Engineered Cell and CRISPR Products (RUO) Terms and Conditions of Sale
1.Acceptance of Terms
1.1.These are the terms and conditions (“Terms”) which govern the sale of research use only engineered cell products by EditCo Bio, Inc. (“EditCo”) to the person or entity purchasing such products from EditCo pursuant to an order accepted by EditCo (“Customer”, and together with EditCo, the “Parties” and each, a “Party”). Customer will be deemed to have accepted these Terms by placing an order for products with EditCo. The specific details of the research use only (“RUO”) engineered cell products (“Engineered Cell Products”) or RUO multi-guide gene knockout kits and/or multi-guide screening libraries (“CRISPR Products”) and any additional deliverables to be provided (collectively, the “Products”) will be described in EditCo’s quotation to Customer, and may be further described in a statement of work or similar document agreed to in writing by the Parties (such quotation and, if applicable, statement of work or similar document, is referred to herein as the “Quotation”). Customer will be deemed to have accepted these Terms by placing an order for Products with EditCo.
1.2.These Terms, including all documents incorporated herein by reference, the Quotation, and those specific terms of a purchase order or other document that are expressly agreed upon by EditCo in writing, constitute the entire contract between the Parties relating to the subject matter hereof (the “Contract”), and supersede all prior agreements and understandings between the Parties, whether written or oral. Any additional or different terms and conditions, including without limitation any terms and conditions in Customer’s purchase order or any other document not agreed upon by EditCo in writing, are hereby expressly rejected by EditCo and will not apply, whether EditCo objects to them or not. In the event of a conflict, any Quotation issued to Customer from EditCo takes precedence over these Terms, and a separate written agreement covering the same subject matter signed by both Parties takes precedence over both. If one or more of these Terms are held invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining Terms will be unimpaired.
2.Orders
2.1.Orders. All orders are subject to EditCo’s acceptance and availability of Products. Once EditCo has accepted an order, Customer may not cancel or change it without EditCo’s written approval.
2.2.Manufacture of Products. EditCo will manufacture the Products in accordance with the applicable Quotation and applicable laws and regulations and in a manner consistent with relevant industry standards for research use only products. Except as otherwise set forth on an applicable Quotation, EditCo will have exclusive control over the manner, means and details of performance under the Contract, and Customer will not control or determine the method, means, or details of the performance. EditCo may subcontract any portion of the Contract hereunder, provided that EditCo shall remain responsible for the performance of any such subcontractor hereunder and for their compliance with the terms and conditions of the Contract or an applicable Quotation.
2.3.Change Order. Any material change to a Quotation will require an amendment to the Quotation that is agreed to by both Parties (a “Change Order”). Each Change Order shall detail the requested changes to the applicable task, responsibility, duty, product, pricing, timeline or other matter. The Change Order shall become effective upon the execution of the Change Order by both Parties. Both Parties agree to act in good faith and promptly when considering a Change Order requested by the other Party. EditCo reserves the right to charge a change fee, in addition to any cost increase associated with the requested material changes. Such change fees shall be set forth in the applicable Quotation and shall take precedence over these Terms. For orders for XDel Knockout Cell Pools and XDel Custom Cell Pools, any changes made after project initiation to the designated parental cell line or target gene will incur a change fee of 100% of the price for such XDel Knockout Cell Pool or XDel Custom Cell Pool, as applicable, as set forth in the Quotation.
2.4.Customer Materials. Customer may transmit to EditCo certain cell lines or other materials as set forth in the Quotation (“Customer Materials”) and these Customer Materials will be used by EditCo and its employees, subcontractors or agents (“Representatives”) solely in carrying out its obligations under the Contract or the applicable Quotation. EditCo will destroy any Materials within one (1) year of completion of the applicable Order. Unless otherwise agreed in the Quote, Customer is responsible for delivering any Customer Materials to EditCo’s facility on DDP (Incoterms 2020) shipping terms. Customer represents and warrants that it has the right to provide the Customer Materials to EditCo for all uses contemplated by the Contract or the applicable Quotation.
