TWISTER BIOTECH, INC. TERMS AND CONDITIONS OF USE AND SALE
BY SUBMITTING A REQUEST FOR PRODUCTS, SERVICES, OR SAMPLES, THE RECIPIENT SHALL HAVE AGREED TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. RECIPIENT SHALL NOT SUBMIT A REQUEST FOR THE PRODUCTS, SERVICES, OR SAMPLES IF THE RECIPIENT DOES NOT AGREE TO THESE TERMS AND CONDITIONS. ONCE THE RECIPIENT ACCEPTS THE TERMS OF THIS AGREEMENT, IT CANNOT SUBSEQUENTLY DECLINE SUCH TERMS WITHOUT PRIOR WRITTEN CONSENT OF TWISTER BIOTECH, INC. (“PROVIDER”).
UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING BY TWISTER BIOTECH, INC., ALL USE AND SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS OF USE AND SALE:
1. GENERAL. TWISTER BIOTECH, INC. (“Provider”) hereby offers to the recipient (“Recipient”) products, services, or samples including custom products, manufactured and supplied by Provider for Recipient, or listed on Provider’s website (“Products”), on the express condition that Recipient agrees to accept and be bound by the terms and conditions set forth herein (“Agreement”). This Agreement also governs, without limitation: (i) Products developed using the Recipient’s non-proprietary or proprietary data and/or materials including, but not limited to DNA, RNA, gene, and any reagents provided by Recipient to Provider, for the purpose of Provider designing Products. Any provisions contained in any document issued by Recipient are expressly rejected. If the terms and conditions in this Agreement differ from the terms of Recipient’s offer this document will be construed as a counter offer, and will not be effective as an acceptance of Recipient’s document. Provider’s receipt of Recipient’s request for Product(s), or Provider’s commencement of the Services provided hereunder will constitute Recipient’s acceptance of this Agreement. This is the complete and exclusive statement of the contract between Provider and Recipient with respect to Recipient’s request for Products. No waiver, consent, modification, amendment, or change of the terms contained herein will be binding unless in writing and signed by Provider and Recipient. Provider’s failure to object to terms contained in any subsequent communication from Recipient will not be a waiver or modification of the terms set forth herein. Products may be subject to additional terms, conditions and restrictions on use which are sent with the Products, and/or are available on Provider’s website. A link to these Terms and Conditions of Use and Sale is posted prominently on the home page of this website and will be continually available for review.
In these Twister Biotech, Inc. Terms and Conditions of Use and Sale:
2.1 “Provider” means Twister Biotech, Inc., One Baylor Plaza, MS BCM210, 330D, Houston, TX 77030.
2.2 “Recipient” means corporations or other business entities, academic institutions, or researchers and their agents, and individuals using this site for placing a request for Products, Samples, or Services with Provider, respectively and as applicable.
2.3 “Intellectual Property” means all proprietary information and knowhow, all inventions, patentable discoveries, algorithms, and software.
2.4 “Product” means the products (including custom products) or samples of products supplied by Provider to Recipient or listed on Provider’s website, and includes products developed using the Recipient’s non-proprietary or proprietary data and/or materials including but not limited to DNA, RNA, gene, and any reagents provided by Recipient to Provider, for the purpose of Provider designing custom products.
2.5 “Intended Use” means for laboratory and scientific research use only, not for human and animal diagnostic or therapeutic procedures.
2.6 “Services” means processes, methods, or related acts involved in synthesis of Product, or otherwise in connection with the design or manufacture of Product.
3.0 REPRESENTATIONS. By submitting a request for Products, Recipient represents and agrees that (a) Recipient has provided Provider with all information that Recipient is aware of regarding any biological, radiological, and chemical hazards associated with the handling, transport, exposure or other usage of the materials; and (b) Recipient has the right to cause the sequences, that Recipient requested Provider to manufacture, to be manufactured.
4.0 INTELLECTUAL PROPERTY.
4.1 Recipient shall acknowledge that all Intellectual Property rights relating to Provider’s Products and Services, as between the Recipient and the Provider, are solely and exclusively owned by Provider. Provider’s sale of Products or Services to Recipient, only grants the Recipient a limited non-transferrable right for only Recipient to use Products bought from Provider in accordance with the terms and conditions of this Agreement. Provider’s sale of Products or Services to the Recipient shall not grant Recipient a license to any of Provider’s Intellectual Property whether express, implied, by estoppel, or otherwise, or grant Recipient the right to make, or have made any Products, or to use Products beyond the scope of this Agreement. Nothing in this Agreement limits Provider’s ability to enforce Provider’s Intellectual Property rights.
