Terms and Conditions

By placing an Order (defined below), customer ("Customer") accepts all of the terms and conditions of this agreement ("Terms & Conditions"). Customers that do not agree to these terms and conditions should not place an Order. By placing an Order, Customer hereby acknowledges, agrees to have read, accepts and cannot subsequently decline or modify any term or condition without the prior written consent of DNA twopointo inc. D/B/A ATUM ("ATUM")

1. ATUM Products and Services

1.1. Ordering from ATUM. All products listed on www.atum.bio (“ATUM Website”), including, without limitation, ATUM vectors (“ATUM Vectors”), chromogenic and fluorescent proteins (“ProteinPaintbox”), cloning kits and transposases, are cumulatively “ATUM Products”. ATUM also provides one or more services including those listed on the ATUM Website (“ATUM Services”). If Customer would like to purchase ATUM Products or Services, it must submit a guarantee of payment (for example purchase order, credit card details or a form of pre-payment) (“Order”). If ATUM accepts the Order, it cannot be cancelled by Customer and Customer will be responsible for payment of the total amount on the Order upon invoice.

1.2. License for ATUM Products. Subject to the terms herein, if Customer purchases an ATUM Product (but excluding ATUM Research Use Only Vectors, ProteinPaintbox, Pichia Strains and Reagents, pD2000 Vectors), Customer is granted a limited, non-transferable, fully paid-up, non-exclusive right to use said ATUM Product (including for the production of proteins, research, and development, and commercialization of such proteins derived from 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) disclose the sequences of any ATUM Products (including those for which ATUM provides the sequences); (4) directly or indirectly reverse-engineer the ATUM Products; (5) create any derivative(s) of the ATUM Products; or (6) copy the ATUM Products. If Customer purchases an ATUM vector that is sold in a form intended for Customer to clone Customer genes into (“ATUM Catalog Vector”), Customer is granted a limited, non-transferable, fully paid-up, non-exclusive right to clone into such vector which must be performed using a kit purchased from ATUM.

For clarity, for any and all ATUM Vectors (including ATUM Research Use Only Vectors), once Customer's gene has been cloned into an ATUM Vector by ATUM, or by Customer using a kit purchased from ATUM, Customer may replicate the resulting plasmid. For clarity, Customer may modify a Customer gene cloned into an ATUM Vector designed solely for propagation but not for expression of cloned sequences (“ATUM Cloning Vectors”) in any way, including by replacing any protein-encoding sequence with any other protein-encoding sequence. Notwithstanding Section 1.7, Customers may transfer ATUM Cloning Vectors to any third party without the prior written permission of ATUM.

1.3. License for ATUM Research Use Only Vectors. Except as set forth and subject to the terms herein, if Customer purchases (1) any ATUM mammalian expression vector containing pD2100, pD2500, pH2500, pD2600, pD3400, pD3500, pD3600 or pD3700 series vectors, a vector containing the FH8 solubility tag, or a transposon vector (the “ATUM Research Use Only Vectors”) (including Electra vectors, vector configurations for expression of multiple genes and other customized configurations of the ATUM Research Use Only Vectors, and Customer genes cloned into the ATUM Research Use Only Vectors) or (2) any ATUM Service that involves/utilizes ATUM Research Use Only Vectors, Customer is granted a limited, non-sublicensable, non-transferable, non-exclusive right to use the purchased amount of the ATUM Research Use Only Vectors to produce proteins for research and development purposes only. Customer shall not and shall not cause or permit any third party to (1) modify ATUM Research Use Only Vectors or any product containing ATUM Research Use Only Vectors in any way, including without limitation by replacing any protein-encoding sequence with any other protein-encoding sequence within the ATUM Research Use Only Vector and/or replacing the gene cloned into the ATUM Research Use Only Vectors; (2) directly or indirectly reverse-engineer the ATUM Research Use Only Vectors or any product containing the ATUM Research Use Only Vectors; (3) create any derivative(s) of the ATUM Research Use Only Vectors; (4) copy the ATUM Research Use Only Vectors (5) use the ATUM Research Use Only Vectors with any transposase unless Customer has obtained from ATUM a separate license for the use of Leap-In Transposase; or (6) use the ATUM Research Only Vectors for commercial purposes. Use of the ATUM Research Only Vectors 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.

1.4. License for ProteinPaintbox. Except as set forth and subject to the terms herein, including, without limitation Section 1.7, if Customer purchases a ProteinPaintbox product, Customer is granted a limited, non-transferable, non-sublicensable, fully paid-up, non-exclusive right to use the applicable ProteinPaintbox product purchased for research and development purposes only. Customer may not (1) modify the ProteinPaintbox product or (2) use the ProteinPaintbox product for commercial purposes without the prior written consent of ATUM.

