Early Access Terms and Conditions
TWIST BIOSCIENCE CORPORATION
EARLY ACCESS TERMS AND CONDITIONS
All products provided by Twist Bioscience Corporation, a Delaware corporation (“Twist”) or its designee to customer (“Customer”) in the attached quote (such products, “Early Access Products”) are expressly conditioned on and shall be governed by, these early access terms and conditions (these “Terms”). Twist and Customer may each be referred to individually as “Party” and collectively as the “Parties.” No additional or different terms contained in any Purchase Order, quote, sequence submission, invoice, ecommerce terms and conditions (https://www.twistbioscience.com/supply-terms-and-conditions) or other ordering document or correspondence between the Parties shall bind either Party or be construed to modify or amend the terms of an Order or these Terms and any such additional or different terms are hereby expressly excluded and will have no force or effect.
1. Product Orders, Acceptance, Returns. The attached quote shall only be valid for the time period stated therein (or if not so stated, for a period of thirty (30) days) after which such quote shall expire. Customer may accept the terms of the quote by issuing a purchase order to Twist accepting the terms of the quote prior to its expiration (“Purchase Order”). A quote accepted by Customer, together with any associated sequence request submission form and/or associated statement of work for each Early Access Product, shall collectively become an “Order” under these Terms only if confirmed by Twist in writing. Unless otherwise specified in these Terms, Customer may not cancel such Order. In the event that Twist determines that it has failed to make the Early Access Products pursuant to an Order, Twist will notify Customer thereof and the corresponding Order shall thereupon be cancelled. Twist may also cancel any Order if Twist determines (in its reasonable discretion) a need to do so for any reason including biosecurity, biosafety, patent infringement, changes in supply of such Early Access Products, export restrictions and/or feasibility reasons. Any cancellation of an Order as described above shall be without penalty or liability to Twist (provided that any prepaid amounts for such Early Access Products shall be promptly refunded to Customer by Twist). Notwithstanding anything to the contrary herein, nothing in these Terms shall limit or restrict Twist’s right and ability at all times to provide products and services to third parties which are similar or identical to the Early Access Products or services made, provided or supplied under these Terms, so long as Twist does not use Customer’s Confidential Information to provide such products and services to such third parties. If any Early Access Products shipped to Customer under an Order do not materially conform to the applicable specifications in the Order (except where due to causes occurring during or after shipment) or are damaged or short in quantity by more than 10% and Customer notifies Twist of such material non-conformance within 20 days of receipt of such Early Access Products and, at Twist’s request, returns such Early Access Products, then Twist will use commercially reasonable efforts to produce and ship to Customer replacement Early Access Products within a reasonable period of time; provided that Twist may cancel such Order (and refund or credit to Customer any prepaid amounts received from Customer) if Twist is unable to produce conforming Early Access Products. The foregoing shall be Customer’s sole and exclusive remedy, and Twist’s sole and exclusive liability, for any failure of Early Access Products to conform to the Order. If Customer does not notify Twist of such non-conformance within such 20-day period, the Early Access Products will be deemed accepted and fully conforming and compliant for purposes of these Terms.
2. Shipment and Delivery Terms. Twist will use commercially reasonable efforts to ship Early Access Products subject to availability, capacity and adequate lead times. All Early Access Products will be shipped Ex Works (Incoterms 2010) Twist’s facility to the delivery address specified in the Order. Except as otherwise stated in the Order, Twist may ship all Early Access Products using the means and carrier of its choice. Twist reserves the right to deliver Orders in installments, where applicable. Early Access Products are deemed shipped and delivered to Customer when tendered to the applicable commercial carrier at Twist’s facility. At this point, title to the Early Access 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. Twist does not clear Early Access Products for import into Customer’s country if outside the U.S., which is Customer’s sole responsibility.
