVE UNKNOWN HAZARDOUS CHARACTERISTICS. CUSTOMER WILL INFORM NANOSTRING IN WRITING OF ANY KNOWN HAZARDOUS CHARACTERICS OF THE MATERIAL. NANOSTRING IS AWARE OF THE FORESEEABLE RISKS OF WORKING WITH THE MATERIAL, AND NANOSTRING WILL STRICTLY ADHERE TO PROPER LABORATORY PROCEDURES FOR HANDLING CHEMICALS AND BIOLOGICAL SUBSTANCES WITH UNKNOWN HAZARDOUS CHARACTERISTICS.

3. Payment Terms. Buyer will be invoiced following NanoString’s acceptance of Customer’s order. Customer will pay to NanoString the amounts owed for the Services and any Service Reagents within thirty (30) days from receipt of the invoice. Late payments may incur a charge at the rate of one percent (1.0%) per month, or the maximum amount allowed by law, whichever is less.

4. Confidentiality

4.1 Customer Information. NanoString will (a) not use the Customer Information for any purpose except to perform the Services; (b) take reasonable steps to maintain the confidentiality of the Customer Information; (c) not disclose the Customer Information to any third party; and (d) not publish the Customer Information.

4.2 NanoString Information. During and after the term of this Agreement, Customer will (a) not use the NanoString Information for any purpose; (b) take reasonable steps to maintain the confidentiality of the NanoString Information; and (c) not disclose the NanoString Information to any third party.

4.3 Exceptions. Each party’s respective obligations under Sections 4.1 and 4.2 will not apply if, as applicable, the Customer Information or the NanoString Information (a) was publicly known and made generally available in the public domain before the information was disclosed to the receiving party; (b) became publicly known and made generally available, after disclosure by the disclosing party, through no wrongful action or inaction of the receiving party or others who were under confidentiality obligations; (c) was in the receiving party’s possession, without confidentiality restrictions, at the time of disclosure by the disclosing party, as shown by receiving party’s files and records; or (d) was independently developed by the receiving party without use of or reference to, as applicable, the Customer Information or NanoString Information.

5. Reports, Data, and Use of Information. NanoString will keep Customer informed of the progress of the Services. NanoString will deliver a final report of the results upon completion of the Services. Customer will have the unrestricted right to use and disclose for any purpose that Customer deems necessary or advisable in the ordinary course of business all Customer Information contained in reports delivered by NanoString as part of the Services..

6. Ownership. NanoString will own all right, title, and interest, including intellectual property rights, in and to all NanoString Information and all Inventions, excluding Inventions that are Customer Information (“Customer Inventions”), which Inventions will be owned by Customer. Upon receipt of full payment of all amounts owed hereunder, NanoString hereby assigns to Customer all of its right, title, and interest, including intellectual property rights, in and to all Customer Inventions.

7. RUO PAM50, RUO LST CodeSets and Secondary Analyses. If the Services provided by NanoString require (i) use of a CodeSet in connection with this Agreement containing (a) at least 75% of the genes in the PAM50 gene signature (“PAM50 CodeSet”) or (b) 12 or more of the 15 classifier genes in the Lymphoma Subtyping Test gene signature (the “LST CodeSet”), or (ii) secondary analysis services from NanoString using NanoString’s proprietary algorithms to analyze the gene expression data resulting from use of the PAM50 CodeSet or LST CodeSet (“Secondary Analysis”), Customer agrees to use the data and results from such Services only for the research purpose approved by NanoString in writing. In the event that Customer publishes the data or results from such Services, Customer shall provide NanoString with a draft of the proposed publication and/or public presentation (including abstracts, seminars, slides, etc.) for review at least thirty (30) days prior to submission for publication and/or public presentation to provide comments. Customer shall consider such comments and provide a response to NanoString explaining whether such comments have been incorporated into the publication or presentation and if not, provide an explanation. Customer shall inform NanoString of any inventions related to or arising out of its use of the PAM50 CodeSet, LST CodeSet, or Secondary Analysis (“Research Inventions”) within 30 days of any such Research Invention and NanoString shall have an option to negotiate a license to any Research Inventions and associated patent filings on commercially reasonable terms. NanoString reserves the right to require Customer to discontinue use of the PAM50 CodeSets, LST CodeSets, or Secondary Analyses if Customer fails to comply with the foregoing conditions. NanoString’s approval and provision of a PAM50 CodeSet, LST CodeSet, or Secondary Analysis to Customer for an approved research purpose does not obligate NanoString to permit use of a PAM50 CodeSet, LST CodeSet, or Secondary Analysis by Customer (or any third party) for the same or different research purpose.

