Standard Terms and Conditions for Cofactor
All services (the “Services”) and products (the “Products”, and together with Services, the “Deliverables”) provided by Cofactor Genomics, Inc. (“Cofactor”) to customer (“Customer”) are expressly conditioned on Customer’s acceptance of, and shall be governed by, the following terms and conditions (these “Terms”). Cofactor and Customer may each be referred to individually as “Party” and collectively as the “Parties.”
1. Order and Acceptance. Upon Customer’s acceptance of a quotation or statement of work issued by Cofactor to Customer covering the Deliverables to be provided (“Quotation”) and setting out the price for such Deliverables and other relevant details (or Customer’s acceptance or receipt of the Deliverables covered by a Quotation) and Cofactor’s subsequent written confirmation of acceptance thereof (or provision of the applicable Deliverables to Customer), Customer shall be deemed to have placed a legally binding order for the applicable Deliverables subject to the terms of the applicable Quotation and these Terms (an “Order”). The terms of an Order may not be amended or modified except by a change order or other writing mutually executed by the Parties. Customer may not cancel or modify an Order except as expressly set forth in the applicable Quotation or these Terms. For clarity, no order or request by Customer for provision of Deliverables shall be binding upon Cofactor until confirmed by Cofactor in writing, and Cofactor will have no liability to Customer with respect to orders or requests for Deliverables that are not so confirmed. In the event of any conflict between these Terms and a Quotation, these Terms shall control except to the extent such Quotation expressly provides otherwise. No additional or different terms contained in any purchase order, invoice or other ordering document or correspondence between the Parties (including within any acceptance of a Quotation by Customer or a purchase order issued by Customer) shall bind either Party or be construed to modify or amend the terms of an Order or these Terms and any such additional or different terms are hereby expressly excluded and will be of no force or effect.
2. Deliverables. Cofactor will have no obligation to begin to provide any Products or Services until an Order has been placed by Customer in accordance with these Terms. Cofactor will use commercially reasonable efforts to provide Deliverables in accordance with the applicable Order and these Terms; provided that Customer shall perform its responsibilities as set forth in the applicable Order and these Terms. Customer agrees that all timelines set forth in an Order are estimates and are not binding on Cofactor. In the event that Cofactor reasonably determines that it cannot provide the Deliverables, Cofactor will notify Customer thereof and the corresponding Order shall thereupon be cancelled. Any cancellation of an Order shall be without penalty or liability to Cofactor. Notwithstanding anything to the contrary herein, nothing in these Terms shall limit or restrict Cofactor’s right and ability at all times to provide any products or services to third parties. Without limiting the foregoing, to the extent applicable to any Deliverable, the estimated turnaround time for a Deliverable set forth in an Order (if any) shall not be deemed to begin to run until the date on which: (a) Cofactor has determined in its sole discretion that Customer has provided samples and other Customer Materials, including without limitation, a complete and accurate sample submission sheet identifying all samples, replicates, and pools, that satisfy the Quality Standards (as defined below) and (b) Cofactor has received from Customer payment of all Fees (as defined below) that are then owed by Customer in accordance with the applicable Order and these Terms, including as set forth in Section 10(a) or (b) as applicable.
3. Shipment and Delivery Terms. All Products will be shipped FCA (Incoterms 2010) Cofactor’s or its designee’s facility to the delivery address specified in the Order. Except as otherwise stated in the Order, Cofactor may ship all Products using the means and carrier of its choice. Cofactor reserves the right to deliver Orders in installments, where applicable, in which case Cofactor will send a separate invoice for each delivery. Products are deemed shipped and delivered to Customer when tendered to the applicable commercial carrier at Cofactor’s facility. At such point, title to the Products passes to Customer (subject to Customer’s payment in full of all Fees therefor) and Customer becomes responsible for risk of loss and damage. Notwithstanding the foregoing, Cofactor does not clear Products for export to or import into Customer’s country if outside the U.S., which is Customer’s sole responsibility.
