Terms and Conditions

BY PLACING AN ORDER, CUSTOMER (“CUSTOMER”) ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMERS THAT DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT SHOULD NOT PLACE AN ORDER. ONCE CUSTOMER ACCEPTS THESE TERMS AND CONDITIONS, CUSTOMER CANNOT SUBSEQUENTLY DECLINE OR MODIFY ANY TERM OR CONDITION WITHOUT THE PRIOR WRITTEN CONSENT OF DNA TWOPOINTO INC. (“ATUM”).

1. ATUM Products and Services

1.1. Products listed on the ATUM, Inc. website, atum.bio (“ATUM Website”) and vectors (including any ATUM vectors with Customer sequences incorporated therein (other than Customer Vectors (as defined below)), are “ATUM Products”. ATUM also provides one or more services including as listed on the ATUM Website (“ATUM Services.”) If Customer would like to purchase ATUM Products or ATUM Services, it must submit an order (a Purchase Order, or some other form of pre-payment) (“Order”). If ATUM elects to fill the Order, it cannot be cancelled and Customer will be responsible for payment of the total amount on the Order.

1.2. Other than with respect to the Product-Specific Licenses and Terms set forth herein, subject to payment in accordance with Section 2, and the other terms set forth herein, Customer is granted a limited, non-transferable, non-exclusive right to use ATUM Products. Except as expressly permitted in these Terms and Conditions, Customer may not (1) modify the ATUM Products in any way, including without limitation by replacing any protein-encoding sequence with any other protein-encoding sequence; (2) determine the sequences of the ATUM Products; (3) directly or indirectly reverse-engineer the ATUM Products; (4) create any derivative(s) of the ATUM Products; or (5) copy the ATUM Products.

1.3. As set forth in Section 1.2, the ATUM Products are non-transferable without the prior written permission of ATUM. If Customer is permitted in writing by ATUM to transfer a Product to a third party (“Authorized Transferee”) , the Customer shall provide that the Authorized Transferee (i) agrees to use the ATUM Product solely to perform services on behalf of Customer, and (ii) only in accordance with these Terms and Conditions. Customer shall be responsible for actions and omissions with respect to use of the Product and compliance with these Terms and Conditions by any Authorized Transferee.

1.4. Restriction on Protein Expression and/or Purification Services. ATUM Customer may not perform protein expression and/or purification services for third party customers without a commercial license from ATUM.

1.5. Pichia Strain License Limitations. Proteins and peptides made with ATUM catalog Pichia strains (the “Pichia Strains”) may be used for commercial purposes without the requirement of a commercial license from ATUM. Notwithstanding the foregoing, neither the Pichia Strains, nor any strains derived from the Pichia Strains, may be transferred or sold to third parties, resold, modified for resale, or used to provide a service of any kind to third parties, including, without limitation, reporting the results of Customer activities for a fee or other form of consideration.

1.6. Research Use Only Vectors. Notwithstanding the first sentence of Section 1.2, any product containing pD1300, pD1400, pD2100, pD2500, pD2600, pD3500, or 3600 series Vectors (the “Research Use Only Vectors”) (including Electra vectors, vector configurations for expression of multiple genes and other customized configurations of the Research Use Only Vectors, and ProteinPaintbox genes or CUSTOMER genes cloned into the Research Use Only Vectors) is subject to a limited, non-transferable license pursuant to which CUSTOMER acknowledges and agrees that the Research Use Only Vector may be used for internal research purposes only and may not be used for commercial purposes. Use for commercial purposes, including any use in manufacturing a product or service that is provided to a third party for consideration, requires a commercial license from ATUM.

1.7. Vectors with FH8 solubility tag. The FH8 solubility tag is licensed from Hitag and is available for research use only. A separate license is required for any commercial use, including the development of commercial products or services. Information about commercial licenses may be obtained from Hitag Biotechnology. Lda, Biocant Park L4 N4, 3060-197, Cantanhede, Portugal.

