These Twist Master Supply Terms and Conditions, together with any attached or associated Master Supply Agreement mutually executed by the Parties (each a “Master Agreement”), if any, and any supplements, exhibits or addenda attached to any of the foregoing (collectively, this “Agreement“), is entered into as of the Effective Date defined below by and between Twist Bioscience Corporation, a Delaware corporation with offices at 455 Mission Bay Blvd. South, San Francisco, CA 94158 (“Twist”) and the customer identified on the Master Agreement, Twist’s Quotation or the Order, as applicable (“Customer”). The “Effective Date” of this Agreement shall be first to occur of: (a) the date the Master Agreement is made effective or entered into, (b) the date of the first Quotation provided by Twist to Customer, or (c) the date Twist first accepts an order from Customer to manufacture or supply products. Customer and Twist may be referred to herein individually as a “Party” and collectively as the “Parties.”
1. Genetic Product Supply
Product Orders. During the Term (as defined below) Customer may order the synthesized DNA products described in the Master Agreement and/or a Quotation (“Products”) from Twist from time to time in accordance with the following process. Customer will provide Twist with a sequence request submission form (the “Sequence Submission”), whether through Twist’s website, in connection with the Master Agreement, by written notice or otherwise, describing the genetic sequence upon which the synthesis of the desired Products is to be based. Customer shall ensure that each Sequence Submission conforms to and is consistent with any sequence parameters and guidelines specified in the Master Agreement, on Twist’s website and/or otherwise published by Twist. If Twist is willing and able to manufacture and supply the Product referenced in the Sequence Submission, Twist will issue a quotation to Customer (“Quotation”) setting out the price for the Products and other relevant details regarding their manufacture and supply hereunder. Twist has no obligation to issue Quotations unless the Master Agreement provides otherwise (and in some cases, the Quotation may be part of or attached to the Master Agreement), and each Quotation 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 Quotation shall expire. Customer may issue a purchase order to Twist for Products in accordance with the Quotation prior to its expiration (“Purchase Order”), and consistent with any applicable Master Agreement, which describes the type and quantity of Products to be ordered and the associated total price (as per the Quotation) as well as delivery details to the extent not in the Master Agreement. Twist may review the Purchase Order and associated Sequence Submission for, among other things, feasibility, biosecurity, conformity with the Master Agreement, legal compliance and other issues to determine whether or not to issue a Quotation and/or accept the Purchase Order. Twist may accept or reject any Purchase Order in its sole discretion. If rejected, such Purchase Order shall become null and void, however, Customer may issue a new Sequence Submission and Purchase Order reflecting any feedback Twist may provide (if any) regarding such rejected Sequence Submission and/or Purchase Order, under the same process as described above. Once accepted by Twist in writing, such Purchase Order, together with its associated Sequence Submission and Quotation, along with any terms and conditions of the Master Agreement (if any) applicable to Product orders, shall collectively become an “Order” under this Agreement. Once an Order is accepted by Twist, Customer may not cancel such Order. In the event of any conflict between these Twist Master Supply Terms and Conditions and the Master Agreement, these Twist Master Supply Terms and Conditions shall control and take precedence, except to the extent the Master Agreement expressly refers to the Parties’ intent to alter these terms. No additional terms contained in any Purchase Order, Sequence Submission, invoice or other ordering document or correspondence shall bind either party or be construed to modify or amend the terms of this Agreement. In event of any conflict, these Twist Master Supply Terms and Conditions, together with the Master Agreement, shall control and take precedence, followed by the Quotation, the Sequence Submission and the Purchase Order, in that order.
1.1 Product Supply.
Upon Twist’s acceptance of an Order in accordance with this Agreement, Twist will use commercially reasonable efforts to synthesize and supply the Products designated in the Order based on the corresponding Quotation and Sequence Submission in accordance with the terms and conditions of this Agreement. Twist will have no obligation to commence any synthesis or other activities with respect to any Products until an Order has been accepted for such Products as provided herein. In the event that, despite using commercially reasonable efforts, Twist determines that its efforts to make the Products have failed, 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 biosecurity, biosafety, patent infringement, 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 Products shall be promptly refunded to Customer by Twist, 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 Twist’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.