4. Corrections and Replacement; Limited Remedies. In the event that the Parties mutually agree that Cofactor has not provided Deliverables in accordance with these Terms or the applicable Order, Cofactor agrees, at Cofactor’s election to either (a) provide that certain non-conforming portion of the Deliverables again, making the necessary corrections or (b) refund the Fees (other than shipping and handling costs) related to that certain portion of the non-conforming Deliverables (except, in the case of Products, where such Products’ non-conformance is due to causes occurring during or after shipment in accordance with Section 3). Cofactor’s entire liability and Customer’s exclusive remedy for non-conformance is limited to the remedies set forth in this Section 4. Customer agrees that to obtain any of the aforementioned remedies Customer must (y) promptly notify Cofactor in writing upon discovery that the Deliverables failed to conform to these Terms with a sufficiently detailed explanation of any alleged deficiencies within twenty (20) days of receipt of Deliverables and (z) cooperate with Cofactor, as applicable, in any re-performance of Services or replacement of Products. If Customer does not notify Cofactor of such non-conforming Deliverables within such twenty (20) day time period, the Deliverables will be deemed accepted and fully conforming and compliant for purposes of these Terms.
5. Customer Materials. In connection with each Order, Customer will timely provide in compliance with all applicable laws at its sole expense (including without limitation any shipping and handling) to Cofactor certain information and materials necessary and reasonably useful for Cofactor to provide the applicable Deliverables (including, without limitation, raw data provided by or on behalf of Customer to Cofactor with respect to use of the Deliverables) or as otherwise set forth in the applicable Order (“Customer Materials”). Customer represents and warrants that (a) Customer Materials are accurate and complete and conform to the requirements and parameters of these Terms, the applicable Order and applicable law; (b) all Customer Materials will be de-identified and otherwise stripped of any identifiers indicating the personal identity of the individual source and will not include any “Protected Health Information” as defined in 45 CFR section 164.501 or other information the disclosure of which is prohibited by applicable law; (c) Customer has all rights, licenses, consents and permissions required to provide the Customer Materials to Cofactor and for Cofactor to use, transfer and exploit such Customer Materials to provide Deliverables under the applicable Order; and (d) Cofactor’s possession and use of the Customer Materials under and in accordance with these Terms and the applicable Order shall not violate any applicable laws, agreements between Customer and any third party, or require the registration or other action under applicable laws or other biosecurity requirements, or infringe or misappropriate the intellectual property rights of any third party. Notwithstanding any other provision of these Terms, Cofactor reserves the right, at its sole discretion, to reject any Customer Material or to cancel any Order on the grounds that, in Cofactor’s opinion, such Customer Material or the performance of an Order presents a health or safety risk, or such Customer Material is not submitted in accordance with the applicable sample submission requirements as set forth in https://cofactorgenomics.com/sample-submission/ or are insufficient, in quality or quantity, for Cofactor to provide the Deliverables (collectively, “Quality Standards”).
6. Cofactor Use of Customer Materials. Customer hereby grants Cofactor and its affiliates a nonexclusive, worldwide, perpetual, irrevocable, royalty free, fully paid up license (with the right to grant and authorize sublicenses) under the Customer Materials to provide Deliverables under an Order and otherwise perform under these Terms, comply with applicable laws, and for research and development purposes and product improvement purposes. Except as otherwise provided in these Terms or the applicable Order, Cofactor will have no obligation to return any unused Customer Materials nor shall Cofactor have any liability for any damage to or destruction of any Customer Materials.
