Terms of Sale for Research Use Only (RUO) Products

1.1.These are the terms and conditions (“Terms”) which govern the sale of Research Use Only (RUO) synthetic gRNA and sgRNA (collectively, the “CRISPR Products”) by Synthego Holdings LLC (“Synthego”) to the person or entity purchasing such products from Synthego pursuant to an order accepted by Synthego (“Customer”, and together with Synthego, the “Parties” and each, a “Party”). Customer will be deemed to have accepted these Terms by placing an order for CRISPR Products with Synthego.

1.2. These Terms, including all documents incorporated herein by reference, any written quotation issued to Customer from Synthego (a ”Quotation”), and those specific terms of a purchase order or other document that are expressly agreed upon by Synthego 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 Synthego in writing, are hereby expressly rejected by Synthego and will not apply, whether Synthego objects to them or not. In the event of a conflict, any Quotation issued to Customer from Synthego 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.

2.1. All orders are subject to Synthego’s acceptance and availability of the products. Once Synthego has accepted an order, Customer may not cancel or change it without Synthego’s written approval. Synthego may make changes to product specifications after Synthego’s acceptance of Customer’s order that do not materially affect the quality or performance of the products.

2.2. All of Synthego’s CRISPR Products are sold FCA Synthego’s facility (Incoterms® 2020). CRISPR Products are delivered when Synthego loads them onto the commercial carrier at Synthego’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, Synthego will try to help Customer address the problem with the carrier. Title to products will pass to Customer upon Synthego’s delivery of the products to the carrier.

If Synthego does not provide Customer with a Quotation or if the price is not specified in a written contract between the Parties, the price of a CRISPR Product will be the list price for such CRISPR Product that applies on the date Synthego receives Customer’s order. Synthego’s prices are subject to change from time to time. Synthego’s prices 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 Synthego pays them, Synthego will add them to Customer’s invoice. Customer is also responsible for standard delivery and handling charges, if any. Synthego will also add these charges to Customer’s invoice.

Invoices shall be paid in U.S. dollars within thirty (30) days from the invoice date. Each order is a separate transaction, and Customer may not set-off payments from one order against another. If Synthego does not receive such payment within thirty (30) days from the invoice date, without affecting Synthego’s other rights, Synthego has the right to cancel the order and Contract, suspend delivery or reject Customer’s future orders, and charge Customer 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.

Synthego 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 Synthego will invoice Customer upon shipment of the CRISPR Products.

5.1. Unless a different written warranty is included in the documentation Synthego provides with a CRISPR Product, Synthego warrants to Customer that Synthego’s CRISPR Products will conform to the technical specifications for such CRISPR Products as provided in the quality control document accompanying the CRISPR 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 CRISPR Products. THIS WARRANTY IS EXCLUSIVE, AND SYNTHEGO 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 CRISPR PRODUCT, 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 SYNTHEGO PROVIDES CUSTOM CRISPR PRODUCTS FOR CUSTOMER BASED ON INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS CUSTOMER PROVIDES TO SYNTHEGO, WHETHER OR NOT SUCH INSTRUCTIONS, SPECIFICATIONS OR DIRECTIONS ARE BASED ON RESULTS OR MATERIALS GENERATED THROUGH TOOLS, FEATURES OR FUNCTIONALITY SYNTHEGO MAKES AVAILABLE TO CUSTOMER THROUGH SYNTHEGO’S WEBSITES OR OTHERWISE, SYNTHEGO WILL NOT BE LIABLE FOR THE LACK OF SUFFICIENCY, FITNESS FOR PURPOSE OR QUALITY OF THE CRISPR PRODUCTS TO THE EXTENT ATTRIBUTABLE TO SUCH INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS.

5.2. Warranty Exclusions and Remedies. Synthego’s warranty, as set forth in Section 5.1, will not be effective if Synthego determines that the CRISPR Products have been altered or misused or have not been properly used or stored, or if the defects to the CRISPR Products result from misuse, neglect or accident caused by a party other than Synthego (including without limitation defects caused by damage during shipment or by force majeure events). Synthego’s sole and exclusive liability, and Customer’s exclusive remedy with respect to CRISPR Products returned within the warranty period and proved to Synthego’s satisfaction (applying analytical methods reasonably selected by Synthego with such analysis that Synthego conducts being dispositive for the purposes of determining conformance under the warranty) to be nonconforming with the warranty, will be the replacement of the CRISPR Products free of charge upon, at Synthego’s election, Customer’s return or destruction of such CRISPR Products in accordance with Synthego’s instructions, although at Synthego’s discretion, Synthego may provide a credit or refund. Warranty claims must be made within thirty (30) days after Customer discovers that the CRISPR Product does not conform and within the applicable warranty period.

