Tierra Supply Terms of Service
[LAST REVISED November 1, 2021]
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (“TERMS”) CAREFULLY.
The Supply Terms are entered into by and between Synvitrobio, Inc., dba Tierra Biosciences, a Delaware corporation (“We”, or “Tierra”) and you, or the entity you represent (“you” or the “Customer”), and govern the supply by Tierra to Customer of Products (as defined below) through Tierra’s website at proteinplatform.tierrabiosciences.com (“Site”). These Terms take effect when you click an “I Accept” button or checkbox presented with the Terms. You further agree to any other terms or policies posted on the Site that are referenced herein. You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into these Terms for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Customer and Tierra may be referred to herein individually as a “Party” and collectively as the “Parties.”
1. ORDERING PROCESS. If Customer elects to purchase proteins under these Terms from Tierra (“Products”), Customer may place a request through the Site, which shall include a description of the genetic sequence of the applicable Product (“Requested Protein”). Customer shall ensure that each Requested Protein conforms to, and is consistent with, any sequence parameters and guidelines set forth on the Site and/or otherwise specified by Tierra. Tierra may (but is under no obligation to) respond to the Customer’s request by providing a quote, and Customer may elect to accept such quote by placing an order through the Site (“Purchase Order”).
2. SUPPLY AND DELIVERY. Tierra will use commercially reasonable efforts to produce and supply in accordance with these Terms for the Products ordered and paid for by Customer as set forth above. All Products will be shipped Ex Works (Incoterms 2020) Tierra’s facility to the delivery address specified by Customer through the Site, through a carrier selected by Tierra, at the Customer’s cost.
3. CUSTOMER INFORMATION
3.1 Customer will provide Tierra with sequence information regarding the applicable Product(s) and other information requested by Tierra (such sequence information and other information, collectively, “Customer Information"). Upon request by the Customer, upon delivery of the Products to Customer, any Customer Information regarding such Products in Tierra’s possession will be returned or destroyed.
3.2 Customer represents and warrants that (i) the Customer Information is accurate, (ii) Customer solely owns the Customer Information and has the necessary rights to the Customer Information for the uses contemplated under the Terms, (iii) Tierra's use of the Customer Information or the production or use of Products shall not infringe the proprietary rights, including but not limited to the patent or trade secret rights, of any third party, and (iv) no sequence information provided to Tierra is a coding sequence for any form of (a) toxin, including any toxin covered by any biosafety, biosecurity or other similar laws and regulations, including the Federal Information Security Management Act (FISMA) (as amended), or (b) hazardous materials. Customer further represents and warrants that it has provided Tierra with all material information of which Customer is aware regarding any toxic substances or material hazards associated with the handling, transport, exposure or other use of the Customer Information or Products.
3.3 Customer shall not provide to Tierra any Customer Information that contain Personal Health Information (as defined under HIPAA) or other personal information regarding patients, end users, or other persons.
4. PAYMENT. Customer shall pay Tierra the fees for the Product, as set forth on the Site (“Fees”), which are due when the order ships. Customer acknowledges and agrees that such fees do not include shipping, handling, freight, insurance, taxes (including value-added and sales taxes, but excluding taxes on Tierra’s net income) and customs, which Customer is responsible for paying, as set forth on the Site. 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 one and one-half percent (1.5%) per month or, if lower, the highest rate allowed by applicable law. All Fees shall be payable in US dollars with immediately available funds. Without limiting any other rights or remedies of Tierra, failure of Customer to pay any Fees when due shall entitle Tierra to suspend completion or shipment of any pending Purchase Orders unless and until such Fees are paid. If Tierra appoints a collection agency or an attorney to recover any unpaid amounts from Customer, Tierra may charge Customer and Customer agrees to pay all reasonable costs of collection, including all associated reasonable attorneys’ fees.
5. INTELLECTUAL PROPERTY.
5.1 Customer Information. Customer shall retain all intellectual property rights in and to the Customer Information. Tierra and its affiliates shall have a royalty-free, non-revocable, non-terminable right to use the Customer Information to perform Tierra’s obligations under these Terms, and, as long as the relevant information is aggregated and/or de-identified, to develop, manufacture, provide and/or improve its and their products and services.
5.2 Tierra Background Technology. Tierra shall retain all right, title, and interest in and to all methods, processes, procedures, protocols, algorithms, know-how and technologies, used, practiced, developed or improved by or on behalf of Tierra, whether in connection with activities performed by or on behalf of Tierra under these Terms or otherwise (“Tierra Background Technology”), and any associated intellectual property rights. In the event Tierra incorporates any Tierra Background Technology into any Products shipped to Customer and paid for by Customer as set forth in these Terms, then, subject to these Terms, Tierra hereby grants to Customer a perpetual, non-exclusive, non-sublicenseable, fully paid-up, worldwide license to use such Tierra Background Technology, solely as incorporated into, and solely as reasonably necessary to use such Products.