3. Twist Use of Customer Deliverables. Twist shall not be liable or responsible for (nor be in breach hereunder on account of) any errors, inaccuracies, deficiencies or problems with any genetic sequences, materials, or other information provided by Customer to be used by Twist to produce Early Access Products (collectively, “Customer Deliverables”) or Customer Deliverables that are not otherwise provided by Customer in accordance with these Terms or an applicable Order. Customer represents and warrants that (i) all Customer Deliverables are de-identified or otherwise stripped of any “Protected Health Information” as defined in 45 C.F.R section 164.501 or other information the disclosure of which is prohibited by applicable law and (ii) it has provided Twist with all material information regarding any material hazards associated with Customer Deliverables. Customer hereby grants Twist and its affiliates a nonexclusive license to use and develop the Customer Deliverables solely to make and supply the Early Access Products under an Order, otherwise perform under these Terms in accordance with its terms, and comply with applicable laws and regulations.
4. Limitations and Restrictions on Use of Early Access Products. Customer shall be solely responsible for its use, storage, and handling of the Early Access Products. The Early Access 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 not use any Early Access Product 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 unless Customer first obtains all necessary and/or appropriate approvals, clearances, authorizations and/or licenses from the FDA or other applicable governmental agency within or outside the United States. In any event, Customer shall use all Early Access Products in accordance with applicable laws, rules, regulations and governmental policies, including biosecurity requirements, and in accordance with these Terms. Twist will not be responsible or liable for any losses, costs, expenses, or any other forms of liability arising out of Customer’s use of any Early Access Product, including without limitation any liabilities arising from a claim by third party arising from Customer’s use of any Early Access Product, except to the extent any such liability cannot be excluded by applicable law. By using any Early Access Product for any purpose, Customer agrees to defend, indemnify, and hold Twist, its directors, officers, employees, and agents harmless for any and all damages and/or liability, however characterized, arising from such use of the Early Access Products or any third party claims (including reasonable attorneys’ fees). Customer shall use the Early Access Products only for internal evaluation purposes and Customer shall not sell, resell, transfer or distribute the Early Access Products to any third party. Customer also agrees not to (and not to authorize or permit others to) reverse engineer, deconstruct or disassemble any Early Access Products or Twist-supplied vectors. Certain Twist antibody Early Access Products are provided or produced under a license with Life Technologies Corporation (such Early Access Products, “Antibody Products”). Customer agrees that in addition to the use restrictions under these Terms, Customer’s use of any applicable Antibody Products are also subject to the Limited Use Label License: Antibody Products found at https://www.twistbioscience.com/page/limited-use-label-licenses-antibody-products, which may be updated from time to time at Twist’s sole discretion. Any confidential or proprietary information provided by Twist to Customer shall be and shall remain confidential, and shall not be used by Customer for any purpose other than the internal evaluation of the Early Access Products. Customer Deliverables shall be considered Customer’s Confidential Information. Twist’s data, methods, protocols, procedures, algorithms, inventions, software, documents, vectors, plasmids, materials, works of authorship, and other technologies (and any improvements thereto) used or practiced in connection with gene or DNA synthesis, assembly and manufacturing (collectively, “Twist Manufacturing Technology”) shall be considered Twist’s Confidential Information.
5. Suggestions. Although there is no affirmative obligation to do so, if Customer provides any suggestions, feedback, recommendations, improvement ideas or input (“Suggestions”) relating to the Early Access Products or other Twist products to Twist, Customer hereby grants to Twist a worldwide, royalty-free, fully paid-up, non-exclusive, irrevocable, perpetual license, with the right to grant and authorize sublicenses, to use, make, have made, reproduce, offer to sell, sell, publicly perform, publicly display, adapt, modify, create derivative works of, distribute, import, and otherwise exploit the Suggestions.
6. Fees. Customer shall pay Twist the price owed for all Early Access Products specified in each Order and any other applicable fees or costs, including shipping, handling and taxes (collectively, the “Fees”). Twist shall not be bound or subject to any other pricing other than the Fees set forth in an Order, regardless of where such other pricing is stated or published. Customer shall pay the Fees to Twist on the dates or occasions specified in the Order, or if not so specified in the Order, within thirty (30) days of the date of Twist’s invoice for such Fees.
