Terms and Conditions

UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS. BY PLACING AN ORDER OR ACCESSING OR USING THE PRODUCTS, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE PRODUCTS.

1.         GENERAL.   The CareDx entity listed on the quotation and/or order ("CareDx"), with address listed on the quotation and/or order,  hereby offers for sale to the customer named on the quotation and/or order ("Customer") the products and services (the "Products" and “Services”)  listed on the quotation and/or order on the express condition that Customer agrees to accept and be bound by the terms and conditions set forth herein (“Agreement” or “Terms and Conditions”).  This Agreement permits Customer to order the Products and Services through one or more orders. Any provisions contained in any document issued by Customer are expressly rejected and if the terms and conditions in this Agreement differ from the terms of Customer’s offer, this document shall be construed as a counter offer and shall not be effective as an acceptance of Customer’s document.  Customer’s receipt of Products or CareDx’s commencement of the Services provided hereunder will constitute Customer’s acceptance of this Agreement. This is the complete and exclusive statement of the contract between CareDx and Customer with respect to Customer's purchase of the Products and Services.  No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by CareDx and Customer.  CareDx’ s failure to object to terms contained in any subsequent communication from Customer will not be a waiver or modification of the terms set forth herein.  All orders are subject to acceptance in writing by an authorized representative of CareDx. If you are an individual accepting on behalf of Customer, you represent and warrant that i) you are of legal age to form a binding contract and have full legal authority to bind Customer to this Agreement, ii) you have read and understand this Agreement and iii) you agree, on behalf of the Customer, to this Agreement.

2.         PRICE.   Customer shall buy the Products at the prices set forth in the quotation and/or order.  All prices published by CareDx or quoted by CareDx's representatives may be changed at any time.  Such changes will be communicated at least 30 days in advance. All prices quoted by CareDx or CareDx’s representatives are valid for thirty (30) days, unless otherwise stated in writing.  All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of CareDx's original quotation.

3.         TAXES AND OTHER CHARGES.   Prices for the Products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which taxes and duties must by paid by Customer.  If Customer claims any exemption, Customer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.

4.         TERMS OF PAYMENT.   CareDx may invoice Customer upon shipment for the price and all other charges payable by Customer in accordance with the terms on the quotation and/or order.  If no payment terms are stated on the quotation and/or order, payment shall be net thirty (30) days from the date of invoice.  If Customer fails to pay any amounts when due, Customer shall pay CareDx interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) incurred by CareDx in collecting such overdue amounts or otherwise enforcing CareDx's rights hereunder.  CareDx reserves the right to require from Customer full or partial payment in advance, or other security that is satisfactory to CareDx, at any time that CareDx believes in good faith that Customer's financial condition does not justify the terms of payment specified. 

5.         DELIVERY; CANCELLATION OR CHANGES BY CUSTOMER.   The Products will be shipped to the destination specified by Customer, F.O.B. CareDx's shipping point unless otherwise agreed by the parties in writing.  CareDx will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately.  CareDx reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Customer fails to make any payment to CareDx when due or otherwise fails to perform its obligations hereunder.  All shipping dates are approximate only, and CareDx will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond CareDx's reasonable control.  In the event of a delay due to any cause beyond CareDx's reasonable control, CareDx reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and Customer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay.  Products as to which delivery is delayed due to any cause within Customer's control may be placed in storage by CareDx at Customer's risk and expense and for Customer's account.  Orders in process may be canceled only with CareDx's written consent and upon payment of CareDx's cancellation charges.  Orders in process may not be changed except with CareDx's written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefor.  Credit will not be allowed for Products returned without the prior written consent of CareDx.

6.         TITLE AND RISK OF LOSS.  Notwithstanding the trade terms indicated above and subject to CareDx’s right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Customer upon delivery of possession of the Products by CareDx to the carrier. 

7.         WARRANTY AND DISCLAIMERS.  CareDx guarantees that the Products, when delivered to the Customer, will: (i) conform with CareDx’s published specifications for such Products; (ii) have a shelf life of minimum three (3) months from the manufacturing date, (iii) have been manufactured, stored and shipped in accordance with all relevant laws, rules and regulations in effect at the time of manufacture and (iv) conform to the  quantity and contents listed on the Product label (the “Warranty”). CareDx’s sole and exclusive liability under the Warranty shall be limited to replacing the nonconforming Products (at CareDx’s risk and expense) or, at its option, refunding the price paid by Customer subject to Customer returning the defective Products to CareDx at Customer’s risk and expense or (if an abatement of the price is agreed with Customer) refunding to Customer the appropriate part of the price paid. The warranty period shall be the shelf life of the product (“Warranty Period”). Notwithstanding the foregoing, Products supplied by CareDx that are obtained by CareDx from an original manufacturer or third party supplier are not warranted by CareDx, but CareDx agrees to assign to Customer any warranty rights in such Product that CareDx may have from the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier. 

