BASE5 GENOMICS, INC.
ORDER FORM TERMS AND CONDITIONS
These Order Form Terms and Conditions (“Terms”) are between Base5 Genomics, Inc. with offices at 319 N. Bernardo Ave, Mountain View, CA, 94043 USA (“Base5”), and the entity indicated on any quotation, proposal or order form (“Order Form”) that references or attaches these Terms (“Customer”). Unless otherwise agreed in writing by Base5, the Order Form and these Terms together with any attachments thereto provided by Base5, set forth the terms on which Base5 is offering to generate certain deliverables as described on the Order Form, and are an integral part of any contract between Base5 and Customer. By signing the Order Form or issuing a purchase order or other instrument for the deliverables set forth in the Order Form, Customer agrees to these Terms to the exclusion of all other terms not expressly agreed to in writing by an authorized representative of Base5. The most recent Order Form will supersede all prior versions.
Customer’s submission of a purchase order or other instrument for or regarding the procurement of deliverables from Base5, whether or not in response to an Base5 Order Form, is deemed an acceptance of and agreement to these Terms to the exclusion of any other terms or conditions contained in and/or referenced by such purchase order or other instrument, which are hereby deemed to be material alterations, and notice of objection to which is hereby given, notwithstanding anything to the contrary contained within such purchase order or other instrument or elsewhere. Any acceptance by Base5 of any offer of Customer as provided in any Customer purchase order or other instrument is expressly conditioned upon Customer’s assent to and acceptance of these Terms to the exclusion of any terms or conditions in Customer’s purchase order or other instrument that are in any way inconsistent with these Terms.
1.1. “Affiliate” means any individual or company, whether a corporation or other business entity, that is controlling, controlled by or under common control with such party. For purposes of this definition, “control” means the direct or indirect ownership of more than fifty percent (50%) of the equity interest in such corporation or business entity, or the ability in fact to control the management decisions of such corporation or business entity.
1.2. “Confidential Information” means any proprietary, confidential information (whether or not patentable or copyrightable, and whether or not currently patented or copyrighted) which is owned or controlled by a party or its Affiliates, including without limitation designs, product samples, product formulations, compounds, prototypes, data, processes, procedures, formulas or formulations, methods, techniques, including manufacturing techniques, materials, analyses, technology, programs, software models, algorithms, developmental or experimental work, test data and results (including, without limitation, pharmacological, toxicological and clinical test data and results), compilations of data, other works of authorship, improvements, discoveries, information regarding plans for research and development, new products, pricing, and sales and marketing information, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers, customers, licensees and strategic partners, and the existence or terms of any business discussions, negotiations or agreements to which such party is a party.
1.3. “Deliverables” means those reports or other tangible embodiments of the Base5 Results that Base5 delivers to Customer, including the deliverables described in the Order Form.
1.4. “Materials” means those biological materials that Customer transfers to Company in furtherance of the Project. Each unique biological sample may be referred to as a “Sample” and all Samples are collectively referred to as the Materials.
1.5. “Project” mean the research project described in the Order Form.
1.6. “Representatives” mean the officers, directors, employees, agents, advisors and consultants of a party and its Affiliates.
2. TERM AND TERMINATION. These Terms will terminate upon the completion of the Project unless earlier terminated (the “Term”). These Terms may be terminated by either party at any time upon 90 days’ written notice to the other party. Each party’s confidentiality and non-use obligations of the Confidential Information under these Terms continues for a period of five (5) years from the date of such termination.