8. Target Sequence Responsibility. Customer shall be fully responsible for the set of nucleic acid target sequences (“Target Sequences”) that Customer desires NanoString to design and manufacture, and Customer agrees to indemnify NanoString and its employees, officers, directors, representatives, contractors, and suppliers and hold each of them harmless from and against any losses, liabilities, demands, damages, costs, and expenses, including without limitation reasonable legal fees and expenses, arising from or relating to the Target Sequences or their use. Customer agrees to cooperate fully with NanoString and its counsel in its defense and preparation for any such action or proceeding.

9. Quality Control Reserve CodeSets. If the Services include the use of a Quality Control Reserve CodeSet (“QC Reserve”), which is fulfilled using residual raw materials from a previous and identical CodeSet used for Customer, where such residual materials were sequestered for potential troubleshooting activities, then this section applies. To the extent that any provision in this section is in conflict with any other term or condition in the Agreement, this section shall supersede such other term(s) and condition(s) with respect to the QC Reserve, but only to the extent necessary to resolve the conflict. To the extent permitted by applicable law, NanoString and its suppliers disclaim all representations and warranties with respect to QC Reserve CodeSets, and all liability obligations to Customer of any kind.

10. Pre-Release Products. If the Services include use of a NanoString product that is a beta, technology access, early access, or other pre-commercial release version (“Pre-release Product”), then this section applies. To the extent that any provision in this section is in conflict with any other term or condition in the Agreement, this section shall supersede such other term(s) and condition(s) with respect to the Pre-release Product, but only to the extent necessary to resolve the conflict. Customer acknowledges that the Pre-release Product is a pre-release version, does not represent final product from NanoString, and may contain defects, bugs, errors and other problems that could cause system or other failures, sample loss and data loss. Consequently, NanoString disclaims all warranties with respect to the Pre-release Product and all liability obligations to Customer of any kind. Customer acknowledges that NanoString has not promised or guaranteed to Customer that Pre-release Product will be announced or made available to anyone in the future, that NanoString has no express or implied obligation to Customer to announce or introduce the Pre-release Product, and that NanoString may elect not to introduce a product similar to or compatible with the Pre-release Product. Accordingly, Customer acknowledges that any research or development that Customer performs based on the Pre-release Product or any product associated with the Pre-release Product is done entirely at Customer’s own risk.

11. Compliance with Laws. NanoString will conduct the Services in accordance with all Applicable Laws. NanoString will not employ or otherwise use any person debarred under Section 21 USC 335a to perform the Services.

12. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THESE STANDARD TERMS, NANOSTRING MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING ITS PERFORMANCE OF THE SERVICES. NANOSTRING EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT NANOSTRING MAKES NO GUARANTEES REGARDING THE RESULTS OF THE SERVICES OR ANY USE DERIVED FROM SUCH RESULTS.

13. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL NANOSTRING BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER SUCH PECUNIARY LOSS) ARISING OUT OF OR RELATED TO PROVISION OF THE SERVICES, EVEN IF NANOSTRING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL NANOSTRING’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF PERFORMING THE SERVICES EXCEED THE AMOUNT PAID BY CUSTOMER TO NANOSTRING.

14. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Washington, and the patent laws of the United States, without reference to provisions of conflicts of laws.

15. Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (1) delivered in person; (2) sent by certified or registered mail with return receipt requested; or (3) sent by overnight air courier with a tracking mechanism, in each case properly posted and fully prepaid to the appropriate address set forth in the Order. Either party may change its address for receiving notices by notice to the other party given in accordance with this section. Notices will be deemed given at the time of actual delivery in person, three business days after deposit in the mail, or one day after delivery to an overnight air courier service.

