Legal Notices – Product and Services Terms and Conditions

Important – Please read these Product Terms and Conditions (“Terms”) carefully. They require arbitration, limit liability, and include other provisions that limit rights or impose obligations. Customer acknowledges that TwinStrand will treat use of the Products as acceptance of these Terms and the agreement described herein. If you are acting on behalf of an organization, ‘Customer’ means the organization and you represent and warrant that you are authorized to accept these Terms on behalf of the organization.

Do not use the Products if you do not agree to these Terms or you are not authorized to accept them for your organization.

1. Definitions. Capitalized terms are defined in this Section 1 or elsewhere in these Terms.
   1. “Authorized User” means Customer’s personnel, consultants, contractors, advisors, students, interns, visiting faculty, collaborators, agents and other Representatives who are authorized by Customer to access or use the Products for Customer’s research purposes only. For clarity, Customer shall not authorize any third party as an Authorized User unless the third party satisfies the definition of a “Representative” below.
   2. “Customer” means (i) the customer identified in the Order or (ii) if none, the individual or entity using a Product; provided, if the individual is an Authorized User of an organization, the organization is the Customer.
   3. “Documentation” means documents and information in any medium provided or made available by TwinStrand to Customer for use with a Product, such as package inserts, labels, user manuals, protocols, help files, instructions, and similar documentation.
   4. “Intellectual Property” means (i) works of authorship, including exploitation rights, copyrights, moral rights, and mask work rights; (ii) trademarks, service marks, trade dress, logos, trade names, domain names, URLs and legal names, together with all translations, adaptations, derivations, and combinations, all associated goodwill, and all applications, registrations, and renewals in connection therewith; (iii) trade secret rights; (iv) patent and industrial property rights, including patents and utility models; (v) other proprietary rights or licenses in or to intellectual property of every kind and nature whether or not patentable; and (vi) registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the foregoing.
   5. “Kit” means a TwinStrand DuplexSeq^™ library preparation kit (whether custom or off-the-shelf), and all components in the Kit box, accompanying it, or provided separately, including packaging, reagents, Documentation, and access to the Platform.
   6. “Laws” means all applicable laws, rules, regulations, orders, proclamations, legal process, mandatory guidance, binding standards, and other legal requirements imposed by any local, state, provincial, federal, national, or international body with jurisdiction over the matter.
   7. “Order” means a sales quote that references these Terms, and the related order confirmation, issued by TwinStrand to Customer, and the PO Terms (if any), along with any Scientific Project Design or written agreement negotiated and executed by Customer and TwinStrand.
   8. “Platform” means the TwinStrand bioinformatics pipeline made available for use with a Kit via a hosted, cloud-based software-as-a-service.
   9. “PO Terms” means only those statements in a purchase order, confirmation, acceptance, or other document issued by Customer or on its website, of the name, description, and quantity of the Products, the bill-to and ship-to addresses, and, if accurate, the Fees for the Products, but specifically excludes all other terms and conditions therein.
   10. “Products” means the goods and services identified in the Order, and includes items and services provided or made available with the Products, such as the Platform and Documentation.
   11. “Representative” means an individual or entity authorized by a party to act on the party’s behalf in connection with this Agreement. Each party is responsible for the acts and omissions of its Representatives in performance or breach of this Agreement.
   12. “Shipment Date” means the first date TwinStrand ships a Product identified in the Order.
   13. “Upload Date” means the first date Customer uploads data to the Platform.
2. Applicability.
   1. These Terms, along with the Order, including the PO Terms (if any), any additional terms in a writing that references these Terms and is signed by the parties, and the Supplemental Terms (if any), constitute the entire agreement (“Agreement”) between TwinStrand Biosciences, Inc. (“TwinStrand”) and Customer for the Products identified in the Order. In any conflict, these Terms will control unless TwinStrand agrees in writing that another provision will control over a specific section number of these Terms. If the parties have signed a contract applicable to the Products, the terms of such contract shall prevail to the extent they are inconsistent with these Terms.
   2. Customer accepts and agrees to be bound by this Agreement, to the exclusion of all other terms by (i) executing or otherwise accepting an Order that references these Terms; (ii) issuing a purchase order, or other form of payment in response to any such Order; or (iii) using a Product identified in any such Order. If none of the foregoing apply, the Agreement is created when TwinStrand confirms, acknowledges, or begins to fulfill Customer’s request.
   3. Fulfillment of Customer’s request is not acceptance of Customer’s terms and does not serve to modify or amend these Terms. Except the PO Terms (if any), TwinStrand hereby objects to and rejects all other terms in any document, communication, or act of Customer. TwinStrand’s failure to object elsewhere to any such terms is not an acceptance thereof or a waiver of any term herein.
   4. Certain Products may be subject to additional terms (“Supplemental Terms”) that may be referenced or hyperlinked herein, in the Order, or on TwinStrand’s websites, or otherwise provided or made available to Customer (such as, the Platform Terms described in Section 6(c)).
3. Rights Upon Purchase.
   1. Subject to and conditioned on Customer’s compliance with this Agreement, the Documentation, and applicable Laws, TwinStrand grants Customer a nonexclusive, nontransferable license (with no right to sublicense) to access and use the Products in accordance with their Documentation for Customer’s internal research purposes, and to copy the Documentation as reasonably necessary for such use. These licenses will terminate upon termination of this Agreement or earlier if Customer violates the scope of rights granted herein, including without limitation, the product restrictions in Section 7. Except as provided in this Section 3(a) (or Section 9(a) for Evaluation Products), and regarding ownership of Customer Data in Section 8(a), Customer receives no other rights or licenses to TwinStrand’s Intellectual Property, expressly, by implication, or by estoppel; and all such rights are expressly reserved to TwinStrand.
   
   
   Customer is solely responsible for determining if Customer has the necessary Intellectual Property rights for Customer’s intended use of the Products.
