Terms & Conditions

IMPORTANT: PLEASE READ THESE TERMS AND CONDITIONS OF SALE CAREFULLY. THESE TERMS AND CONDITIONS OF SALE ARE ENTERED INTO BY AND BETWEEN QUANTBIOME, INC., A DELAWARE CORPORATION HAVING A PLACE OF BUSINESS AT 1475 VETERANS BLVD., REDWOOD CITY, CA 94063 USA AND DOING BUSINESS AS OMBRE (“OMBRE”) AND CUSTOMER, AS DEFINED BELOW. THESE TERMS AND CONDITIONS OF SALE ("Terms") ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS IN ANY FORMS DELIVERED BY CUSTOMER ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO, AND REJECTION OF, THEM IS HEREBY GIVEN. BY ACCEPTING DELIVERY OF THE PRODUCTS AND SERVICES DESCRIBED IN OMBRE'S ORDERING DOCUMENT, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS UNLESS CUSTOMER AND OMBRE HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN. “Customer” means the person, firm or company named in an Ombre Ordering Document.

1. Application of Terms; Customer Acknowledgment.

These Terms constitute a binding contract between Customer and Ombre. Customer acknowledges agreement and acceptance of these Terms by making a purchase, placing an order, issuing a Purchase Order or otherwise shopping on our website https://www.ombrelab.com (the "Site"). These Terms are subject to change without prior notice, except that the Terms posted on the Site at the time Customer initially places or modifies an order will govern the order in question.

 

2. Definitions. 

"Customer Material" means any samples or other material provided or made available by Customer which may be used directly or indirectly in the provision of the Services. 

“Deliverables” means those items specifically identified in an Ordering Document to be delivered to Customer. 

“Ordering Document” means an Ombre quote, order form and/or SOW 

“Purchase Order” or “PO” means a written or electronic order that may be provided by Customer for the Services to be provided by Ombre. 

“Services” means those services provided by or on behalf of Ombre which may include kitting, genomic sequencing or other services as specified in one or more Ordering Documents.

 

3. Services. Ombre shall use commercially reasonable efforts to perform (or cause to be performed), for Customer the Services described in, and to provide the Deliverable by the dates specified in, each Ordering Document.  Intangible Deliverables may be provided electronically by email or online download and shall be deemed delivered upon receipt or download, as applicable. Services are non-cancellable and non-refundable once an Ordering Document is accepted by Customer. A change order to any Ordering Document shall be made only in a writing executed by authorized representatives of both parties (a “Change Order”). The foregoing notwithstanding, if Ombre, at the request of or with written approval from Customer, performs work that is not covered by an Ordering Document or that exceeds the scope of Services defined in the applicable Ordering Document, such work shall be deemed Services provided pursuant to this Agreement for which Customer shall compensate Ombre.  Ombre agrees to notify Customer promptly of any factor, occurrence, or event coming to its attention that may affect Ombre’s ability to meet the requirements of any Ordering Document issued under this Agreement, or that is likely to cause any material delay in delivery of Deliverables.

 

4.0 Responsibilities of the Parties. 

4.1 Ombre shall maintain complete and accurate records to substantiate Ombre’s charges under each Ordering Document and on each invoice.  For work performed pursuant to any time and materials schedule, Ombre shall submit authorized time sheets to Customer each month showing the number of hours worked by Ombre employees. 

4.2 Ombre shall at all times during the Term of this Agreement maintain, all necessary licenses and consents and comply with all relevant laws applicable to Ombre’s provision of the Services;

4.3 Customer shall obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services, to the extent that such licenses, consents and laws relate to Customer Material.

4.4 Customer agrees to respond promptly to any Ombre request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Ombre to perform Services in accordance with the requirements of this Agreement, and to provide such Customer information as Ombre may reasonably request, in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects; 

4.5 Customer will ensure that all Customer Material is and remains in good working order and meets the specifications, if any, set forth in the applicable Ordering Document.