CareDx shall have no liability to Customer under the Warranty: (i) for any damage to or defects in any part of the Products caused by improper use, maintenance or storage, negligent handling, failure to observe the Instructions for Use accompanying the Products, use of the Products in combination with equipment or software not supplied by CareDx or any alterations thereto or other alteration, misuse or abuse of the Products; (ii) unless, (a) in the case of any damage to or defect in any part of the Products which should have been discovered on reasonable inspection, Customer notifies CareDx of the same in writing within seven (7) days after the date of delivery of such Products or, (b) in any other case, CareDx receives written notice thereof within the applicable Warranty Period, as set forth in this Section 7, and if no such notification is given (in either case) within the required period, Customer shall not be entitled to reject the Products concerned and shall be obliged to pay the price therefore in full.

THE OBLIGATIONS CREATED BY THIS WARRANTY IN THIS SECTION 7 SHALL BE THE SOLE REMEDY OF CUSTOMER IN THE EVENT OF A DEFECTIVE PRODUCT.  EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, CAREDX DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.  CAREDX DOES NOT WARRANT THAT THE PRODUCTS AND/OR SERVICES ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.  EXCEPT AS EXPRESSLY PROVIDED BY CAREDX IN ITS PUBLISHED SPECIFICATIONS, THE PRODUCTS AND SOFTWARE SUPPLIED BY CAREDX ARE FOR RESEARCH USE ONLY AND NOT FOR IN VITRO DIAGNOSTICS NOR INTENDED TO PROVIDE CLINICAL RECOMMENDATIONS.

8.         INDEMNIFICATION.

            8.1       By CareDx.   CareDx agrees to indemnify, defend and save Customer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney’s fees) (“Indemnified Items”) for third party claims that (a) a Product infringes any valid third party United States patent, copyright or trade secret, (b) arise out of CareDx’s material breach of this Agreement, or (c) result from CareDx’s gross negligence or willful misconduct; provided, however, CareDx shall have no liability under this Section 8.1 (a) through (c) to the extent any such Indemnified Items are caused by either: (i) the negligence or willful misconduct of Customer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by CareDx where the Product would not itself be infringing, (iv) compliance with Customer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than CareDx without CareDx's prior written approval.  Customer shall provide CareDx prompt written notice of any third party claim covered by CareDx’s indemnification obligations hereunder.  CareDx shall have the right to assume exclusive control of the defense of such claim or, at the option of CareDx, to settle the same.  Customer agrees to cooperate reasonably with CareDx in connection with the performance by CareDx of its obligations in this Section. 

Notwithstanding the above, CareDx’s infringement related indemnification obligations shall be extinguished and relieved if CareDx, at its discretion and at its own expense (a) procures for Customer the right, at no additional expense to Customer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not in CareDx’s judgement reasonably practicable, refund to Customer the amortized amounts paid by Customer with respect to the affected Products, based on a five (5) year amortization schedule.  THE FOREGOING INDEMNIFICATION PROVISION STATES CAREDX'S ENTIRE LIABILITY TO CUSTOMER FOR THE CLAIMS DESCRIBED HEREIN. 

            8.2       By Customer.   Customer shall indemnify, defend (at CareDx’s option) and hold harmless CareDx, its affiliates, partners, licensors, and suppliers and their respective officers, directors, employees, representatives and agents from and against any and all Indemnified Items to the extent arising from or in connection with (i) the gross negligence or willful misconduct of Customer, its agents, employees, representatives or contractors; (ii) Customer’s breach or non-performance under this Agreement;  (iii) use of Products by Customer; (iv) use of a Product in combination with equipment or software not supplied by CareDx where the Product itself would not be infringing; (v) CareDx's compliance with designs, specifications or instructions supplied to CareDx by Customer; (vi) use of a Product in an application or environment for which it was not designed; or (vii) modifications of a Product by anyone other than CareDx without CareDx's prior written approval. Customer may not settle any such claim without CareDx’s prior written consent. CareDx may assume the defense of any such claim at its option and Customer’s expense, but this shall not limit Customer’s other obligations under this Section.  

9.         SOFTWARE.   With respect to any software products incorporated in or forming a part of the Products hereunder, the software is provided with an End User License Agreement (“EULA”) that applies specifically to such software. Any such EULA will apply solely in relation to Customer’s use of the software itself. In the event of a conflict between this Agreement and any EULA, the EULA will control solely with respect to its subject matter and this Agreement will control in all other matters.

