Definitions: "Agreement" means the applicable SOW (if
any), these Terms and Conditions, and any applicable Supplementary Terms.
"Customer" means the person or entity purchasing the Services from Element.
"Customer Materials" means materials provided by Customer to Element for
use in the performance of the Services. "Element" means Element
Biosciences, Inc. and its affiliates. "Element Technology" means methods,
materials, equipment, and/or related intellectual property owned,
controlled, or licensed by Element or its affiliates. "Purchase Order"
means a purchase order provided by Customer to Element for the purchase of
Services from Element. "Services" means all sequencing and analysis
research services and/or demo services provided pursuant to a Purchase
Order. "SOW" means the quote or other written statement of work provided by
Element for the purchase of Services from Element. "Supplemental Terms"
means additional software licenses, limited use label licenses, or other
additional terms that apply to the Services and that are listed on SOW,
Seller's website, or in the documentation that accompanies the Services.
"Terms and Conditions" means these Element Terms and Conditions for
Research Services.
Acceptance: This Agreement is an offer to sell and when
a Purchase Order is accepted by Element becomes the exclusive agreement
between the parties relating to Services. In the event of a conflict with
the documents constituting this Agreement, said documents will be given the
following order of precedence: (i) the applicable SOW; (ii) any applicable
Supplemental Terms; and (iii) the Terms and Conditions. Any Customer terms
of purchase and/or terms or conditions in Customer's Purchase Order and/or
other similar documents that are inconsistent with, in addition to, or that
alter in any way the provisions of this Agreement are hereby expressly
rejected and will not apply to any Services.
Performance of Services: Element will perform the
Services as an independent contractor, using Element Technology and
Customer Materials. Element will provide Customer with data and/or work
product generated by Element using Customer Materials in performance of the
Services as specified in the SOW (collectively "Deliverables"). Element
will make a good faith effort to start and complete all Services on time
and will notify Customer if substantial delays are likely. Element will
comply with all laws and regulations generally applicable to the Services.
The Services are not performed and the Deliverables are not produced in
accordance with United States Food and Drug Administration good
manufacturing practices or good laboratory practices or in accordance with
any other similar laws or regulations in other jurisdictions. Element may
delegate performance of the Services, or portion thereof, to an affiliate
or authorized subcontractor, provided that all Services will be performed
in accordance with the Agreement.
Customer Materials: Customer will provide Element with Customer Materials specified in the SOW,
in compliance with applicable laws and regulations and in sufficient
amounts, as well as relevant safety information and other characteristics
of Customer Materials needed by Element to perform the Services, including
without limitation any certification or documentation of Customer Materials
reasonably requested by Element. Customer represents and warrants that (i)
it has the right to transfer the Customer Materials to Element for use as
set forth herein, and (ii) the Customer Materials do not and will not
contain any personally identifiable information, personal health
information, or Protected Health Information (as said term is defined at 45
C.F.R. 160.13). The Customer Materials, and all information about Customer
Materials, whether provided by Customer or generated by Element in the
performance of the Services, will be subject to the confidentiality and
non-use requirements of Section 9. Element will use Customer Materials and
Customer Confidential Information only in accordance with the SOW and will
not modify nor reverse engineer Customer Materials except as agreed
therein. Unless otherwise specified in the SOW or agreed in writing, any
Customer Materials not consumed in the Services or required for additional
Services will be destroyed after six months. Element will not transfer
Customer Materials, in whole or in part, to any third party, other than a
subcontractor or affiliate for purposes of performing the Services, without
Customer's prior written approval.
Use Limitations: Customer agrees to use Deliverables only for Customer's lawful internal
research purposes, not for use in humans, and in accordance with any
Limited Use Label License (LULL) identified in the SOW and in accordance
with these Terms and Conditions and all applicable laws and regulations.
