[LAST REVISED August 25, 2020]
These Supply Terms of Service (“Terms”) are entered into by and between Synvitrobio, Inc., dba Tierra Biosciences, a Delaware corporation (“Tierra”) and the Customer (as defined below), and govern the supply by Tierra to Customer of Products (as defined below). “Customer” means any person that has elected to purchase Products from Tierra as described below. Customer hereby acknowledges that it has read the Terms and agrees to be bound by them. Customer and Tierra may be referred to herein individually as a “Party” and collectively as the “Parties.”
1. ORDERING PROCESS. If Customer elects to purchase proteins under these Terms from Tierra (“Products”), Customer may place a request, which shall include a description of the genetic sequence of the applicable Product (such request, “Customer Request”, and such sequence, “Requested Sequence”). Customer shall ensure that each Requested Sequence conforms to, and is consistent with, any sequence parameters and guidelines set forth on Tierra’s website and/or otherwise specified by Tierra. Tierra may (but is under no obligation to) respond to a Customer Request by providing an estimate of the price for the Products and other proposed terms (“Tierra Proposal”). Unless otherwise set forth in the applicable Tierra Proposal, each Tierra Proposal shall expire thirty (30) days after its receipt by Customer. Customer may accept the Tierra Proposal by issuing an order to purchase the Products under the terms of the Tierra Proposal (“Purchase Order”). No Purchase Order is binding on Tierra until and unless Tierra has elected to accept such Purchase Order. Each Tierra Proposal and corresponding Purchase Order are subject to Terms and in case of inconsistencies between these documents (i.e., the Tierra Proposal and the Purchase Order) and the Terms, the Terms govern.
2. SUPPLY AND DELIVERY. Upon Tierra’s acceptance of a Purchase Order, Tierra will use commercially reasonable efforts to produce and supply the applicable Products in accordance with the Tierra Proposal and these Terms. Customer acknowledges and agrees that Tierra may decide in its discretion to cease such efforts (e.g., because the production is not feasible or other reasons such as biosecurity or intellectual property considerations), in which case Tierra will notify Customer and refund or credit any pre-paid amounts to Customer (it being understood that Tierra will have no other responsibility or liability to Customer in connection with these Terms). If Tierra is able to produce the applicable Products, Tierra will deliver such Products to Customer by the date set forth in the Purchase Order, it being understood that (a) the minimum lead time shall be sixty (60) days after acceptance of the applicable Purchase Order by Tierra, and (b) when accepting a Purchase Order, Tierra may specify a different delivery date, which shall replace the date in the Purchase Order unless Customer objects to such new date within two (2) days of receipt of Tierra’s acceptance of the Purchase Order. All Products will be shipped Ex Works (Incoterms 2020) Tierra’s facility to the delivery address specified in the Purchase Order, through a carrier selected by Tierra, at the Customer’s cost.
3. ACCEPTANCE PROCESS. Upon receipt of the Products, Customer will promptly review the Products to determine whether they substantially conform to the Requested Sequence and the specifications set forth in the Tierra Proposal, if any (“Specifications”). Acceptance of the Products will occur on the earlier of (a) the date on which Customer indicates to Tierra that the Products are accepted; and (b) ten (10) days following delivery of the Products. If Customer notifies Tierra with such ten (10) day-period that the Products do not substantially conform to the Specifications, and, if requested by Tierra, returns the Products to Tierra in accordance with Tierra’s reasonable instructions (within no more than ten (10) days from Tierra’s request), Tierra will use commercially reasonable efforts to produce and ship to Customer replacement Products within a reasonable period of time; provided that Tierra may cancel such Purchase Order (and refund or credit to Customer any prepaid amounts received from Customer) if Tierra has shipped replacement Products for such Purchase Order once before or if Tierra is unable to produce conforming Products. The foregoing shall be Customer’s sole and exclusive remedy, and Tierra’s sole and exclusive liability, for any failure of Products to conform to the Specifications. Customer’s shipping charges will not be credited or refunded with respect to returns. Notwithstanding anything to the contrary in these Terms, if Tierra tests returned Products and determines that they did conform to the Specifications, Tierra 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 Specifications, Customer shall bear all expenses of shipping and testing such shipment samples, Tierra shall have no obligation to provide replacement Products, and no refund shall be due to Customer.
4. CUSTOMER MATERIALS.
1. Customer will provide Tierra with sequence information regarding the applicable Product(s) and other information or materials as identified in the Tierra Proposal or as otherwise reasonably requested by Tierra (such sequence information and other information or materials, collectively, “Customer Materials"). Upon request by the Customer, upon delivery of the Products to Customer, any Customer Materials regarding such Products in Tierra’s possession will be returned or destroyed. Tierra will not transfer or provide Customer Materials, in whole or in part, to any third party, other than independent contractors for purpose of providing services to Tierra or determining whether Tierra is allowed to produce the applicable Products based on the Customer Materials, in each case without the Customer’s prior written approval.
