Customer may order DNA synthesis products from Instance by providing Instance with a request for the requested products. Customer shall include a sequence request submission form for each requested product describing the genetic sequence of the desired custom product. If Instance accepts such request, Instance and Customer shall enter into a binding order form setting out the price for the requested products and other relevant details, including estimated delivery times and any applicable sequence information (each, an “Order Form” and the agreed-upon products, in the form delivered by Instance pursuant to an Order Form, the “Products”). No Order Form is binding unless mutually executed by both parties. Order Forms are not cancellable except as set forth in Sections 1.3 or 6 below.
Instance will use commercially reasonable efforts to perform the sequencing services required by the applicable Order Form (the “Services”) in order to provide the Products set forth in the applicable Order Form. To the extent required by the Order Form, Instance shall use commercially reasonable efforts provide a report describing the DNA synthesis products (the “Deep Sequence Report,” which is deemed a Product for purposes of this Agreement).
Performance of Services and delivery of Products may require that Customer provide certain information and/or materials to Instance, upon Instance’s request (“Customer Materials,” which term includes any sequence request information submitted pursuant to Section 1.1). Failure to promptly provide Customer Materials when requested may delay the performance of the Services and delivery of the Products, and Instance is not responsible or liable for any such delay, regardless of any required timelines set forth in the applicable Order Form.
Instance may cancel any Order Form if Instance determines (in its reasonable discretion) a need to do so for biosecurity, biosafety, patent infringement, export restrictions and/or feasibility reasons. Any cancellation of an Order Form as described above shall be without penalty or liability to Instance (provided that any prepaid amounts for the applicable Products and Services shall be promptly refunded to Customer by Instance, or if Customer so requests, credited toward future purchases under this Agreement). Notwithstanding anything to the contrary herein, nothing in the Agreement shall limit or restrict Instance’s right and ability at all times to provide products and services to third parties which are similar or identical to the Products or Services made, provided or supplied under this Agreement, subject to Instance’s confidentiality obligations under this Agreement.
Delivery.
All Products delivered to Customer shall be F.O.B. Instance’s facility or other place of shipment. If set forth in the applicable Order Form, Instance shall use commercially reasonable efforts to deliver Products to Customer at the destinations specified in the Order Form(s). Though Instance may arrange for shipping and delivery (as set forth in the applicable Order Form), at the point of tender at Instance’s facility or other place of shipment, title to the tangible embodiment of the Products passes to Customer (subject to Customer’s payment in full of all fees therefor) and Customer becomes responsible for risk of loss and damage.
For Customers located outside the U.S., (a) Instance does not clear Products for import into the country specified in the delivery address, which is Customer’s sole responsibility, and (b) unless otherwise agreed in the Order Form, and notwithstanding anything to the contrary herein, Products are deemed shipped and delivered to Customer when tendered to the applicable commercial carrier at Instance’s facility.
Fees; Shipping Cost; Billing Procedures.
All payments due hereunder to Instance shall be paid in US dollars.
Subject to the terms of this Agreement, Customer will pay Instance all fees in accordance with the relevant Order Form, on the schedule set forth thereon. Unless otherwise expressly set forth in an Order Form, any amounts payable for Services shall be included as part of the applicable Product fees, and not invoiced via separate line item.
Customer will be responsible for all taxes, duties, levies, or other government fees; standard packaging, delivery and handling charges and shipping insurance charges, as described in the Order Form. If Customer is a tax-exempt Person, Customer shall provide to Instance proof of such status prior to execution of the Order Form, failing which, Customer is responsible for all relevant taxes.
To the extent required under an Order Form, Customer shall provide to Instance the sequence information and/or sufficient amounts of materials and information, in each case, in accordance with applicable law, to be used by Instance to perform under this Agreement (collectively, “Customer Materials”). Customer shall retain all rights, title and interests in its Customer Materials. Customer hereby grants Instance a nonexclusive license to use and exercise the rights in the Customer Materials provided by Customer during the term of this Agreement (and to permit its third party service providers to do the same), to the extent necessary to provide Service to Customer, including Instance’s internal synthesis, validation, process and technology improvement and quality control activities, and to otherwise perform under this Agreement in accordance with its terms, and to comply with applicable laws and regulations. No other license is granted by Customer, by implication or otherwise.