7. Disclaimer of Warranties. THE EARLY ACCESS PRODUCTS ARE PROVIDED “AS IS”. TWIST MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE EARLY ACCESS PRODUCTS OR ANY OTHER SUBJECT MATTER OF THESE TERMS, INCLUDING, WITHOUT LIMITATION: ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT; WARRANTIES REGARDING SECURITY, RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT, THOSE WARRANTIES 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 SHALL TWIST BE LIABLE FOR ANY DAMAGES OR LIABILITY ARISING FROM CLAIMS OR ALLEGATIONS RELATED TO INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
8. Limitation of Liability. EXCEPT FOR THE OBLIGATIONS UNDER SECTION 4 AND A PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OR FRAUD, NEITHER PARTY SHALL BE LIABLE HEREUNDER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO COSTS OF COVER, COST OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSSES FROM BREACHES OF SECURITY, OR LOSS OF GOODWILL) ARISING FROM OR IN CONNECTION WITH THESE TERMS, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY. EXCEPT FOR ANY LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW, TWIST’S AGGREGATE LIABILITY FOR ANY DAMAGES OR OTHER AMOUNTS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE EARLY ACCESS PRODUCTS SHALL BE LIMITED, IN THE AGGREGATE, TO THE FEES ACTUALLY RECEIVED BY TWIST HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM UNDER WHICH SUCH LIABILITY AROSE.
9. Confidentiality. “Confidential Information” means any information disclosed by or on behalf of either Party or its representatives (the “disclosing Party”) to the other Party (the “receiving Party”) pursuant to these Terms that is (a) marked “Confidential” or “Proprietary” or (b) otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure or by the nature of the information itself. “Confidential Information” does not include (m) any information that is publicly available or becomes publicly available through no action or inaction of the receiving Party; (n) is in the rightful possession of the receiving Party without confidentiality obligations at the time of disclosure by the disclosing Party to the receiving Party as shown by the receiving Party’s then-contemporaneous written files and records kept in the ordinary course of business; or (o) is obtained by the receiving Party from a third party without an accompanying duty of confidentiality and without a breach of such third party’s obligations of confidentiality. The receiving Party shall (x) use the Confidential Information of the disclosing Party solely to exercise its rights and fulfill its obligations under these Terms, (y) shall not disclose disclosing Party’s Confidential Information to any third parties other than its own employees or agents on a need to know basis who are subject to written obligations of confidentiality and non-use that are at least as protective of disclosing Party’s Confidential Information as these Terms, except with the disclosing Party’s express written consent, and (z) take the precautions the receiving Party employs with respect to protecting its own confidential information of a similar nature to protect the disclosing Party’s Confidential Information. If the receiving Party becomes legally required to disclose any Confidential Information of the disclosing Party, the receiving Party will disclose only that portion that is legally required to be disclosed and such disclosed information shall maintain its confidentiality protection for all other purposes.
10. Miscellaneous. These Terms are governed by the laws of the State of California without reference to any conflict of laws principles. Customer shall not assign or transfer this Agreement without the prior written consent of Twist. Twist may assign or transfer this Agreement to an affiliate or entity that acquires all or substantially all of the business or assets of Twist to which this Agreement pertains, whether by merger, reorganization, consolidation, change of control, acquisition, stock sale, operation of law or otherwise. Customer shall not name or refer to Twist as a supplier of Customer nor shall it use Twist’s logos or trade names for publicity, marketing, or any other external communications without Twist’s prior written consent. These Terms contain the entire agreement and understanding between the Parties concerning the Early Access Products covered by an Order and supersede all previous negotiations, discussions and understandings, whether oral or written, between the Parties with respect to such subject matter.