7. Use of Deliverables. Customer shall use all Deliverables in accordance with applicable laws, rules, regulations and governmental policies and in accordance with these Terms. Customer agrees and acknowledges that except to the extent expressly permitted by Cofactor in writing, all Products and Services are for research use only and Customer shall use the Deliverables only for its research use and shall not sell, resell, transfer or distribute the Deliverables to any third party. For clarity, Customer shall not (and shall cause others not to) use any Deliverable as or as a component of, or otherwise in connection with, a Laboratory Developed Test (including, without limitation, through the research or development of a Laboratory Developed Test). Customer further agrees not to (and shall cause others not to) modify, reverse engineer, decompile, deconstruct or disassemble any Deliverables or any tangible or intangible components thereof. Customer shall be solely responsible for use of the Deliverables. Customer acknowledges that the Deliverables have not been approved, cleared, authorized or licensed by the United States Food and Drug Administration or any other applicable governmental agency for any use. As used in these Terms, “Laboratory Developed Test” means an in vitro diagnostic test intended for clinical use that is manufactured and used within a single laboratory. Without limiting the foregoing, except to the extent expressly permitted by Cofactor in writing, Customer shall not sell or otherwise transfer any Product or its components to a third party or otherwise use any Product for the following commercial purposes: (a) use of such Product or its components in manufacturing or (b) use of such Product or its components for therapeutic or prophylactic purposes in humans or animals.
8. Intellectual Property. As between the Parties, each Party shall retain all right, title, and interest in and to its inventions, discoveries, technology, and other developments either existing as of the date of Customer’s request for Deliverables or created outside of the performance of Customer’s applicable Order, including all intellectual property rights in and to the foregoing (“Background Intellectual Property”). No rights or licenses in, to or under Background Intellectual Property of a Party are granted or provided hereunder to the other Party, by implication, estoppel or otherwise, except to the extent expressly provided for in these Terms.
Inventorship and authorship shall be determined in accordance United States patent law and United States copyright law, as applicable. Ownership of all right, title, and interest in any inventions, discoveries, technology, and other developments created in performance of an Order shall be determined by inventorship and authorship; provided that in all events Cofactor shall exclusively own all Generated Data. Cofactor hereby grants to Customer a non-exclusive, worldwide, royalty-free, fully paid-up, license to use Generated to the extent necessary to use the deliverables of the Services or Products in each case supplied under an Order and in accordance with these Terms and the applicable Order. As used in these Terms, “Generated Data” means any and all sequencing data and other information generated by Cofactor, solely or jointly with others, in performance of the Services or with respect to the Products.
9. Price and Other Fees. Customer shall pay Cofactor the price owed for all Deliverables and any other fees and other payments (if any) specified in each Order (collectively, the “Fees”). The Fees do not include any shipping, handling, freight, insurance, taxes and customs, which Customer is responsible for paying and which, as applicable, Cofactor may add to Customer’s invoice. Cofactor shall not be bound or subject to any other pricing other than the Fees set forth in an Order, regardless of where such other pricing is stated or published.
10. Payment Terms. Customer shall pay the Fees to Cofactor on the dates or occasions specified in the Order, or if not so specified in the Order, within thirty (30) days of the date of Cofactor’s invoice for such Fees. Cofactor will provide invoices promptly following provision of the Deliverables. Notwithstanding the foregoing, except to the extent specified otherwise in an Order, with respect to any Deliverables under an Order, Customer shall pay to Cofactor: (a) 100% of all Fees due for such Deliverables if the total Fees due for such Deliverables under the applicable Order will be less than or equal to $20,000, and (b) 50% of all Fees due for such Deliverables if total Fees due for such Deliverables under the applicable Order will be greater than $20,000; in each case as determined by Cofactor and prior to Cofactor providing such Deliverables. Except to the extent expressly provided otherwise in these Terms, all Fees are non-cancelable, non-creditable and non-refundable. Any Fees not paid when due hereunder will accrue interest starting upon the due date and running until the date paid at a rate of three and one-half percent (3.5%) per month or, if lower, the highest rate allowed by applicable law. Payments shall be addressed to and sent via the means specified by Cofactor. Unless the Order states otherwise, all Fees shall be payable in U.S. dollars with immediately available funds. Without limiting any other rights or remedies of Cofactor, failure of Customer to pay any Fees when due shall entitle Cofactor to suspend provision of Deliverables unless and until such Fees are paid. If Cofactor appoints a collection agency or an attorney to recover any unpaid amounts from Customer, Cofactor may charge Customer and Customer agrees to pay all reasonable costs of collection, including all associated reasonable attorneys’ fees.