4.6 The sale, performance or delivery of the Services and/or the Deliverables may be subject to federal, state or local laws, regulations and orders. Each party agrees to comply with all such laws, regulations and orders and Customer acknowledges Ombre shall not be liable for any failure to perform the Services or provide Deliverables to the extent such failure is due to compliance with any law, regulation or order.

5. Purchase Price; Orders; Payment Terms; Interest; Taxes.  Prices are listed in the applicable Ordering Document and are subject to expiration. Unless and until an Ordering Document is accepted prior to expiration, all pricing is subject to change. Ombre reserve the right to make adjustments to pricing, products and service offerings for reasons including, but not limited to, changing market conditions, product discontinuation, product unavailability, supplier price changes and errors in advertisements. All orders are subject to product availability. Therefore, Ombre cannot guarantee delivery dates. Payment is due before shipment, unless credit terms have been arranged in advance with our credit department. In such case, payment terms shall be as set forth in the credit agreement. Orders are not binding until accepted by Ombre. Ombre may invoice parts of an order separately. Customer is responsible for, and will indemnify and hold Ombre harmless from, any applicable sales, use or other taxes or federal, state or local fees or assessments associated with the order. Customer must claim any exemption from such taxes, fees or assessments at the time of purchase and provide the necessary supporting documentation. Any sales, use or other applicable tax or fees or assessments is based on the location to which the order is shipped. In the event of a payment default, Customer will be responsible for all of our costs of collection, including court costs, filing fees and attorney's fees.

6. Shipping; Risk of Loss; Security Interest. Ombre will arrange payment for shipping with the carrier, but such costs are the responsibility of Customer. Ombre charges shipping and handling fees for every shipment; such cost includes the freight charged by the carrier, packaging, and handling, but does not necessarily equal a direct pass-through of such cost to the customer. Risk of loss is upon Customer once Ombre deliver the product to the carrier. Delivery times are estimates only and Ombre shall not be liable for delays.

Ombre retains a security interest in the products until payment in full is received. Customer will be responsible for all shipping and related charges.

7. Product Returns. No return of Products shall be accepted by Ombre without a Return Material Authorization ("RMA") Number, which may be issued by Ombre in its sole discretion. Returned Products must be in original shipping cartons complete with all packing materials. All Products for return shall be returned freight prepaid in the manner specified in the RMA. If returned Products are claimed to be defective, a complete description of the nature of the defect must be included with the returned Products. Products not eligible for return shall be returned to Customer, freight collect.

8. Non-US or Export Sales. The sale, resale or other disposition of Deliverables and any related technology or documentation may be  subject to state and local laws, regulations and orders and may be subject to the export and/or import control and other laws and regulations of other countries. Customer agrees to comply with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export any Deliverables to any country to which such export or transmission is restricted or prohibited. Customer acknowledges its responsibility to obtain any license to export, re-export or import as may be required.

9. Limited Warranty. 

9.1 Mutual. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the full right, power and authority to enter into this Agreement, and to perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and (d) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

9.2 Customer. Customer warrants that it owns all right, title, and interest in and to, or has full and sufficient right and authority to use in the manner contemplated by this Agreement, the Customer Material and any other materials, or data furnished by Customer to Ombre in connection with Ombre's performance of the Services called for by this Agreement.

9.3 Ombre. Ombre hereby warrants that it will use commercially reasonable efforts to ensure that the Services are performed in a good and workmanlike manner, but otherwise makes no warranty as to the nature or quality of the Services or Deliverables. The Deliverables are provided “AS-IS”. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES STATED IN THIS SECTION 8.0, OMBRE PROVIDES NO WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO ANY SERVICES OR DELIVERABLES PROVIDED HEREUNDER, AND OMBRE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT AND MERCHANTABILITY.

10. Limitation of Liability. NEITHER OMBRE NOR ITS SUPPLIERS WILL BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. NEITHER OMBRE NOR ITS SUPPLIERS WILL BE LIABLE FOR SERVICES OR DELIVERABLES  NOT BEING AVAILABLE FOR USE. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF SERVICES OR DELIVERABLES, NEITHER OMBRE NOR ITS SUPPLIERS ARE LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE SERVICES OR DELIVERABLES GIVING RISE TO THE CLAIM.