5.3. Technical Assistance. Unless otherwise agreed, all technical assistance and information Synthego provides to Customer regarding the CRISPR Products, including without limitation any recommended guide RNAs and sequences or other materials generated through Customer’s use of any tools, features or functionality Synthego makes available to Customer through Synthego’s websites or otherwise, will be provided gratis, and Customer assumes sole responsibility for results obtained in reliance thereon. Synthego makes no warranty regarding such technical assistance or information.

5.4. CRISPR Product Returns. Products may be returned only for breach of the warranty as provided in Section 5.2. Contact our Tech Support Team to have any return requests related to the above warranty accepted. CRISPR Product returns will not be accepted by Synthego without prior written authorization. Synthego reserves the right to deny return if, in Synthego’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 CRISPR Product to meet technical specifications as outlined in the Certificate of Analysis or quality control documentation, when used under normal conditions in Customer’s laboratory. Return of CRISPR Products will not be authorized if such CRISPR Product meets the applicable specifications.

6.1. Research Use Only. Except as otherwise agreed in writing by Synthego’s authorized representative, all CRISPR 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). Synthego does not submit Synthego CRISPR Products for testing or regulatory review by any government body or other organization, and Synthego does not validate them for clinical, therapeutic or diagnostic use, or for safety and effectiveness. Customer is solely responsible for ensuring that Customer’s use of the CRISPR 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 CRISPR 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 CRISPR Products purchased from Synthego. Customer also has the duty to warn Customer’s employees and any other party Customer permits to use the CRISPR Products of any risks involved in using or handling the CRISPR Products. Customer agrees to comply with instructions for use of the CRISPR Products furnished by Synthego, if any, and not to misuse the CRISPR Products. Customer acknowledges that Synthego may provide material Safety Data Sheets (SDSs) for Synthego’s CRISPR Products, and that they are available upon request.

6.3. Label Licenses. Customer acknowledges that the CRISPR Products are subject to limited use label licenses, intended use statements, limited use statements or other license or use restrictions that are set forth here or otherwise set forth in the applicable Quotation or on the labeling for such CRISPR Products or otherwise provided or made accessible to Customer by Synthego (“Label Licenses”), and Customer agrees to comply with such Label Licenses.

6.4. No Reverse Engineering. Customer may not undertake deconvolution or reverse engineering with respect to Synthego CRISPR Products. Without limiting the foregoing restriction or any other use restrictions hereunder with respect to Synthego CRISPR Products and Customer’s use of Synthego CRISPR Products, Customer may not conduct a competitive analysis of Synthego CRISPR Products or use Synthego CRISPR Products in any manner in connection with the development or commercialization of a competitive service or product offering.

6.5. No Distribution. Customer may not resell, transfer or distribute the CRISPR Products to any third party; provided that Customer may transfer the CRISPR Products to a bona fide third party service provider providing research services on Customer’s behalf or a bona fide third party collaborator with whom Customer has a written collaboration agreement for use of the CRISPR Products to assist with Customer’s research project, and in each case where the third party has agreed in writing to be bound by the restrictions contained in this Contract regarding use, confidentiality and intellectual property rights.

7.1. Customer acknowledges that it is paying for Synthego to supply certain CRISPR Products hereunder. The purchase of such CRISPR Products by Customer conveys to Customer the right to use such CRISPR Products subject to Article 6 including the applicable Label License(s), but not the right to make or have made such CRISPR Product. Synthego hereby grants to Customer a limited, non-exclusive, non-transferable license to use any intellectual property rights owned by Synthego contained in any CRISPR Products provided to Customer hereunder only to the extent such license is required for Customer’s use of such CRISPR Products purchased hereunder for Customer’s use of such CRISPR Products 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 Synthego, as a platform provider and supplier of products, will not be restricted in any manner from making, using or supplying the same or similar products for or to other customers or otherwise. Notwithstanding the foregoing, Synthego will maintain Customer's interest in a given CRISPR Product as Customer’s Confidential Information.

7.2. Customer acknowledges and agrees that all intellectual property rights in the CRISPR Products and in any Synthego technology, intellectual property and know-how used to make or useful for the manufacture or use of the CRISPR Products will at all times remain vested in Synthego and its licensors. For the avoidance of doubt, Synthego 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 Synthego that is an improvement to, or modification, enhancement or derivative work of any Synthego know-how or other intellectual property or that relates to the processes, procedures or methods used by Synthego to provide the CRISPR 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. Except as expressly stated herein, no right or license under Synthego’s intellectual property rights, express or implied, is granted hereunder. Unless explicitly stated, no license or immunity under any third party (non-Synthego) intellectual property is either granted or implied by the sale of any of Synthego’s CRISPR 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 CRISPR Product, and to obtain such additional or third party intellectual property rights if required.