Deliverables will not be transferred to or commercially used by or for any
third party, regardless of whether said transfer or commercial use of
Deliverables is for research purposes of Customer; provided, however, that
Customer may include data from Deliverables in support of its application
for a state, federal, institutional, or non-profit organization grant. The
research use limitation, however, will not preclude Customer's use of
Deliverables in its lawful research and development of commercial products
or services, provided that said product or service does not require the
practice of Element Technology. Where more than one LULL is applicable, the
most restrictive LULL will apply, and these Terms and Conditions take
precedence over any less restrictive LULL. Without limiting the foregoing,
Customer will not directly or indirectly furnish Deliverables or
information provided hereunder to any entity, or destination, or for any
use, except in full accordance with all applicable laws and regulations,
including without limitation export control and trade sanctions laws and
regulations of the United States.
Payments: Unless otherwise specified in the SOW,
Element will provide Customer with an invoice upon completion of the
Services and Customer will pay said invoice within 30 days of Customer's
receipt of said invoice. Each Purchase Order is a separate transaction and
Customer may not offset payments from other Purchase Orders or other
transactions with Element. Any amount not paid when due will accrue
interest until paid at the rate of 1.5% per month or the maximum amount
allowed by law, whichever is less, and Customer will be responsible for any
reasonable costs of collection (including collection agency fees and
attorneys' fees) incurred by Element. Where invoices for Services are not
timely paid, subsequent Services or Purchase Orders may be canceled or
delayed or subject to prepayment until overdue amounts are paid.
Ownership, Intellectual Property: As between the parties, Customer will be the exclusive owner of (i)
Customer Confidential Information, (ii) Customer Materials, and (iii)
Deliverables, ((i)-(iii) collectively, the "Customer Property"). As between
the parties, Element will be the exclusive owner of Element Technology and
any improvements or modifications thereof, whether developed before or
during the performance of the Services. Except to the extent necessary to
use the Deliverables in accordance with Section 5, nothing in the Agreement
will be construed as conferring to Customer explicitly or by implication,
estoppel or otherwise any license, right or immunity under Element's
intellectual property rights, including without limitation Element
Technology.
Non-Exclusivity: Unless expressly agreed in writing,
all Services are provided on a non-exclusive basis, and Element reserves
all rights for itself and its affiliates to provide third parties with
deliverables that are identical or similar to Deliverables, provided that
Element will not use any Customer Materials or Customer Confidential
Information to perform Services for any third party.
Confidentiality: "Confidential Information" means any
and all information and materials disclosed by one party to the other party
that is (i) marked "confidential" or otherwise identified in writing as
confidential or proprietary at the time of disclosure, or (ii) or if not so
marked, is understood by a reasonable receiving party from the context of
disclosure or from the information itself, to be confidential. Each party
will (i) use Confidential Information of the other party only to the extent
necessary to perform the Agreement, and (ii) not disclose Confidential
Information of the other party to any person other than those persons under
its direction who require said Confidential Information in order to perform
the Agreement and who have agreed to confidentiality obligation as
stringent as those set forth herein. Each party will protect the
Confidential Information or materials of the other party by using the same
degree of care as said party uses to protect its own Confidential
Information, but in any event no less than a reasonable degree of care.
Notwithstanding any other provisions herein, each recipient party will have
no obligation to the other party for any information or material that is
(a) already known to the recipient party; (b) publicly known other than by
a wrongful act of the recipient party; (c) received from a third party
lawfully entitled to disclose it; (d) disclosed pursuant to an enforceable
order of a court or administrative agency; and/or (e) is independently
developed by or for the recipient party. The confidentiality obligations
set forth in this Section 9 will survive for a period of two (2) years
after expiration or termination of this Agreement.
Limited Warranty: Element's sole warranty for the performance of the Services is that the
Services will be performed using due care in accordance with (a) the
Agreement, including the respective SOW(s), and (b) laws, regulations and
generally prevailing industry standards applicable to said Services.