2. Customer represents and warrants that (i) any sequence information provided to Tierra is accurate, (ii) Customer solely owns the Customer Materials and has the necessary rights to the Customer Materials for the uses contemplated under the Terms, (iii) Tierra's use of the Customer Materials or the production or use of Products shall not infringe the proprietary rights, including but not limited to the patent or trade secret rights, of any third party, and (iv) no sequence information provided to Tierra is a coding sequence for any form of (a) toxin, including any toxin covered by any biosafety, biosecurity or other similar laws and regulations, including the Federal Information Security Management Act (FISMA) (as amended),or (b) hazardous materials. Customer further represents and warrants that it has provided Tierra with all material information of which Customer is aware regarding any toxic substances or material hazards associated with the handling, transport, exposure or other use of the Customer Materials or Products.
3. Customer shall not provide to Tierra any Customer Materials that contain Personal Health Information (as defined under HIPAA) or other personal information regarding patients, end users, or other persons.
5. PAYMENT. Customer shall pay Tierra the fees set forth in the applicable Tierra Proposal. Customer acknowledges and agrees that such fees do not include shipping, handling, freight, insurance, taxes (including valued-added and sales taxes, but excluding taxes on Tierra’s net income) and customs, which Customer is responsible for paying and which, as applicable, Tierra may add to Customer’s invoice. Tierra 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 apply to any Purchase Orders accepted by Tierra after the end of such notice period, but not to prior Purchase Orders accepted by Tierra. Customer shall pay the Fees within thirty (30) days of Tierra’s invoice for such Fees. Except to the extent expressly provided otherwise in these Terms, 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 set forth in the Tierra Proposal or otherwise designated by Tierra. Unless the Purchase Order states otherwise, all Fees shall be payable in US dollars with immediately available funds. Without limiting any other rights or remedies of Tierra, failure of Customer to pay any Fees when due shall entitle Tierra to suspend completion or shipment of any pending Purchase Orders unless and until such Fees are paid. If Tierra appoints a collection agency or an attorney to recover any unpaid amounts from Customer, Tierra may charge Customer and Customer agrees to pay all reasonable costs of collection, including all associated reasonable attorneys’ fees.
6. INTELLECTUAL PROPERTY.
1. Customer Materials. Customer shall retain all intellectual property rights in and to the Customer Materials. Tierra and its affiliates shall have a royalty-free, non-revocable, non-terminable right to use the Customer Materials to perform Tierra’s obligations under these Terms, and, as long as the relevant information is aggregated and/or de-identified, to develop, manufacture, provide and/or improve its and their products and services.
2. Tierra Background Technology. Tierra shall retain all right, title, and interest in and to all methods, processes, procedures, protocols, algorithms, know-how and technologies, used, practiced, developed or improved by or on behalf of Tierra, whether in connection with activities performed by or on behalf of Tierra under these Terms or otherwise (“Tierra Background Technology”), and any associated intellectual property rights. In the event Tierra incorporates any Tierra Background Technology into any Products shipped to Customer and paid for by Customer as set forth in these Terms, then, subject to these Terms, Tierra hereby grants to Customer a perpetual, non-exclusive, non-sublicenseable, fully paid-up, worldwide license to use such Tierra Background Technology, solely as incorporated into, and solely as reasonably necessary to use such Products.
7. CONFIDENTIALITY. “Confidential Information” means any information disclosed or provided by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) pursuant to these Terms, which the Disclosing Party clearly identifies as confidential at the time of disclosure or that a reasonable person under the circumstances would understand to be proprietary or confidential. Subject to the rest of this Section 7, Customer Materials shall be Confidential Information of Customer, and Tierra Background Technology shall be Confidential Information of Tierra. The Receiving Party shall not (i) use the Disclosing Party’s Confidential Information for any purpose (other than to perform its obligations or exercise its rights under these Terms), or (ii) disclose the Disclosing Party’s Confidential Information to any third party except to those expressly authorized by these Terms or the Disclosing Party in writing, and to those of its employees, contractors, advisors and other representatives with a reasonable need to know such information (for the Receiving Party to perform its obligations or exercise its rights under these Terms), 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. Notwithstanding the foregoing, the obligations of confidentiality and nonuse set forth hereunder 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. In addition, notwithstanding anything to the contrary in these Terms, the Receiving Party may disclose Confidential Information of the Disclosing Party (A) 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 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, or for which the order was issued; and (B) to 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. In addition, each Party may disclose these Terms, without the consent of the other Party, to existing or prospective investors, acquirers, lenders in connection with due diligence activities, and to legal and financial advisors, in each case under a commercially reasonable obligation of confidentiality. Upon termination or expiration of these Terms, or upon written request of the Disclosing Party, the Receiving Party shall promptly return or destroy all tangible embodiments of the Disclosing Party’s Confidential Information (excluding any Confidential Information that is subject to a surviving license or other right granted to the Receiving Party hereunder); provided, however, that the Receiving Party may retain a copy of such Confidential Information under conditions of confidentiality for legal archival purposes and for compliance with the surviving provisions of these Terms and applicable laws and regulations.