8.1. Customer agrees to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions received from Synthego as a result of discussions, negotiations and other communications between the Parties in relation to Synthego’s products or services, and to use such information or instructions solely for Customer’s internal purposes and in connection with Customer’s use of the products as permitted hereunder.

8.2. Customer acknowledges and agrees that the terms of Synthego’s privacy policy, available at https://www.synthego.com/legal/privacy-policy, are incorporated by reference into this Contract, and that Synthego may collect and use personal information in accordance with its privacy policy. Synthego does not require any individually identifiable health information to perform its obligations under this Agreement or any Order, 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 Synthego under this Agreement or any Order, and will immediately notify Synthego if it becomes aware of any PHI being inadvertently transferred to Synthego, in which case Synthego will promptly return such PHI to Customer.

9.1.Customer Indemnification Obligations. Customer hereby indemnifies, defends and holds harmless Synthego, its officers, agents, employees, distributors and affiliates (the “Synthego Indemnified Parties”) for 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 Synthego Indemnified Party in connection with any third party claims, suits, investigations, actions, demands or judgements (collectively, “Claims”) arising out of (a) Customer’s use or modification of a CRISPR Product, (b) Synthego’s provision to Customer of a CRISPR Product Synthego makes pursuant to Customer’s instructions, specifications, or other directions (whether or not such instructions, specifications or other directions are based on results or materials generated through tools, features or functionality Synthego makes available to Customer through Synthego’s websites or otherwise), (c) Customer’s breach of the Contract, including without limitation Article 6 (CRISPR Product Use and Restrictions) and any applicable Label Licenses or Customer’s failure to acquire any applicable additional rights related to Customer’s use of the CRISPR Products (e) Customer’s gross negligence, recklessness or willful misconduct, or (f) Synthego’s use of materials Customer provides to Synthego, except to the extent any such Losses are covered by Synthego’s indemnification obligations under Section 9.2.

9.2. Synthego Indemnification Obligations. Synthego 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) Synthego’s manufacture of the CRISPR Products using any manufacturing or design methods of general applicability or equipment used in manufacturing CRISPR Products by Synthego under these Terms (but expressly excluding any Claim to the extent arising from (i) Customer’s materials or Customer’s Confidential Information or their use by Synthego as permitted under these Terms, or (ii) the compliance by Synthego with the written instructions, specifications or other written directions of Customer, or (iii) use of the CRISPR Products infringing any third party’s intellectual property rights) or (b) Synthego’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

10.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OTHER THAN WITH RESPECT TO CLAIMS ARISING FROM BREACH OF ARTICLE 8 (CONFIDENTIALITY) OR ARTICLE 6 (CRISPR PRODUCT USE AND RESTRICTIONS) OR A PARTY’S INDEMNIFICATION OBLIGATIONSUNDER 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. SYNTHEGO’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT, OR ANY QUOTATION, IS LIMITED TO THE AGGREGATE AMOUNT CUSTOMER PAID TO SYNTHEGO UNDER THE APPLICABLE QUOTATION.

10.3. DELIVERY DATES AND TIMES ARE ESTIMATES ONLY AND SYNTHEGO 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.

11.1. 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. Synthego may further suspend delivery of CRISPR Products if a Default Event occurs with respect to Customer.

11.2. 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.

Customer acknowledges that CRISPR Products received from Synthego 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 Synthego that Customer will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any CRISPR Products, documentation, information or technology (including products derived from or based on such technology) received from Synthego to any destination, entity, or person prohibited by the Export Control Laws or otherwise in violation of any Export Control Laws.

Customer’s relation to Synthego under this Contract is that of an independent contractor, and nothing in this Contract is intended or should be construed to create a partnership, joint venture, agency, or employer-employee relationship between Customer and Synthego. Synthego will not be responsible or liable for failing to perform Synthego’s obligations under the Contract to the extent caused by circumstances beyond Synthego’s reasonable control. Synthego’s exercise of any option or failure to exercise any rights hereunder will not constitute a waiver of Synthego’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 (CRISPR Product Use and Restrictions), 7 (Intellectual Property Rights) or 8 (Confidentiality and Privacy) would give rise to irreparable harm to Synthego 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, Synthego shall, in addition to any and all other rights and remedies that may be available to Synthego 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. This 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 this 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 this Contract relates. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. Synthego may subcontract obligations under the Contract to any person in whole or in part without Customer’s consent, provided that Synthego will remain responsible for performance of the subcontracted obligations. Synthego 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 Synthego receives before the changes are made.

Note: For RUO Accubase™ purchases, please view our addendum to RUO Terms and Conditions here.