1.5. License for Pichia Strain. Proteins and peptides made with Pichia strains sold by ATUM (the "Pichia Strains") or using any Pichia expression vector may be used for commercial purposes without the requirement of a commercial license from ATUM. However, neither the Pichia Strains, nor any strains derived from the Pichia Strains, may be sold by Customer to third parties, resold or modified for resale, repackaged or bundled for resale, or used to perform service of any kind for third parties, including without limitation, reporting the results of Customer activities for a fee or other form of consideration. Transfer of Pichia Strains or strains derived from the Pichia Strains by Customer to any third party is prohibited except with a separate license from ATUM.

1.6. Terms relating to pD2000 series Vectors. Customer is granted a limited, non-transferable, fully paid-up, non-exclusive right to use an expression vector containing a pD2000 series vector (“pD2000 Vector”) for gene therapy applications. ATUM imposes no restrictions on a Customer's use of the pD2000 Vector.

1.7. ATUM Products are non-transferable without the prior written permission of ATUM. If Customer is permitted in writing by ATUM to transfer an ATUM Product to a third party (“Authorized Transferee”), the Customer shall ensure that the Authorized Transferee (1) agrees to use the ATUM Product solely to perform services on behalf and for the benefit of Customer, and (2) only in accordance with terms that are at least as strict as these Terms and Conditions. Customer shall be responsible in full for any and all actions and omissions with respect to use of the ATUM Product and compliance with these Terms and Conditions by any Authorized Transferee.

1.8. ATUM Optimization Services. ATUM uses proprietary gene and codon optimization methods to optimize the expression properties of DNA sequences in order to fulfill Orders. 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 owned by 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 to reverse engineer, or authorize or permit any third-party to reverse engineer optimized sequences to derive design parameters for design of other sequences.

1.9. Protein Expression Services (transient). ATUM imposes no restrictions on Customers' use of proteins expressed by ATUM in performance of transient protein expression services ("Protein"). In the event that Customer commercializes such Proteins, Customer shall acknowledge ATUM by including on any packaging or marketing material for such Proteins "Manufactured at ATUM, Newark CA". However, the foregoing sentences do not apply to Proteins expressed in Life Technologies' ExpiCHO-STM cells, to which Life Technologies' terms of use shall apply.

1.10. Customer Obligations. In submitting an Order and providing materials (including Customer sequences and vectors, vectors prepared by Customer or obtained by Customer from other commercial sources) (“Customer Materials”), Customer represents and warrants that Customer has given ATUM all information regarding any biological, radiological, and chemical hazards associated with the handling, transport, exposure to, or other use of the Customer Materials. Customer acknowledges and agrees that sequences provided to ATUM are accurate and shall be used in production without any further confirmation or consent from Customer.

1.11. Audit Rights. For four (4) years after the later of delivery of ATUM Products or provision of final Services, ATUM or ATUM's agent 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. Purchase Terms. Quotes provided expire after thirty (30) days with no further notice from ATUM. ATUM reserves the right to require pre-payment on any Order, at ATUM's sole discretion. A $60 USD surcharge is added to invoices paid by wire transfer. Payment is net 30 for Orders initiated by purchase order. ATUM reserves the right to conduct a customer credit check and not to extend net 30 invoicing, at ATUM's sole discretion. Payment also can be made by credit card (Visa, American Express or MasterCard) at the time of invoicing. Additional 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 thirty (30) days after delivery of Product, unless otherwise agreed by the parties and 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, if not itemized separately on invoices, shall be borne in full by customer. 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. 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 the ATUM Products. Customer may reject ATUM Products that fail to materially conform to specifications agreed upon by ATUM. Any claims of non-conformity must be submitted to ATUM within thirty (30) days of receipt of shipped goods. 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.ATUMBIO or by e-mail at info@ATUM.bio.

4. Cancellation; Refusal of Performance

4.1. Orders accepted by ATUM cannot be cancelled and Customer will be responsible for payment of the total amount of the Order upon receipt of invoice.

4.2. Refusal of Order. ATUM may refuse to accept any Order. No Order is deemed accepted until ATUM confirms the Order in writing (including by email).

5. Warranty

5.1. Sequence Warranty. If applicable to the purchased ATUM Product, ATUM warrants that ATUM Products 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 ATUM 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 any ATUM Cloning Vector, or the presence or absence of any restriction sites in any ATUM Vectors. Claims under this warranty must be submitted within thirty (30) days of receipt. The sole remedy for any breach of the foregoing warranty at the option of ATUM is (1) reperforming the Services or (2) a refund of the payments made for 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 ATUM 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 terms of each 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 products, ATUM will contact Customer before undertaking additional services for which additional charges may apply.

5.3. Disclaimer of Warranty




6. Quality Assurance and Animal-Free Media

6.1. Quality Assurance Verification. Unless otherwise specified in writing, all materials shipped in fulfillment of Orders have been manufactured by ATUM 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 using capillary electrophoresis or nanopore derived DNA analysis technologies. 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 verification 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 to the best of its knowledge, shipped DNA is free from BSE (Bovine spongiform encephalopathy) and TSE (Transmissible spongiform encephalopathy).