8. WARRANTIES; DISCLAIMERS.
1. EXCEPT FOR CUSTOMER’S ABILITY TO REJECT NON-CONFORMING PRODUCTS AS EXPRESSLY SET FORTH IN SECTION 3 ABOVE, THE PRODUCTS ARE PROVIDED “AS IS”, AND TIERRA 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 THESE TERMS, 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 TIERRA’S TOTAL LIABILITY FOR BREACH OF ANY WARRANTY EXPRESSLY PROVIDED HEREUNDER EXCEED THE PURCHASE PRICE OF THE PRODUCT AT ISSUE. Without limiting the foregoing, Customer expressly acknowledges and agree that Tierra is not responsible for conducting any freedom-to-operate searches analysis regarding the Products or components thereof, and makes no representation or warranty that the produced proteins or variants thereof generated in the production process will not infringe any third party patents or rights, or that the Products will show a certain level of activity or will otherwise meet the Customer’s requirements. No description, statement or other content of any Tierra website or marketing or communications materials will be binding on Tierra.
2. TIERRA SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, COLLATERAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGES OR FOR ANY LOST PROFITS OR LOSS OF OPPORTUNITY IN CONNECTION WITH OR ARISING OUT OF THESE TERMS.
9. INDEMNIFICATION. Customer shall indemnify, defend and hold harmless Tierra and its affiliates and their respective directors, officers, employees, and agents 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”) resulting from or caused by (a) Customer’s breach of its obligations, representations or warranties under these Terms, (b) Customer’s negligence, recklessness or willful misconduct; (c) Customer’s exploitation (including any testing, development, commercialization, storage, transfer or other disposal) of the Products, and/or (d) the infringement of any third party intellectual property rights arising from the use by or on behalf of Tierra of any Customer Materials under these Terms.
10. TERM AND TERMINATION. These Terms shall commence on the date that Customer has accepted these Terms 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 avoid such renewal (in which case these Terms shall expire at the end of the then-current term). Either Party may terminate these Terms 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 these Terms upon notice to the other Party if the other Party fails to cure material breach of these Terms within thirty (30) days after the breaching Party is given written notice of such breach. Either Party may terminate these Terms 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) these Terms is assigned by such other Party for the benefit of creditors. Purchase Orders not delivered before the effective date of expiration or termination of these Terms shall survive expiration or termination of these Terms until completed, unless these Terms is terminated for breach by a Party or insolvency of a Party. Tierra shall be entitled to receive and retain all Fees due for Orders surviving the effective date of termination. Sections 4.2, and 6-13 shall survive any termination or expiration of these Terms. Termination or expiration of these Terms 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 these Terms committed before such expiration or termination.
11. EXPORT CONTROLS; NO GOVERNMENT CONTRACT.
1. Customer acknowledges and agrees that the Products and information that Customer receives from Tierra hereunder may be subject to United States and foreign 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) in violation of such laws.
2. These Terms and the Products are not for government customers or government contractors. Customer represents and warrants that the Products and services contemplated hereunder 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 these Terms as a government contractor (or if any FARs would otherwise apply hereto), Customer shall notify Tierra in advance and obtain Tierra’s prior written consent (and/or enter into such additional agreements or terms requested by Tierra through a mutually executed document) prior to ordering or receiving any goods or services hereunder.
12. FORCE MAJEURE. Neither Party will be liable for any delays or failures in performance under these Terms (other than payment obligations under these Terms) due to circumstances beyond its reasonable control, including without limitation, acts of God, pandemic, 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.
13. MISCELLANEOUS. These Terms shall be governed by the laws of the State of California, without respect to its conflict of laws principles. The exclusive place of jurisdiction for all disputes arising from or in connection with these Terms is San Francisco, California. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms 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. These Terms 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 these Terms 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 the assets to which these Terms relate. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. If any provision of these Terms is deemed invalid, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect. Each Party must deliver all notices, consents, and approvals required or permitted under these Terms in writing to the other Party at the address specified in the Tierra Proposal (for Tierra) or the Purchase Order (for Customer), 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. No waiver by any Party of any breach of these Terms 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. No modification of or amendment to these Terms will be effective unless in writing and signed by both Parties. Customer shall not name or refer to Tierra as a supplier of Customer nor use Tierra’s logos or trade names for publicity, marketing, or any other external communications without Tierra’s prior written consent. Neither Party is authorized to bind, make any commitment, or otherwise act on behalf of the other Party. These Terms shall constitute the entire agreement between Tierra and Customer regarding the supply of Products to Customer and supersede all previous and contemporaneous negotiations, representations, or agreements, written or oral, regarding the subject matter hereof.