1.8. Audit Rights. For four (4) years after the later of delivery of ATUM products or provision of final services, ATUM may audit Customer for its compliance with the provisions of this Agreement. Any audit or inspection under this section will be conducted during Customer’s regular business hours, in a manner that does not unreasonably interfere with Customer’s operations. Any audit may be conducted by personnel of ATUM or an independent certified public accountant or other expert selected by ATUM. If Customer is found noncompliant with this Agreement in any way, Customer shall promptly reimburse ATUM for all costs associated with the audit, along with any discrepancies discovered plus interest at the highest rate permitted by law.

2. Purchase and Payment

2.1. Quotes provided expire after 30 days with no further notice from ATUM. ATUM reserves the right to require pre-payment on any order, in ATUM’s sole discretion. A $60 USD surcharge is added to invoices paid by wire transfer. Payment is net 30 days for payments made by Purchase Order or wire transfer. ATUM reserves the right to conduct a customer credit check and not to extend net 30 invoicing, in ATUM’s sole discretion. Payment also can be made by credit card (Visa, American Express or MasterCard), but only at the time of invoicing (net 0). Credit card payments after invoicing date are assessed a 5% transaction fee. Shipping fees will be incurred by CUSTOMER for multiple partial order shipments. ATUM will assess a late fee of 1.5% per month on all amounts not paid 30 days after delivery of product, unless otherwise stated on invoice. Full and complete payment of invoice is required for transfer of ownership of purchased product. Prices do not include taxes, duties or customs fees which will be itemized separately on invoices. If Customer wishes to claim a tax exemption, Customer must give ATUM a tax exemption certificate acceptable to the relevant taxing authority.

3. Delivery Terms; Inspection; Returns

3.1. Delivery. ATUM products are sold F.O.B. Newark, CA. Title and risk of loss passes to CUSTOMER upon transfer to shipper.

3.2. Delivery Timelines. ATUM products are shipped by standard courier service, unless otherwise requested. Delivery dates represent ATUM’s best estimates. While ATUM will endeavor to meet delivery dates, ATUM shall not be liable for failing to do so.

3.3. Inspection; Return. Upon receipt of shipped goods, CUSTOMER will inspect the shipment promptly for damages, shortages and correct identity of product. Customer may reject ATUM Product that fails to materially conform to specifications agreed upon by ATUM. Any claims of non-conformity must be submitted to ATUM within 30 days of shipment. Non-conforming goods will be replaced or authorized for return and credit at ATUM’s option. To submit a claim, please contact us at 1.877.DNA.TOGO or by e-mail at info@atum.bio.

4. Cancellation.

4.1. Orders accepted by ATUM cannot be cancelled and CUSTOMER will be responsible for payment of the total amount of the order.

5. Warranty

5.1. Sequence Warranty. ATUM warrants that ATUM Products, for ATUM Services associated with creating sequences, will have the sequence requested by CUSTOMER and will be consistent with the DNA sequencing trace files obtained by ATUM during the performance of synthesis services and provided with each product except to the extent the sequence is not stable in E. coli, in which case ATUM will communicate with CUSTOMER regarding appropriate alternatives. ATUM does NOT guarantee the nucleotide sequence of the cloning vector. Claims under this warranty must be submitted within 30 days of receipt. The sole remedy for any breach of the foregoing warranty at the option of ATUM is (i) reperforming the services, or (ii) a refund of the services.

5.2. ATUM Services Disclaimer.

5.2.1. There is no timeline on delivery or turnaround guarantee for, genes with high GC content, stretches of homopolymers, extensive repeats or genes longer than 3kb. For custom cloning products, if ATUM fails to clone the DNA fragment in three attempts (for commercially available vectors shipped directly from the manufacturer) or two attempts (for all other vector preparations), ATUM reserves the right to ship the gene cloned into our in-house vector or as a linear PCR fragment and refund to CUSTOMER the custom cloning fee.

