Terms and Condition

Terms and Conditions

PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY INSTANCE, INC. (“INSTANCE”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS (WHETHER SUBMITTED ONLINE OR NOT) WITH INSTANCE WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. Orders; Services; Product(s).
   1. Customer may order DNA synthesis products from Instance by providing Instance with an order form setting out the requested products and other relevant details (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.
   2. Performance of Services and delivery of Products may require that Customer provide certain Customer Materials (as defined below). 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.
   3. 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.
      
2. Delivery. Unless otherwise specified in the Order Form(s), all Products delivered to Customer shall be F.O.B. Instance’s facility or other place of shipment. 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.
   
3. Fees; Tax. 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. Customer will be responsible for all taxes, duties, levies, or other government fees; standard packaging, delivery and handling charges and shipping insurance charges, as describe 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.
   
4. Customer Materials; Intellectual Property Rights; Licenses.
   1. To the extent required under an Order Form, Customer shall provide to Instance the sequence information and/or any other necessary information, in each case, in accordance with applicable law, to be used by Instance to perform under this Agreement (collectively, “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 synthesis, validation, and quality control activities, and to otherwise perform under this Agreement in accordance with its terms, and to comply with applicable laws and regulations.
   2. 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,” 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, 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.
   3. 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.
   4. “Instance IP” means (i) all intellectual property that is owned by Instance (or licensed by Instance from a third party), and which (a) exists as of the Effective Date or (b) is later developed by Instance outside the Services provided under this Agreement and without use or infringement of Customer Materials and (ii) all intellectual property rights in and to all Services which are solely developed or created by Instance during the term of this Agreement to enhance or improve the generally applicable Services provided by Instance. Customer agrees that Instance shall retain all rights, title and interests (including intellectual property rights) in and to Instance IP. To the extent that Instance discloses to Customer any Instance IP, or such are embodies in the Services and/or Products, and the foregoing cannot be fully used without violating intellectual property rights owned or licensed by Instance, Instance hereby grants to Customer perpetual, limited, non-exclusive, non-transferable, non-sublicensable, revocable license to Instance IP embodied in the Products and/or Services, for the purpose of using the Products, solely in the form provided by Instance, for Customer’s internal research purposes only (including to develop its own products and services that it offers commercially, provided such Customer products and services do not themselves contain the Product without modifications). Instance reserves all rights not expressly granted hereunder.
      
5. Confidential Information. 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 or on behalf of 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, (v) is in aggregate, de-identified form which can in no way be linked specifically to a 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.
   
6. Term/Termination.
   1. This Agreement shall commence on the Effective Date. The term of this Agreement is one (1) year, unless otherwise specified in an Order Form, or unless terminated earlier as described in this Section 6.
   2. 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 Form, in which case, the consequences of termination will be limited to the subject matter of those Order Form so terminated.
   3. 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 destroy any Confidential Information of the Disclosing Party. Sections 4-9 shall survive any termination of this Agreement (or any terminated Order Form).
      
7. 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.
   
8. 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 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, WILL NOT EXCEED, IN THE AGGREGATE, THE PRODUCT PURCHASE PRICE PAID 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.
   
9. General. 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. 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. 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 . Notwithstanding anything to the contrary, either party may seek injunctive or other equitable relief at any time from any court of competent jurisdiction. The Terms 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 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.