7. Intellectual Property

7.1. Customer Intellectual Property.

7.1.1. Ownership. Customer shall own all right, title and interest in and to (1) sequences provided by Customer, or (2) sequences designed by ATUM for Customer and paid for in full by Customer (collectively, the “Customer Work Product”). Upon completion of ATUM Services, ATUM will retain one copy of the Customer Work Product for archival purposes and as required by applicable biosecurity laws, guidelines 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 Customer Materials provided to ATUM in connection with any service 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 or products provided to Customer, including, without limitation any sequences, materials or other information provided by Customer. By agreeing to these Terms and Conditions and providing ATUM with Customer Materials, 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 and methodologies used, developed or improved in the performance of ATUM Services, including but not limited to tools, techniques and technologies for DNA synthesis, cloning, assembly, genome modification and other manipulations, sequence and expression optimization algorithms and design methods including codon and sequence element choice for expression in bacterial, yeast and mammalian systems, ATUM Vector design and configurations and sequences of elements therein and related know-how, including any proprietary software created therefor, at all times shall be and/or remain the property of ATUM.

8. Confidentiality

8.1. ATUM treats all account contact information, payment information and DNA/protein sequences, Customer Materials, 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 a 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 ATUM Products 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”), including but not limited to the sequences of any ATUM Research Use Only Vectors, consists of confidential or proprietary information the improper disclosure or use of which will be damaging to ATUM. Therefore, Customer agrees (1) to hold all Confidential Information in confidence by using the same degree of care as used for its own confidential or proprietary information of like nature, but in no event less than reasonable care; (2) 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; (3) not to use any 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 Confidential Information whether for internal consumption or open market sale, or for any other purpose inconsistent with these Terms and Conditions.

8.3. Under no circumstance shall a company entity engaged in the gene synthesis business, if any, have access to ATUM's Confidential Information without ATUM's prior written consent.

8.4. Customer shall notify ATUM promptly in writing upon becoming aware of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by Customer. To the extent permitted by law, Customer, at its own cost, will reasonably cooperate with ATUM to help ATUM expeditiously regain possession of such Confidential Information and prevent its further unauthorized use.

8.5. Equitable relief. The parties agree that the unauthorized disclosure or use of Confidential Information may cause irreparable harm to ATUM that monetary damages alone may not redress. Notwithstanding anything to the contrary in these Terms and Conditions, and in addition to all other remedies, ATUM (1) may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief to stop or prevent the unauthorized disclosure of Confidential Information, and (2) shall not be restricted or limited from submitting ant patent matters to the International Trade Commission or from bringing any action for infringement or misappropriation of intellectual property rights in any court of competent jurisdiction.

8.6. Disclosure Required by Law. Notwithstanding anything to the contrary in this Section 8, if any person, court or governmental entity requires, by subpoena or other formal legal process, disclosure of any Customer Confidential Information received by ATUM under this Agreement, ATUM may disclose the Customer Confidential Information specifically required to be disclosed, provided that any Confidential Information so disclosed shall maintain confidentiality protection for all purposes other than such legally compelled disclosure.

8.7. Return of Confidential Information. Customer will return or destroy (and upon request, certify destruction of) Confidential Information (including destruction of copies, duplications, notes, summaries, analysis etc.) upon fulfilment of an Order or upon ATUM's request, whichever is earlier.


8.9. Survival. The obligations of Customer under this Section shall survive the termination of the parties' business relationship.

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 Terms and Conditions and any applicable additional agreements between ATUM and Customer. If either party materially breaches these Terms and Conditions and fails to cure the breach within thirty (30) days after receiving written notice of the breach, the non-breaching party may terminate.

9.2. 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 ATUM 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 ATUM Products 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. 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 ATUM Products and Services to Customer outside the United States of America, 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 Fremont, 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 subject matter of the Order or the life sciences sector 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, based on breaches of these Terms and Conditions, or any ATUM Product or Service more than one (1) 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 third party.

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. The Parties may enter a separate agreement concerning ATUM Products and/or Services (“Agreement”). Where these Terms and Conditions conflict with such Agreement, terms of the Agreement will prevail. Notwithstanding, these Terms and Conditions shall apply where such Agreement is silent on a particular issue.

11.9. A waiver of a breach of any term of any other 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 continued performance after the other's breach will not be construed as a waiver of that breach.

11.10. 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 business 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.

11.11. Customer and its affiliates hereby covenants that they will not (1) use the ATUM trademark (including the term “ATUM” and the ATUM logo), or trade name or (2) 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.

11.12. Changes. ATUM reserves the right to make changes to the ATUM Website and these Terms and Conditions at any time without notice. Your continued use of the ATUM Website indicates your continued acceptance of any changes to the Terms and Conditions. The Terms and Conditions displayed on the ATUM Website on the date that any Order is placed shall govern that particular Order.