Customer represents, warrants and agrees that: (a) the Customer Materials are accurate and complete; (b) Customer has all rights, licenses, registrations, consents and permissions required to provide the Customer Materials to Instance and permit Instance to use such Customer Materials to make and supply the Products and otherwise perform under this Agreement and the applicable Order Form; (c) all Customer Materials will, prior to disclosure to Instance, be de-identified and otherwise stripped of any identifiers of or information that can be used to identify any individual, including but not limited to any “Protected Health Information”, “personal information,” “personal data,” “personally identifiable information” or analogous term as defined in applicable laws; and (d) Instance’s possession and use of the Customer Materials and any Product that Customer orders under and in accordance with this Agreement and the applicable Order Form shall not violate any applicable laws or other agreements to which Customer is a party, nor require registration or other action under United States Federal Select Agent Program (FSAP) regulations, the United States Export Administration Regulations (EAR) or other biosecurity requirements (collectively, “Biosecurity Requirements”), or infringe or misappropriate the intellectual property rights of any third party. Without limiting the foregoing, Customer represents and warrants that no Customer Materials provided, and no Products ordered, are or contain (x) the full protein coding sequence coding for functional forms of a toxin covered by FSAP or any sequence unique to a FSAP-controlled organism capable of transferring pathogenicity, (y) radioactive isotopes, or (z) hazardous materials.
Customer shall hold Instance and its directors, officers, employees, and agents harmless from and against any and all claims brought against any Instance or its directors, officers, employees, and agents to the extent resulting from or caused by: (a) the infringement or alleged infringement of intellectual property rights arising from the use of any Customer Materials in accordance with this Agreement (or on account of the manufacture or supply of Products in accordance with such Customer Materials); (b) use of any Customer Materials in accordance with this Agreement; or (c) Customer’s breach of its obligations, warranties or representations under this Agreement; except in each case to the extent that a claim arises out of or results from the gross negligence, recklessness or willful misconduct of Instance or Instance’s breach of its obligations, warranties, or representations under this Agreement.
Customer may, but is not required to, provide Instance with suggestions, ideas, feature requests, feedback, recommendations or other information relating to the subject matter hereunder (“Feedback” which term shall include related intellectual property rights). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Instance notwithstanding anything else. Customer shall, and hereby does, grant to Instance a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use, commercialize, exercise, and otherwise exploit the Feedback for any purpose.
The Products are intended for Customer’s internal research purposes only. For clarity, Customer may use the Products to develop its own products and services that it offers commercially, provided such Customer products and services do not themselves contain the Product without substantial modifications. Without limiting the foregoing, Customer shall not sell, resell, transfer or distribute the Products to any third party other than service providers acting on behalf of Customer or bona fide collaborators for the commercialization of Customer products.
To the extent that Instance incorporates, uses, or otherwise provides any Instance Intellectual Property (as defined below) in any Products or Services such that Customer's use of such Products or Services for the purposes set forth in this Agreement would, absent a license, violate Instance’s intellectual property rights, Instance hereby grants to Company a royalty-free, irrevocable, nonexclusive license to use such Instance Intellectual Property as embodied in or used in the manufacture of the Products and Services for the purposes set forth herein. “Instance Intellectual Property” means, collectively, (i) any and all intellectual property and Confidential Information (as defined below) owned by Instance or licensed to Instance from third parties as of the Effective Date, and (ii) any and all intellectual property rights in and to inventions solely developed or created by Instance during the Term hereof to enhance or improve Instance’s generally applicable manufacturing processes used in connection with the Products and/or Services. Instance reserves all rights not expressly granted hereunder.
Confidential Information; Publication.
Each party (“receiving party”) shall keep confidential and not disclose to any third party or use (except as required to exercise its rights or fulfill its obligations under this Agreement), any business, technical, or financial information obtained from the other party (“Confidential Information” of such party (the “disclosing party”)); provided, however, that the receiving party shall not be prohibited from disclosing or using Confidential Information that the receiving party can document: (i) is publicly available or becomes publicly available through no act or omission of the receiving party, (ii) is or has been disclosed to the receiving party by a third party who is not under an obligation of confidentiality with respect thereto, (iii) is or has been independently developed by the receiving party, without use of or reference to the disclosing party’s Confidential Information, or (iv) was known to the receiving party without restriction prior to disclosure by the disclosing party. The receiving party may make disclosures to the extent required by law or court order, provided it uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the disclosing party to participate in the proceeding. For the avoidance of doubt, the Deep Sequencing Reports and any rights embodied therein, except any Customer Materials, are Confidential Information of Instance and shall be subject to the restrictions herein. The parties agree that Confidential Information in aggregate, anonymized form which can in no way be linked specifically to Customer or any individual (“Aggregated Data”) is not Customer Confidential Information or Customer Material. Notwithstanding anything else, nothing herein restricts Instance from freely using Aggregate Data.