   
   
   2. Commercial Products. Customer agrees the Products (whether custom or off-the-shelf) are commercial products, services, computer software, and/or documentation as defined in 48 CFR §2.101. The Products were developed at private expense and are licensed as commercial items. In accordance with 48 CFR §12.212, any use, duplication, reproduction, release, modification, disclosure, or transfer of the Products by or for the US Government is restricted by a license and this Agreement.
4. Delivery of Products.
   1. Unless otherwise agreed in writing, TwinStrand will ship Products to the ship-to address in the Order, using TwinStrand’s standard packaging and shipping methods for such Products. TwinStrand will ship Products “Free Carrier (FCA) Origin (ICC Incoterms 2010) TwinStrand’s or its designee’s shipping dock” (“Delivery”). Risk of loss passes to Customer upon Delivery to the shipping point.
   2. TwinStrand will use commercially reasonable efforts to ship Products within the times indicated in the Order, but such dates are approximate only and TwinStrand does not guarantee shipping or arrival dates. Time of delivery is not of the essence. TwinStrand is not responsible for any loss or damage caused by delays outside of TwinStrand’s reasonable control. Except as provided in Section 5 regarding delivery of Nonconforming Products and the limited warranties in Section 15 (TwinStrand Warranties), all Products are shipped on a one-way basis, and there is no right to return Products.
5. Inspection, Rejection of Nonconforming Products.
   1. Customer shall inspect Products within 5 business days after receipt (“Inspection Period“). Acceptance is deemed unless Customer notifies support@twinstrandbio.com of a Nonconforming Product within the Inspection Period, and Customer furnishes such evidence or other documentation as reasonably required by TwinStrand. For purpose of this Section 5, “Nonconforming Product” means only that (i) the Product shipped is different than the Product identified in the Order; (ii) the Product’s label or packaging does not match its contents; or (iii) TwinStrand’s improper packaging, or its shipping and handling instructions caused the Product to be damaged during shipment.
   2. If TwinStrand receives timely notice of a Nonconforming Product, upon receipt of the Nonconforming Product (unless return is waived), and verification of the nonconformance, Customer’s exclusive remedy and TwinStrand’s sole liability and obligation for the Nonconforming Product is (i) to repair or replace the Nonconforming Product at no additional cost to Customer, or, (ii) at TwinStrand’s option, to credit or refund amounts received from Customer for the Nonconforming Product.
6. The Platform.
   1. Platform Credentials. TwinStrand will provide the necessary passwords and/or network links for Customer’s Authorized Users to access the Platform (“Credentials”). Unless otherwise agreed, Credentials are personal to the user and may not be shared. Customer agrees to notify TwinStrand promptly if Credentials are lost, stolen, or compromised, and of any known or suspected misuse of Credentials, or unauthorized access to or other breach of security relating to the Platform.
   2. Customer Systems. Customer is responsible for obtaining and maintaining all hardware, software, network access, and other items required to access the Platform (“Customer Systems”). Customer agrees to maintain appropriate security measures and safeguards for the Customer Systems consistent with industry best practice. Customer agrees to cooperate with reasonable requests from TwinStrand to verify the security of the Customer Systems. TwinStrand is not responsible for any delay, loss, alteration, or interception of data through systems or by means not operated by TwinStrand (eg, the Internet, Customer Systems, and Authorized Users’ local networks). TwinStrand reserves the right to delete Customer Data and/or Platform Credentials that pose a risk to the Platform, the hosting platform, or other users, without liability to Customer or any Authorized User for doing so.
   3. Platform Terms. In addition to this Agreement, use of the Platform is also subject to terms established by the hosting platform, currently DNAnexus, or another platform selected by TwinStrand in its sole discretion (“Platform Terms”). Customer and Authorized Users shall comply with the Platform Terms when using the Platform. The DNAnexus end user license is available at http://dnanexus.com/userTerms (“EULA”), and the DNAnexus acceptable use policy is available at https://www.dnanexus.com/terms/acceptable-use-policy. For purposes of the EULA, TwinStrand is the “Sponsor,” and this Agreement is the “Service Description.” In a ‘conflict’ with this Agreement, the Platform Terms will control regarding use of the Platform. For clarity and avoidance of doubt, a ‘conflict’ exists only if complying with both terms simultaneously would be impossible.
   4. Platform Changes. TwinStrand may change the Platform, from time to time, including but not limited to, changing features and functionality, imposing processing, usage, and/or data storage limits, changing hosting platforms, or hosting the Platform internally. TwinStrand makes no guarantee that the Platform will be available to Customer at any given time, and reserves the right to add to, modify, or reduce the scope of the Platform. If a new version, upgrade, or other change causes compatibility issues with Customer Data, TwinStrand will use reasonable efforts to assist Customer in migrating its Customer Data to the new, upgraded, or changed Platform.
7. Product Restrictions.
   1. Research Use Only. The Products (including data and reports generated with them), have not been approved by any US or foreign regulatory authority, and are provided “For Research Use Only. Not for use in diagnostic procedures.” TwinStrand makes no claim or representation regarding any diagnostic or clinical use of the Products, that they have or will satisfy any requirements for regulatory approval; or that they are suitable for or have been validated for safety or effectiveness, for any specific use or application (clinical, research, commercial or otherwise), or for importation into any jurisdiction. If Customer elects to use a Product for a purpose that would subject Customer, its customers or members, or the Product, to Laws concerning medical devices, laboratory tests, or other regulatory Laws, Customer is solely responsible for complying with such Laws, and (i) obtaining all necessary intellectual property permissions and regulatory approvals required for the intended use, (ii) complying with all applicable legal, regulatory and safety standards, and (iii) conducting all necessary testing and verification, including confirming fitness for the intended use. The burden of proof for the legal and safe use and handling of the Products is entirely the responsibility of Customer.
   2. Protected Information. All data uploaded to the Platform or otherwise provided to TwinStrand by or on behalf of Customer shall be anonymized, or de-identified or pseudonymized (“Coded”) as required by applicable privacy Laws, such as the US Health Insurance Portability and Accountability Act (“HIPAA”) and the EU General Data Protection Regulation (“GDPR”), such that the data (i) does not include protected health information, or other identifiable information about any natural person; and (ii) cannot reasonably be associated with or used to identify any natural person. If Customer provides Coded information, Customer shall secure, and not provide or make available to TwinStrand any ‘key’ that would associate the Coded information with a natural person.