4.2 In relation to Products and Services of Provider, any inventions (patentable or otherwise), discoveries, improvements, or other results that are conceived, developed, discovered, reduced to practice, or generated by or for Provider, or jointly by Provider and Recipient, shall be and shall remain Provider’s sole and exclusive Intellectual Property.
5.0 INDEMNIFICATION. If a third party makes a claim against Provider for infringement of it’s Intellectual Property, based on Provider’s manufacture or sale of a Product made under instructions, specifications, directions, installation, assembly, or use of materials provided by the Recipient, or based on Recipient’s modification, use, or resale of a Product, Recipient shall indemnify and hold Provider harmless from and against any and all claims, losses, damages, liabilities, and expenses, including reasonable attorney fees and other costs of defending and/or settling any action that Provider may have to pay as a result of the claim.
6.0 EXPORTS CONTROL. Recipient acknowledges that each Product and any related software and technology, including technical information supplied by Provider or contained in documents (collectively “Items”), is subject to export controls of the U.S. government, European Union, and local export-control laws and regulations. The export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Recipient will comply with the EAR and all other applicable laws, regulations, treaties, and agreements relating to the export, re-export, and import of any Item. Recipient shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (i) export or re-export any Items, or (ii) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. Recipient shall, if requested by Provider, provide information on the end user and end use of any Item exported or to be exported by Recipient. Recipient shall cooperate fully with Provider in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and will indemnify and hold Provider harmless from, or in connection with any violation of this section by Recipient, its employees, consultants, or agents.
7.0 OFFERS AND SPECIFICATIONS. Orders placed by the Recipient shall be binding for Recipient. Provider reserves the right to withdraw from, and/or to cancel any Recipient placed order for biosecurity, biosafety, patent infringement, and/or feasibility reasons. The Product details mentioned in the catalogues and on the websites of Provider do not exactly describe the nature of the Products and are, therefore, not binding. Customary deviations from the data on measures, weights, nature, quality of the Products, and such deviations usual in the line of business, where such deviations are not unreasonable, shall not be reason for the Recipient to make any claim for breach of warranty. Provider is entitled to provide Services and/or any Products via sub-contractors.
8.1 Where the Recipient is in default of acceptance or breaches any other contributory obligations, Provider shall be entitled to demand the loss arising to Provider including any additional expenses.
8.2 Provider shall use reasonable endeavors to perform the Services and provide the Products, in accordance with the estimated timelines set forth in the respective quote provided by Provider to Recipient, subject to due receipt of all materials, documents, necessary authorizations and releases to be supplied by the Recipient as well as clarification of all technical issues, and to the Recipient having timely and duly fulfilled its obligations in these Twister Biotech, Inc. Terms and Conditions of Use and Sale. It is the understanding of the parties that the Services are performed using biological systems and, therefore, in rare cases delays in providing the Services may occur (e.g. in case of toxic or unstable gene sequences or toxic gene products, but not limited thereto) and Provider shall not be liable for such delays. Provider will inform the Recipient of any delay in providing the Products and/or the Services of which Provider becomes aware of and Provider and the Recipient will develop in mutual agreement measures to reduce any delays to a minimum.
8.3 ACCEPTANCE. Acceptance may only be refused on account of substantial deficiencies to the Products specifications set forth in the respective contract. If the Recipient has not carried out acceptance within a deadline of one (1) week after receipt of the Products at the latest, acceptance shall be deemed to be effected.
8.4 CANCELLATION OF ORDERS. If the Recipient wants to cancel an order for Product, the Provider will refund to the Recipient the following charges of the order: fifty percent (50 %) of synthesis price after start of production, twenty-five percent (25 %) of price after start of fermentation, and zero percent (0 %) of price after start of purification.
9.0 WARRANTIES AND RESTRICTION OF USE.
9.1 Provider guarantees one hundred percent (100 %) sequence fidelity between ordered and de novo synthesized / delivered Product except, in certain rare cases, sequences with high degrees of internal repetition or strong secondary structures cannot be sequence verified despite multiple attempts. In these cases, Provider reserves the right to deliver the final construct length-verified if intermediate Product had been previously sequence-verified.