Element does not warrant or represent that the results of the Services,
including the Deliverables, will produce scientifically successful results
or that they will advance the interests of Customer. If Customer believes
that Element, in breach of its limited warranty, has made a material error
in the Services that renders the results of said Services invalid, Customer
must notify Element of said error in writing, within one month after
receipt of the final Deliverable for said Services; and as Customer's sole
remedy for said error, Element will either (i) repeat the particular
Services at Element's own expense, or (ii) refund to Customer the fees
actually paid for the particular Services giving rise to the breach of
warranty. THE WARRANTY SET FORTH IN THIS SECTION 10 IS IN LIEU OF ANY AND
ALL OTHER WARRANTIES RELATING TO THE SERVICES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY
QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT
DELIVERABLES OR USE THEREOF WILL NOT INFRINGE ANY THIRD PARTY INTELLECTUAL
PROPERTY RIGHT.
Indemnification: Element will defend, indemnify, and
hold harmless Customer, its officers, directors, employees, agents, and
representatives from and against any and all losses, liabilities, damages,
and expenses (including, but not limited to, reasonable attorneys' fees)
resulting from any claims, demands, actions or other proceedings ("Claims")
made or instituted by a third party to the extent arising out of or
resulting from Element's gross negligence or willful misconduct. Customer
will indemnify and hold harmless Element, its affiliates and its and their
respective officers, directors, employees, agents and representatives from
and against any and all losses, liabilities, damages, and expenses
(including, but not limited to, reasonable attorney's fees) resulting from
any Claims made or instituted by a third party to the extent arising out of
or resulting from (a) Customer Materials or use thereof in performance of
the Services as specified in the SOW; (b) Customer's use of the
Deliverables; (c) the manufacture, sale, use (or misuse), and possession of
any product or service based in whole or part on Customer's reliance on
Deliverables, or any portion or derivative thereof; and/or (d) Customer's
breach of this Agreement or its gross negligence or willful misconduct.
Limitation of Liability: TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, ELEMENT WILL NOT BE LIABLE HEREUNDER, UNDER
ANY LEGAL THEORY, FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR
FOR LOSS OF PROFITS OR LOSS OF BUSINESS, EVEN IF ELEMENT HAD NOTICE OF THE
POSSIBILITY THEREOF. ELEMENT'S LIABILITY TO CUSTOMER FOR BREACH OF ANY
PROVISION OF THE AGREEMENT (OTHER THAN BREACH OF THE WARRANTY IN SECTION 10
FOR WHICH LIABILITY IS LIMITED TO RE-PERFORMANCE OR REFUND AS SPECIFIED
THEREIN) WILL BE LIMITED TO DAMAGES IN AN AMOUNT NOT TO EXCEED THE FEE TO
BE PAID FOR THE APPLICABLE SERVICES.
Changes, Termination: Changes to the Services must be agreed by both parties in writing and may
require changes in the fees or timelines. Element may terminate the
Agreement if (a) Customer breaches any material provision of the Agreement
and fails to remedy the breach to the satisfaction of Element within 15
days after written notice thereof; (b) Element is unable to obtain third
party materials or technology specified in the SOW, for reasons beyond
Element's reasonable control; (c) Element determines that biosecurity,
biosafety, and/or feasibility reasons prevent or are likely to prevent the
performance of the Services, or (d) Customer is or is deemed by law to be
unable to pay its debts or perform its obligations under the Agreement.
Customer will have the right to terminate any SOW upon 30 days prior
written notice to Element. Termination of Services in progress will result
in a partial charge commensurate with the percentage of Services completed
at the time of cancellation, in addition to any other termination or
cancellation charges specified in the SOW.
Assignment: This Agreement may not be assigned by
either party without the prior written consent of the other party.
Notwithstanding the foregoing, either party may assign, without consent,
its rights and obligations hereunder to any successor to all or
substantially all of its business that concerns this Agreement (whether by
sale of stock or assets, merger, consolidation or otherwise); provided,
however, that the assigning party provides written notice of said
assignment to the other party and said successor agrees in writing to be
bound by the terms of this Agreement. Any attempted assignment contrary to
this Agreement is null and void. This Agreement will be binding upon and
inure to the benefit of the successors, representatives, and permitted
assigns of the parties.
