To obtain Analysis Services from DATA2BIO, CLIENT hereby agrees to the following Terms and Conditions:
Scope of the Agreement
- DATA2BIO undertakes to perform, as an independent contractor, the services described in the attached
Quote [and Project Plan], hereafter referred to as "Project 1". In the event additional services are requested
by CLIENT, individual projects will be attached to this Agreement by mutual consent and will be labeled
Project 2, Project 3, Project 4, and so on (hereafter together with Project 1 referred to as "Projects").
DATA2BIO will be responsible for ensuring that all individuals participating in the Projects agree to and
comply with all terms of this Agreement. DATA2BIO shall (a) perform its obligations and deliver any deliverables
under each of the Projects, (b) perform its obligations under the Projects in accordance with appropriate
scientific and professional standards, and (c) perform its obligations in accordance with the timelines set forth in
each of the Projects.
- CLIENT or its Affiliates may provide materials (the “Materials”) as described in each of the Projects.
Materials shall be used for the performance of the Projects and shall not be used for any other purpose. An
"Affiliate" of either Party shall mean and refer to any entity that controls, or is controlled by, or is
under common control with, such Party where "control" means ownership of more than fifty percent (50%)
of an entity's outstanding equity.
In consideration for the services conducted under each of the Projects, CLIENT shall pay DATA2BIO for each of the
Projects at the price and according to the payment terms indicated in the attached Quote for each of the individual
Projects. In the event that a purchase order is issued for a Project ("Order"), the terms and conditions in this Agreement
shall take precedence over any contrary or inconsistent terms and conditions appearing in the Order. Invoices will include
the relevant Quote number and will be sent electronically to the representative of the CLIENT that requested the services
unless the CLIENT makes other arrangements.
Results and Reports
DATA2BIO will deliver to CLIENT a report ("Report") describing all data, materials, and information generated or
developed by DATA2BIO in the performance of each of the Projects, including without limitation any discoveries, inventions, or
improvements conceived, reduced to practice, or developed in the course thereof which are specific to the Materials
(hereinafter "Results"). Each Report shall be due within thirty (30) days following completion of each of the Projects.
All Reports and the Results are the property and the "Confidential Information" (as defined herein) of CLIENT. DATA2BIO
may retain a copy of the Report under the confidentiality provisions of this Agreement for recordkeeping.
Intellectual Property Rights
- Subject to sections 4.4, 4.5, and 4.6 below, CLIENT shall solely own all right, title, and interest to the (a)
Materials and CLIENT Confidential Information disclosed hereunder and the (b) Results, including all patent rights and
other intellectual property rights in each of the foregoing (collectively, the "CLIENT Technology"). CLIENT shall
determine whether intellectual property protection should be sought for any CLIENT Technology and shall have the
right to control, at its sole expense and sole discretion, the preparation, filing, prosecution, maintenance, and
enforcement of all patent rights and other intellectual property rights therein. Upon CLIENT's reasonable request,
DATA2BIO shall provide all materials (including assignments of rights, power of attorney, etc.) and information,
shall sign all documents, and make all declarations reasonably necessary for CLIENT to apply for and pursue such
intellectual property protection of the CLIENT Technology or to otherwise reasonably assist CLIENT in its intellectual
property-related activities directly related to the CLIENT Technologies. CLIENT agrees to reimburse DATA2BIO for
reasonable costs incurred by DATA2BIO in providing such materials and information and signing such documents and making
- No rights or licenses with respect to any intellectual property rights owned or controlled by DATA2BIO or its
Affiliates are granted or shall be deemed granted hereunder or in connection herewith. CLIENT (a) shall not acquire any
right, title, or interest to any materials or other technology, patent rights, or other intellectual property rights
owned or controlled by DATA2BIO or its Affiliates, (b) shall not (and shall not attempt or purport to) transfer, assign,
sell, have sold, lease, offer to sell or lease, distribute, license, sublicense, or otherwise transfer title in, or
clinically develop, commercialize, or exploit any materials or other technology, patent rights, or other intellectual
property rights owned or controlled by DATA2BIO or its Affiliates, and (c) shall not file, prosecute, or maintain,
in any country, any patent rights or other intellectual property rights owned or controlled by DATA2BIO or its
- CLIENT shall not (either directly or indirectly) assert a claim (or attempt or purport to assert a claim)
against DATA2BIO or its Affiliates or (sub)licensees alleging that DATA2BIO's use of the Material or preparation
of the Reports and Results as reasonably required to perform the services of this Agreement infringes upon any
intellectual property rights in any technology owned or controlled by CLIENT. DATA2BIO shall not (either directly or
indirectly) assert a claim (or attempt or purport to assert a claim) against CLIENT or its Affiliates or (sub)licensees
alleging that CLIENT's (or its Affiliates' or (sub)licensees') use or other exploitation of the CLIENT Technology
infringes upon any intellectual property rights in any technology owned or controlled by DATA2BIO, provided that
CLIENT's infringing use of intellectual property rights in any technology owned or controlled by DATA2BIO is reasonably
required by CLIENT to use or exploit, but not to generate, the Results or Reports provided by DATA2BIO under this
Agreement. These covenants shall be binding on all of DATA2BIO's and CLIENT's successors in interest to, transferees,
or assignees of intellectual property rights.