2.5.Shipping and Delivery. All Products are shipped FCA EditCo’s facility (Incoterms® 2020). Products are delivered when EditCo loads them onto the commercial carrier at EditCo’s facility. At this point Customer becomes responsible for risk of loss and damage. If any Product is lost or damaged while it is being transported, EditCo will try to help Customer address the problem with the carrier. Title to Products will pass to Customer upon EditCo’s delivery of the Products to the carrier. EditCo will not be held liable for delays in shipping or customs clearance.
3.Fees, Taxes and Other Charges
3.1.Fees. The fees for the Products (the “Fees”) will be as set forth in the Quotation. In certain situations, the Quotation will specify that certain Fees will be non-refundable and non-cancellable. EditCo’s Fees do not include any taxes (including VAT), duties, levies or other government fees that may apply to Customer’s order. If they apply, it will be Customer’s responsibility to pay them. If EditCo pays them, EditCo will add them to Customer’s invoice.
3.2.Expenses. Where the Quotation provides for expense reimbursement, Customer will reimburse EditCo for reasonable expenses incurred in carrying out its obligations under the applicable Quotation. Where Customer requests it, EditCo will provide Customer with reasonable supporting documentation for such expenses together with the invoice for reimbursement. Unless otherwise agreed in the applicable Quotation, EditCo will invoice Customer for reimbursable expenses as they are incurred.
4.Payment
Invoices shall be paid in U.S. dollars within thirty (30) days from the invoice date. If EditCo does not receive such payment within thirty (30) days from the invoice date, without affecting EditCo’s other rights, EditCo has the right to cancel the order and Contract, suspend delivery or reject Customer’s future orders, and charge a late-payment charge, from the due date until paid, at the rate of 1% per month (12% per year) or, if less, the maximum amount allowed by law.
EditCo will invoice Customer in accordance with the payment schedule agreed in the applicable Quotation; provided that if the Quotation does not specify a payment schedule EditCo has the right to invoice Customer when Products specified in the Quotation are completed and ready for shipment.
5.Warranties; Disclaimers; Remedies
5.1.Except as otherwise set forth in the Quotation, EditCo warrants to Customer that the Products will meet the specifications for such Products as provided in the quality control document that accompanies the Products when used under normal conditions in Customer’s laboratory for a period of six (6) months from the date of Customer’s receipt of such Products. THIS WARRANTY IS EXCLUSIVE, AND EDITCO MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT OR OTHER DELIVERABLE, WHETHER 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. IF EDITCO PROVIDES PRODUCTS TO CUSTOMER BASED ON INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS CUSTOMER PROVIDES TO EDITCO, WHETHER OR NOT SUCH INSTRUCTIONS, SPECIFICATIONS OR DIRECTIONS ARE BASED ON RESULTS OR MATERIALS GENERATED THROUGH TOOLS, FEATURES OR FUNCTIONALITY EDITCO MAKES AVAILABLE TO CUSTOMER THROUGH EDITCO’S WEBSITES OR OTHERWISE, EDITCO WILL NOT BE LIABLE FOR THE LACK OF SUFFICIENCY, FITNESS FOR PURPOSE OR QUALITY OF THE PRODUCTS TO THE EXTENT ATTRIBUTABLE TO SUCH INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS.
5.2.Warranty Exclusions and Remedies. EditCo’s warranty as set forth in Section 5.1 will not be effective if EditCo determines that the Products have been altered or misused or have not been properly used or stored, or if the defects to the Products result from misuse, neglect or accident caused by a party other than EditCo (including without limitation defects caused by damage during shipment or by force majeure events). EditCo’s sole and exclusive liability, and Customer’s exclusive remedy with respect to Products returned within the warranty period and proved to EditCo’s satisfaction (applying analytical methods reasonably selected by EditCo with such analysis that EditCo conducts being dispositive for the purposes of determining conformance under the warranty) to be nonconforming with the warranty, will be the replacement of the Products free of charge upon, at EditCo’s election, Customer’s return or destruction of such Products in accordance with EditCo’s instructions, although at EditCo’s discretion, EditCo may provide a credit or refund. Warranty claims must be made within thirty (30) days after Customer discovers that the Product does not conform and within the applicable warranty period.