5.2.2. In the event a designed DNA fragment cannot be cloned into the CUSTOMER’s choice of vector because of toxicity to the E. coli host or for other reasons, ATUM reserves the right to ship the fragment in a different vector, provide sequence-verified cloned parts, or provide sequence-verified linear DNA. Any product that is not identical to the requested sequence will be replaced or authorized for return and credit, at ATUM’s option. These are the sole remedies for any breach of the foregoing warranty.

5.2.3. ATUM will perform protein expression services in accordance with the material terms of the written quote. CUSTOMER acknowledges and agrees that ATUM does not represent, warrant, or guarantee that (1) ATUM will be able to generate protein from the sequences provided, or (2) if ATUM is able to generate protein from the sequences provided, any particular quantity or quality of such protein will be produced. In the event that ATUM’s performance of the services fails to provide an adequate quantity or quality of product, ATUM will contact CUSTOMER before undertaking additional services for which additional charges may apply.

5.3. Disclaimer of Warranty

5.3.1. THE WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR INFRINGEMENT, ARE EXCLUDED AND HEREBY DISCLAIMED. ATUM SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, CONTINGENT, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFIT OR OTHER ECONOMIC LOSS, ARISING IN CONNECTION WITH CUSTOMER’S USE OF OR INABILITY TO USE THE GOODS AND SERVICES PROVIDED BY ATUM.

5.3.2. ATUM WILL NOT BE LIABLE FOR ANY USE BY CUSTOMER OF PRODUCTS OR SERVICES 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 OR SERVICES.

5.3.3. IN NO EVENT WILL ATUM’S TOTAL LIABILITY, IF ANY, EXCEED THE AMOUNT PAID BY CUSTOMER AS SET FORTH IN THE PURCHASE ORDER FOR THE APPLICABLE PRODUCTS OR SERVICES WHICH IS THE SUBJECT OF THE CLAIM.

6. Quality Assurance and Animal-Free Media

6.1. Quality Assurance Verification: Unless otherwise specified in writing, all materials shipped in fulfillment of purchase orders have been manufactured by ATUM, Inc. in Newark, California, USA, in strict accordance with ATUM standard operating procedures. Synthetic oligonucleotides are assembled into the full-size DNA fragment, which is experimentally verified. The assembled fragment is sequence-verified on both strands (with acceptance to the termini) using capillary electrophoresis DNA analysis. All instrumentation is calibrated to current industry standards at the time of testing, and every analyst is trained to use the analytical application on each instrument. Corresponding DNA sequence trace files are available for download from CUSTOMER’s ATUM online account. ATUM tracks and stores origins and lot numbers for each component of the gene synthesis process. Each step of the gene synthesis process is time-stamped and bar-coded. Each synthesized DNA fragment encodes the expected DNA sequence.

6.2. BSE/TSE Declaration: ATUM certifies that shipped DNA is free from BSE (Bovine spongiform encephalopathy) and TSE (Transmissible spongiform encephalopathy). Unless otherwise specified in writing, ATUM products are produced from animal-free media.

7. Intellectual Property.

7.1. Customer Intellectual Property.

7.1.1. Ownership. Customer shall own all right, title and interest in and to (i) sequences provided by CUSTOMER, or (ii) in sequences designed by ATUM for CUSTOMER and paid for in full by CUSTOMER (collectively, the “CUSTOMER Work Product”). Upon completion of the Services, ATUM will retain one copy of the CUSTOMER Work Product for archival purposes and as required by applicable biosecurity laws and regulations.

7.1.2. License. CUSTOMER represents, warrants, and covenants that it has all necessary licenses and rights, including but not limited to, all patent and other intellectual property rights, in all sequences and materials (including Customer Vectors) provided to ATUM in connection with any services to be provided to CUSTOMER by ATUM. CUSTOMER hereby agrees to and shall indemnify and hold harmless ATUM and its affiliates, officers, agents, and employees from and against any action, claim, or liability, including attorneys’ fees, arising out of any breach of the foregoing representation and warranty or arising out of any action related to actual or alleged infringement of third-party patents directed at ATUM in connection with services provided to CUSTOMER. By agreeing to the terms and conditions of this Agreement and providing ATUM with the custom vectors and the gene sequence, CUSTOMER represents and warrants that it has the power and authority to grant the foregoing license, or otherwise has obtained all licenses and rights, including all intellectual property rights, necessary for ATUM to provide the requested services.