16. Force Majeure. Neither party will be liable for any failure to perform any of its obligations under the purchase order for the Services (other than the payment of money) that results from acts of God, the elements, fire, flood, component shortages, riot, insurrection, industrial dispute, accident, war, embargoes, legal restrictions, or any other cause beyond the reasonable control of the party.

17. Miscellaneous. This Agreement exclusively governs the provision of the Services by NanoString with respect to the subject matter hereof and the Agreement is the final, complete and exclusive statement of the terms under which the Services will be provided to Customer by NanoString, superseding all prior written and oral agreements, understandings and undertakings. Modifications may be made only in writing, signed by an authorized corporate officer of NanoString. Customer may not assign this Agreement, except that Customer shall have the right to assign and otherwise transfer this Agreement in connection with the sale of all or substantially all of Customer’s business or assets, operation of the law, or otherwise. The waiver of any term or condition or any breach thereof will not affect any other term or condition of this Agreement. Time is not of the essence for NanoString’s obligations herein. In the event that any provision of this Agreement or portion thereof is found to be illegal or unenforceable, the Agreement will be construed without the unenforceable provision or portion thereof.


TERMS AND CONDITIONS FOR nCOUNTER® PROTEIN BARCODING SERVICES

Last Updated: November 16, 2015

These Terms and Conditions for nCounter® Protein Barcoding Services (these “Terms and Conditions”), together with the terms contained in NanoString’s nCounter Protein Barcoding Service Requirements Form provided to the customer in connection herewith (the “Requirements Form”) and NanoString’s quotation to Customer regarding the Services (as herein defined), constitute a binding legal agreement (collectively, the “Agreement”) with respect to the provision by NanoString Technologies, Inc. (“NanoString”) to the customer identified on the Requirements Form (“Customer”) of the protein barcoding services specified on NanoString’s quotation and the Requirements Form (the “Services”). NanoString’s provision of the Services is expressly conditioned upon Customer’s acceptance of the terms and conditions contained in the Agreement. If a purchase order or other form containing terms and conditions is used by Customer, NanoString objects to any such terms and conditions. Any additional or different terms or conditions proposed by Customer will not become part of the Agreement. By placing an order for the Services, Customer accepts and agrees to be bound by the terms and conditions in the Agreement.

1. Performance of the Services. NanoString shall perform the Services as an independent contractor, using methods, materials, equipment, and/or related intellectual property owned or controlled by NanoString (collectively “NanoString Technology”) to provide Customer with materials and data relating to the materials produced by NanoString as a direct result of the Services, including, but not limited to, labeled or conjugated antibodies (collectively, the “Deliverables”). NanoString will make a good faith effort to start and complete all Services on time, and will notify Customer if substantial delays are likely. NanoString will comply with all laws and regulations generally applicable to the Services. Unless otherwise expressly agreed to in writing by NanoString, the Deliverables are not produced in accordance with United States Food and Drug Administration good manufacturing practices or good laboratory practices or in accordance with any other similar laws or regulations in other jurisdictions. NanoString may delegate performance of the the Services, or a portion thereof, to an affiliate or authorized subcontractor, provided that all Services will be performed in accordance with the Agreement.

2. Customer Materials. The Deliverables may incorporate materials and information supplied by Customer to NanoString, including, but not limited to, Customer’s antibodies (“Customer Materials”). Customer will provide NanoString with Customer Materials in compliance with applicable laws and regulations and in sufficient amounts, as well as relevant safety information and other characteristics of Customer Materials needed by NanoString to perform the Services, including without limitation any certification or documentation of Customer Materials reasonably requested by NanoString. Customer represents and warrants that it has all rights, power, and authority necessary to permit NanoString to label, conjugate and otherwise modify the antibodies or other Customer Materials it provides to NanoString. The Customer Materials and Deliverables are subject to the confidentiality and non-use requirements of Section 7. Upon completion of the Services, NanoString will maintain records regarding the Services for a period of no less than one (1) year. NanoString will use the Customer Materials solely to the perform the Services and as otherwise contemplated in this Agreement and the Requirements Form, and will not modify nor reverse engineer Customer Materials except as agreed therein. Unless otherwise agreed in writing by NanoString prior to the commencement of the Services, any Customer Materials not consumed in the Services will be destroyed following completion of the Services. NanoString will not transfer the Customer Materials, in whole or in part, to any third party, other than a subcontractor in connection with the Services, without Customer’s prior written approval.