Customer acknowledges that Instance does not wish to receive any Proprietary Information from Customer that is not necessary for Instance to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Instance may reasonably presume that any information that is not necessary for Instance to perform such obligations received from Customer is not confidential or Confidential Information.
Notwithstanding anything to the contrary, Instance may collect, use, and freely exploit data with respect to its Services hereunder, including as such data relates to the performance of its technology and the Product(s) and Customer Materials, in order to research, develop and improve its own products and services and for other business purposes, provided that prior to any disclosure to a third party, any such information has been anonymized such that it does not identify Customer or any Customer Materials, in the form provided by Customer.
Term/Termination.
This Agreement shall commence on the Effective Date. The term of this Agreement is one (1) year (“Term”), unless otherwise specified in an Order Form, or unless terminated earlier as described in this Section 6. This Agreement shall automatically renew for an additional one (1) year period if there are any active Order Forms at the expiration of its Term.
If either party materially breaches this Agreement, the other party may terminate this Agreement by giving the breaching party thirty (30) days written notice of such breach, unless the breach is cured within the notice period. Any termination of this Agreement may be limited to one or more Order Forms, in which case, the consequences of termination will be limited to the subject matter of those Order Forms so terminated.
Upon termination of this Agreement, Customer agrees to pay Instance all amounts due or accrued as of the date of such termination. Upon termination of this Agreement for any reason, each receiving party shall with respect to physical materials containing Confidential Information, return them to the disclosing party or, at the disclosing party’s request, destroy and certify such destruction. Notwithstanding the foregoing, Instance may retain Confidential Information to the extent required by applicable law, regulatory authority, or Instance's internal compliance requirements, including copies created through automatic electronic archiving and backup procedures, provided that such retained information remains subject to the confidentiality obligations specified in this Agreement. Sections 3-9 shall survive any termination of this Agreement (or any terminated Order Form).
Warranty.
Instance represents, warrants and agrees: (a) to perform the Services in a good and workmanlike manner by personnel of Instance having a level of skill commensurate with the requirements of this Agreement; (b) that the Product will substantially conform with the applicable Order Form requirements therefor; (c) that Instance has full power, right and authority to enter into this Agreement, to carry out its obligations under this Agreement. EXCEPT FOR THE FOREGOING WARRANTIES IN THIS SECTION 7, (I) THE SERVICES AND PRODUCT(S) AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND, AND (II) INSTANCE (ON BEHALF OF ITSELF AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT WILL INSTANCE (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PRODUCT(S) OR DEEP SEQUENCING REPORTS OR ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE PRODUCT(S) OR DEEP SEQUENCING REPORTS OR ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INSTANCE (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, AND (B) THE TOTAL LIABILITY OF INSTANCE HEREUNDER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE PRODUCT PURCHASE PRICE PAID AND/OR PAYABLE TO INSTANCE HEREUNDER, IN THE TWELVE MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
General.
Relationship of Parties. For all purposes of this Agreement each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract.
Assignment; Sub-contracting. Neither party shall have the right to assign this Agreement to another party without the prior written consent of the other party; provided, however, that either party may assign its rights and obligations hereunder without consent to a successor to all or substantially all of its assets or business to which this Agreement relates. Instance may subcontract its obligations hereunder without consent, provided it remains responsible for its subcontractors as if each were Instance hereunder.
Governing Law; Arbitration; Attorney’s Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof. Unless prohibited by applicable law, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration (to be held in English) in the State of California in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each party will have a right to seek injunctive or other equitable relief in a court of law from any court of competent jurisdiction. The prevailing party will be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. Notwithstanding anything to the contrary, either party may seek injunctive or other equitable relief at any time from any court of competent jurisdiction.
Miscellaneous. The Terms and Conditions of this Agreement shall take precedence over and shall govern over any inconsistent or conflicting terms in the Order Form or Quotation (even if signed), unless and solely to the extent that the parties expressly state in a signed writing that they intend to override the Terms and Conditions. No waiver, change, or modification to this Agreement will be effective unless in writing signed by both parties. Any notices in connection with this Agreement will be in writing and sent by first class US mail, confirmed email or major commercial rapid delivery courier service to the address specified on the cover sheet or such other address as may be properly specified by written notice hereunder. The parties acknowledge that each is entering into this Agreement solely on the basis of this Agreement and representations contained herein, and for its own purposes and not for the benefit of any third party. The parties agree that this Agreement may be signed by manual or electronic signatures and in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated so that this Agreement shall otherwise remain in full force and effect and enforceable.