1.2 Shipment and Delivery Terms.
Twist will use commercially reasonably efforts to ship Products by the delivery date specified in the Order (which in any event shall not be less than sixty (60) days after acceptance of such Order), subject to availability of capacity and adequate lead times. All 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 Products using the means and carrier of its choice. Twist reserves the right to deliver Orders in installments, where applicable, in which case Twist will send a separate invoice for each delivery. Customer will pay for all shipping, handling, insurance, processing fees, freight and customs for Products shipped hereunder. 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 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 Products for import into Customer’s country if outside the U.S., which is Customer’s sole responsibility.
1.3 Delivery Acceptance and Returns
If any Products shipped to Customer under an Order do not materially conform to the applicable Sequence Submission and Quotation or other specifications in the Order, or are damaged or short in quantity by more than the percentage described below (except where any of the foregoing are due to causes occurring during or after shipment), then Customer can notify Twist within twenty (20) days of Customer’s receipt of such Products to arrange for the return and replacement of such Products. If Customer does not notify Twist of such non-conformance, damage or shortfall within such time period, such Products will be deemed accepted and fully conforming and compliant for purposes of this Agreement. If Customer timely notifies Twist and, if requested by Twist, returns the Products to Twist in accordance with Twist’s reasonable instructions (within no more than twenty (20) days), Twist will use commercially reasonable efforts to produce and ship to Customer replacement 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 has already shipped replacement Products for such Order once before or if Twist is unable to produce conforming Products. The foregoing shall be Customer’s sole and exclusive remedy, and Twists sole and exclusive liability, for any failure of Products to conform to the Order (including without limitation to any Sequence Submission or Quotation) or otherwise be satisfactory to Customer. Shipping charges of Customer will not be credited or refunded with respect to returns. If and only if expressly provided in the Quotation or the Master Agreement, the Products may be fully sequence verified. Notwithstanding the foregoing, in some cases, Twist will not be able to verify sequences with a high degree of internal repetition or strong secondary structures, and if this is the case, and the Quotation expressly provides that the Products will be fully sequence verified, then Twist will deliver the final construct length verified if intermediate products have previously been sequence verified.
2. Customer Sequences, Materials, Restrictions and Responsibilities
2.1 Customer Sequences and Materials
In connection with each Order, Customer will provide to Twist certain genetic sequences and related information (“Sequence Information”) in its Sequence Submission and/or related documents and correspondence. Customer shall ensure (and represents and warrants) that the Sequence Information is accurate and complete with respect to the Products in the corresponding Order and, as and if applicable, conforms to the Master Agreement. Furthermore, to the extent specified in the Master Agreement and any corresponding Order, Customer shall provide (or have provided) to Twist sufficient amounts of certain materials (such as, for example, vectors or plasmids) and associated information to be used by Twist to produce Products or otherwise perform under this Agreement (collectively, “Customer Materials”). Customer shall ensure (and represents and warrants) that the Customer Materials comply with the quantity, volume and other parameters, criteria and requirements set forth in the Master Agreement and other aspects of the Order therefor (including without limitation any supplements, exhibits attached to either of them). Customer will ensure that all Sequence Information and Customer Material will be de-identified and otherwise stripped of any identifiers indicating the personal identity of the individual source and will not include any “Protected Health Information” as defined in 45 C.F.R. section 164.501. Twist shall not be liable or responsible for (nor be in breach hereunder on account of) any errors, inaccuracies, deficiencies or problems with any Sequence Information or Customer Materials provided to Twist hereunder.