3. Use Limitations. Except as otherwise expressly agreed to in writing by the parties, Customer agrees to use the Deliverables only for Customer’s lawful internal research purposes and not in humans. The research use limitation, however, shall not preclude Customer’s use of the Deliverables (i) for its lawful research and development of commercial products or services, provided that such product or service does not require the practice or use of NanoString Technology, or (ii) for the regulatory approval and commercialization of such products or services. Without limiting the foregoing, Customer shall not directly or indirectly furnish materials or information provided hereunder to any entity, or destination, or for any use, except in full accordance with all applicable laws and regulations, including without limitation export control and trade sanctions laws and regulations of the United States.

4. Payments. Customer shall pay NanoString for the Services within 30 days after the date of the respective invoice(s), which shall be sent to Customer upon completion of the Services (or portion thereof). Late payments may incur a charge at the rate of one percent per month, or the maximum allowed by law, whichever is less. If Customer defaults on any payment when due, NanoString, at its option and without prejudice to its other lawful remedies, may delay performance, defer delivery, charge interest on undisputed amounts owed, and/or terminate the Agreement.

5. Ownership, Intellectual Property. As between the parties, except as otherwise expressly agreed to in writing by the parties, Customer shall be the exclusive owner of the Deliverables, the Customer Materials, and any derivatives or modifications of the Customer Materials that are generated by NanoString as a direct result of the Services (collectively, “Customer IP”). NanoString shall own all right, title and interested in and to any inventions and/or discoveries related to NanoString Technology that arise in the performance of the Services, whether or not copyrightable or patentable, excluding the Deliverables, Customer Materials, and any derivatives or modifications of the Customer Materials by NanoString as a direct result of the Services (the “NanoString Inventions”). For avoidance of doubt, Customer IP shall not include NanoString Technology or any improvements or modifications thereof, whether developed before or during the performance of the Services. Customer shall not, by virtue of the Services performed hereunder, obtain any license or other rights in any NanoString Technology to (a) use Deliverables other than as set forth in Section 3, (b) independently recreate the Deliverables or any materials that are proprietary to NanoString, even if used to perform the Services; and/or (c) sell or otherwise use the Deliverables for commercial purposes whether or not commercialized for research use; unless expressly agreed to in a separate written contract between the parties.

6. Non-Exclusivity. Unless expressly agreed in writing, all Services are provided on a non-exclusive basis, and NanoString reserves all rights for itself and its affiliates to provide third parties with deliverables that are identical or similar to Deliverables, provided that NanoString shall not use any Customer Materials or information received from Customer to perform Services for any third party. Notwithstanding anything else in the Agreement, where NanoString performs the Services without reliance on Customer Materials or confidential information received from Customer, NanoString reserves all rights to commercialize such Services as a catalog product.

7. Confidentiality. NanoString shall treat all Customer Materials as proprietary and confidential to Customer, and will not disclose the Customer Materials to any person except its employees, consultants, and subcontractors as necessary for purposes of providing the Services, and then only subject to confidentiality provisions that include the requirements specified herein. If NanoString discloses any information or materials comprising NanoString Technology to Customer, Customer shall treat such information and materials as proprietary and confidential to NanoString. Each party shall protect the proprietary and confidential information or materials of the other party by using the same degree of care as such party uses to protect its own materials and information, but in any event no less than a reasonable degree of care. Notwithstanding any other provisions herein, however, each recipient party shall have no obligation to the other party for any information or material that is (a) already known to the recipient party; (b) publicly known other than by a wrongful act of the recipient party; (c) received from a third party lawfully entitled to disclose it; (d) disclosed pursuant to an enforceable order of a court or administrative agency or required to be disclosed by law or regulation; and/or (e) is independently developed by or for the recipient party.