5.3.Product Returns. Products may be returned only for breach of the warranty as provided in Section 5.1. Contact support@editco.bio to have any return requests related to the above warranty accepted. Return requests will not be accepted by EditCo without prior written authorization. EditCo reserves the right to test a sample of the Product prior to authorizing the return of the remaining Product and to deny return if, in EditCo’s opinion, the Product complaint is a result of inappropriate usage or handling or any other cause excluded pursuant to Section 5.2 rather than a failure of the Product to meet specifications as outlined on the quality control document, when used under normal conditions in Customer’s laboratory. Return of Products will not be authorized if such Product meets the applicable specifications.
5.4.Technical Assistance. Unless otherwise agreed, all technical assistance and information EditCo provides to Customer regarding the Products, including without limitation any recommended guide RNAs and sequences or other materials generated through Customer’s use of any tools, features, or functionality EditCo makes available to Customer through EditCo’s websites or otherwise, will be provided gratis, and Customer assumes sole responsibility for results obtained in reliance thereon. EditCo makes no warranty regarding such technical assistance or information.
For orders for XDel Knockout Cell Pools and XDel Custom Cell Pools, EditCo’s Product Guarantees only apply for genes not deemed essential according to DepMap.
6. Product Use and Restrictions
6.1.Research Use Only. Except as otherwise agreed in writing by EditCo’s authorized representative, all Products are for CUSTOMER’S INTERNAL RESEARCH USE ONLY, AND NOT FOR HUMAN OR ANIMAL CLINICAL, THERAPEUTIC OR DIAGNOSTIC USE OR OTHER COMMERCIAL PURPOSES (including, without limitation, quality control of commercial products). EditCo does not submit Products for testing or 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 Customer’s use of the Products, including without limitation for ensuring that Customer’s use of such Products complies with applicable laws, regulations and governmental policies, and for obtaining all necessary approvals, intellectual property rights, licenses and permissions that Customer may need related to such use.
6.2.Suitability and Safety. It is solely Customer’s responsibility to make sure the Products are suitable for Customer’s particular use and to conduct any research necessary to learn the hazards involved for any of Customer’s uses of the Products provided by EditCo. Customer also has the duty to warn Customer’s employees and any other party Customer permits to use the Products of any risks involved in using or handling the Products. Customer agrees to comply with instructions for use of the Products furnished by EditCo, if any, and not to misuse the Products. Customer acknowledges that EditCo may provide material Safety Data Sheets (SDSs) for the Products, and that they are available upon request.
6.3. Label Licenses. Products may be subject to limited use label licenses, material transfer agreements, or other third-party use and transfer restrictions (collectively, "Label Licenses"), and Customer agrees to comply with each Label License applicable to the Services it orders. Applicable Label Licenses are identified in the applicable Quotation and include:
(a) EditCo’s Limited Use Label License, available at https://www.editco.bio/limited-use-label-license, which applies to all Products and Services;
(b) for Services containing HiBiT, NanoLuc®, or HaloTag® technology, the applicable Promega limited use label license is available at https://www.editco.bio/editco-promega-limited-use-label-license;
(c) for Products derived from materials supplied by Cytion, LLC d/b/a Cell Lines Service, the Cytion Limited Use Label License available at https://www.editco.bio/cytion-limited-use-label-license and Cytion's General Terms and Conditions available at www.cytion.com/terms; and
(d) for Products derived from materials obtained from the American Type Culture Collection, the ATCC Material Transfer Agreement identified in the applicable Quotation, acceptance of which is a condition of EditCo’s acceptance of the Order.
Where a Label License is more restrictive than these Terms, including as to permitted use or transfer under Section 6.4 (No Distribution), the more restrictive terms control. Nothing in these Terms grants Customer any right that EditCo is not itself authorized to grant.
6.4.No Distribution. Customer may not resell, transfer or distribute the Products to any third party; provided that Customer may transfer products to a bona fide third party service provider providing research services to Customer or a bona fide third party collaborator with whom Customer has a written collaboration agreement for use of the Products in Customer’s research project, and in each case where the third party has agreed in writing to be bound by the restrictions contained in the Contract regarding use, confidentiality and intellectual property rights.