2.2 Customer Deliverables.
Customer shall provide the Sequence Information and Customer Materials (collectively, “Customer Deliverables”) at its sole expense (including without limitation any shipping and handling) according to the timelines and other details in the Order or, if not so specified, in a prompt and timely manner so as to allow Twist’s timely performance of its supply of Products and this Agreement. Customer agrees to label, package, and transport the Customer Materials in accordance with applicable laws. Title to the Customer Materials shall remain with Customer (and its licensors or suppliers if and as applicable). Customer represents and warrants that (a) Customer has all rights, licenses, consents and permissions required to provide the Customer Deliverables to Twist and for Twist to use such Customer Deliverables to make and supply the Products and otherwise perform under this Agreement; (b) Customer has the right to have the Sequence Information synthesized and made by Twist hereunder; (c) Twist’s use of the Customer Deliverables under and in accordance with this Agreement shall not violate any applicable laws or Customer agreement or infringe or misappropriate the intellectual property rights of any third party. Customer shall not provide any Customer Deliverables that are, contain or code for (and hereby represents and warrants that the Customer Deliverables are not and do not contain or code for) any toxic substances, pathogens, prions, banned or restricted or dangerous biological agents, radioactive isotopes, or hazardous materials, including without limitation those described on any published list of such substances by applicable legal authorities. Customer further represents and warrants that it has provided Twist with all material information of which Customer is aware regarding any material hazards associated with the handling, transport, exposure or other usage of the Customer Materials or Products based on the Sequence Information. Twist reserves the right (but has no the obligation under this Agreement) to screen all Purchase Orders and associated Sequence Submissions against the list of select agents published by the International Gene Synthesis Consortium (IGSC) to promote biosecurity (and if applicable, reject any Purchase Orders or cancel any Orders accordingly).
2.3 Twist Use of Customer Deliverables
Customer hereby grants Twist a nonexclusive license to use and develop the Customer Deliverables solely to make, and supply the Products under an Order (including without limitation any synthesis, validation and quality control activities in connection therewith) and otherwise to perform under this Agreement in accordance with its terms. Twist shall not sell, transfer, disclose or otherwise provide access to the Customer Deliverables to any third party without the prior written consent of Customer except in connection with a Permitted Assignment (as defined below) of this Agreement. Except to the extent the Order or this Agreement expressly states otherwise, or pursuant to Customer’s prior written consent, Twist agrees (i) to use the Customer Deliverables solely for the licensed purposes described above; and (ii) not to analyze the Customer Deliverables or cause the Customer Deliverables to be further analyzed, except to the extent necessary for the licensed purposes described above. Twist shall have no obligation to return any unused Customer Deliverables nor shall Twist have any liability for any damage to or destruction of any Customer Deliverables.
2.4 Customer Responsibilities
In addition to providing the Customer Materials as set forth above, Customer will provide Twist with reasonable cooperation and assistance in connection with Twist’s production and supply of Products and other performance under this Agreement. In addition to and without limiting the foregoing, Customer will perform those tasks and fulfill those responsibilities specified in this Agreement (including without limitation the provision of Customer Deliverables) and the applicable Order (collectively, “Customer Responsibilities”). Customer understands and agrees that Twist’s production and supply of Products and performance under this Agreement is dependent on and subject to Customer’s timely and complete performance of Customer Responsibilities and Customer’s provision of complete and accurate information. Customer shall comply with all applicable laws in connection with its activities and performance under this Agreement.
2.5 Limitations and Restrictions on Use of Products
The Products are provided for research use only and Customer shall not use the Products for any other purposes, including without limitation for use in any human or animal clinical, diagnostic or therapeutic applications. Customer agrees to follow any reasonable use restrictions for the Products that are provided to Customer by Twist in writing. Customer is solely responsible for ensuring that its use of the Products complies with applicable laws, regulations and governmental policies and for ensuring that Customer has obtained all necessary approvals and permissions for such use.
3. Purchase Price; Fees and Payment Terms
3.1 Purchase Price and Fees.
Customer shall pay Twist the purchase price, fees and other payments (if any) specified in each Order (collectively, “Fees”) for Twist’s production and supply of Products and other performance under this Agreement. Pricing does not include shipping, handling, freight, insurance, taxes and customs, which Customer is responsible for paying and which, as applicable, Twist may add to Customer’s invoice.