8. Limited Warranty. NanoString’s sole warranty for the performance of the Services is that the Services will be performed in accordance with the Agreement, with all applicable laws and regulations, and with generally accepted industry standards applicable to the Services. If Customer believes that NanoString, in breach of its limited warranty, has made a material error in the Services that renders the results of such Services invalid, Customer must notify NanoString of such error in writing, within one month after receipt of the final Deliverable for such Services and, as Customer’s sole remedy for such error, NanoString shall either, at NanoString’s election, (i) repeat the particular Services at NanoString’s expense, provided that Customer provides NanoString with any additional Customer Materials required to repeat the particular Services, or (ii) refund to Customer the fees actually paid for the particular Services giving rise to the breach of warranty. For avoidance of doubt, given the nature of the Services and the Customer Materials, NanoString has no liability to Customer under any circumstances for the loss or cost of any Customer Materials that are damaged or destroyed in the course of Services, even where NanoString has breached its limited warranty in this section. NanoString shall not be liable hereunder, under any legal theory, for any indirect, special, or consequential damages or for loss of profits or loss of business, even if NanoString had notice of the possibility thereof. The warranty set forth in this section is in lieu of any and all other warranties relating to the Services, express or implied, including, without limitation, any implied warranties of satisfactory quality, merchantability or fitness for a particular purpose. NanoString’s liability to Customer for breach of any provision of the Agreement (other than breach of the warranty in this section for which liability is limited to re-performance or refund as specified herein) shall be limited to damages in an amount not to exceed the fee to be paid for the Services.

9. Requirements of Customer Materials. If the Customer Materials do not meet the standards and requirements noted in the Requirements Forms, there is a high likelihood that NanoString will be unable to process Customer’s order. Also, because optimal antibody labeling must be determined empirically, NanoString cannot guarantee that a single conjugation will produce the best product for Customer’s needs. While NanoString can chemically link the intended components of a conjugated molecule, there exists the possibility that the binding/active sites of the protein can be altered or modified, partially or completely, independent of the labeling process. Sometimes this activity loss is caused by physically blocking the antigen binding sites during conjugation or by conformational changes in the complement-determining regions. NanoString cannot guarantee the final yield(s) or that the final product(s) will be biologically active. NanoString does not refund payments or repeat the Services for Services in conformance with the warranty in Section 8.

10. Shipping. All shipments of Deliverables are made EXW (Incoterms 2010) NanoString’s manufacturing facility, except for shipments to member countries of the European Union, which are made DDP (Incoterms 2010) excluding VAT. Title to the Deliverables and risk of loss shall pass to Customer on delivery to the carrier.

11. Changes, Termination. Changes to the Services must be agreed by both parties in writing, and may require changes in the fees or timelines. NanoString may terminate the Agreement if (a) Customer breaches any material provision of the Agreement and fails to remedy the breach to the satisfaction of NanoString within 15 days after written notice thereof; (b) NanoString is unable to obtain third party materials or technology specified in the Requirements Form, for reasons beyond NanoString’s reasonable control; (c) NanoString reasonably determines that safety or feasibility reasons prevent or are likely to prevent the performance of the Services, or (d) Customer is or is deemed by law to be unable to pay its debts or perform its obligations under the Agreement. Due to the nature of the Services, Customer is not permitted to terminate the Services or this Agreement after NanoString has accepted the order for such Services.

12. Miscellaneous. This Agreement may not be assigned without the consent of the other party, except that each party may assign the Agreement to an affiliate or to any other party to whom it transfers the business and assets related to this Agreement, provided that such assignee assumes all the rights and obligations of its assignor. The Agreement shall be governed by the laws of the state of Washington, exclusive of its conflict of laws rules. The Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If any part of the Agreement is found to be legally unenforceable, the remaining clauses of the Agreement shall be unimpaired, and the parties shall in good faith negotiate an enforceable provision that most closely achieves the objectives of the unenforceable provision. Except for payment obligations, neither party shall be responsible for failure to perform its obligations due to natural disasters or other force majeure causes beyond its reasonable control. No waiver by either party of any breach hereof shall constitute a waiver of any other breach thereof. This Agreement constitutes the entire agreement between Customer and NanoString with respect to the subject matter hereof and Customer’s order, and is the final, complete, and exclusive statement of the terms of the parties’ agreement, superseding all other agreements, communications, and understandings with respect to the subject matter hereof. The waiver of any provision or any breach of a provision of the Agreement shall not affect any other provision herein. The paragraph headings herein have been inserted for the convenience of Customer and NanoString and shall not be considered in any questions of interpretation or construction of this Agreement.