7.2. ATUM Intellectual Property. Ownership of all proprietary tools used, developed or improved in providing the Services, including but not limited to gene synthesis process and assembly improvements, optimization algorithms, and related know-how, including any proprietary software created therefor, at all times will remain the property of ATUM. ATUM uses proprietary gene and codon optimization methods to optimize the expression properties of DNA sequences in order to fulfill CUSTOMER’S order. These proprietary methods are covered by United States Patents Nos. 7,561,972, 7,561,973, 8,126,653, 8,401,798 and related pending patent applications, each of which has been assigned to ATUM. By requesting a quote or placing an order for optimized genetic sequences, CUSTOMER agrees not to synthesize, or authorize or permit any third-party to synthesize, the optimized sequences provided to CUSTOMER pursuant to the terms of the quote or order, or sequences derived using information from these sequences.

8. Confidentiality

8.1. ATUM treats all account contact information, payment information and DNA/protein sequences, Customer Vectors, or other information submitted by customers as strictly confidential. Information is only disclosed to employees at ATUM bound by a confidentiality agreement on a need-to-know basis to enable the individual to perform their duties. Information is only used for the purpose for which it was disclosed.

8.2. Unless covered by separate Non-Disclosure Agreement executed by the parties, Customer acknowledges that all information and materials that come into Customer’s possession or knowledge in connection with past and future purchases of products from ATUM and which is marked, identified, accepted as confidential or proprietary, or may be deemed confidential or proprietary by its nature or by the circumstances of its disclosure (“Confidential Information”), consists of confidential or proprietary information the improper disclosure or use of which will be damaging to ATUM. Therefore, Customer agrees to hold all Confidential Information in confidence, to disclose Confidential Information only to those of its employees having a need to know, and not to disclose Confidential Information to any other party. Customer agrees that it will not use any of ATUM’s Confidential Information, and to the fullest extent permissible under applicable law, will not modify, reverse engineer, reverse-compile, reverse assemble, synthesize or in any way use any ATUM Confidential Information whether for internal consumption or open market sale, or for any other purpose inconsistent with these Terms and Conditions.

9. Term; Termination.

9.1. Unless agreed otherwise, these Terms and Conditions will remain in effect until either party terminates their relationship on sixty (60) days’ written notice. Any such termination will not affect orders that have been acknowledged, which will be filled in the ordinary course of business according to these Standard Terms and any applicable customer agreement as described in Section 1.1(i) above.

9.2. If either party materially breaches these Terms and Conditions and fails to cure the breach within 30 days after receiving written notice of the breach, the nonbreaching party may terminate.

9.3. Either party may terminate their relationship and the uncompleted portions of any and all pending orders if the other party files for protection under the bankruptcy laws, makes an assignment for the benefit of creditors, or a trustee or similar officer is appointed for the other party or its assets.

10. Compliance with Laws.

10.1. ATUM products are NOT FOR USE IN HUMANS. ATUM does not submit ATUM products for regulatory review by any government body or other organization, and does not validate them for clinical, therapeutic or diagnostic use, or for safety and effectiveness. CUSTOMER is solely responsible for making sure that the way CUSTOMER uses ATUM products complies with applicable laws, regulations and governmental policies. CUSTOMER must obtain all necessary approvals and permissions CUSTOMER may need. It is solely CUSTOMER’s responsibility to make sure the products are suitable for CUSTOMER’s particular use. CUSTOMER represents and warrants to ATUM that CUSTOMER will properly test, use, and, to the extent authorized, market any products purchased from ATUM and any final articles made from them in accordance with the practices of a technically qualified individual and in strict compliance with all applicable governmental food, drug, device, and cosmetic requirements and other applicable governmental requirements, now and hereinafter enacted.