   3. Use of Products. The Products should be used by qualified professionals in strict accordance with applicable protocols, instructions, warnings and other Documentation provided or made available to Customer by TwinStrand. Customer agrees to allow only Authorized Users to access and use the Products for Customer’s research purposes only, in compliance with this Agreement, the Documentation and applicable Laws. Without limiting the generality of these or other restrictions, Customer shall not, directly or indirectly:
      1. sell, rent, lease, loan, transfer, assign, license, sublicense, distribute, publish, disclose, or otherwise make the Products available to any third party who is not an Authorized User;
      2. reverse engineer, disassemble, decompile, decode, adapt, or attempt to derive or gain access to any source code, underlying ideas, or algorithms of any Product;
      3. attempt to determine the identity or structure of any reagents or other components, or use any Product to create any competing product or service;
      4. copy, modify, port, translate, localize or create derivative works from any Product, except as necessary to use the Product according to its Documentation;
      5. use any Product for diagnostic or clinical purposes, or in clinical trials involving humans, unless permitted by applicable Law;
      6. use a Product, or data generated with it, in a manner or for a purpose that is not expressly permitted by this Agreement or that infringes, misappropriates, or violates the rights of any person or entity, this Agreement, the Documentation, or applicable Law;
      7. impose an unreasonable or disproportionately large load on the Platform or hosting platform;
      8. defeat, avoid, bypass, remove, deactivate, circumvent, disable, damage, or otherwise interfere with any security or protective features used to restrict or control the functionality of or access within, or attempt to gain access to unauthorized functionality, projects, accounts, or non-public areas of the Platform, hosting platform, or any TwinStrand software or database;
      9. except as expressly permitted by the Documentation, access, mine, or collect data or content from the Platform, hosting platform, or any TwinStrand software or database, including by use of automated robots, spiders, scrapers, and similar data gathering and extraction tools;
      10. transmit, store, display, distribute, or disclose data that is illegal, defamatory, obscene, fraudulent, deceptive, harassing or violent, or promotes discrimination, violence or illegal activities;
      11. negligently or intentionally propagate through the Platform or hosting platform any virus, worm, Trojan or other routine that harms or is intended to damage or hijack systems or data;
      12. modify or remove any confidentiality, proprietary or legal notices or marks; or
      13. export or re-export Products in violation of US or foreign export Laws or restrictions.
   4. Platform Restrictions. Unless otherwise agreed in writing by TwinStrand, Customer may use the Platform to analyze the number of samples identified in the Order, and Customer agrees to download (if desired) and then delete Customer Data from the Platform within 30 calendar days after the data analysis is completed. TwinStrand reserves the right to delete data, impose use and storage fees, and/or terminate this Agreement if Platform use or storage exceeds the intended scope.
   5. Suspension. Without prejudice to other remedies, TwinStrand may suspend access to the Platform if TwinStrand determines a use (i) disrupts or poses a security risk to the Platform, hosting platform, or other users, (ii) exceeds standard processing, usage and/or data storage limits as determined by TwinStrand, (iii) is contrary to any scope of use or restrictions in this Agreement, (iv) involves fraudulent or illegal activities, or (v) violates applicable Law. TwinStrand may also suspend Platform access if Customer fails to pay an undisputed amount after written notice or has ceased doing business in the ordinary course. TwinStrand will make reasonable efforts to provide notice of a suspension and to resume Platform access after the reason for the suspension is cured. TwinStrand shall have no liability for damages, losses (including loss of data or profits), or other consequences of the suspension to Customer or any Authorized User.
8. Customer Data.
   1. Ownership. “Customer Data” means all data uploaded to the Platform by or for Customer, and all resulting data and reports generated on the Platform based on the uploaded data. Customer owns its Customer Data; provided, however, control data provided by TwinStrand, or generated from a control sample provided by TwinStrand (DNA Technical Controls or “DTC”), along with TwinStrand copyrights in reports and formats are owned by TwinStrand. TwinStrand grants Customer a nonexclusive, nonsublicensable, nontransferable license to use such TwinStrand copyrights and DTC (if any) for their intended purposes.
   2. Managing Customer Data. Customer acknowledges that the Platform uses a shared responsibility model under which TwinStrand and the hosting platform are responsible for managing the privacy, reliability and security of the Platform, while Customer is responsible for managing Customer Data within its project on the Platform. This includes Customer’s responsibility to back-up its Customer Data and, once the data analysis is completed, to download (if desired) and then delete the Customer Data from the Platform. DATA DELETED FROM THE PLATFORM IS DELETED PERMANENTLY. Except for the disaster recovery measures described in the hosting platform’s documentation, neither TwinStrand nor the hosting platform archive or backup customer data from the Platform. Consequently, TwinStrand has no ability to restore, and no responsibility to recreate, Customer Data that is deleted from the Platform by Customer or an Authorized User (or with their Credentials).
   3. Use by TwinStrand. Customer grants TwinStrand a nonexclusive, nontransferable, nonsublicensable, royalty-free license for TwinStrand, the hosting platform and their suppliers to use the Customer Data during the Term solely as necessary to provide the Products for Customer.
9. Evaluation Products. This Section 9 applies to Products and all additional services, instructions, and information (collectively “Evaluation Products”) provided or made available by TwinStrand in connection with any early access, beta, trial, test, evaluation, promotion, donation, or other formal or informal program (each a “Program”).
   1. TwinStrand grants Customer a nonexclusive, nonsublicensable, nontransferable, license to access and use the Evaluation Products for the Program in accordance with this Agreement. This license expires upon termination of this Agreement for any reason. TwinStrand reserves the right to terminate the Program, in whole or in part, with or without cause. Upon termination, Customer shall stop using the products, and return or destroy any unused product and TwinStrand Confidential Information.