6.5.No Reverse Engineering. Customer may not undertake deconvolution or reverse engineering with respect to the Products except as necessary to verify quality or edits of engineered cell lines. Without limiting the foregoing restriction or any other use restrictions hereunder with respect to the Products and Customer’s use of the Products, Customer may not conduct a competitive analysis of the Products or use the Products in any manner in connection with the development or commercialization of a competitive service or product offering.
7.Intellectual Property Rights
7.1.Products. Customer acknowledges that it is paying for EditCo to supply certain Products hereunder. The purchase of such Products by Customer conveys to Customer the right to use such Product subject to Article 6 (Product Use and Restrictions) including the applicable Label License(s). EditCo hereby grants to Customer a limited, perpetual, royalty-free, non-exclusive, non-transferable license to use any intellectual property rights owned by EditCo contained in any Products provided to Customer hereunder only to the extent such license is required for Customer’s use of such Product for Customer’s internal research purposes and in compliance with this Contract, including any applicable Label License(s). No other intellectual property rights are conveyed hereunder, and Customer acknowledges that EditCo, as a platform provider and supplier of products and services, will not be restricted in any manner from providing the same or similar services or making, using or supplying the same or similar products for or to other customers or otherwise. Notwithstanding the foregoing, EditCo maintains Customer’s interest in a given Product as Customer’s Confidential Information.
7.2.Customer acknowledges and agrees that all intellectual property rights in the Products and in any EditCo technology, intellectual property and know-how used to make or useful to manufacture or use the Products will at all times remain vested in EditCo and its licensors. For the avoidance of doubt, EditCo retains all right, title and interest in and to any of its know-how or other intellectual property, including without limitation any know-how or other intellectual property conceived, reduced to practice or made by or on behalf of EditCo, that is an improvement to, or modification, enhancement or derivative work of any EditCo know-how or other intellectual property or that relates to the processes, procedures, or methods used by EditCo to provide the Products. Notwithstanding the foregoing, Customer will own all intellectual property that arises from Customer’s use of the Products (provided such use is consistent with the terms of this Contract) and Customer will have the right to seek patent protection on any such intellectual property that is patentable.
7.3.Reservation of Rights. Except as expressly stated herein, no right or license under EditCo’s intellectual property rights, express or implied, is granted hereunder. Unless explicitly stated, no license or immunity under any third party (non-EditCo) intellectual property is either granted or implied by the sale of any of EditCo’s Products. In particular, except as expressly provided in any Label License, no licenses to third party intellectual property relating to CRISPR systems, methods, and compositions are provided. It is solely Customer’s responsibility to determine whether Customer may be required to obtain any additional or third party intellectual property rights depending upon the particular application in which Customer uses the Product, and to obtain such additional or third party intellectual property rights if required.
8.Confidentiality and Privacy.
8.1.Confidential Information. Pursuant to the Contract, either party may disclose its Confidential Information (“Disclosing Party”) to the other party (“Receiving Party”). “Confidential Information” means: (i) any information disclosed (directly or indirectly) by Disclosing Party to Receiving Party pursuant to the Contract (including, without limitation, research, product plans, products, services, equipment, customers, markets, software, inventions, processes, designs, drawings, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets) that is (i) disclosed in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; (ii) disclosed orally and is designated as confidential at the time of its initial disclosure and reduced to a written summary by Disclosing Party that is marked in a manner to indicate its confidential nature and delivered to Receiving Party within thirty (30) days after its initial disclosure; or (iii) information (whether disclosed orally or in writing) that should otherwise reasonably understood by the Receiving Party to be confidential to the Disclosing Party under the circumstances of disclosure under the Contract or by the nature of the information itself. Confidential Information may include information of a third party that is in the possession of Disclosing Party and is disclosed to Receiving Party under the Contract. Without limiting the foregoing, EditCo will treat Customer’s interest in a given custom Product (or interest in specific sets of genomic regions to be knocked out in Engineered Cell Products designed by EditCo) as Customer’s Confidential Information and will not disclose the same to third parties, subject only to the exceptions set forth in Section 8.2. Notwithstanding the foregoing, EditCo reserves the right to make and sell the same or similar products to other customers.
