Supply Terms and Conditions
TWIST BIOSCIENCE MASTER SUPPLY AGREEMENT
This Master Supply Agreement (“Agreement”) is entered into as of the Effective Date set forth below by and between Twist Bioscience Corporation, a Delaware corporation (“Twist”) and the customer identified below (“Customer”) for the purpose of the supply by Twist of certain DNA products to Customer, all as described under and subject to the terms and conditions of this Agreement below and the associated Twist Master Supply Terms and Conditions. Should Customer and Twist have already entered into an effective master supply agreement, the terms of Customer’s master supply agreement shall govern. Customer and Twist may be referred to herein individually as a “Party” and collectively as the “Parties.”
- Genetic Product Supply
- 1.1 Product Orders.
During the term (as set forth in Section 1 below) Customer may order synthesized DNA products (“Products”) from Twist from time to time in accordance with the following process. Customer will provide Twist with a sequence request submission form for each Product (the “Sequence Submission”) describing the genetic sequence of the desired Product. Customer shall ensure that each Sequence Submission conforms to and is consistent with any sequence parameters and guidelines specified in the Agreement (including, without limitation, Section 2.2), on Twist’s website and/or otherwise published by Twist. If Twist is willing and believes it is 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 may review the Sequence Submission for, among other things, feasibility, biosecurity, conformity with the Agreement, legal compliance, and other issues to determine whether or not to issue a Quotation. If rejected, such Sequence Submission shall become null and void; however, Customer may provide a new Sequence Submission reflecting any feedback Twist may provide (if any) regarding the rejected Sequence Submission through the same process as described above. Twist may issue one or more preliminary quotations or estimates with non-binding approximations amounts until the details of the proposed order are finalized; however, only Twist’s firm final quotation, designated as such in writing, shall be deemed a Quotation for purposes of this Agreement. Twist has no obligation to issue Quotations 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 accept the terms of the Quotation by issuing a purchase order to Twist for Products accepting the terms of the Quotation prior to its expiration (“Purchase Order”). Such accepted Quotation, together with its associated Sequence Submission, shall collectively become an “Order” under this Agreement which will be confirmed by Twist in writing and, unless otherwise specified in the Agreement, Customer may not cancel such Order. In the event of any conflict between this Agreement or the applicable Quotation and any Purchase Order, Sequence Submission, invoice, or other ordering document or correspondence, this Agreement or the Quotation shall control and take precedence. In case of conflict between this Agreement and any Quotation, this Agreement shall control, except to the extent that such Quotation expressly and specifically states an intent to supersede this Agreement on a specific matter. 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.
- 1.2 Product Supply.
Upon Twist’s confirmation 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 it has failed to make the Products, 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.
- 1.3 Shipment and Delivery Terms.
Twist will use commercially reasonable efforts to ship Products by the target delivery date specified in the Order (which in any event shall not be less than sixty (60) days after confirmation 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 pursuant to Section 3. 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.
- 1.4 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 ten percent (10%), or such other percentage specified in the applicable Quotation, (except where any of the foregoing are due to causes occurring during or after shipment), then Customer may notify Twist within twenty (20) days of Customer’s receipt of such Products and return such Products for replacement. If Customer does not notify Twist of such non-conformance, damage, or shortfall within such time period, the 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 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 Twist’s sole and exclusive liability, for any failure of Products to conform to the Order. Customer’s shipping charges will not be credited or refunded with respect to returns. Notwithstanding anything to the contrary in this Section 4, if Twist tests returned Products and determines that they did conform to the Order, Twist may submit samples of such shipment to an independent third party laboratory for testing. If such independent laboratory determines that the Products conformed to the Order, Customer shall bear all expenses of shipping and testing such shipment samples and Twist shall have no obligation to provide replacement Products. If and only if expressly provided in the Quotation or the 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 Products length verified if intermediate products have previously been sequence verified, and Products so verified shall be deemed to conform to the Sequence Submission.
- 1.1 Product Orders.
- 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 each Product in the corresponding Order and conforms to the applicable requirements set forth in the Agreement. Furthermore, to the extent specified in the 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 Agreement and other aspects of the Order therefor (including without limitation any supplements, exhibits attached to either of them). Customer will ensure (and represents and warrants) 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 or other information the disclosure of which is prohibited by applicable law. 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 or Sequence Information or Customer Materials that are not otherwise provided by Customer in accordance with the Agreement or applicable Order.