11. Taxes. Cofactor’s Fees do not include applicable taxes. Customer will be responsible for the payment of, and shall pay all, taxes and duties imposed with respect to the Deliverables (and any other performance by Cofactor) under these Terms, including but not limited to sales, use, excise, value-added, business, goods and services, consumption, customs, tariffs, duties, withholding, and other similar taxes or duties, excluding taxes on Cofactor’s net income and employment taxes. The Parties will cooperate in good faith to seek to obtain any legally available reductions or exemptions from such taxes to the extent legally permissible.
12. Confidentiality. “Confidential Information” means any information disclosed by or on behalf of Cofactor or its representatives to Customer pursuant to these Terms that is (a) marked “Confidential” or “Proprietary” or (b) otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure or by the nature of the information itself. “Confidential Information” does not include (m) any information that is publicly available or becomes publicly available through no action or inaction of Customer; (n) is in the rightful possession of Customer without confidentiality obligations at the time of disclosure by Cofactor to Customer as shown by Customer’s then-contemporaneous written files and records kept in the ordinary course of business; or (o) is obtained by Customer from a third party without an accompanying duty of confidentiality and without a breach of such third party’s obligations of confidentiality.
Customer shall (x) use the Confidential Information solely to exercise its rights and fulfill its obligations as set forth in these Terms, (y) shall not disclose Confidential Information to any third parties other than its own employees on a need to know basis who are subject to written obligations of confidentiality and non-use that are at least as protective of Confidential Information as these Terms except with Cofactor’s express written consent, and (z) take the precautions the Customer employs with respect to protecting its own confidential information of a similar nature to protect Confidential Information. If Customer becomes legally required to disclose any Confidential Information, Customer will disclose only that portion that is legally required to be disclosed and such disclosed information shall maintain its confidentiality protection for all other purposes. For all information disclosed by or on behalf of a Party under a prior non-disclosure agreement between the Parties (“Prior NDA”) that would constitute Confidential Information if disclosed under these Terms, the Prior NDA is hereby superseded and replaced by this Section 12 and such information shall be deemed Confidential Information for purposes of these Terms.
13. Limited Warranty. Subject to the terms of Section 4 with respect to corrections and replacements, the Deliverables are provided “AS IS” without warranty, representation or guarantee of any kind. EXCEPT AS EXPLICITLY SET FORTH IN THESE TERMS AND CONDITIONS, COFACTOR MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE DELIVERABLES OR ANY OTHER SUBJECT MATTER OF THESE TERMS, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AS WELL AS WARRANTIES REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT AND ANY WARRANTY 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. IN NO EVENT WILL COFACTOR’S TOTAL LIABILITY FOR BREACH OF ANY WARRANTY EXPRESSLY PROVIDED HEREUNDER EXCEED THE PRICE PAID FOR THE DELIVERABLES AT ISSUE. No description, statement or other content of any person, entity, website or marketing or communications materials will be binding on Cofactor.
14. Indemnification. Customer shall indemnify, defend and hold harmless Cofactor and its directors, officers, employees, and agents (the “Cofactor Indemnitees”) from and against any and all claims brought against any Cofactor Indemnitees to the extent resulting from or caused by: (a) the gross negligence, recklessness or willful misconduct of any Customer indemnitee, (b) Customer’s or Customer’s transferee’s use or transfer of the Generated Data, Products or deliverables of the Services, (c) Customer’s breach of its obligations, warranties or representations under these Terms; except in each case to the extent that a claim arises out of or results from the gross negligence, recklessness or willful misconduct of any Cofactor Indemnitee or Cofactor’s breach of its obligations, warranties, or representations under these Terms.