8.2.Use and Disclosure. The Receiving Party will (a) not use Confidential Information of the Disclosing Party except in performing Receiving Party’s obligations or exercising its rights under the Contract, and will limit disclosure of any Confidential Information of the Disclosing Party to its Representatives who have a need to know such Confidential Information in connection with the business relationship between the Parties to which the Contract relates, and only for that purpose and who are subject to binding confidentiality obligations substantially as protective of the Confidential Information as the terms and conditions hereof; (b) protect the Confidential Information of the Disclosing Party from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential information, and with no less than reasonable care using reasonable precautions to prevent its disclosure to and/or use by any unauthorized third party; and (c) not disclose any Confidential Information of the Disclosing Party to any third parties (except as otherwise provided for herein). Notwithstanding the foregoing, a Receiving Party (i) may disclose the existence of the Contract or the fact that there have been discussions between the parties hereto of a possible business relationship to a potential financing source or acquirer of such Receiving Party who is legally bound to confidentiality restrictions with respect to such information no less stringent than those set forth in the Contract in connection with confidential discussions with and due diligence review by such financing source or acquirer and (ii) may disclose Confidential Information to its Representatives who are attorneys, accountants, auditors or other professional advisors, for use by such Representatives in providing professional advice to the Receiving Party with respect to the Confidential Information. Each Party shall be responsible for any breach of the Contract by any of their respective Representatives.
8.3.Exclusions. Confidential Information shall not, however, include any information Receiving Party can demonstrate by competent evidence: (i) was publicly known or made generally available prior to the time of disclosure by Disclosing Party to Receiving Party; (ii) becomes publicly known or made generally available after disclosure by Disclosing Party to Receiving Party through no wrongful action or inaction of Receiving Party; (iii) is in the rightful possession of Receiving Party, on a non-confidential basis, at the time of disclosure by Disclosing Party to Receiving Party ; (iv) is obtained by Receiving Party from a third party on a non-confidential basis and without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Receiving Party without use of or reference to Disclosing Party’s Confidential Information. For the avoidance of doubt, nothing will prevent EditCo from performing services for or supplying the same or similar products to other customers that request services or products that entail the same or similar sequences or edits, respectively, of Products.
8.4.Disclosure Required by Law. A Receiving Party will be permitted to disclose Confidential Information to the extent that such disclosure is required by law, regulation, act or order of any governmental authority or agency, provided that where permissible the Receiving Party gives the Disclosing Party prompt written notice of such required disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court. The Receiving Party will restrict any required disclosure to only that portion of the Confidential Information that is legally required to be disclosed, and the Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally required disclosure.
8.5.Return. All Confidential Information (including all summaries and whole or partial copies or embodiments thereof) is and will at all times remain the property of the Disclosing Party and, at the Disclosing Party’s written request, will be promptly returned at the Disclosing Party’s expense or destroyed at the sole discretion of the Disclosing Party; provided, however, that Receiving Party may retain one copy of the Confidential Information in its confidential files solely for purposes of monitoring compliance with the Contract and may retain Confidential Information to the extent required by applicable law or regulation. Notwithstanding the foregoing, neither Party shall have any obligation to destroy any electronic information stored in any electronic back-up systems in the ordinary course of business. Any retained Confidential Information shall remain subject to the terms of the Contract.
8.6.Privacy. Customer acknowledges and agrees that the terms of EditCo’s privacy policy, available here, are incorporated by reference into the Contract, and that EditCo may collect and use personal information in accordance with its privacy policy. EditCo does not require any individually identifiable health information to perform its obligations under the Contract or any Quotation, including without limitation any individually identifiable health information that is subject to the Health Insurance Portability and Accountability Act of 1996 or Health Information Technology for Economic and Clinical Health Act or any regulations promulgated thereunder (collectively “PHI”). Customer agrees not to transfer any PHI to EditCo under the Contract or any Quotation, and will immediately notify EditCo if it becomes aware of any PHI being inadvertently transferred to EditCo, in which case EditCo will promptly return such PHI to Customer.