3.2 Price Changes.
Twist may change its pricing hereunder, including on or for any Master Agreement, with thirty (30) days prior written notice except to the extent the Master Agreement states otherwise. The new pricing will go into effect at the end of such notice period and shall thereupon apply to any Orders accepted after the end of such notice period.
3.3 Payment Terms.
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 Twist’s invoice for such Fees. Unless the Order specifies otherwise, Twist will provide invoices for shipped Products together with or promptly following such shipment. Except to the extent expressly provided otherwise in this Agreement, all Fees are non-cancelable, non-creditable and non-refundable.. Any Fees not paid when due hereunder will accrue interest starting upon the due date and running until the date paid at a rate of one and one-half percent (1.5%) per month or, if lower, the highest rate allowed by applicable law. Payments shall be addressed to and sent via the means specified in the Order or otherwise as designated in writing by Twist. Unless the Order states otherwise, all Fees shall be payable in US dollars with immediately available funds. Without limiting any other rights or remedies of Twist, failure of Customer to pay any Fees when due shall entitle Twist to suspend completion or shipment of any pending Orders unless and until such Fees are paid. If Twist appoints a collection agency or an attorney to recover any unpaid amounts from Customer, Twist may charge Customer and Customer agrees to pay all reasonable costs of collection, including all associated reasonable attorneys’ fees.
Twist’s Fees do not include applicable taxes. Customer will be responsible for the payment of, and shall pay all, taxes and duties imposed with respect to the Products supplied (and any other performance by Twist) under this Agreement in the nature of sales, use, excise, value-added, business, goods and services, consumption, customs, tariffs, duties, withholding, and other similar taxes or duties, excluding taxes on Twist’s net income and employment taxes. If applicable and/or legally required for Twist to collect and pay any such taxes, Twist may add such taxes to Customer’s invoice which Customer shall be obligated to pay as part of the Fees. The parties will cooperate in good faith to seek to obtain any legally available reductions or exemptions from such taxes to the extent legally permissible.
4. Intellectual Property
4.1 Retention of Rights
Customer shall retain all right, title and interest in and to the Customer Deliverables (subject to the rights and licenses expressly provided for in this Agreement) and all of Customer’s other technology and intellectual property. Twist shall retain all right, title and interest in and to Twist’s 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”), whether or not developed, created or improved in connection with Twist’s performance under this Agreement, and all of Twist’s other technology and intellectual property. No rights or licenses in, to or under either Party’s intellectual property are granted or provided hereunder, by implication, estoppel or otherwise, except to the extent expressly provided for in this Agreement.
4.2 Product Rights
Title to the tangible embodiment of Products ordered and shipped to Customer hereunder shall pass to Customer as provided for in Section 1.2 above (subject to Customer’s payment in full of all Fees therefor), however, no assignments, rights or licenses to any Twist Manufacturing Technology or other technology or intellectual property of Twist are provided or granted to Customer by Twist in connection with such supply and shipment of Products or otherwise in connection with this Agreement, except for the following conditional and limited license. In the event Twist incorporates any Twist Manufacturing Technology into any Products shipped to Customer and duly paid for by Customer, Twist will grant and does hereby grant to Customer a perpetual, non-exclusive, fully paid-up worldwide license to use such Twist Manufacturing Technology incorporated into such Products, solely as incorporated into and solely for use with such Products, subject to the terms and conditions of this Agreement. Customer is solely responsible for determining if there are any restrictions on use of Products as a result of any third party patents or other proprietary rights and Twist takes no responsibility for this
4.3 Manufacturing Suggestions
It is not anticipated that Customer will be providing any suggestions, feedback, recommendations, improvement ideas or input regarding the Twist Manufacturing Technology (“Suggestions”). In the unlikely event that Customer does provide any such Suggestions to Twist, however, Customer hereby grants to Twist a worldwide, royalty-free, fully paid-up, non-exclusive, fully sublicenseable, irrevocable, perpetual license 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. The foregoing license will survive any termination or expiration of this Agreement.