   2. Comments, ideas, suggestions, and other information provided by or on behalf of Customer about the Evaluation Products, their components, features, functionality, or uses, are collectively “Program Feedback.” Customer assigns the Program Feedback to TwinStrand. To the extent this assignment is not effective, Customer grants TwinStrand a perpetual, irrevocable, worldwide, fully paid-up license to use, modify, incorporate, sublicense, and otherwise exploit all or any part of the Program Feedback and ideas, know-how, concepts, techniques and other rights therein, for any purpose, including to develop or modify products and services, without any obligation for attribution or compensation to Customer or its Representatives; provided, TwinStrand shall not disclose Feedback in any way that implies endorsement or approval of TwinStrand or its Products without Customer’s prior written consent.
   3. Evaluation Products are provided ‘AS IS,’ without warranties of any kind, solely for Customer’s use in connection with the Program, at Customer’s own risk. TO THE FULLEST EXTENT PERMITTED BY LAW, TWINSTRAND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, IN REGARD TO EVALUATION PRODUCTS. The limited warranties in Sections 15(a) and (b) do not apply to Evaluation Products.
   4. TwinStrand has no obligation to indemnify or defend Customer in regard to the Evaluation Products, without limiting generality, Section 17(a) (Indemnification by TwinStrand) does not apply to Evaluation Products.
   5. Evaluation Products may also be subject to a written program agreement signed by Customer and TwinStrand (“Program Agreement”). The Program Agreement (if any) is incorporated herein and will control in a conflict with these Terms or the Agreement. Except as amended by this Section 9, all other terms and conditions of this Agreement apply to Evaluation Products.
10. TwinStrand Intellectual Property.
    1. Background IP. TwinStrand has certain Intellectual Property, including the Products, that it conceived, developed, or acquired before or independent of this Agreement that, along with any improvements thereto conceived or reduced to practice in connection with this Agreement (“Improvements”), are TwinStrand’s sole property (collectively its “Background IP”). For avoidance of doubt, modification or customization of any Kit, probe, panel, biomarker, bioinformatics tool, or the Platform, are Improvements to TwinStrand’s Background IP and are owned by TwinStrand, even if they result from performance of this Agreement or Feedback provided by Customer or its Representatives.
    2. Feedback. Comments, ideas, suggestions, and other feedback Customer may provide about the Products, their components, features, functionality, or uses are collectively “Feedback.” Feeback is strictly voluntary. If Customer elects to provide Feedback, Customer agrees the Feedback is not confidential and TwinStrand may freely use and incorporate the Feedback, including ideas, know-how, concepts, techniques and other rights therein, for any purpose, including to develop and modify products and services, without any obligation for attribution or compensation to Customer or its Representatives; provided, TwinStrand shall not disclose Feedback in any way that implies endorsement or approval of TwinStrand or its Products without Customer’s prior written consent.
    3. Usage Data. TwinStrand may create non-personally identifiable data and information about use of, and user experiences with, the Products. TwinStrand may use such data internally to develop or improve its products, services, algorithms, and/or customer experience. TwinStrand may aggregate and anonymize usage data (“Anonymous Data”), and use and disclose Anonymous Data for any purpose, as long as the use does not identify and cannot be associated with Customer or its products.
11. Fees and Payments.
    1. Fees. Customer shall pay the fees identified in the Order (“Fees”). Fees are for the Products described in the Order. Requests beyond the scope of the Order will be quoted separately and may require a new or amended Order and/or a negotiated statement of work or Scientific Project Design.
    2. Payment. Unless otherwise provided in the Order, Fees are invoiced upon shipment of the Products and payable in US Dollars within 30 calendar days after receipt of the invoice. Customer is responsible for all currency conversion, banking, processing, third party agent, and other charges for its chosen payment method. Except taxes imposed on TwinStrand’s income, Fees are exclusive of, and Customer is responsible for, shipping charges and taxes, including without limitation, sales, use, VAT, GST, levies, duties, tariffs and similar assessments on the Products by any jurisdiction. Such amounts may be invoiced with Fees as separate line items or invoiced separately.
    3. Past Due Amounts. Undisputed past due amounts bear interest at the lesser of 1% per month or the highest rate permitted by Law, calculated daily and compounded monthly. Customer shall reimburse all reasonable costs incurred to collect past due amounts, including without limitation, reasonable attorneys’ fees and costs. TwinStrand may, without prejudice to other remedies, defer deliveries and/or delay or suspend performance until undisputed past due amounts and charges are paid.
    4. US Government Customers. Notwithstanding anything to the contrary in this Section 11, if this Agreement is with, or is a subcontract for, an agency of the US Government, payments and past due amounts shall be governed by the US Prompt Payment Act (31 USC. 39 et seq).
12. Term and Termination.
    1. Term. This Agreement is binding on the parties as described in Section 2 (Applicability). However, unless otherwise specified in the Order, the “Term” commences on the Shipment Date and terminates on the earliest of (i) 30 calendar days after the data analysis described in Section 7(d) (Platform Restrictions) is completed; (ii) 12 months after the Shipment Date; or (iii) 6 months after the Upload Date; unless terminated earlier or extended by mutual written agreement.
    2. Termination.
       1. Either Party may terminate this Agreement in a written notice if the other Party breaches a material obligation and, if the breach is capable of cure, fails to cure within 30 calendar days after delivery of written notice (10 business days for payment defaults).
       2. Either Party may terminate this Agreement immediately upon written notice, if the other Party has ceased doing business in the ordinary course, becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; makes an assignment for the benefit of creditors or a similar disposition of assets, has a receiver appointed for its assets, or files or has filed against it a petition for bankruptcy or otherwise becomes subject to any domestic or foreign bankruptcy, liquidation, dissolution, or similar proceeding.
       3. TwinStrand may terminate this Agreement immediately upon written notice (1) if TwinStrand reasonably determines continuing the Agreement would violate applicable Law; (2) an undisputed past due amount remains unpaid for 10 business days after delivery of a written notice; or (3) Customer breaches the scope of use in Section 3 (Rights Upon Purchase), or the restrictions in Section 7 (Product Restrictions).