- 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 otherwise under this Agreement. Customer agrees to label, package, and transport the Customer Materials in accordance with applicable laws. 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 and the applicable Order; (b) Customer has the right to have the Sequence Information synthesized and made by Twist hereunder; and (c) Twist’s possession and use of the Customer Deliverables and any Product that Customer orders under and in accordance with this Agreement and the applicable Order shall not violate any applicable laws or Customer agreement, require registration or other action under Federal Select Agent Program regulations or other biosecurity requirements (collectively, “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 Deliverables provided and no Products ordered are or contain the full protein coding sequence for (i) any sequence coding for functional forms of a toxin covered by Biosecurity Requirements, (ii) greater than 20 percent of the genomes of a bacteria or virus covered by Biosecurity Requirements, (iii) a sequence capable of transferring pathogenic potential of any organism or virus covered by Biosecurity Requirements, (iv) radioactive isotopes, or (v) hazardous materials. Customer further represents and warrants that it has provided Twist with all material information of which Customer is aware regarding any toxic substances or material hazards associated with the handling, transport, exposure or other usage of the Customer Deliverables or Products based on the Sequence Information. Twist reserves the right (but has no obligation under this Agreement) to screen all Purchase Orders and associated Sequence Submissions as Twist believes is appropriate to help ensure legal compliance with respect to Orders including by, without limitation, screening against the list of select agents published by the International Gene Synthesis Consortium (IGSC), the list of Select Agents and Toxins covered by Biosecurity Requirements, and any similar list to promote biosecurity (and if applicable, reject any Purchase Orders or cancel any Orders as appropriate). Customer shall cooperate with Twist in connection with such screening by, among other steps, on request providing written confirmation regarding Customer’s identity, use of Products, Products' status under Biosecurity Requirements, or other matters. Customer guarantees the accuracy of any such written confirmation, and Customer’s supply of any inaccurate written confirmation or Customer actions that conflict with such written confirmation shall constitute a breach of this Agreement.
- 2.3 Twist Use of 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.
Customer shall be solely responsible for its use of the Products. The 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 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 Products in accordance with applicable laws, rules, regulations and governmental policies and in accordance with the terms and conditions of this Agreement. 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 the Products. By using any Product for any purpose, Customer agrees to indemnify and hold Twist harmless for any and all damages and/or liability, however characterized, arising from such use of the Products. Customer shall use the Products only for internal use and shall not sell, resell, transfer or distribute the Products to any third party. Customer also agrees not to (and not to authorize or permit others to) reverse engineer, deconstruct or disassemble any Products or Twist-supplied vectors.
- 2.1 Customer Sequences and Materials.
- 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. Only the pricing in the Quotation for a given Sequence Submission is valid and Twist shall not be bound or subject to any other pricing, regardless of where stated or published.
- 3.2 Price Changes.
Twist may change its pricing hereunder with thirty (30) days prior written notice to Customer. The new pricing will go into effect at the end of such notice period and shall thereupon apply to any Orders confirmed 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 Agreement or 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.
- 3.4 Taxes.
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, including but not limited to 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.
- 3.1 Purchase Price and Fees.
- 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 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 3 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 as necessary to use 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 shall have no responsibility in connection with any such restrictions or patents or other proprietary rights.
- 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, 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. The foregoing license will survive any termination or expiration of this Agreement.
- 4.1 Retention of Rights.
- 5.1 Confidential Information.
All information disclosed or provided by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) pursuant to this Agreement that the Disclosing Party clearly identifies as confidential at the time of disclosure or that should reasonably be understood by the Receiving Party to be proprietary or confidential to the Disclosing Party, either because of the circumstances of disclosure or the nature of the information itself, 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. Sequence Information and Customer Materials shall be Confidential Information of Customer. Twist Manufacturing Technology and the Twist Master Supply Terms and Conditions shall be the Confidential Information of Twist. Except for the Twist Master Supply Terms and Conditions, this Agreement and any other aspects of an Order shall be the Confidential Information of both Parties. All Confidential Information is subject to the exceptions set forth in Section 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.
- 5.2 Exceptions.
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, (a) the Receiving Party may disclose 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 thatthe Receiving Party provides the Disclosing Party with reasonable prior written notice of such disclosure to the extent legal and 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; and (b) the Receiving Party may disclose Confidential Information to cognizant law enforcement officials if and to the extent that the Receiving Party reasonably believes that such disclosure is needed to report to such officials unlawful activity involving the Disclosing Party. Notwithstanding anything in this Section 5, either Party may disclose terms of this Agreement, without the consent of the other Party, to existing or prospective investors, acquirers, partners, collaborators, licensees, contractors, and to such Party’s accountants, attorneys and other professional advisors; in each case on a need-to-know basis and subject to customary confidentiality restrictions.
- 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 copy of such Confidential Information under conditions of confidentiality solely for legal archival purposes and for compliance with the surviving provisions of this Agreement and applicable laws and regulations.
- 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.
- 5.1 Confidential Information.
- Limitation and Disclaimer of Warranties
- Limitations on Warranty.
