General Terms. These Antibody Supplemental Terms and Conditions (these “Antibody Supplemental Terms”) apply to our provision, and your use (the Customer), of antibodies that target (i) the extracellular domain (ECD) of the human ACE2 receptor and/or (ii) the SARS-CoV-2 S1 Spike protein (the “Antibody Products”), provided by Twist Bioscience Corporation or its designees (individually, and collectively, referred to in these Antibody Supplemental Terms as “us”, “we”, or “our” or “Twist”). These Antibody Supplemental Terms are included as supplementary terms to the Twist Bioscience Master Supply Agreement (“Terms and Conditions”), available at www.twistbioscience.com/supply-terms-and-conditions and defined therein, and, together with our quotation (if any), and any other applicable additional terms, comprise the agreement (“Agreement”) between you and us for your purchase, and our sale of Antibody Products. In the event of a conflict among the contract documents, the following order of precedence will apply and prevail as to the conflicting terms: these Antibody Supplemental Terms, the quotation and then the Terms and Conditions. You accept and hereby agree to be bound by these Antibody Supplemental Terms by ordering Antibody Products on www.twistbioscience.com or otherwise from Twist when you receive ordering or sales documents and when you order, receive, and use Antibody Products. No additional terms contained in any Customer provided purchase order, invoice, document, or correspondence shall bind either party or amend these Antibody Supplemental Terms. Notwithstanding anything to the contrary, we reserve the right to change these Antibody Supplemental Terms at any time, and any changes we make to these Antibody Supplemental Terms shall apply to the Agreement between us for any order we receive after the changes are made. Any terms not defined herein shall have their meaning as set forth in the Terms and Conditions.
Products. For clarity, the Antibody Products (as defined herein) shall be considered “Products” as defined in the Terms and Conditions and in addition to these Antibody Supplemental Terms, the Terms and Conditions shall also govern the sale and use of any Antibody Products.
Supplemental Terms. Notwithstanding anything to the contrary in the Terms and Conditions, the following supplemental terms shall apply as follows:
The Antibody Products are subject to the following label license: “The materials you will receive/have received from Twist Bioscience Corporation (“Materials”) were provided or produced under a license between Twist Bioscience Corporation and Life Technologies Corporation, a part of Thermo Fisher Scientific, Inc., (“Life Technologies”) through the use of Life Technologies proprietary cell lines. The only right conveyed to you with respect to the Materials is the limited, non-transferable right to use the Materials to perform internal research for your sole benefit. Pharmacokinetic and toxicology studies required to meet the regulations for filing an IND (“IND-Enabling Studies”), first in human research, and/or first in patient research are expressly excluded from the rights provided. No right to resell the Materials, or any portion or component thereof, is conveyed expressly, by implication, or by estoppel. The Materials are not for use in commercial research (beginning at IND-Enabling Studies and thereafter) or any other commercial purposes or applications of any kind, including, without limitation, quality control and commercial services such as reporting the results of your activities for a fee or other form of consideration. For information on obtaining additional rights, please contact [email protected] or Out Licensing, Life Technologies, 5823 Newton Drive, Carlsbad, California 92008.”
Customer shall be solely responsible for Customer and its affiliates, directors, officers, employees, and agents’ use of the Antibody Products. The Antibody Products have not been approved, cleared, authorized or licensed by the United States Food and Drug Administration (“FDA”) or any other applicable governmental agency, within or outside the United States, for any use. Customer shall use the Antibody Products solely for its internal research purposes and shall not use the Antibody Products in humans to treat or diagnose any condition nor for any other diagnostic or therapeutic purposes, for investigational use in foods, drugs, devices or cosmetics of any kind, or for consumption by or use in connection with or administration or application to humans or animals.
EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, THE ANTIBODY PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY, REPRESENTATION OR GUARANTEE OF ANY KIND TWIST MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE ANTIBODY PRODUCTS OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AS WELL AS WARRANTIES REGARDING SECURITY, RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT AND ANY WARRANTY ARISING FROM A STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN NO EVENT WILL TWIST’S TOTAL LIABILITY FOR BREACH OF ANY WARRANTY EXPRESSLY PROVIDED HEREUNDER, OR ITS TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EXCEED THE PURCHASE PRICE OF THE PRODUCT AT ISSUE. No description, statement or other content of any Twist website or marketing or communications materials will be binding on Twist.
Defined Terms. Capitalized terms used in these Antibody Supplemental Terms and not defined herein shall have the meaning given to such terms in the Terms and Conditions.
No Other Modifications; Miscellaneous. Except as specifically set forth in these Antibody Supplemental Terms, the Terms and Conditions shall continue in full force and effect. These Antibody Supplemental Terms, together with the Terms and Conditions, constitute the complete and exclusive statement of agreement between the Parties with respect to the subject matter of this Agreement. These Antibody Supplemental Terms may not be amended or modified except as set forth in Section 1. These Antibody Supplemental Terms and the performance of the parties hereunder shall be construed in accordance with the laws of the State of California, U.S.A., without regard to any conflict of law principles.
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