9.2 Provider’s warranty with respect to the Products is limited to the warranty provided in 9.1 and for a period not to exceed one (1) year from the date of manufacture. THE LIMITED WARRANTY PROVIDED HEREIN DOES NOT APPLY TO ANY DEFECT CAUSED BY FAILURE TO PROVIDE A SUITABLE STORAGE, USE OR OPERATING ENVIRONMENT; USE OF NON-RECOMMENDED REAGENTS OR BIOCHEMICALS; THE USE OF ANY PRODUCT FOR NON-RESEARCH PURPOSES OR A PURPOSE OR IN A MANNER OTHER THAN THAT FOR WHICH THEY WERE DESIGNED; MODIFICATIONS DONE BY RECIPIENT; OR ANY OTHER ABUSE, MISUSE OR NEGLECT OF THE PRODUCTS BY RECIPIENT.
Any model or sample furnished to Recipient is merely illustrative of the general type and quality of goods and does not represent that any Product will conform to such model or sample. All technical advice and information provided by Provider, whether by phone, e-mail, website or any other channel is provided “AS IS” and without any warranty of any kind. It is the responsibility of the Recipient to determine if a Product or procedure is suitable for a specific purpose and to apply the necessary safety precautions. This warranty applies only to the Recipient and not to any third party. Recipient’s exclusive and sole remedy under this warranty is: (i) replacement of the Product that failed to conform to the warranty above or (ii) at Provider’s option a credit or refund for the Product in question.
EXCEPT AS EXPRESSLY PROVIDED IN THIS WARRANTY STATEMENT, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE. PROVIDER DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
9.3 The Products are for the Recipients end-use only and may not be transferred to any third party. The resale of Products requires the prior written consent of Provider. The Products are intended for laboratory and scientific research use only, and not for human and animal diagnostic or therapeutic procedures (“Intended Use”). The Recipient is solely responsible for the use, handling, storage, and disposal of the Products in accordance with any applicable national and international quality and regulatory requirements and/or legislation and for obtaining all required approvals from competent authorities.
9.4 Recipient is responsible for obtaining and hereby represents and warrants to Provider that it will have obtained, as of the order date for the Products, all third party required consents, Intellectual Property, rights, approvals, and/or licenses necessary for Recipient to provide, access, or use of the DNA, RNA, and, any reagents provided by Recipient to Provider, for the purpose of Provider designing custom products, and related information (“Consents”) to Provider, as contemplated hereunder with respect to Products. Provider will be relieved of the performance of any obligations hereunder that may be affected by Recipient’s failure on request by Provider to promptly provide any Consents to Provider.
9.5 Any use of the Products for purposes beyond the Intended Use is at the Recipient’s own risk and Provider expressly disclaims any liability for such use. Any use of the Products for human medical purposes or medicinal diagnostic purposes or as medicine or in industrial production is at the Recipient’s own risk and Provider expressly disclaims any liability for such use. As Provider is not in the position to foresee or control possible applications, procedures and processes for the use of the Products, Provider expressly disclaims any liability for damages based on improper use or on application of the Products beyond the Intended Use. Any directions for use issued by Provider are to be considered as recommendations only, and Provider shall accept no liability in respect thereof.
9.6 Provider has to be notified of any defects of delivered Products or shortages or faulty deliveries at the latest thirty (30) days after receipt of the Products. If these time limits for claim are not observed, any other existing warranty claims shall be ruled out. No claim will be accepted if it is made later than one (1) year since acceptance.
10.0 PAYMENT. Upon receipt of an order or request, Provider shall have no obligation to begin production of a Product, until payment is received in full from Recipient. Each order is a separate transaction, and Recipient may not set-off payments from one order against another.
11.0 GOVERNING LAW. This Agreement and performance under it shall be governed by the laws of the State of Texas, without regard to provision on the conflict of laws.
12.0 ASSIGNMENT. Recipient may not delegate any duties nor assign any rights or claims hereunder without Provider’s prior written consent, and any such attempted delegation or assignment will be void.
13.0 SEVERABILITY AND WAIVER. In the event that any one or more provisions contained herein will be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein will remain in full force and effect, unless the revision materially changes the bargain.
14.1 Provider’s failure to insist upon or enforce strict performance of any provision herein shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties, nor trade practice shall act to modify any provision herein. Provider may assign its rights and duties under these Terms and Conditions of Use and Sale to any party at any time without notice to Recipient.
14.2 Provider will not be responsible or liable for failing to perform Provider’s obligations under the Agreement to the extent caused by circumstances beyond Provider’s reasonable control.
14.3 Recipient shall keep confidential any non-public technical information, proprietary information, commercial information (including prices, without limitation) or instructions (including any gene sequences, oligo types, or sequences) received from Provider as a result of discussions, negotiations and other communications, between Recipient and Provider, in relation to Provider’s Products or Services.