15. Limitation of Liability. WITHOUT LIMITING INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 AND EXCEPT FOR DAMAGES ARISING FROM A BREACH OF SECTION 12, OR A PARTY’S INTENTIONAL MISCONDUCT, OR FRAUD, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO COSTS OF COVER, COST OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSSES FROM BREACHES OF SECURITY, OR LOSS OF GOODWILL) ARISING FROM OR IN CONNECTION WITH THESE TERMS, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY.
EXCEPT FOR COFACTOR’S INTENTIONAL MISCONDUCT, FRAUD, FRAUDULENT MISREPRESENTATION, OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY LAW, COFACTOR SHALL NOT BE LIABLE FOR ANY DAMAGES OR OTHER AMOUNTS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS IN EXCESS OF THE FEES PAID BY CUSTOMER TO COFACTOR HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM UNDER WHICH SUCH LIABILITY AROSE; PROVIDED THAT COFACTOR WILL NOT BE LIABLE FOR ANY USE BY CUSTOMER OF DELIVERABLES OR GENERATED DATA PROVIDED TO CUSTOMER HEREUNDER OR FOR ANY LOSS, CLAIM, DAMAGE, OR LIABILITY OF ANY KIND OR NATURE THAT MAY ARISE FROM THE USE, HANDLING, OR STORAGE OF SUCH DELIVERABLES AND GENERATED DATA FOLLOWING SHIPMENT TO CUSTOMER.
16. Import and Export Controls. Customer agrees to comply with any United States, European Union and local import and export control laws and regulations applicable to use and transfer of the Deliverables (including products or services derived therefrom or based on Deliverables or Generated Data) and Customer Materials.
17. Exclusion of Government Contracts. These Terms and the Deliverables are not for government customers or government contractors. If Customer is a governmental entity or seeking to enter receive Deliverables from Cofactor as a government contractor (or if any U.S. Federal Acquisition Regulations or comparable regulations of other jurisdictions would otherwise apply hereto), Customer shall notify Cofactor in advance and obtain Cofactor’s prior written consent (and/or enter into such additional agreements or terms requested by Cofactor through a mutually executed document) prior to ordering or receiving any products or services from Cofactor.
18. Dispute Resolution. In the event of a dispute arising out of or relating to these Terms, either Party shall provide written notice of the dispute to the other Party, in which event the dispute shall be referred to the senior executive officers of each Party for attempted resolution by good faith negotiations within thirty (30) days after such notice is received. Any resolution mutually agreed to by such executive officers in writing shall be binding on the Parties. If such executive officers are unable to resolve any dispute within such allotted thirty (30) day period or such longer period as the Parties may agree, then at the request of either Party, such dispute shall be finally settled by binding arbitration in San Francisco, California under the Rules of Arbitration of the American Arbitration Association, by one (1) arbitrator appointed in accordance with said rules. The arbitrator shall apply the laws of the governing jurisdiction as provided in Section 22, without reference to rules of conflict of law or rules of statutory arbitration, to the resolution of any dispute. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each Party shall pay its own cost and expenses in such arbitration proceeding; provided that the arbitration fees shall be paid equally by the Parties. Notwithstanding anything to the contrary in these Terms, (a) the Parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this Section 18, without breach of this Section 18 and (b) any dispute, controversy or claim relating to the validity, scope, enforceability, inventorship, or ownership of intellectual property rights shall be submitted to a court of competent jurisdiction in the country in which such intellectual property rights were granted or arose.