    3. Effect of Termination. Upon termination of the Agreement for any reason:
       1. Customer shall immediately cease all use of the Platform and return or destroy all unused Product and TwinStrand Confidential Information.
       2. Customer Data that remains on the Platform after termination is “Remnant Data.” Customer may request copies of Remnant Data from support@twinstrandbio.com, up to 30 calendar days after the termination. Upon receipt of a timely request, and subject to payment of TwinStrand’s standard fees, the Remnant Data (if any) shall be delivered via a download link that expires after seven (7) calendar days. TwinStrand has no obligation to maintain Remnant Data more than 30 calendar days after termination; or to provide copies of Customer Data that was deleted by Customer or an Authorized User (or with their Credentials) for any reason, or by TwinStrand pursuant to the terms of this Agreement or Customer’s instructions.
       3. Remnant Data will be maintained in confidence for as long as it remains on the Platform, then securely deleted.
       4. Rights and obligations that accrued before the termination, and provisions that by their nature or by their terms should survive, will survive the termination, including Customer’s obligation to pay Fees for Products provided in accordance with this Agreement before the termination.
       5. Confidential Information disclosed under this Agreement will remain subject to the confidentiality obligations in Section 13 (Confidentiality) for 5 years after the termination, but the obligations will continue for trade secrets, as long as they remain trade secrets, and for retained Confidential Information as provided in Section 13(e).
13. Confidentiality.
    1. Confidential Information. “Confidential Information” (i) means nonpublic information that is disclosed or made available, directly or indirectly, by one party (as “Discloser“), in writing, orally, visually, electronically, or otherwise, to the other party (as “Recipient“) in connection with this Agreement that a reasonable person would understand is confidential or proprietary, or is marked or identified as such at the time of the disclosure; (ii) includes information derived from or based on Discloser’s Confidential Information, including copies and abstracts; and (iii) does not include information Recipient can document (1) was known to Recipient without a confidentiality obligation at the time of the disclosure; (2) was publicly available at the time of the disclosure, or becomes publicly available through no breach of this Agreement; (3) was rightfully received without a confidentiality obligation from a third party; or (4) was independently developed without use of or reference to Discloser’s Confidential Information. For clarity, Customer Data is Customer Confidential Information, and the Products and Program Feedback are TwinStrand Confidential Information.
    2. Protecting. Recipient shall (i) exercise reasonable care to protect the Confidential Information from unauthorized uses and disclosures, but not less than the care it uses to protect its own confidential information; (ii) provide prompt written notice of any unauthorized use or disclosure thereof; and (iii) reasonably cooperate with Discloser to mitigate harm from any such breach.
    3. Use and Disclosure. Except as permitted by this Agreement or with Discloser’s prior written consent, Recipient will use the Confidential Information solely to perform or enforce this Agreement. Recipient may disclose Confidential Information to its Representatives who need access for such purposes, provided the Representative is informed of the confidential nature, and bound by written or statutory confidentiality obligations to Recipient that are no less protective than this Agreement. Recipient is responsible for its Representatives’ compliance with (or breach of) this Section 13. Recipient may also disclose Confidential Information to the extent the disclosure is required by Law, provided Recipient (i) provides prompt and, unless prohibited by Law, prior written notice of the disclosure, (ii) reasonably cooperates with Discloser’s efforts to prevent, limit, or obtain confidential treatment for the disclosure, and (iii) if disclosure is required, discloses only the minimum Confidential Information necessary to comply with such Law.
    4. Additional Disclosures. The parties agree the obligations in this Section 13 are not intended to prevent (i) employees or subcontractors from lawfully reporting fraud, waste, or abuse related to the performance of a government contract to a designated investigative or law enforcement representative of a federal department or agency authorized to receive the information (48 CFR §52.203-19); or (ii) employees, independent contractors, or consultants from disclosing trade secrets under the conditions and for the purposes specified in the Defend Trade Secrets Act 2016 (18 USC §1833(b)(4)).
    5. Return. Upon termination, Recipient and its Representatives shall immediately cease all use of the Confidential Information. Upon request, Recipient will return or destroy the Confidential Information, including any in the possession of its Representatives, and all copies and abstracts. Provided, however, Recipient may retain one archive copy of the Confidential Information and may retain copies stored in and only accessible through dedicated backup and disaster recovery systems/servers that are not accessible in the ordinary course of business (if any such copy is restored, it shall be destroyed immediately). The obligations in this Agreement will continue for retained Confidential Information until the information is returned, destroyed or becomes publicly available through no fault of Recipient.
14. Mutual Warranties. Each Party represents and warrants to the other Party that (a) the party is duly formed and validly existing under the laws of its state of formation, (b) this Agreement has been duly authorized, approved and executed on behalf of such party, and (c) the Agreement does not conflict with any other agreement to which the party is bound.
15. TwinStrand Warranties. The warranties in this Section 15 are made only to Customer, are not transferable or assignable, and any attempt to do so shall void the warranty.
    1. Limited Warranty for Kits.
       1. TwinStrand warrants that Kits will be new, unused, and free from material defects in material and workmanship upon Delivery when used by Customer according to the Documentation, until the later of 3 months after the Shipment Date, or any ‘use by’ or expiration date pre-printed by TwinStrand on the Product or its packaging, but in no event more than 12 months after the Shipment Date (the “Warranty Period”). This warranty applies only if (1) Customer purchased the Product directly from TwinStrand; (2) TwinStrand receives written notice of the defective Product within the Warranty Period, and (3) Customer furnishes the information and documentation reasonably required by TwinStrand. Subject to the foregoing conditions, upon TwinStrand’s receipt of the defective Product (unless return is waived) and verification of the defect, Customer’s exclusive remedy and TwinStrand’s sole liability and obligation under this warranty is to repair or replace the defective Product at no additional cost to Customer, or, at TwinStrand’s option, to credit or refund amounts received from Customer for the defective Product. If the defect diminishes but does not prevent performance of the Product, any amount credited or refunded may be apportioned according to TwinStrand’s reasonable allocation of the value of the diminished performance. This limited warranty is subject to the exceptions listed below.