- DATA2BIO possesses certain inventions (whether or not patentable), materials, articles, technologies, works of
authorship, software, specifications, designs, plans, processes, know-how, data and other results, work products, and
information that have been independently developed without the use of, reference to, or reliance upon any Confidential
Information provided by CLIENT (collectively, "DATA2BIO Property"). "Improvements to DATA2BIO Property" means all
improvements to DATA2BIO Property, including any update, modification, customization, translation, upgrade, improvement,
enhancement, and/or derivative work of DATA2BIO Property that is authored, created, made, developed, conceived, or
reduced to practice during the term of the Agreement and/or arising out of the Agreement solely by DATA2BIO personnel;
collaboratively by DATA2BIO and CLIENT personnel; solely by CLIENT personnel; or collaboratively by DATA2BIO or
CLIENT personnel and any third party, whether patentable or not.
- All DATA2BIO Property and Improvements to DATA2BIO Property are the sole and exclusive property of DATA2BIO, and
CLIENT shall have no right, title, or interest therein. This Agreement does not affect ownership of any DATA2BIO
Property or Improvements to DATA2BIO Property or in any other technology, design, work, invention, software, data,
technique, know-how, or materials of DATA2BIO that are not contained in or embodied by the Material or Results.
No license to use any intellectual property is granted or implied by this Agreement except the rights expressly
granted in this Agreement.
- CLIENT agrees that the Results and Reports are strictly for use as provided under this Agreement. As such,
CLIENT agrees not to reverse engineer DATA2BIO Property or attempt to develop technology encompassed by Section 4.4
and further agrees that such attempts are to be treated as willful and intended misappropriation and/or infringement of
DATA2BIO Property and/or Improvements to DATA2BIO Property.
- Certain information disclosed by one Party (the "Disclosing Party") to the other Party (the "Receiving Party") shall
be deemed "Confidential Information".
- DATA2BIO agrees that the Results, Report, and any information describing the Materials shall be Confidential Information;
or that is received by DATA2BIO for CLIENT in confidence; or that is learned under any pre-existing agreement between DATA2BIO
and CLIENT; or otherwise previously received by DATA2BIO from CLIENT constitutes Confidential Information of CLIENT.
- CLIENT agrees that all information relating to DATA2BIO cost structures for providing the services; or that is
received by CLIENT for DATA2BIO in confidence; or that is learned under any pre-existing agreement between CLIENT and
DATA2BIO; or otherwise previously received by CLIENT from DATA2BIO constitutes Confidential Information of DATA2BIO.
- CLIENT and DATA2BIO will hold in strict confidence all Confidential Information of the other Party. CLIENT and
DATA2BIO will exercise reasonable precautions to prevent unauthorized access to Confidential Information of the other
Party and will not disclose Confidential Information of the other Party to any third parties other than CLIENT's and/or
DATA2BIO's employees who have a need to know for the purposes of this Agreement and who are bound by written agreements
that are consistent with all of the restrictions in this Agreement. DATA2BIO and CLIENT will not copy or use any
Confidential Information of the other Party except as provided by this Agreement. CLIENT and DATA2BIO shall be
responsible to one another for any breach of confidentiality and non-use by its employees and subcontractors.
- The provisions of this Section 5 shall, however, not apply to information that:
Confidential Information to be held in confidence under the terms of this Agreement is not deemed to be within any of the
foregoing exceptions merely because such information is embraced by more general information in the public domain or in the
possession of the Receiving Party; A combination of features is not deemed to be within the foregoing exceptions merely
because individual features are in the public domain or in the possession of the Receiving Party unless the combination
itself is in the public domain or in the possession of the Receiving Party.