19. Additional Services Terms. With respect to any Services, in the event (a) that Cofactor determines in its sole reasonable discretion that the samples provided by Customer for the performance of such Services do not satisfy the Quality Standards or (b) of the occurrence of two or more failed library constructions (as applicable) (each event set forth in clauses (a) and (b), a “Failure Event”), then (i) as of the date of such Failure Event, such Services shall be cancelled without liability or penalty to Cofactor, (ii) Customer shall pay to Cofactor all Failure Fees due for such Failure Event as set forth in the applicable Order, or if none, as set forth in the table below and (iii) Customer shall have the option to elect by written notice to Cofactor to either (A) have the balance of any Fees previously paid by Customer for such Services, less any applicable Failure Fees, credited against amounts owed by Customer for future Orders accepted prior to the one year anniversary of the Failure Event or (B) have such Services reperformed; provided that if Customer elects reperformance of such Services, Customer shall resubmit the samples that were the subject of the Failure Event, pay any additional Fees owed for such reperformance and perform all other Customer obligations, in each case prior to the six month anniversary of the Failure Event.
Failure Fees
Service Type – Per Sample Failure Fee
Sequencing Services – Prior to Library Construction: $100
Sequencing Services – At or following Library Construction: $200 for RNA Libraries and $300 for DNA Libraries
ImmunoPrism Services – 50% of the applicable sample cost set forth in the applicable Order
20. Additional Sequencing Services Terms. Solely with respect to any Services that constitute sequencing services (“Sequencing Services”) the following terms set forth in this Section 20 apply shall also apply to such Sequencing Services: (a) Cofactor shall use commercially reasonable efforts to (i) store completed libraries generated as a deliverable of the Sequencing Services for up to six months after completion of such Sequencing Services, provided that, for clarity, after expiration of such period, Cofactor will have no obligation to store such completed libraries, and (ii) deliver that number of reads or data within 10% of the target number of reads or data set forth in the applicable Order, and (b) Customer may request use of a specific build or reference sequence version upon sample submission; provided that Customer agrees that Cofactor shall in its sole discretion select the build or reference sequence version to be used in such Services and that any use of Customer’s requested build or reference sequence version may result in additional Fees, delays and other modifications that shall be the exclusive responsibility of Customer.
21. Additional ImmunoPrism Services Terms. Solely with respect to Services comprising ImmunoPrism assay services (“ImmunoPrism Services”) the following terms set forth in this Section 21 shall also apply to such ImmunoPrism Services: (a) Cofactor shall use commercially reasonable efforts to make the deliverables of such ImmunoPrism Services available for Customer download for up to three months after completion of such ImmunoPrism Services, provided that, for clarity, after the expiration of such period, Cofactor will have no obligation to store or provide access to such deliverables, and (b) Customer may request use of a specific database prior to performance of the ImmunoPrism Services; provided that Customer agrees that Cofactor shall in its sole discretion select the database to be used in such Services and that any use of Customer’s requested database may result in additional Fees, delays and other modifications that shall be the exclusive responsibility of Customer.
22. Miscellaneous. These Terms contain the entire agreement and understanding between the Parties concerning Deliverables covered by an Order and supersede all previous negotiations, discussions and understandings, whether oral or written, between the Parties with respect to such subject matter. No modification or waiver of, addition to, or deletion from, these Terms shall be effective unless reduced to writing and signed by duly authorized representatives of the Parties hereto. These Terms shall be governed by and interpreted in accordance with the laws of the State of California, U.S., without reference to conflicts-of-law principles. Failure or delay by either Party in exercising any right hereunder shall not operate as, or be deemed a waiver of such right or of any other right hereunder, except for violations which, after discussion and agreement by the Parties, are waived in writing. These Terms may not be assigned or otherwise transferred, in whole or in part, by operation of law or otherwise, by either Party without the other Party’s express prior written consent; provided, however, that either Party may assign these Terms without such consent to its (i) affiliates or (ii) successor in interest in connection with any merger, consolidation, reorganization or sale of such Party or all or substantially all of its assets. These Terms shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the Parties hereto. Except for payment obligations, neither Party shall be liable for damages for any delay arising out of causes beyond their reasonable control, including without limitation acts of God, labor disputes, riots, wars, component shortages. If any provision of these Terms is held to be invalid or unenforceable, the remainder of these Terms shall continue in full force and effect and will be interpreted to reflect the original intent of the Parties.