11. Term and Termination. This Agreement will commence on the date of Ombre’s acceptance of the first Ordering Document and unless terminated earlier as provided below, will remain in full force and effect for a period of one (1) year (“Initial Term”), after which this Agreement will automatically renew for additional consecutive one (1) year periods (each a “Renewal Term”), unless either party provides advance written notice of non-renewal at least ninety (90) days prior to the end of the Initial Term or any then-current Renewal Term.  The Initial Term and any Renewal Terms are together referred to herein as the “Term.” Either party may terminate this Agreement upon not less than thirty (30) days’ notice to the other party. However, this Agreement shall continue to remain in effect with respect to any Ordering Documents already issued hereunder at the time of any non-renewal or termination, until such Ordering Documents are themselves terminated and performance thereunder is completed.

12. Miscellaneous.

 12.1 Independent Contractor.  Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors.  Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.  Ombre will retain the sole and exclusive right to control or direct the manner in which the Services are performed and may subcontract, delegate or assign any of its rights or obligations under this Agreement.

 12.2 Notices.  Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or forty-eight (48) hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party’s address first set forth above, or as subsequently modified by written notice.

12.3 Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties.  Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes, epidemic, pandemic, fire and explosions, but the inability to meet financial obligations is expressly excluded.

12.4 Waiver. Any waiver of the provisions of this Agreement or any agreement related to this Agreement or of a party’s rights or remedies under this Agreement or an agreement related to this Agreement must be in writing to be effective.  Failure, neglect, or delay by a party to enforce the provisions of this Agreement or agreement related to this Agreement, or its rights or remedies at any time will not be construed nor deemed to be a waiver of such party’s rights under this Agreement or any agreement related to this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or any agreement related to this Agreement or prejudice such party’s right to take subsequent action.

12.5 Applicable Law and Jurisdiction. This agreement will be governed by and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflict of laws, and Customer hereby consents to the exclusive jurisdiction and venue of the state and federal courts in the County of San Francisco. This Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. In the event this Agreement is translated into any language other than English, the original English version shall control and prevail on any question of interpretation or otherwise. 

12.6 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties will endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement.  If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law. The headings in this Agreement are inserted merely for the purpose of convenience and do not affect the meaning or interpretation of this Agreement.

12.7 Publicity.   No disclosure of the terms of an Ordering Document or this Agreement may be made by Customer without the prior written consent of Ombre, which consent shall not be unreasonably withheld. Customer agrees that Ombre may disclose that Customer is a customer and may use Customer’s name and identifying symbols in Ombre’s promotional materials.

12.8 Non-Assignment. Customer may not assign its rights or delegate any obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of Ombre.  Any attempted assignment or delegation without Ombre's written consent will be void.  Customer acknowledges and agrees that Ombre may subcontract the Services. The rights and liabilities of the parties under this Agreement will bind and inure to the benefit of the parties' respective successors and permitted assigns. 

12.9 No Exclusivity. The parties acknowledge and agree that the arrangements set forth under this Agreement are non-exclusive and that each party shall be free at any time during the Term and thereafter to engage and enter into similar arrangements with third parties.

12.10 No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

12.11 Nonsolicitation. During the term of this Agreement and for a period of one (1) year after expiration or any earlier termination, Customer may not directly or indirectly solicit the employment of any employee, independent contractor or consultant of Ombre providing Services under this Agreement or induce any employee, independent contractor or consultant of Ombre providing Services under this Agreement to terminate or breach an employment, contractual or other relationship with Ombre. Any employment offered as a result of a Ombre employee, independent contractor or consultant responding to publicly announced or advertised job openings shall not be subject to this provision.

12.12 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written communications between the parties relating in any way to the subject matter hereof.  This Agreement is intended by the parties to be a complete and wholly integrated expression of their understanding and agreement. No terms or conditions of any Customer purchase order, acknowledgement or other business form that Customer may use will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Ombre to object to such terms, provisions or conditions. There are no conditions, understandings, agreements, representations, or warranties expressed or implied, that are not specified herein. 

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