5.1 Confidential Information.
All information of a non-public or proprietary nature that is disclosed or provided by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) pursuant to this Agreement shall be deemed “Confidential Information” of the Disclosing Party hereunder. Confidential Information may be disclosed to the Receiving Party hereunder in oral, written or other tangible form. The Sequence Information and Customer Materials shall be Confidential Information of Customer, the Twist Manufacturing Technology and these Twist Supply Terms and Conditions shall be the Confidential Information of Twist, and the Master Agreement and any other aspects of an Order shall be the Confidential Information of both Parties, in all such cases, subject to Section 5.2 below. Except to the extent expressly authorized by this Agreement or by the Disclosing Party in writing, the Receiving Party shall maintain in strict trust and confidence, and shall not use for any purpose (other than to perform its obligations or exercise its rights under this Agreement), or disclose to any third party any Confidential Information of the Disclosing Party. The Receiving Party shall only disclose Confidential Information of the Disclosing Party to those expressly authorized by this Agreement or the Disclosing Party in writing hereunder and to those of its employees, consultants, advisors and representatives with a reasonable need to know such information and who are bound by obligations of confidentiality at least as protective as those contained herein. The Receiving Party shall protect the Confidential Information of the Disclosing Party by using at least the same degree of care as the Receiving Party uses to protect its own confidential materials and information, but in any event no less than reasonable care.
The obligations of confidentiality and nonuse set forth in Section 5.1 shall not apply to any information that: (a) is in the public domain or comes into the public domain through no fault of the Receiving Party; (b) is furnished to the Receiving Party by a third party rightfully in possession of such information not subject to a duty of confidentiality with respect thereto; (c) is already known by the Receiving Party at the time of receiving such Confidential Information; or (d) is independently developed by the Receiving Party without use of or reference to the Confidential Information of Disclosing Party, as demonstrated by independent written records contemporaneous with such development.
5.3 Authorized Disclosure.
Notwithstanding any of the foregoing in this Section 5, the Receiving Party may disclose certain Confidential Information to the extent such disclosure is required by law or regulation, or pursuant to a valid order of a court or other governmental body having jurisdiction, provided that the Receiving Party provides the Disclosing Party with reasonable prior written notice of such disclosure to the extent practicable and reasonable assistance in the Disclosing Party’s efforts to obtain a protective order or confidential treatment preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued.
5.4 Return of Confidential Information
Upon termination or expiration of the Agreement, or upon written request of the Disclosing Party, the Receiving Party shall promptly return or destroy all documents, notes and other tangible materials representing the Disclosing Party’s Confidential Information and all copies thereof (excluding any Confidential Information that is subject to a surviving license granted to the Receiving Party hereunder); provided, however, that the Receiving Party may retain a single archival copy of such Confidential Information for legal archival purposes and for compliance with the surviving provisions of this Agreement.
5.5 Injunctive Relief.
The Parties expressly acknowledge and agree that any breach or threatened breach of this Section 5 by the Receiving Party may cause immediate and irreparable harm to the Disclosing Party that may not be adequately compensated by damages. Each Party therefore agrees that in the event of such breach or threatened breach by the Receiving Party, and in addition to any remedies available at law, the Disclosing Party shall have the right to seek equitable and injunctive relief, without bond, in connection with such a breach or threatened breach.