Governing Law: This Agreement and performance of the
parties hereunder will be governed by and interpreted in accordance with
the laws of the United States and the State of Delaware, without reference
to choice of law provisions. The parties agree that any application of the
United Nations Convention on Contracts for the International Sale of Goods
is specifically excluded and will NOT apply to this Agreement. Any dispute,
controversy, or claim arising out of or relating to this Agreement or to a
breach hereof, including without limitation its interpretation, performance
or termination, and the determination of the scope or applicability of this
agreement to arbitrate, will be finally resolved by arbitration in San
Diego, California before one arbitrator. The arbitration will be
administered by JAMS pursuant to its Comprehensive Arbitration Rules and
Procedures and in accordance with the Expedited Procedures in those Rules,
unless the claim is for less than $100,000, in which case the arbitration
will be pursuant to JAMS' Streamlined Arbitration Rules and Procedures. The
parties will keep confidential: (i) the fact that any arbitration occurred;
(ii) any awards awarded in the arbitration; (iii) all materials used, or
created for use in the arbitration; and (iv) all other documents produced
in the arbitration and not otherwise in the public domain, except, with
respect to each of the foregoing, to the extent that disclosure may be
legally required (including to protect or pursue a legal right) or
necessary to enforce or challenge an arbitration award before a court or
other judicial authority. The arbitrator(s) will award to the prevailing
party, if any, its costs and expenses, including its attorneys' fees. The
prevailing party will also be entitled to its attorneys' fees and costs in
any action to confirm and/or enforce any arbitration award in any judicial
proceedings. Judgment on the award may be entered in any court having
jurisdiction. Nothing in the Agreement shall prevent either party from
seeking provisional relief, and any such request shall not be deemed
incompatible with the agreement to arbitrate or a waiver of the right to
arbitrate. The parties agree that the exclusive jurisdiction for such
relief will be the state or federal courts located in San Diego,
California.
Notices: Any and all notices, requests, demands, or
other communications that relate to the other party's failure to perform or
which otherwise affect either party's rights under this Agreement will be
deemed properly given when furnished by receipted hand-delivery to the
other party, deposited with an express courier, or deposited with the
postal service (postage prepaid, certified mail, return receipt requested).
Except in situations involving hand-delivery, the sender will address all
notices, requests, demands or other communications to the address located
on the Purchase Order and/or SOW, as applicable.
Publicity: Except as required by law or deemed
necessary under applicable federal or state securities laws or regulations,
Customer will not use the name of Element, nor the name of any member of
Element's staff, in connection with any publicity without the prior written
approval of Element.
Force Majeure: Except for payment obligations, each
party will be relieved of its obligations under this Agreement to the
extent that fulfillment of said obligations is prevented by acts of war,
labor difficulties, riots, fire, flood, hurricane, windstorm, acts or
defaults of common carrier, governmental laws, acts, or regulations
(including the inability to obtain any necessary permits), pandemics,
epidemics, shortages of materials or any other occurrences, whether or not
similar to the foregoing, beyond the reasonable control of the affected
party; provided, however, that said relief will only continue for so long
as the force majeure condition exists.
General: This Agreement is the final, complete, and
exclusive statement of the understanding between Element and the Customer
with respect to the subject matter hereof. This Agreement will expire upon
completion of the Services. No terms, conditions, usages of trade, courses
of dealing or agreements purporting to modify, vary, explain, or supplement
this Agreement will be binding. This Agreement may not be waived, amended,
or otherwise modified except by a writing signed by both Element and the
Customer. If any provision of this Agreement is held invalid or
unenforceable, such provision will be enforced to the maximum extent
permissible so as to give effect to the intent of the parties, and the
remainder of this Agreement will continue in full force and effect. The
relationship of the parties is that of independent contractors, and nothing
herein will be construed as establishing one party or any of its employees
as the agent, legal representative, joint venturer, partner, employee, or
servant of the other. There are no third party beneficiaries to this
Agreement. No remedy herein provided will be deemed exclusive of any other
remedy allowed by law or in equity. All rights and obligations of the
parties set forth herein that expressly or by their nature survive the
expiration or termination of this Agreement will continue in full force and
effect subsequent to and notwithstanding the expiration or termination of
this Agreement until they are satisfied or by their nature expire and will
bind the parties and their legal representatives, successors, and permitted
assigns.