3. TRANSFER OF MATERIALS.
3.1. Transfer and Use of Materials. Customer will provide to Base5 the quantity of Materials specified in the Order Form. Upon receipt of the Materials, Base5 will utilize its expertise and facilities to undertake the Project. Base5 will use the Materials solely for conducting the Project under these Terms and for no other purpose, including without limitation any commercial purpose, or any research other than the Project. Base5 will not attempt to reverse engineer, deconstruct or in any way determine the structure or composition of the Materials. Base5 will not sell, transfer, disclose or otherwise provide access to the Materials, any derivative or progeny thereof, or any material resulting from the use of the Materials or any derivative or progeny thereof to any person or entity without the prior written consent of Customer, except that Base5 may allow access to the Materials to those employees or contractors of Base5 who require such access in order to conduct the Project and solely for purposes consistent with these Terms. Base5 understands and agrees that the Materials may have unpredictable and unknown biological and/or chemical properties, that they are to be used with caution, and that they are not to be used for testing in or treatment of humans. Base5 will use the Materials in compliance with all applicable laws and regulations, including, but not limited to, any laws or regulations relating to the research, testing, production, storage, transportation, export, packaging, labeling or other authorized use of the Materials.
3.2. Title to Materials. The Materials (including progeny and derivatives thereof) at all times remain the sole and exclusive property of Customer, and Base5 does not obtain any right, license or ownership interest in or to any Materials or progeny or derivatives thereof as a result of its receipt or use of the Materials (including, but not limited to, use of Materials in the performance of the Project) pursuant to these Terms. Except as explicitly set forth herein, nothing in these Terms confers on Base5 any express or implied license or option to license the Materials, the Confidential Information, or any patent, patent application or other intellectual property owned or controlled by Customer.
3.3. Customer Responsibilities. Customer represents that: (i) it has the right to provide such Materials to Base5 to perform the Project; (ii) if the Materials provided by the Customer contain (or are suspected to contain) any hazardous materials or active infectious agents, including without limitation bacteria, fungi, mycoplasmas, viruses, prions or other materials that may be harmful to humans, the samples will be packaged, labeled and shipped appropriately and in accordance with all applicable laws; and (iii) if the Materials include human specimens, the Materials will not contain any information that would make the sources identifiable or readily ascertainable. Prior to receiving any Materials or commencing the Project, Base5 reserves the right to require a certification (in a form reasonably determined by Base5) confirming that the Materials comply with this Section 3.3.
3.4. Destruction of Materials. The parties acknowledge that in performing the Project, the Materials will be extinguished in the processing. Notwithstanding the foregoing, upon the expiration of the Term, any remaining Materials then in the possession of Base5 will be returned or destroyed.
4. FEES, PAYMENT TERMS. Customer will pay to Base5 the fees set forth in the Order Form. Base5 will present to Customer invoices for the Deliverables as set forth in the Order Form. Customer must pay all undisputed invoices within Net 10 days from the date of invoice receipt.
5.1. Obligations. In accordance with these Terms, each receiving party agrees to hold in strict confidence and not disclose or transfer, directly or indirectly, the Confidential Information of a disclosing party to any third party without the express written permission of a disclosing party.
5.2. Inclusions. Confidential Information includes all information disclosed by one party to another party, whether in oral, written, graphic or electronic form which, when provided by a disclosing party to a receiving party: (a) is clearly identified as “Confidential” or “Proprietary” or are marked with a similar legend; (b) is disclosed orally or visually, and identified as Confidential Information at the time of disclosure; or (c) a reasonable person would understand to be confidential or proprietary at the time of disclosure.
5.3. Exclusions. A receiving party is not prevented from disclosing or using Confidential Information if such Confidential Information: (a) is now, or hereafter becomes, through no act or failure to act on the part of a receiving party, generally known or available; (b) is known by a receiving party at the time of receiving such information, as evidenced by its written records; (c) is hereafter furnished to a receiving party by a third party, as a matter of right and without restriction on disclosure; or (d) is independently developed by a receiving party without any breach of these Terms.
5.4. Disclosures Required by Law. Confidential Information may be disclosed by a receiving party only to the extent required to be disclosed by law, government agency, or court order in connection with a legal proceeding, provided that a receiving party provides a disclosing party, as promptly as possible, with prior written notice of any such disclosure (unless such notice is prohibited by such law) so that application for an appropriate protective order can be made by a disclosing party. A receiving party will fully cooperate (at a disclosing party’s expense) in connection with a disclosing party’s efforts to obtain any such order or other remedy. A receiving party will disclose only that portion of the Confidential Information that it is legally required to disclose, based on the advice of counsel.