6. Limitation and Disclaimer of Warranties
6.1 Limitations on Warranty
Subject to the terms of Section 1.3 with respect to the rejection and return of Products shipped to Customer, the Products are provided “AS IS” without warranty, representation or guarantee of any kind. Unless the Order or Master Agreement expressly states otherwise, Twist may deliver the genetic sequences for Products ordered hereunder in or using any appropriate cloning vector and/or plasmid. Twist has no responsibility or liability hereunder for the correctness of the plasmid or vector backbone sequence, the presence or absence of restriction sites, antibiotic markers, promoters or other sequence elements in the vector backbone or plasmid or any other aspects of any such vector or plasmid. Twist’s standard cloning plasmids serve as carriers for the de novo synthesized DNA only and shall not be used for any other purpose, including without limitation for expression. Twist makes no representation or warranty that the combination of these vectors or plasmids with specific de novo synthesized DNA will not infringe any third party patents or rights. Products will not be deemed non-conforming or defective under Section 1.3 or otherwise (nor subject to the remedies under such section) (a) to the extent Customer’s sequence in the Sequence Submission is not stable in E. coli (in which case Twist may communicate with Customer regarding appropriate alternatives), or (b) if Customer’s Order requires custom cloning, genes encoding high GC, stretches of homopolymers, extensive repeats or genes longer than 3kb, or (c) such Products contain variations from the Sequence Submission that are reasonable in relation to the measures, weights, nature and quality of such Products.
6.2 Disclaimer of Warranties.
EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, TWIST MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGMENT AS WELL AS WARRANTIES REGARDING 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 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.
7. Indemnification; Limitation of Liability
7.1 By Twist.
Twist shall indemnify, defend and hold harmless Customer and its affiliates and their respective directors, officers, employees, and agents (the “Customer Indemnitees”) from and against any and all costs, expenses, liabilities, damages and losses (including reasonable legal expenses and attorneys’ fees) arising out of any third party suits, claims, actions, or proceedings (collectively, “Claims”) brought against any Customer Indemnitees to the extent resulting from or caused by: (a) the gross negligence, recklessness or willful misconduct of Twist or its officers, directors, employees, or agents; or (b) the infringement by any Twist Manufacturing Technology of any third party U.S. trade secret or U.S. copyright (excluding any such infringement to the extent arising from the Customer Deliverables); except in each case to the extent that a Claim arises out of or results from the negligence, recklessness or willful misconduct of any Customer Indemnitee or Customer’s breach of its obligations, warranties, or representations under this Agreement. Should any Twist Manufacturing Technology incorporated into any Product (if any) become, or in Twist’s opinion be likely to become, the subject of such an infringement Claim, Twist may, at its option, (a) procure the right to use such Twist Manufacturing Technology; (b) replace or modify, in whole or in part, the Product and/or Twist Manufacturing Technology to make it non-infringing; or (c) terminate the Agreement and refund any Fees paid for any affected Products supplied to Customer, less an amount determined by multiplying such Fees by a fraction, the numerator of which is the number of months elapsed since delivery of such Products (up to a maximum of 12) and the denominator of which is twelve (12). THE FOREGOING INDEMNITY SETS FORTH TWIST’S ENTIRE LIABILITY AND OBLIGATION, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY CLAIM OF INFRINGEMENT OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS HEREUNDER.
7.2 By Customer.
Customer shall indemnify, defend and hold harmless Twist and its directors, officers, employees, and agents (the “Twist Indemnitees”) from and against any and all Claims brought against any Twist Indemnitees to the extent resulting from or caused by: (a) the gross negligence, recklessness or willful misconduct of any Customer Indemnitee; (b) Customer’s use of the Products (or the use of any Products originally shipped to Customer by any third party); (c) the infringement of any third party intellectual property rights arising from the use of any Sequence Information or other Customer Deliverables in accordance with this Agreement (or on account of the manufacture or supply of Products in accordance with such Sequence Information); (d) any of the Customer Deliverables, Twist’s compliance with any Sequence Submission or Twist’s use of any Customer Deliverables in accordance with this Agreement; or (e) 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 any Twist Indemnitee or Twist’s breach of its obligations, warranties, or representations under this Agreement.