- becomes public information or is generally available to the public other than by an unauthorized act or omission of the
- is received by the Receiving Party from a third party who is in rightful possession of such information and has the
legal right to make such a disclosure;
- the Receiving Party can show it was in its possession prior to the time of the disclosure hereunder and that such
information was acquired legally and not directly or indirectly from the Disclosing Party; or
- is developed by or for the Receiving Party, independently of and without reliance upon or reference to the
Confidential Information of the Disclosing Party.
- A Receiving Party shall not disclose Confidential Information of the Disclosing Party to any third party without the
Disclosing Party's prior written permission. The Parties shall not disclose either the existence or the terms of this
Agreement to any third party except as provided in this Section 5.6.
- DATA2BIO shall not use CLIENT's Confidential Information for any purpose outside of any of the Projects. DATA2BIO
shall not provide any Materials, including but not limited to derivatives, parts, and progeny thereof, to any third
party, without CLIENT's written permission. In addition, DATA2BIO shall not use Materials for any purpose outside of the
Projects. DATA2BIO shall be permitted to disclose CLIENT's Confidential Information to the limited extent such Confidential
Information is required by law to be disclosed, provided however, that DATA2BIO shall first inform CLIENT in writing of the
circumstances pertaining to the required disclosure sufficiently in advance to allow CLIENT to pursue any available legal
- DATA2BIO may retain a copy of the Report under the confidentiality provisions of this Agreement for recordkeeping purposes.
When requested by CLIENT, the Results, including raw and processed sequence data produced from the Materials, will be
destroyed by DATA2BIO and notice of said destruction provided to CLIENT.
- The non-use and non-disclosure obligations under this Section 5 shall remain in full force and effect following
termination or expiry of this Agreement.
Term and Termination
- Unless terminated earlier in accordance with this Section 6, this Agreement will continue in effect for three (3) years
from the Effective Date (the "Term"). Any extension of the Term of this Agreement, as well as the conditions for such an
extension will require agreement in writing by both Parties.
- In the event that either Party materially breaches its obligations under this Agreement, and fails to cure such breach
within fifteen (15) days following its receipt of written notice thereof from the non-breaching Party, the non-breaching
Party may terminate this Agreement by subsequent written notice to the breaching Party.
- Upon either Party's written notice to the other of a material breach (as set forth in Section 6.2 above), then
immediately upon the delivery of such written notice from the applicable Party to the other, DATA2BIO shall cease
performing its activities under any active Projects; provided however, that in the case of a written notice of a
material breach under Section 6.2, if such breach is timely cured in accordance with Section 6.2, then
DATA2BIO shall resume its activities under any active Projects following such cure.
- Expiration or termination of this Agreement shall not relieve the Parties of any obligation accruing
prior to such expiration or termination. Upon the expiration or termination of this Agreement:
- DATA2BIO shall destroy any CLIENT Materials it its possession and control.
- Subject to Section 5.8 above, DATA2BIO shall immediately destroy all CLIENT Confidential Information.
Unless otherwise provided in this Section 6, Sections 3, 4, 5, and 8 shall survive the expiration or
termination of this Agreement (except in each case to the extent such provisions are self-limiting in duration).
- In the event this Agreement is terminated as a consequence of breach by CLIENT in accordance with Section 6.3 above,
CLIENT shall pay DATA2BIO for DATA2BIO's reasonable and actual costs of performing active Projects as of the date
DATA2BIO ceases performing its activities under this Agreement, plus any reasonable and actual additional out-of-pocket
expenses incurred in connection with the cessation of any active Projects. Any amounts due to DATA2BIO under this
Section shall be payable by CLIENT within thirty (30) days after receipt of an undisputed invoice from DATA2BIO therefor.
- DATA2BIO shall be an independent contractor. As such, DATA2BIO and DATA2BIO employees shall not be entitled to any
benefits applicable to employees of CLIENT.
- Neither Party is authorized or empowered to act as an agent for the other for any purpose and shall not, on
behalf of the other, enter into any contract, warranty, or representation as to any matter. Neither Party shall be bound
by the acts or conducts of the other.