5.5. Non-Use. Each receiving party may use Confidential Information only to the extent required to accomplish the Project and for no other purpose. Each receiving party must not file any patent application containing any claim to any subject matter a receiving party has derived from the Confidential Information of a disclosing party. Each receiving party will not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody a disclosing party’s Confidential Information provided hereunder. Each receiving party will not use Confidential Information for any purpose or in any manner that would constitute a violation of any laws or regulations, including, without limitation, the export control laws of the United States.
5.6. Maintenance of Confidentiality. Each receiving party agrees to take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of a disclosing party. Without limiting the foregoing, each receiving party will take at least those measures that it takes to protect its own confidential information of a similar nature. Each receiving party agrees to only disclose Confidential Information of a disclosing party to its Representatives who are required to have the information in order to evaluate or engage in discussions concerning the Project. Further, each receiving party will ensure that its Representatives who have access to the Confidential Information of a disclosing party have agreed to written terms of non-use and non-disclosure that are at least as protective as the provisions hereof, prior to any disclosure of Confidential Information to such Representative. Each party is responsible, and jointly and severally liable with its Representatives or Affiliates, for any breach of the undertakings in these Terms by its Representatives or Affiliates. Confidential Information must not be reproduced in any form except as needed to accomplish the Project. Each receiving party must reproduce a disclosing party’s proprietary rights notices on any such copies, in the same manner in which such notices were set forth in or on the original.
5.7. Return or Destruction. Upon termination or expiration of these Terms, a receiving party must immediately cease using the Confidential Information. Upon the written request by a disclosing party, a receiving party must: (i) return or destroy the Confidential Information and all copies (except copies required for backup, disaster recovery, or business continuity, and in such case the obligations hereunder survive until such copies are destroyed) to a disclosing party within fifteen (15) business days of receipt of request, and (ii) confirm in writing that a receiving party has complied with these obligations.
6.1. Deliverables. Base5 has intellectual property and proprietary rights in its genomic sequencing tools, methodologies, software solutions, and expertise, including techniques for analyzing and generating genomic data and relevant annotations, algorithms, designs, discoveries, original works of authorship, improvements, inventions, trade secrets, and concepts, that may be developed or used in furtherance of the Services and are not created, conceived, or discovered with use of, or reference to, any Confidential Information of Customer (collectively, the “Base5 Platform”). In the course of performing the Services, Base5 will utilize the Base5 Platform to create the Deliverables described in the Order Form. Subject to Customer’s transmittal of the final fees set forth in the Order Form, Customer shall own all right, title and interest in and to the Deliverables. For purposes of clarity, only the intellectual property and proprietary rights to the Deliverables, and not any copyrights or other intellectual property or proprietary rights in the Base5 Platform, transfer to Customer. Notwithstanding the foregoing, Base5 requests that it be credited as the originator of the Deliverables in the event of any distribution or publication of the Deliverables by Customer.
6.2. No Implied License. Nothing in these Terms is intended to grant any rights to either party under any patent, copyright, trademark or other intellectual property right of the other party, nor do these Terms grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein. Nothing in these Terms grants a receiving party the right to retain, distribute or commercialize any Confidential Information of the other party, or to use it in any other manner other than the limited manner set forth above.
7. INDEPENDENT CONTRACTORS. The parties are performing their obligations under these Terms as independent contractors. These Terms do not constitute or create a joint venture or a partnership of any kind.
8. LIMITED WARRANTIES AND DISCLAIMERS.
8.1. Limited Warranties. Base5 warrants that: (i) it has the authority to enter into these Terms, and (ii) it will perform pursuant to the Order Form in a thorough and professional manner, consistent with high professional and industry standards by individuals with the requisite training, background, experience, technical knowledge and skills, in substantial compliance with applicable laws and regulations.