7.3 Indemnification Conditions and Procedures.
Each Party’s agreement to indemnify, defend and hold harmless the other Party is conditioned on the indemnified Party: (i) providing written notice to the indemnifying Party of any Claim for which is it seeking indemnification hereunder promptly after the indemnified Party has knowledge of such claim; (ii) permitting the indemnifying Party to assume full control over the defense and settlement of such Claim, except that the indemnified Party may cooperate in the defense at its own expense using its own counsel (and indemnified Party must approve any settlement that involves an admission by or imposes a material obligation on such Party, such approval not to be unreasonably withheld); (iii) providing reasonable cooperation, information and assistance to the indemnifying Party, at the indemnifying Party’s reasonable expense, with respect to the defense and settlement of such Claim; and (iv) not compromising or settling (or admitting any liability for) such Claim without the indemnifying Party’s written consent.
7.4 Limitation of Liability.
EXCEPT FOR DAMAGES AVAILABLE FOR BREACHES OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5 AND THE INDEMNIFICATION RIGHTS AND OBLIGATIONS UNDER SECTION 7, AND EXCEPT WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY 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 OR LOSS OF GOODWILL) ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY. IN ADDITION, IN NO EVENT SHALL TWIST BE LIABLE FOR ANY DAMAGES OR OTHER AMOUNTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT IN EXCESS OF THE FEES PAID OR PAYABLE BY CUSTOMER TO TWIST HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM UNDER WHICH SUCH LIABILITY AROSE (WHICH AMOUNT SHALL BE TWIST’S MAXIMUM LIABILITY HEREUNDER). HOWEVER, THE FOREGOING PROVISION DOES NOT LIMIT TWIST’S LIABILITY WITH RESPECT TO GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, FRAUD, FRAUDULENT MISREPRESENTATION OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY LAW.
WITHIOUT LIMITING THE FOREGOING, (A) DELIVERY DATES AND TIMES ARE ESTIMATES ONLY AND TWIST WILL NOT BE LIABLE (IN CONTRACT, TORT OR OTHERWISE) FOR ANY LOSSES, EXPENSES, CLAIMS OR DAMAGES CAUSED BY A LATE DELIVERY HEREUNDER; AND (B) TWIST WILL NOT BE LIABLE FOR ANY USE BY CUSTOMER OF PRODUCTS PROVIDED TO CUSTOMER HEREUNDER OR FOR ANY LOSS, CLAIM, DAMAGE, OR LIABILITY OF ANY KIND OR NATURE THAT MAY ARISE FROM THE USE, HANDLING, OR STORAGE OF SUCH PRODUCTS FOLLOWING SHIPMENT TO CUSTOMER.
THE PARTIES AGREE THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ALL OF THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW
8. Term and Termination
The term of this Agreement shall commence on the Effective Date and continue thereafter for one (1) year, unless earlier terminated or extended in accordance with the express provisions herein (such period, as extended or earlier terminated, being the “Term”). Following the end of the initial term or any renewal term, the Term of the Agreement shall automatically renew for successive one (1) year periods unless either Party notifies the other Party at least sixty (60) days before the end of the then-current Term that it desires to end this Agreement (in which case this Agreement shall expire at the end of the then-current Term).
Either Party may terminate this Agreement and any Master Agreement at any time with or without cause for its convenience, effective upon ninety (90) days prior written notice to the other Party. In addition, either Party may terminate this Agreement and any Master Agreement immediately upon written notice to the other Party if the other Party breaches this Agreement (including the Master Agreement) or the Order, as the case may be, and does not cure such breach within thirty (30) days after the non-breaching Party gives notice of the breach to such other Party.
8.3 Effects of Termination.
Pending Orders shall survive any expiration or termination of this Agreement or any Master Agreement until completed, unless this Agreement or the corresponding Master Agreement is terminated for breach by a Party (or such pending Order is otherwise cancelled in accordance with Section 1). Sections 2.5, 4, 5, 6, 7, 8.3, 9 and 10 shall survive any termination or expiration of this Agreement. Termination or expiration of this Agreement shall not affect either Party’s liability for any obligations or liabilities that have accrued prior to such expiration or termination (including without limitation any Fees owed by Customer) or any breach of this Agreement committed before such expiration or termination.