Subject to the terms of Section 4 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 Agreement expressly states otherwise, Twist may deliver the genetic sequences for Products ordered hereunder in or using any appropriate cloning vector and/or plasmid, at its sole discretion. 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 1.4 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.
- 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-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 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.
- Limitations on Warranty.
- 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) or Twist’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 negligence, recklessness or willful misconduct of any Customer Indemnitee or Customer’s breach of its obligations, warranties, or representations under this Agreement.
- 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: (a) 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; (b) permitting the indemnifying Party to assume full control over the defense and settlement of such Claim, except that the indemnified Party may participate in the defense at its own expense using its own counsel; (c) 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 (d) not compromising, settling, or admitting any liability for such Claim without the indemnifying Party’s written consent. Notwithstanding the foregoing, the indemnifying Party shall not enter into any settlement that admits the fault of the indemnified Party or otherwise materially adversely prejudices the indemnified Party without such indemnified Party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
- 7.4 Limitation of Liability.
EXCEPT FOR DAMAGES FOR BREACH OF BIOSECURITY OBLIGATIONS UNDER SECTION 2, THE OBLIGATIONS OF SECTION 2.5, INDEMNIFICATION RIGHTS AND OBLIGATIONS UNDER SECTION 7, AND A PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OR FRAUD, 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, LOSSES FROM BREACHES OF SECURITY, 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.
EXCEPT FOR TWIST’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, FRAUD, FRAUDULENT MISREPRESENTATION, OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY LAW, TWIST SHALL NOT 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..
WITHOUT 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 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- 7.1 By Twist.
- Term and Termination
- 8.1 Term.
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 (the “Initial Term”). Following the end of the Initial Term or any Renewal term, 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).
- 8.2 Termination.
Either Party may terminate this 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 upon notice to the other Party if the other Party fails to cure material breach of this Agreement or Order, as the case may be, within thirty (30) days after the breaching Party is given written notice of such breach.
- 8.3 Insolvency.
Either Party may terminate this Agreement immediately without further action (including without any written notice to the other Party) in the event that (i) the other Party is declared insolvent or bankrupt by a court of competent jurisdiction, and such declaration or order remains in effect for a period of sixty (60) days, (ii) a voluntary petition of bankruptcy is filed in any court of competent jurisdiction by such other Party, or (iii) this Agreement is assigned by such other Party for the benefit of creditors.
- 8.4 Effects of Termination.
Orders not delivered before the effective date of expiration or termination of this Agreement shall survive expiration or termination of this Agreement until completed, unless this Agreement is terminated for breach by a Party or insolvency of a Party. Twist shall be entitled to receive and retain all Fees due for Orders surviving the effective date of termination.
- 8.5 Survival.
Sections 2.5, 4, 5, 6, 7, 8.3, 8.4, 8.5, 9 and 10 shall survive any termination or expiration of this Agreement. Termination or expiration of this Agreement shall not affect Customer’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.
- 8.1 Term.
- 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, person or end use prohibited or restricted by United States, European Union or local laws or regulations (unless the required licenses and approvals are obtained by Customer to legally do so, if available).
- 9.2 Assistance.
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.
- 9.1 Export Compliance.
- 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. Any dispute or claim arising out of or in connection with this Agreement will be finally settled by binding arbitration in English 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.
- 10.2 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.
- 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.
- 10.4 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.
- 10.5 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.
- 10.6 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.
- 10.7 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. Twist’s offer to supply Products is expressly limited to the terms of the Agreement. No conflicting terms on purchase orders or invoices issued between the Parties with respect to the Services shall apply. No modification of or amendment to this Agreement will be effective unless in writing and signed by both 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 any other reason where failure to perform is beyond the reasonable control of the nonperforming Party.
- 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 Exclusion of Government Contracts.
This Agreement and the products and services hereunder are not for government customers or government contractors. Customer represents and warrants that the Products, services and transactions under this Agreement are not subject to the U.S. Federal Acquisition Regulations or comparable regulations of other jurisdictions (collectively, “FARs”). If Customer is a governmental entity or seeking to enter into this Agreement as a government contractor (or if any FARs would otherwise apply hereto), Customer shall notify Twist in advance and obtain Twist’s prior written consent (and/or enter into such additional agreements or terms requested by Twist through a mutually executed document) prior to ordering or receiving any goods or services hereunder.
- 10.11 Publicity.
Except as otherwise set forth in this Agreement, Customer shall not name or refer to Twist as a supplier of Customer nor use Twist’s logos or trade names for publicity, marketing, or any other external communications without Twist’s prior written consent.
- 10.12 Counterparts.
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.
- 10.1 Governing Law; Arbitration.
Updated August 1, 2017.