9.Indemnification
9.1.Customer Indemnification Obligations. Customer hereby indemnifies, defends and holds harmless EditCo, its officers, agents, employees, distributors and affiliates (the “EditCo Indemnified Parties”) against any cost, loss, damage, expense or other liability (including reasonable attorneys’ fees and costs) (collectively, “Losses”) which may be incurred by or imposed upon any EditCo Indemnified Party in connection with any third party claims, suits, investigations, actions, demands or judgements (collectively, “Claims”) arising out of (a) Customer’s breach of the Contract, including without limitation breaches of Article 6 (Product Use and Restrictions) and any applicable Label License(s) or Customer’s failure to acquire any applicable additional rights related to Customer’s use of the Products, or (b) Customer’s gross negligence, recklessness or willful misconduct, or (c) EditCo’s manufacture or provision of a Product pursuant to the instructions, specifications, or other directions of Customer (whether or not such instructions, specifications or other directions are based on results or materials generated through tools, features or functionality EditCo makes available to Customer through EditCo’s websites or otherwise), or (d) EditCo’s use of Customer Materials Customer provides to EditCo, or (e) Customer’s use of any Product provided by EditCo to Customer under a Quotation, except to the extent any such Losses are covered by EditCo’s indemnification obligations under Section 9.2.
9.2.EditCo Indemnification Obligations. EditCo hereby indemnifies, defends and holds harmless Customer, its officers, agents, employees, distributors and affiliates (the “Customer Indemnified Parties”) against any Losses which may be incurred by or imposed upon any Customer Indemnified Party in connection with any Claims arising out of (a) EditCo’s manufacture of the Products using any manufacturing or design methods of general applicability or equipment used by EditCo to carry out its obligations under the Contract (but expressly excluding any Claim to the extent arising from (i) Customer Materials or Customer’s Confidential Information or their use by EditCo as permitted under the Contract, (ii) the compliance by EditCo with the written instructions, specifications or other written directions of Customer or (iii) use of the Products) infringing any third party’s intellectual property rights or (b) EditCo’s gross negligence, recklessness or willful misconduct in performing any activity contemplated by this Agreement, except to the extent any such Losses are covered by Customer’s indemnification obligations under Section 9.1
10.Limitations of Liability
10.1.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OTHER THAN WITH RESPECT TO CLAIMS ARISING FROM BREACH OF ARTICLE 6 (PRODUCT USE AND RESTRICTIONS) OR ARTICLE 8 (CONFIDENTIALITY AND PRIVACY) OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 9 (INDEMNIFICATION) HEREUNDER, NEITHER PARTY WILL BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) OF ANY KIND, WHETHER OR NOT THE PARTY HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
10.2.EDITCO’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT OR ANY QUOTATION, IS LIMITED TO THE AGGREGATE AMOUNT OF FEES CUSTOMER PAID TO EDITCO UNDER THE APPLICABLE QUOTATION.
10.3.DELIVERY DATES AND TIMES ARE ESTIMATES ONLY AND EDITCO WILL NOT BE LIABLE (IN CONTRACT, TORT OR OTHERWISE) FOR ANY LOSSES, EXPENSES, CLAIMS OR DAMAGES CAUSED BY A LATE DELIVERY.
10.4.The exclusions and limitations in this Article 10 (Limitations of Liability) will not exclude or limit either Party’s liability to the extent that such liability cannot be limited or excluded pursuant to applicable law.
11.Termination or Suspension
11.1.Termination Upon Default Event. Either Party may immediately terminate the Contract if one of the following events occurs with respect to the other party (a “Default Event”) (a) the other Party is in material breach of the Contract which is incapable of cure or which the other Party fails to cure within thirty (30) days after written notice thereof or (b) the other Party becomes insolvent, files, commences or has commenced against it (which if involuntary is not dismissed within ninety (90) days) any proceeding concerning bankruptcy, insolvency, dissolution, liquidation, cessation of operations, reorganization of indebtedness, assignment for the benefit of a creditor or the like, cease to continue all or substantially all of its business affairs or becomes unable to meet its financial obligations in the normal course of business. EditCo may further suspend delivery of Products if a Default Event occurs with respect to the Customer.
11.2.Termination Policy for CRISPR Cell Products. Once an Order is placed for CRISPR Products, no cancellation is permitted after twenty-four (24) hours of placing such Order or once manufacturing has started, whichever comes first. Any and all fees paid up to the date of termination are non-refundable and non-creditable.