10.       LIMITATION OF LIABILITY.   NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE CUMULATIVE LIABILITY OF CAREDX OR ITS SUPPLIERS UNDER OR RELATED TO THESE TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION ANY RELATED CAUSE OF ACTION, (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE), SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO CAREDX UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE INITIAL CLAIM FOR WHICH DAMAGES ARE RECOVERED HEREUNDER.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL CAREDX OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER CAREDX (a) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (b) IS NEGLIGENT.

11.       CONFIDENTIAL INFORMATION.  All non-public, confidential or proprietary information of CareDx, including but not limited to specifications, samples, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by CareDx to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by CareDx in writing. Upon CareDx’s request, Customer shall promptly return all documents and other materials received from CareDx. CareDx shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.

12.        EXPORT RESTRICTIONS.  Customer acknowledges that each Product and any related software and technology, including technical information supplied by CareDx or contained in documents (collectively “Items”), is subject to export controls of the U.S. government.  The export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries.  Customer shall comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item.   Customer shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (i) export or re-export any Item, or (ii) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. Customer shall, if requested by CareDx, provide information on the end user and end use of any Item exported or to be exported by Customer. Customer shall cooperate fully with CareDx in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold CareDx harmless from, or in connection with, any violation of this Section by Customer or its employees, consultants, or agents.

12. Use Restrictions for Tier 1 Products. The Tier 1 Products (as defined below) shall only be used with the following Illumina sequencing instruments as defined per product instructions: iSeq, MiniSeq, MiSeq (excluding MiSeq FSG Sequencing System), NextSeq and HiSeq (excluding the HiSeq X Series).  Customer is only permitted to use the Tier 1 Research Use Only Products for bone marrow / hematopoietic stem cell transplantation testing and solid organ transplantation testing. Any other Customer use of Tier 1 Product must be approved by CareDx. No Intellectual Property ownership or rights in the Products are granted to Customer. Tier 1 Products are defined as the following kits: TruSight® HLA, AlloSeq™ Tx series Products, AlloSeq™ HCT and AlloSeq™ cfDNA. Customer’s use of the AlloSeq™ Tx series Products is governed by Illumina’s Standard Terms and Conditions for Research Only Use Products.  These terms may be found at the following link (as may be updated from time to time), and are hereby incorporated herein by this reference: https://www.illumina.com/content/dam/illumina-marketing/documents/terms-conditions/united-states/usa-terms-and-conditions-of-sale-general.pdf.

13.       MISCELLANEOUS.   (a) Customer may not delegate any duties nor assign any rights or claims hereunder without CareDx's prior written consent, and any such attempted delegation or assignment shall be void.  CareDx may assign (whether by merger, operation of law or otherwise) this Agreement or any or all of its rights and/or obligations hereunder at its sole discretion. (b) The rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California without reference to its choice of law provisions.  Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in San Mateo County, in any action arising out of or relating to this Agreement and waives any other venue to which it may be entitled by domicile or otherwise.  (c) CareDx is not responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God, pandemic, fire, flood, tornado, earthquake, hurricane, lightning, government actions, actual or threatened acts of war, terrorism, civil disturbance or insurrection, sabotage, labor shortages or disputes, failure or delay in delivery by CareDx’s suppliers or subcontractors, transportation difficulties, shortage of energy, raw materials or equipment, or Customer’s fault or negligence. In the event of any such delay the delivery date shall be deferred for a period equal to the time lost by reason of the delay. Any action arising under this Agreement must be brought within one (1) year from the date that the cause of action arose.  (d) The application to this Agreement of the U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded.  (e) In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect, unless the revision materially changes the bargain.  (f) CareDx’s failure to enforce, or CareDx's waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision.  (g) Unless otherwise expressly stated on the Product or in the documentation accompanying the Product, the Products is intended for research only and is not to be used for any other purpose, including without limitation, unauthorized commercial uses, in vitro diagnostic uses, ex vivo or in vivo therapeutic uses, or any type of consumption by or application to humans or animals.  (h) Any notice or communication required or permitted hereunder must be sent to Customer at any one of the Customer’s addresses or email addresses that been provided to CareDx and to CareDx at 1 Tower Pl 9th floor, South San Francisco, CA 94080 Attn: Vice President, Global Product Sales with a copy to Legal@caredx.com, and will be deemed effectively given: (a) by personal delivery or expedited delivery, upon receipt; (b) one (1) business day after the successful transmission if sent by electronic mail using the Internet and after confirmation of receipt; (c) by certified mail, as evidenced by the return receipt.