       2. The foregoing limited warranty for Kits shall not apply to, and shall be void for, any Product that (1) is subject to abuse, neglect, negligence, or accident; (2) is used after any ‘use by’ or expiration date recommended by TwinStrand; (3) is used with any third party product or software not specifically recommended in the then-current Documentation; (4) is not used or stored according to the Documentation or TwinStrand instructions; (5) is used for more than the number of tests or biological samples stated in the Order; (6) fails due to external circumstances beyond TwinStrand’s reasonable control, such as, short circuits, incorrect voltages, failure or fluctuation of electrical power, lightning, static or other external inputs, civil unrest, threat or acts of terrorism or war, embargoes, government actions, acts of God, earthquakes, floods, storms, fires, third party delays, explosions, epidemics, pandemics, other plagues, quarantine restrictions, or other similar circumstances; or (7) is used by Customer after the warranty notice is submitted.
    2. Limited Warranty for the Platform.
       1. Subject to Section 6(d) (Platform Changes), TwinStrand warrants that the Platform will function substantially as described in the Documentation during the Term. Customer’s exclusive remedy, and TwinStrand’s sole liability and obligation, under this warranty is limited to using reasonable efforts, commensurate with the severity of the nonconformity, to correct, or, at TwinStrand’s option, to refund or give credit for, any substantial nonconformity of the Platform. The decision to correct the Platform or give a refund will be made by TwinStrand in its sole discretion. TwinStrand does not warrant that use of the Platform will be uninterrupted or error free, or that any particular nonconformity will be corrected, or a workaround provided, or within any particular time frame. Notwithstanding anything to the contrary in this Agreement, TwinStrand reserves the right (but no obligation) to provide an alternative means to analyze Customer Data, including, to perform the analysis internally and provide the data and results to Customer. This limited warranty is subject to the exceptions listed below.
       2. The foregoing limited warranty for the Platform shall not apply to, and shall be void for, any nonconformity caused by (1) failure to follow the Documentation and/or protocols established by TwinStrand; (2) use or operation of the Platform in an environment other than recommended by TwinStrand, (3) modification to the Platform not made or authorized by TwinStrand, (4) the speed or functionality of the Customer Systems, Customer’s internet connection or internet service provider, or the system, connection or ISP of an Authorized User; or (5) use of the Platform with products not identified in the Order or by a third party that is not an Authorized User.
    3. No other Warranties, Disclaimers. Customer acknowledges the Products are experimental in nature and, except for the limited warranties in this Section 15, are provided ‘AS IS’ for Customer’s research use by qualified professionals, at Customer’s own risk. The limited warranties and exclusive remedies in this Section 15 are in lieu of, and TWINSTRAND HEREBY DISCLAIMS, ALL OTHER REMEDIES AND WARRANTIES EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND REGARDING RESULTS OBTAINED OR OBTAINABLE FROM ANY PRODUCT (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS). TwinStrand is not responsible for Customer’s use of any Product, or any data generated with the Product. Without limiting the generality of TwinStrand’s rejection of additional terms, and for clarification purposes only, Customer agrees that any different and additional warranty terms in Customer’s terms (if any) are void and of no effect. Any product provided without a written warranty from TwinStrand is Provided ‘AS IS’ without warranties of any kind.
    4. Third-Party Disclaimers. TWINSTRAND’S LICENSORS AND SUPPLIERS OF ANY PRODUCT, SERVICE OR OTHER ITEM, OR ANY COMPONENT OR PORTION THEREOF (EACH, A “SUPPLIER”) PROVIDE NO WARRANTIES WHATSOEVER TO CUSTOMER ARISING FROM OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY PRODUCT, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, AND OTHERWISE. IN NO EVENT SHALL ANY SUPPLIER BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR ANY PRODUCT.
16. Customer Warranties. Customer represents and warrants that:
    1. Customer has received all necessary consents, approvals, permissions and rights required by applicable Law for each natural person whose personal information is provided to TwinStrand or uploaded to the Platform by or on behalf of Customer.
    2. All identifiable information about each natural person whose genetic information is provided to TwinStrand or uploaded to the Platform by or on behalf of Customer has been anonymized or Coded in compliance with all applicable US and foreign privacy Laws.
    3. Neither Customer nor any Authorized User is named on any applicable US or foreign government list of persons or entities that are subject to export restrictions or controls, nor owned or controlled by, or associated with a person or entity named on any such list.
    4. Neither Customer’s jurisdiction, nor any location where a Product will be used, or from which the Platform will be accessed, is located in an embargoed or export restricted region.
    5. Customer will not re-export any Product to any person or entity described in Section 16(c), or any region described in Section 16(d), or in violation of other US or foreign export Laws or restrictions.
17. Indemnification. Subject to and conditioned on compliance with this Agreement, including without limitation, the conditions in Section 17(d) (Indemnification Conditions):
    1. By TwinStrand. TwinStrand will defend Customer against any third party claim, demand, action, suit, or proceeding (a ‘claim’) to the extent the claim (i) alleges that a Product as provided to Customer by TwinStrand, or Customer’s use thereof according to this Agreement, infringes such third party’s valid and enforceable Intellectual Property right under applicable US or foreign Laws, except to the extent the claim is based on methods, materials, data or processes provided or specified by Customer; or (ii) arises out of TwinStrand’s use of the Customer Data in violation of the terms of this Agreement. TwinStrand will pay any approved settlement entered into, or final judgment (including costs and reasonable attorneys’ fees) awarded against Customer (and/or TwinStrand, as applicable) in connection with the claim. If an infringement claim is made or appears possible, TwinStrand may, at its sole cost and option, modify or replace the infringing Product to make it non-infringing, or obtain the right for Customer to use the Product as contemplated by this Agreement at no additional cost to Customer. If neither option is practical, TwinStrand may terminate this Agreement and refund amounts received from Customer for the infringing Product.