8.2. DISCLAIMERS. THE BASE5 DELIVERABLES, MATERIALS AND CONFIDENTIAL INFORMATION ARE PROVIDED “AS IS”. THE SERVICES AND DELIVERABLES ARE FOR RESEARCH USE ONLY AND NOT FOR USE IN DIAGNOSTIC OR REGULATED USES, INCLUDING USE OF THE DELIVERBLES: (I) TO DIAGNOSE, SCREEN OR MONITOR A DISEASE IN A PATIENT; (II) TO MAKE ANY MEDICAL DECISION OR INTERVENTION; OR (III) IN CONJUNCTION WITH PATIENT RECORDS OR TREATMENT. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR PERFORMANCE OF THE MATERIALS OR CONFIDENTIAL INFORMATION, EXCEPT THAT CUSTOMER REPRESENTS IT HAS THE RIGHT TO TRANSFER THE MATERIALS AND EACH PARTY REPRESENTS THAT IT POSSESSES THE RIGHT TO DISCLOSE THE CONFIDENTIAL INFORMATION PROVIDED TO THE OTHER PARTY UNDER THE TERMS OF THESE TERMS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF A PATENT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT.
9. INDEMNIFICATION. Customer must indemnify, defend and hold Base5 harmless from any claim or action, including without limitation claim of infringement, arising out of: (a) Customer’s manufacture, sale, or use of any product or service based in whole or in part on Customer’s reliance on the Deliverables or any portion thereof provided to Customer by Base5, or any derivative thereof; (b) Base5’s use or reliance on Customer’s specifications or instructions for the generation of the Deliverables; (c) alterations to any of the Deliverables made by Customer or a third party; (d) Customer’s manufacture, sale, or use of any products or components thereof, using Deliverables or on which tests or studies were conducted using any of the Deliverables; and (e) any loss, damage or injury (including death) allegedly caused by Customer’s use of the Deliverables.
10. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, AND WITHOUT LIMITING CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION 10, (A) NEITHER PARTY NOR ITS RESPECTIVE AFFILIATES WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER THESE TERMS, WHETHER IN CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE; AND (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF EACH PARTY AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID BY CUSTOMER TO BASE5 IN THE SIX MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
11. INJUNCTIVE RELIEF. Each party agrees that any anticipated, threatened or actual violation of Section 5 (Confidential Information) may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.
12. GOVERNING LAW. The rights and obligations of the parties hereunder are governed by and construed in accordance with the laws of the State of California, without regard to conflict of law principles. All disputes arising out of these Terms will be subject to the exclusive jurisdiction and venue of the state courts located in San Mateo County, California or the federal courts located in the Northern District of California, and each party hereby consents to the personal jurisdiction thereof.
13. MISCELLANEOUS. These Terms contain the final agreement of the parties relative to the subject matter hereof. These Terms may not be modified, except by a written instrument signed by both parties. If any provision of these Terms is declared invalid, illegal or unenforceable, such provision is severed and all remaining provisions continues in full force and effect. The parties’ rights and obligations under these Terms will bind and inure to the benefit of their respective successors, heirs, executors and administrators and permitted assigns. Neither party may assign or delegate its obligations under these Terms either in whole or in part without the prior written consent of the other party, which consent may not be unreasonably withheld, conditioned or delayed, except that either party may assign its rights and obligations under these Terms, without the other party’s consent, to any successor in interest (whether by merger, acquisition, asset purchase or otherwise) to all or substantially all of the business of said party to which these Terms relate. If a party fails to enforce a provision of these Terms, it is not precluded from enforcing the same provision at another time. Any notice or communication required or permitted hereunder must be in writing, and sent to the address specified below, or at such other address a party may specify in writing, and is deemed received when: (a) personally delivered, on the day of delivery; or (b) sent by a commercial delivery service such as Federal Express or United Parcel Service with shipment tracking, on the day delivery is confirmed by the tracking service; or (c) sent by e-mail, on the day the email is confirmed received by the receiving party. These Terms may be executed in any number of counterparts, including by PDF electronic scan, each of which, when executed, is deemed to be an original and all of which together constitutes one and the same document.