9. Export Controls
9.1 Export Compliance
Products and information that Customer receives from Twist hereunder may be subject to United States, European Union and local export-control laws and regulations. Customer may not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any such Products or information (including products derived from or based on our Products or information) to any destination, entity, or person prohibited or restricted by United States, European Union or local laws or regulations (unless the required licenses and approvals are obtained to legally do so, if available).
Upon written request from Twist, Customer shall promptly provide Twist with reasonable assistance and information to which it has access as needed for completion of exportation or importation governmental processes, including licensing, with respect to Twist’s performance under this Agreement.
10. General Provisions
10.1 Governing Law; Arbitration.
This Agreement is governed by the laws of the State of California without reference to any conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Subject to the arbitration provision of this Section 10.1, the parties hereby agree that all disputes arising out of this Agreement and any enforcement of this Agreement will be subject to (and each Party consents to) the nonexclusive jurisdiction and venue of the state and federal courts in San Francisco County, California. Any dispute or claim arising out of or in connection with this Agreement will be finally settled by binding arbitration in San Francisco, California under the Rules of Arbitration of the American Arbitration Association, by at least one arbitrator appointed in accordance with said rules. The arbitrator shall apply California law, without reference to rules of conflicts or law or rules of statutory arbitration, to the resolution of any dispute. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this paragraph, without breach of this arbitration provision.
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.
10.3 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.
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 Master Agreement, by personal delivery, by certified or registered mail (postage prepaid and return receipt requested), by a nationally-recognized overnight carrier or by confirmed email (except for notices of breach or termination). 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.
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.
All waivers must be in writing and signed by the Party to be charged. No failure or delay to enforce or exercise any provision, right or remedy hereunder shall constitute a waiver thereof.
10.7 Entire Agreement; Amendments.
This Agreement, including any Master Agreement and any Order, is the final, complete, and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the Parties with respect to such subject matter. Twist’s offer to supply Products is expressly limited to the terms of the Agreement. If Customer submits a purchase order, or other document for the purchase of Products, whether or not in response to a quotation, Customer is deemed to have accepted and agreed to this Agreement, to the exclusion of (a) any other terms and conditions appearing in or referenced in Customer’s purchase order or other documents, and (b) any previous course of dealing, course of performance, trade usage or co-existent agreement. No modification of or amendment to this Agreement will be effective unless in writing and signed by both of the Parties.
10.8 Force Majeure.
Neither Party will be liable for any delays or failures in performance under this Agreement (other than payment obligations under this Agreement) due to circumstances beyond its reasonable control, including without limitation, acts of God, disease, war, terrorism or the public enemy, riot, civil commotion or sabotage, expropriation, condemnation of facilities, changes in law, national or state emergencies or other governmental action, strikes, lockouts, work stoppages or other such labor difficulties, floods, droughts or other severe weather, fires, explosions or other catastrophes, or accidents causing damage to or destruction, in whole or in part, of the equipment or property necessary to perform the Services.
10.9 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 commitment or otherwise act on behalf of the other Party.
10.10 Government Customers
. For U.S. Government Customers and prime contractors, Twist’s Products qualify as commercial items pursuant to 48 C.F.R. (FAR) 2.1. The following additional federal terms apply to any Order of such government Customer, unless the Parties have agreed that other terms apply instead. U.S. Government micro purchases shall be subject only to these standard commercial Agreement terms. All other U.S. Government Orders shall be subject to only FAR 52.212-4 and FAR 52.212-5, as well as these Agreement terms as an addendum thereto. If Customer is a prime contractor and its Order constitutes a subcontract under the FAR, this Contract shall apply to Customer’s order, supplemented only by the minimum mandatory flow down clauses reflected in FAR 52.212-5(e) or FAR 52.244-6, as applicable.
This Agreement may be entered into or executed in two or more counterparts, each of which shall be deemed an original and all of which shall constitute together the same instrument.