    2. By Customer. Customer will defend TwinStrand against any third party claim, demand, action, suit, or proceeding (a ‘claim’) to the extent the claim (i) alleges that any methods, materials, data or processes provided or specified by Customer for use in performing this Agreement, including without limitation, the Customer Data, as provided to TwinStrand or TwinStrand’s use thereof according to this Agreement, infringes such third party’s valid and enforceable Intellectual Property or privacy right under applicable US or foreign Laws; or (ii) arises out of Customer’s use of the Customer Data. Customer will pay any approved settlement entered into, or final judgment (including costs and reasonable attorneys’ fees) awarded against TwinStrand (and/or Customer, as applicable) in connection with the claim.
    3. Mutual Indemnification. Each party (as “Indemnitor”) shall defend the other party (as “Indemnitee”) against any third party claim, demand, action, suit, or proceeding (a ‘claim’) that results from the Indemnitor’s sole fraudulent behavior, sole reckless conduct, or sole willful misconduct in connection with this Agreement. The Indemnitor shall pay any approved settlement entered into, or final judgment (including costs and reasonable attorneys’ fees) awarded against the Indemnitee (and/or the Indemnitor, as applicable) in connection with the claim. For third party claims that result from the conduct of more than one party, each party shall be responsible for its own proportionate share of the third party claimant’s total damages.
    4. Indemnification Conditions. The indemnification obligations in this Section 17 are subject to the following conditions:
       1. The indemnified party (“Indemnitee”) shall provide prompt written notice to the indemnifying party (“Indemnitor”) of any claim, loss, or expense upon which the Indemnitee intends to base a claim for indemnification under this Section 17; provided, however, a delay in providing notice will only relieve the indemnification obligations to the extent the Indemnitor is materially prejudiced by the delay.
       2. The Indemnitee shall not admit fault or infringement in connection with the claim or enter any settlement or compromise of the claim without the Indemnitor’s prior written consent, which shall not be unreasonably delayed, conditioned, or withheld.
       3. The Indemnitor shall have exclusive control and authority over the investigation, defense; and settlement of the claim; provided, however, unless a settlement fully releases the Indemnitee without imposing any liability, cost, or obligation on the Indemnitee and without requiring the Indemnitee to admit fault, the settlement is not binding on the Indemnitee without its prior written consent, which shall not be unreasonably delayed, conditioned, or withheld. The Indemnitee shall have the right to participate through its own counsel, at its own expense. The Indemnitee may elect to assume control of the defense of the claim, in which case the Indemnitor shall have no obligation to indemnify or further defend the Indemnitee with respect to the claim.
       4. The Indemnitee shall fully cooperate with and provide all reasonable assistance to the Indemnitor, its investigators and attorneys in investigating, defending and settling the claim (provided the Indemnitor shall reimburse the Indemnitee’s reasonable out-of-pocket expenses to provide the assistance).
       5. Subject to the foregoing conditions, each party agrees to cooperate in good faith in the investigation, defense, and disposition of indemnification claims.
    5. Government Customers. If Customer is (or is an instrumentality of) a US state or local government, or a public university or college, Sections 17(b) and (c) apply only to the maximum extent permitted by the Laws of Customer’s jurisdiction. If this Agreement is with, or is a subcontract for, an agency of the US Government, Sections 17(b) and (c) shall not apply, and liability shall be limited by the Federal Tort Claims Act (28 USC 2671, et seq.).
18. Allocation of Risk, Limitation of Damages and Liability.
    1. The exclusive remedies, disclaimers, exclusions and limitations in this Agreement are an intentional allocation of risk between the parties that is an essential basis of their bargain, and is intended to apply whether or not a party has been advised of or has reason to know the possibility of the liability or damage, and notwithstanding any failure of a limited remedy. Each party enters this Agreement in reliance on this allocation and expressly assumes such risks.
    2. Nothing in this Agreement is intended to or will exclude or limit any warranty, damage or liability that may not lawfully be excluded or limited under applicable Law, or that arises from a party’s fraud, gross negligence, or willful misconduct (collectively “Exclusions”).
    3. To the fullest extent permitted by law, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based:
       1. except for the Exclusions, neither party (nor its Representatives) will be liable for indirect special, consequential, incidental, punitive or exemplary damages, or lost business, lost profits, or costs of cover arising from or in connection with this Agreement or the Products, regardless if the claim or damage was foreseeable, and whether or not the party was advised of the possibility thereof; and
       2. except for the Exclusions and Customer’s obligation to pay Fees when due, the total cumulative liability of either party (including its Representatives) for claims and damages arising from or in connection with this Agreement or the Products shall not exceed, in the aggregate, the Fees payable by Customer under the Order; provided, such aggregate, total cumulative liability, inclusive of indemnity claims under Section 17, shall not exceed 2 times such amount.
19. Records. TwinStrand maintains accurate and complete business records (“Records”) as required by applicable Laws, best practice (“GxP”), and its standard operating procedures (“SOP’s”). Records are TwinStrand’s property and Confidential Information. At reasonable times during the Term, with prior written notice, TwinStrand will make relevant Records reasonably available to Customer and cooperate with reasonable requests to verify compliance with this Agreement. TwinStrand will allow and contribute to regulatory audits and inspections as required by applicable Laws. Notwithstanding the foregoing, TwinStrand has no obligation to permit access to its systems or networks, or to disclose documents or information that are privileged, or if the disclosure would violate a third party’s rights, including without limitation, attorney-client communications, attorney work product, and confidential or identifiable information related to other customers or their orders.
20. Compliance with Laws.
    1. In performing this Agreement, each party and its Representatives will comply in all material respects with Laws applicable to such performance, including without limitation, anti-bribery and anti-corruption Laws, such as the US Federal Corrupt Practices Act and the UK Anti-Bribery Act. Each party will maintain all necessary licenses, permits, certifications, and/or approvals (if any) required to lawfully perform its obligations. Unless prohibited by Law, each party agrees to notify the other party upon becoming aware of any investigation or inquiry alleging any failure to comply with applicable Laws in connection with this Agreement.