10.2. The information on ATUM’s Web site and ATUM’s products and services are intended only for customers in the United States of America. Regulatory requirements, laws, and distribution of information about genetic material may vary from country to country. The information may not be appropriate outside the United States of America. CUSTOMER is responsible for complying with all applicable laws necessary for ATUM to provide the products and services to CUSTOMER outside the United States, and CUSTOMER hereby agrees to and shall indemnify and hold harmless ATUM and its affiliates and their officers, agents, and employees from any failure by CUSTOMER to do so.

11. Miscellaneous.

11.1. Should any provision of this Agreement be deemed invalid, entirely or in part, by a court of competent jurisdiction, such invalidity shall not affect the validity of the remaining provisions, which shall not be impaired in any way and shall remain in full force and effect. The parties agree to replace the invalid provision by a valid provision that comes as close as possible to the economic intentions of the parties as evidenced by such invalid provisions.

11.2. Unless otherwise agreed, California law (excluding any choice of law rules) will govern the interpretation and enforcement of these Terms and Conditions and the relationship between Customer and ATUM.

11.3. Customer and ATUM agree to settle by final and binding arbitration any controversy or claim between them, including without limitation these Terms and Conditions, and/or any product or service, whether based on contract, tort, fraud, misrepresentation, or other legal theory. A single arbitrator will conduct the arbitration in Palo Alto, California under the then current rules and supervision of the American Arbitration Association, including rules governing who shall decide arbitrability. Customer and ATUM will select an arbitrator from a panel of persons knowledgeable in gene synthesis or antibodies or life sciences generally as applicable. The arbitrator will have the authority to award temporary and permanent injunctive relief, but may not award punitive or exemplary damages to either party. The decision and award of the arbitrator will be final and binding and may be entered in any court having jurisdiction. Customer and ATUM will pay their own attorney’s fees associated with the arbitration, and will pay other costs and expenses of the arbitration as the rules of the American Arbitration Associate provide.

11.4. Neither party may bring any action, regardless of form, these Terms and Conditions, or any product or service more than one year after the party bringing the action knew or should have known that the cause of action accrued.

11.5. Neither party shall be liable to the other for delays or failures to perform if the delay or failure is caused by shortage of labor, labor disputes, war, act of enemies, riots, insurrection, civil commotion, federal, state or municipal action, statute ordinance, or regulation, fire, flood, earthquake, accident, storm, explosions, acts of God, the inability to obtain essential materials or other resources, or other causes beyond the party’s reasonable control. In the event of an excusable delay as defined above, the affected party shall notify the other party in writing of such delay and an equitable adjustment shall be made in the completion schedules and any other affected terms.

11.6. Neither party may assign its rights or obligations under these Terms and Conditions without the prior written consent of the other, except (i) as an incident to the transfer of all or substantially all of its business, and (ii) ATUM may assign any such agreement to any of the companies owned or controlled by it.

11.7. ATUM and Customer are contractors independent of one another. Nothing herein or in the purchase order process is intended to or will constitute either party as an agent, legal representative, or partner of the other for any purpose.

11.8. A waiver of a breach of any term of any customer agreement or these Terms and Conditions will not be construed as a waiver of any succeeding breach of that term or as a waiver of the term itself. A party’s performance after the other’s breach will not be construed as a waiver of that breach.

11.9. All notices required or permitted and all requests for approvals, consents, and waivers must be in writing and must be delivered to the parties at their respective addresses by a method providing for proof of delivery. Any notice or request will be deemed to have been given on the date of receipt.

11.10. Customer and its affiliates hereby covenants that they will not (i) use the ATUM trademark or trade name or (ii) cause any advertising publicity, release, or other disclosure of information concerning these Terms and Conditions or any contract with ATUM without ATUM’s prior written consent.