- CLIENT shall indemnify and hold DATA2BIO and its Affiliates harmless, and hereby forever releases and discharges
DATA2BIO and its Affiliates, from and against all losses, liabilities, damages and expenses (including reasonable attorneys'
fees and costs) resulting from all claims (including without limitation product liability claims), demands, actions and other
proceedings by any third party arising from or relating to DATA2BIO's use, maintenance, or disposition of the Materials
(including but not limited to derivatives, parts, and progeny thereof) or Confidential Information, or from DATA2BIO's
activities under or in connection with this Agreement or any of the Projects; except to the extent such claim, demand,
action, or proceeding arises from the gross negligence or willful misconduct of DATA2BIO or its Affiliates.
- CLIENT warrants that it has all necessary licenses and rights, including but not limited to, all patent and other
intellectual property rights, in all sequences and materials provided to DATA2BIO in connection with any services to be
provided to CLIENT by DATA2BIO. CLIENT hereby agrees to and shall indemnify and hold harmless DATA2BIO and its affiliates,
officers, agents, and employees from and against any action, claim, or liability, including attorneys' fees, arising
out of any breach of the foregoing representation and warranty or arising out of any action related to actual or alleged
infringement of third-party patents directed at DATA2BIO in connection with services provided to CLIENT.
- Subject to Section 6.5 above and except to the extent that a claim, demand, action, or proceeding arises from the
gross negligence or willful misconduct of CLIENT or its Affiliates, CLIENT shall not be liable or obligated to DATA2BIO
for any special, consequential, or punitive damages. These limitations shall be deemed to apply to the maximum extent
permitted by applicable law and notwithstanding the failure of the essential purpose of any limited remedies.
- In the event that a court of competent jurisdiction holds any provision of this Agreement to be invalid or
illegal, such holding shall have no effect on the remaining provisions of this Agreement, and they shall continue
in full force and effect.
- Except as provided by those particular provisions of a previous non-disclosure agreement or confidentiality
agreement that do not conflict with provisions of this Agreement, this Agreement and the Attachments hereto contain the
entire understanding between the Parties and supersede all prior agreements, understandings and representations, whether
written or oral, regarding the subject matter hereof. No amendments or modifications to this Agreement shall be
effective unless made in writing and signed by authorized representatives of both Parties.
- Unless DATA2BIO provides express written and signed consent to CLIENT defining the scope of CLIENT contact
with one or more employees of DATA2BIO, CLIENT shall not solicit the employees of DATA2BIO for employment with
CLIENT during the term of this Agreement and for a period extending for two years after the initiation or termination
of this Agreement, whichever is later, provided that a general publication regarding employment opportunities with
CLIENT shall not constitute such prohibited solicitation.
Neither Party shall use the name of the other Party or its Affiliates or the name of any employee of the other Party or its
Affiliates in any publicity, advertising, or news release without the prior written permission of the other Party. The
Parties agree that a reference may be made in a non-profit publication to "Data2Bio, LLC" and to the general services
provided by DATA2BIO, provided such reference and published description complies with the confidentiality provisions
of this Agreement and any previous non-disclosure or confidentiality agreement.
This Agreement shall be governed by and construed in accordance with the laws of Delaware, without reference to conflict of
- Except as provided by Section 11.2, this Agreement cannot be assigned, sold, transferred, or encumbered in any
manner by either Party hereto without the express written consent of the other Party. Any purported assignment or
transfer by either Party in violation of this Section shall be void.
- The Parties agree that DATA2BIO may use independent contractors to provide services for performance of this Agreement.
DATA2BIO shall ensure that such independent contractors comply with the terms of this Agreement; and DATA2BIO shall
be held responsible for the actions of its independent contractors in the performance of this Agreement.
- Notwithstanding the foregoing, CLIENT is entitled to assign or transfer any and all rights and obligations under this
Agreement, at CLIENT's sole discretion, without the consent of DATA2BIO.
Notices, communications, and payments hereunder shall be deemed made if given by reputable overnight courier service or
certified mail, postage prepaid, and addressed to the Party to receive such notice, report, or communication at the address
given below, or such other address as may hereafter be designated by notice in writing. Certain communications may be made
by electronic mail or by electronic documents attached to electronic mails sent to the addresses provided below. Upon the
request of a Party to this Agreement, the other Party agrees to provide to the requesting Party a memorialization of the
contents of any electronic mail in writing on paper or a paper copy of any electronic document by reputable overnight
courier service or certified mail, postage prepaid, and addressed to the Party to receive such notice, report, or
communication at the address given below, or such other address as may hereafter be designated by notice in writing.