API LICENSE TERMS AND CONDITIONS

API LICENSE TERMS AND CONDITIONS

These API License Terms and Conditions (the “Agreement”), by and between Twist Bioscience Corporation and its affiliates (“Twist”) and you (the “Customer”), applies to your use of and access to the Twist API (as defined below), all as described under and subject to the terms and conditions of this Agreement.

  1. DEFINITIONS
    1. “API Code” means human-readable programming instructions in the API Documentation that can be implemented in a computer program.
    2. “API Documentation” means the specifications and technical documentation for Twist API made available by or on behalf of Twist to Customer.
    3. “Customer Requirements Document” or “CRD” means written documentation that Customer may elect to provide to Twist identifying Customer’s requirements for its use of the Twist API, including but not limited to Customer’s functional requirements, performance requirements, security requirements, and product format requirements, and which is mutually agreed upon by the parties.
    4. “Licensed Implementation” means an implementation of the Twist API that: i) complies with the relevant API Documentation; and ii) only functions for the applicable Permitted Purpose.
    5. “Permitted Purpose” means accessing the Twist System (as defined below) to transmit designs, make orders, and check on order status for products to be provided by Twist in accordance with this Agreement.
    6. “Twist API” means Twist’s proprietary application programming interface (API) made available to Customer under this Agreement.
  2. LICENSE AND USE RIGHTS Access. Twist will promptly provide Customer with
    1. access to the Twist API, API Documentation and API Code (the “Twist System”). Customer is responsible for any access to or use of the Twist System attributable to Customer’s access via the Twist API. Twist has the right to monitor Customer’s access to the Twist System to ensure that Customer is complying with this Agreement.
    2. Licenses
      1. Subject to the terms of this Agreement, during the term of this Agreement, Twist hereby grants to Customer a non-exclusive, royalty-free, world-wide, non-sublicenseable, nontransferable, right to use the API Documentation and API Code (including permitted modifications) to develop a Licensed Implementation for the Permitted Purpose.
      2. Subject to the terms of this Agreement, during the term of this Agreement, Twist hereby grants to Customer a non-exclusive, royalty-free, world-wide, non-sublicenseable, nontransferable, personal, license to use Licensed Implementations to access the Twist System via the Twist API solely for the Permitted Purpose. For clarity, Customer may make as many calls to the Twist API as needed or desired by the Customer for the Permitted Purpose.
    3. Product Supply. The manufacture and supply of products ordered by Customer, including through the Twist API, shall be governed by Twist’s supply terms and conditions available at https://www.twistbioscience.com/legal/supply-terms-conditions , unless Customer and Twist have executed a similar contractual arrangement signed in writing by both parties, in which case such contractual arrangement shall govern.
    4. Reservation of Rights. All rights not expressly granted to Customer in this Agreement are reserved by Twist. Twist and its licensors own all right, title, and interest, including all intellectual property rights, in and to the API Documentation, API Code, Twist API, and Twist System. No additional rights (including any implied licenses) are granted by implication, estoppel, or otherwise to Customer. No Payments.
    5. No payments in cash or in-kind, whether express or implied, by Customer are provided for under this Agreement.
  3. RESTRICTIONS AND OBLIGATIONS
    1. Restrictions. Except as expressly set forth in this Agreement, the licenses granted to Customer in this Agreement do not include the right to, and Customer must not:
      1. modify any portion of the API Documentation;
      2. implement a routine, data structure, or protocol described in the API Documentation in any other API or implement the Twist API to operate with any service or product other than the Twist System;
      3. use the API Documentation or Twist API to develop or test a replacement or alternative to any Twist product or offering;
      4. sell, lease, loan, provide, distribute, or otherwise transfer the API Documentation;
      5. change or extend any of the interfaces described in the API Documentation (except as described in the API Documentation);
      6. use the Twist API or Twist System for training, commercial time-sharing, service bureau, subscription service, or rental use;
      7. attempt to access or interface with the Twist System except to perform the Permitted Purpose;
      8. remove, alter, or cover any copyright or other proprietary rights notices in the API Documentation;
      9. intentionally interfere with or limit the normal operation of the Twist System;
      10. disable or circumvent the access keys or other security features used by Twist;
      11. display or disclose any portion of the API Documentation to any Person except to Customer’s employees or contractors who are required to use the API Documentation on behalf of Customer as permitted under this Agreement; or
      12. cause, assist, or permit any third party to do any of the foregoing.
    2. Open Source Restriction. Customer must not: subject any portion of a Licensed Implementation to the terms of any open source license which requires Customer to publish the source code of Licensed Implementation.
  4. AVAILABILITY AND SUPPORT
    1. Performance and Availability of Twist Systems.
      1. Twist represents that the Twist API:
        1. will comply with the CRD (if applicable),
        2. will provide access to Twist’s product ordering system,
        3. will be fit for the purpose of Customer ordering product.
      2. Except as set forth in this Section 4 and this Agreement, Twist does not make any commitment to Customer regarding the performance of the Twist System or the Twist API. If Twist breaches any commitment regarding performance, security, or availability to this Agreement, then Twist will use its commercially reasonable efforts to cure the breach.
    2. Technical Support. Twist will use commercially reasonable efforts to:
      1.  answer Customer’s technical questions about the API Documentation, API Code, the Twist API and the Twist System; and
      2. provide technical support to assist and support Customer’s development, implementation and use of a Licensed Implementation and to Validate the Licensed Implementation. “Validate” or “Validation” will consist of written confirmation by Twist of the connectivity, performance, accuracy, timeliness and functionality of the Licensed Implementation with the Twist System.
    3. Modifications. Customer acknowledges that Twist may modify the Twist API from time to time (a “Modification”). Any Modifications to the Twist API will be communicated by Twist as set forth herein or in the CRD (if applicable).
  5. TERM AND TERMINATION
    This Agreement shall commence on the Effective Date and will remain in effect until terminated pursuant to this Section 5. Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Customer violates any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted to Customer hereunder. Upon termination of this Agreement for any reason, Customer shall cease using, and either return to Twist, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any confidential information in Customer’s possession, and shall certify to Twist in writing upon Twist’s request that such actions have occurred. In addition to any rights that accrued prior to termination, the provisions of Sections 1, 6, 7, 8 and 9 shall survive termination of this Agreement.
  6. DISCLAIMER EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE API DOCUMENTATION, TWIST SYSTEM, TWIST API, API CODE, AND ALL INTELLECTUAL PROPERTY MADE AVAILABLE OR LICENSED BY TWIST UNDER OR IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TWIST DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE API DOCUMENTATION, TWIST SYSTEM, TWIST API, API CODE AND RELATED INTELLECTUAL PROPERTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
  7. LIMITATION OF LIABILITY
    1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL TWIST, OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY CUSTOMER OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER TWIST HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
    2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TWIST’S AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING OUT THIS AGREEMENT, SHALL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE FIRST EVENT OR OCCURRENCE GIVING RISE TO THE CLAIM.
    3. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Customer. IN THESE JURISDICTIONS, TWIST’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. The limitations set forth in this Section 7 will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose. THE PARTIES ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
  8. INDEMNIFICATION Customer shall indemnify, defend and hold Twist and its directors, officers, employees, and agents (“Twist Indemnitees”) harmless against any claim brought by a third party against Twist and/or any Twist Indemnitee arising from or related to any breach of an obligation, representation, warranty, covenant or other provision of this Agreement by Customer or any matter which Customer has expressly agreed to be responsible pursuant to this Agreement.
  9. GENERAL PROVISIONS
    1. Governing Law. Agreement is governed by the laws of the State of California without reference to any conflict of laws principles.
    2. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and remain in full force and effect while the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    3. No Assignment. This Agreement may not be assigned or otherwise transferred, in whole or in part, by operation of law or otherwise, by either party without the other party’s express prior written consent; provided, however, that either party may assign this Agreement without such consent to its successor in interest in connection with any merger, consolidation, reorganization or sale of such party or all or substantially all of its assets (any such consented to assignment or assignment not requiring consent being a “Permitted Assignment”). In the case of any Permitted Assignment of this Agreement, this Agreement shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the parties hereto. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void.
    4. Notices. Each party must deliver all notices, consents, and approvals required or permitted under this Agreement in writing to the other party at the address specified in the Order or Agreement, by personal delivery, by certified or registered mail (postage prepaid and return receipt requested), by a nationally-recognized overnight carrier or by email (except for notices of breach or termination) with electronic verification of receipt. Notice will be effective upon receipt or refusal of delivery. Each party may change its address for receipt of notice by giving notice of such change to the other party.
    5. Construction. Section headings are included in this Agreement merely for convenience of reference; they are not to be considered part of this Agreement or used in the interpretation of this Agreement. No rule of strict construction will be applied in the interpretation or construction of this Agreement.
    6. Waiver. No waiver by any party of any breach of this Agreement or failure of any party to take action to enforce or assert any right or remedy hereunder shall be deemed a waiver of any prior, concurrent, or subsequent breach. No waiver shall be effective unless made in a signed writing.
    7. Entire Agreement; Amendments. This Agreement is the final, complete, and exclusive agreement of the parties and supersedes all prior or contemporaneous communications and understandings, oral or written, between the parties with respect to the subject matter hereof. No modification of or amendment to this Agreement will be effective unless in writing and signed by both parties.
    8. Independent Contractors. Twist’s relation to Customer under this Agreement is that of an independent contractor. Nothing in this Agreement is intended or should be construed to create a joint venture, agency or employer-employee relationship between Customer and Twist or any of Twist’s employees or agents. Neither party is authorized to bind, make any
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