11.3.Termination Policy for Orders for Engineered Cell Products. Upon termination of any Quotation for any reason, Customer will pay all Fees and reimbursable expenses (including any non-cancellable expenses not yet incurred) attributable to activities completed under the Quotation prior to the date of termination or such other amounts as are provided in the applicable Quotation. In the case of partially completed services with respect to the manufacture of Products (where such partial completion is not due to breach by EditCo), Customer will pay costs and reimbursable expenses under the Contract up to the date of termination. For cancellations of XDel Knockout Cell Pool orders or XDel Custom Cell Pool orders for any reason other than due to EditCo’s material breach, Customer agrees to pay 100% of the Fees as set forth in the Quotation. Notwithstanding the foregoing, additional or different terms may apply to certain Products. Such terms shall be set forth in the applicable Quotation and shall take precedence over these Terms.
11.4.Termination for Feasibility for Orders for Engineered Cell Products. EditCo will use commercially reasonable efforts to manufacture and deliver the Products, but provides no other warranties of any kind, express or implied, that the work performed by EditCo will produce any useful or favorable results. If, following exhaustion of all commercially reasonable efforts to complete its activities under this Contract or the applicable Quotation, EditCo determines that it is not technically feasible to complete such activities, either Party may terminate the Quotation associated with such Products and EditCo will cease any additional work under the Quotation. Any and all Fees paid up to the date of termination are non-refundable and non-creditable.
11.5.Articles 6 (CRISPR Product Use and Restrictions), 7 (Intellectual Property Rights), 8 (Confidentiality and Privacy), 9 (Indemnification), 10 (Limitations of Liability), 11 (Termination or Suspension), 12. (Export Control), and 13 (General Provisions) of these Terms, as well as any obligations that expressly or by their nature survive termination and any obligations accrued prior to termination of the Contract, shall survive any termination of the Contract.
12.Export Control
Customer acknowledges that Products received from EditCo are subject to the export control laws and regulations of the United States and other applicable jurisdictions (“Export Control Laws”). Customer represents and warrants to EditCo that Customer will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Products, results, documentation, information or technology (including products derived from or based on such technology) received from EditCo to any destination, entity, or person prohibited by the Export Control Laws or otherwise in violation of any Export Control Laws.
13.General Provisions.
Customer’s relation to EditCo under the Contract is that of an independent contractor, and nothing in the Contract is intended or should be construed to create a partnership, joint venture, agency, or employer-employee relationship between Customer and EditCo. EditCo will not be responsible or liable for failing to perform EditCo’s obligations under the Contract to the extent caused by circumstances beyond EditCo’s reasonable control. EditCo’s exercise of any option or failure to exercise any rights hereunder will not constitute a waiver of EditCo’s rights to damages for breach of contract and will not constitute a waiver of any subsequent failure, delay, or breach by Customer. Customer acknowledges and agrees that (a) a breach or threatened breach by Customer of its obligations under Articles 6 (Product Use and Restrictions), 7 (Intellectual Property Rights) or 8 (Confidentiality and Privacy) would give rise to irreparable harm to EditCo for which monetary damages would not be an adequate remedy (b) in the event of a breach or a threatened breach by Customer of any such obligations, EditCo shall, in addition to any and all other rights and remedies that may be available to EditCo at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Customer agrees that Customer will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Article 13 (General Provisions). If any provision or part of the Contract is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Contract. Headings are for convenience only and will not be used in the interpretation of the Contract. The Contract will be governed by and construed in accordance with the laws of California, USA without regard to conflicts of law provisions. Both Parties irrevocably consent to the exclusive personal jurisdiction of the state courts located in San Mateo County, California and the federal courts in the Northern District of California. The Contract may not be assigned or otherwise transferred, in whole or in part, by operation of law or otherwise, by a Party without the other Party’s express prior written consent; provided that either Party may assign the Contract without such consent to an affiliated company or in connection with the merger, consolidation, sale or transfer of all or substantially all of a Party’s business to which the Contract relates. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. EditCo may subcontract obligations under the Contract to any person in whole or in part without Customer’s consent, provided that EditCo will remain responsible for performance of the subcontracted obligations. EditCo reserves the right to change these Terms at any time. Any changes made to these Terms will not apply to the Contract between the Parties for any order EditCo receives before the changes are made.