    2. Each party certifies that it is not named or described in, or owned or controlled by, or acting on behalf of, any person or entity subject to, any US list of persons, entities, or regions with which US persons are restricted from transacting. TwinStrand certifies that it is not excluded, suspended, debarred, or threatened with any such action in regard to participation in any US federal or state program for health care, government contracting, new drug applications, or clinical investigations.
    3. Customer acknowledges that Safety Data Sheets (“SDS”) for Kit components are available on TwinStrand’s website at https://twinstrandbio.com/resources/safety/. Copies of SDS may be requested from support@twinstrandbio.com or 877.202.8946. Customer agrees to access SDS by these means.
21. Choice of Law and Venue. This Agreement is governed by Washington State Laws (without regard to conflict of laws principles). Except as provided in Section 22 (Dispute Resolution), the federal and state courts for King County, Washington, have exclusive jurisdiction of all actions related to this Agreement or the Products. Each party consents to the personal jurisdiction of such courts for such purposes. Notwithstanding the forgoing, (a) if Customer is (or is an instrumentality of) a US state or local government, or a public university or college, the parties agree to remain silent on choice of Law and venue; and (b) if this Agreement is with, or is a subcontract for, an agency of the US Government, this Section 21 applies only to the extent permitted by the FAR Regulations.
22. Dispute Resolution. UNRESOLVED DISPUTES ARISING FROM OR RELATED TO THIS AGREEMENT OR A PRODUCT (“DISPUTES”) SHALL BE RESOLVED THROUGH ARBITRATION.
    1. Negotiation. If a Dispute arises between the parties, the aggrieved party shall provide written notice describing the Dispute. Each party agrees to make good faith efforts to resolve the Dispute through informal negotiation, including (if necessary) by escalation to senior leadership. If the Dispute is not resolved within 30 calendar days, either party may initiate arbitration.
    2. Arbitration. If Customer is located in the US, the arbitration shall be administered by the American Arbitration Association under its Commercial Arbitration Rules. Otherwise, the arbitration shall be administered under the rules and auspices of the Seattle Regional Office of the International Centre for Dispute Resolution. Arbitrations shall be conducted in English, on a confidential basis, before a single arbitrator, in Seattle, Washington. The arbitrator may grant injunctions and other appropriate relief for the Dispute; provided the arbitrator shall have no power or authority to make an award or issue orders of any kind that are contrary to the terms of this Agreement. The arbitrator’s decision and any award, order, or judgment pursuant to the arbitration, will be final, conclusive and binding on the parties, and judgment may be entered thereon in any court of competent jurisdiction. All court proceedings for preliminary relief, or relief in aid of arbitration, will be brought in the state or federal courts for King County, Washington. Each party shall pay one-half of the costs of the arbitration, and their own counsel fees and expenses; provided, the arbitrator may permit the substantially prevailing party to recover reasonable attorneys’ fees and out-of-pocket costs for the arbitration.
    3. Government Customers. Notwithstanding anything to the contrary in this Section 22 (i) if Customer is (or is an instrumentality of) a US state or local government, or a public university or college, this Section 22 applies only to the extent permitted by the Laws of Customer’s jurisdiction; and (ii) if this Agreement is with, or is a subcontract for, an agency of the US Government, this Section 22 applies only to the extent permitted by applicable FAR Regulations.
23. Equitable Relief. The parties acknowledge that breach of Intellectual Property rights, confidentiality obligations, or restrictions regarding access to or use of the Products may cause injury to the aggrieved party that may not be adequately compensated by monetary damages. Therefore, the parties agree that, to the extent permitted by the court, arbitrator or tribunal an aggrieved party may seek equitable relief, including injunctions, for actual or threatened breaches of such rights, obligations or restrictions without posting bond or other security.
24. Miscellaneous.
    1. English Language. This Agreement, the Platform, the Documentation, and any Disputes, along with communications and documents related to the foregoing, shall be provided/conducted in English.
    2. Entire Agreement. This Agreement supersedes all previous and contemporaneous agreements, proposals, understandings, representations and warranties, written and oral, regarding the subject matter. All additional and different terms are rejected. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALES OF GOODS AND THE UNIFORM COMMERCIAL CODE AS ADOPTED BY ANY STATE, INCLUDING WITHOUT LIMITATION, TITLE 62A RCW, AND ALL SIMILAR CONVENTIONS, TREATIES, AND UNIFORM LAWS, ARE EXPRESSLY DISCLAIMED AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHALL NOT APPLY TO THIS AGREEMENT IN ANY MANNER.
    3. Modifications to these Terms. TwinStrand reserves the right to modify these Terms from time to time, and to post the modified Terms on TwinStrand’s website. Modified Terms are effective immediately upon posting for all new Orders, and 30 calendar days after posting for all existing Agreements. To the extent practical, TwinStrand will make reasonable efforts to email a link for the modified Terms to the primary email address associated with the Order (if any). For existing Agreements, if the modifications materially and adversely affect Customer, and Customer does not wish to accept the modifications, Customer may terminate this Agreement by delivering written notice to support@twinstrandbio.com within the 30-day notice period, in which case, Customer shall immediately cease all further use of the Products and return to TwinStrand or destroy all unused Product and Confidential Information. Failure to terminate during, or use of the Product(s) after, the 30-day period constitutes Customer’s agreement to the modified Terms. All other amendments to this Agreement must be in writing and signed by an authorized representative of each party.
    4. Relationship of the Parties. The parties are independent contracting parties. This Agreement does not create any employment, agency, partnership, joint venture, or other form of legal association. Neither party has any authority to bind the other party in any manner whatsoever.
    5. No Assignment. Customer may not assign this Agreement, in whole or in part, without TwinStrand’s prior written consent, and any attempt to do so is void. Subject to the foregoing, this Agreement is binding on the parties and their permitted successors and assigns.
    6. Severability. If a provision in these Terms or its application to a person or circumstance is unenforceable, in whole or in part, the remainder of the provision and these Terms, or application to other persons or circumstances will not be affected.
    7. Export Control. The Products are subject to US export control Laws and restrictions and may be subject to export or import restrictions in other countries. Customer agrees to strictly comply with such Laws, and not export, re-export or import any Product in violation of US or foreign Laws.