6. CONFIDENTIALITY. “Confidential Information” means any information disclosed or provided by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) pursuant to these Terms, which the Disclosing Party clearly identifies as confidential at the time of disclosure or that a reasonable person under the circumstances would understand to be proprietary or confidential. Subject to the rest of this Section 6, Customer Information shall be Confidential Information of Customer, and Tierra Background Technology shall be Confidential Information of Tierra. The Receiving Party shall not (i) use the Disclosing Party’s Confidential Information for any purpose (other than to perform its obligations or exercise its rights under these Terms), or (ii) disclose the Disclosing Party’s Confidential Information to any third party except to those expressly authorized by these Terms or the Disclosing Party in writing, and to those of its employees, contractors, advisors and other representatives with a reasonable need to know such information (for the Receiving Party to perform its obligations or exercise its rights under these Terms), and who are bound by obligations of confidentiality at least as protective as those contained herein. The Receiving Party shall protect the Confidential Information of the Disclosing Party by using at least the same degree of care as the Receiving Party uses to protect its own confidential materials and information, but in any event no less than reasonable care. Notwithstanding the foregoing, the obligations of confidentiality and nonuse set forth hereunder shall not apply to any information that: (a) is in the public domain or comes into the public domain through no fault of the Receiving Party; (b) is furnished to the Receiving Party by a third party rightfully in possession of such information not subject to a duty of confidentiality with respect thereto; (c) is already known by the Receiving Party at the time of receiving such Confidential Information; or (d) is independently developed by the Receiving Party without use of or reference to the Confidential Information of Disclosing Party, as demonstrated by independent written records. In addition, notwithstanding anything to the contrary in these Terms, the Receiving Party may disclose Confidential Information of the Disclosing Party (A) to the extent such disclosure is required by law or regulation, or pursuant to a valid order of a court or other governmental body having jurisdiction, provided that the Receiving Party provides the Disclosing Party with reasonable prior written notice of such disclosure to the extent legal and practicable and reasonable assistance in the Disclosing Party’s efforts to obtain a protective order or confidential treatment preventing or limiting the disclosure, or for which the order was issued; and (B) to law enforcement officials if and to the extent that the Receiving Party reasonably believes that such disclosure is needed to report to such officials unlawful activity involving the Disclosing Party. In addition, you shall keep these Terms confidential, except that you will be allowed to share them with existing or prospective investors, acquirers, lenders in connection with due diligence activities, and to legal and financial advisors, in each case under a commercially reasonable obligation of confidentiality. Upon termination or expiration of these Terms, or upon written request of the Disclosing Party, the Receiving Party shall promptly return or destroy all tangible embodiments of the Disclosing Party’s Confidential Information (excluding any Confidential Information that is subject to a surviving license or other right granted to the Receiving Party hereunder); provided, however, that the Receiving Party may retain a copy of such Confidential Information under conditions of confidentiality for legal archival purposes and for compliance with the surviving provisions of these Terms and applicable laws and regulations.
7. WARRANTIES; DISCLAIMERS.
7.1 THE PRODUCTS ARE PROVIDED “AS IS”, AND TIERRA MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS 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 SECURITY, 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 TIERRA’S TOTAL LIABILITY FOR BREACH OF ANY WARRANTY EXPRESSLY PROVIDED HEREUNDER EXCEED THE PURCHASE PRICE OF THE PRODUCT AT ISSUE. WITHOUT LIMITING THE FOREGOING, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE SERVICES PROVIDED BY TIERRA ARE EXPERIMENTAL IN NATURE, AND THE FEES CONSTITUTE TIERRA’S COMPENSATION FOR PERFORMING SUCH EXPERIMENTAL SERVICES, REGARDLESS OF THE RESULTS (FOR EXAMPLE, CUSTOMER WILL NOT BE ENTITLED TO ANY REFUND OR DISCOUNT IN THE EVENT THE REQUESTED PROTEIN DID NOT EXPRESS PROPERLY). IN ADDITION, TIERRA IS NOT RESPONSIBLE FOR CONDUCTING ANY FREEDOM-TO-OPERATE SEARCHES ANALYSIS REGARDING THE PRODUCTS OR COMPONENTS THEREOF, AND MAKES NO REPRESENTATION OR WARRANTY THAT THE PRODUCED PROTEINS OR VARIANTS THEREOF GENERATED IN THE PRODUCTION PROCESS WILL NOT INFRINGE ANY THIRD PARTY PATENTS OR RIGHTS, OR THAT THE PRODUCTS WILL SHOW A CERTAIN LEVEL OF ACTIVITY OR WILL OTHERWISE MEET THE CUSTOMER’S REQUIREMENTS. NO DESCRIPTION, STATEMENT OR OTHER CONTENT OF ANY TIERRA WEBSITE OR MARKETING OR COMMUNICATIONS MATERIALS WILL BE BINDING ON TIERRA.
7.2 TIERRA SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, COLLATERAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGES OR FOR ANY LOST PROFITS OR LOSS OF OPPORTUNITY IN CONNECTION WITH OR ARISING OUT OF THESE TERMS.
8. INDEMNIFICATION. Customer shall indemnify, defend and hold harmless Tierra and its affiliates and their respective directors, officers, employees, and agents from and against any and all costs, expenses, liabilities, damages and losses (including reasonable legal expenses and attorneys’ fees) arising out of any third party suits, claims, actions, or proceedings (collectively, “Claims”) resulting from or caused by (a) Customer’s breach of its obligations, representations or warranties under these Terms, (b) Customer’s negligence, recklessness or willful misconduct; (c) Customer’s exploitation (including any testing, development, commercialization, storage, transfer or other disposal) of the Products, and/or (d) the infringement of any third party intellectual property rights arising from the use by or on behalf of Tierra of any Customer Information under these Terms.
9. TERM AND TERMINATION. These Terms shall commence on the date that Customer has accepted these Terms and continue until terminated. You have no obligation to order Products, and we may terminate these Terms upon notice at any time, and we may also change, suspend, or discontinue our services at any time. We are entitled to receive and retain all Fees due for Orders surviving the effective date of termination. Sections 3.2, and 5-13 shall survive any termination or expiration of these Terms. Termination or expiration of these Terms shall not affect Customer’s liability for any obligations or liabilities that have accrued prior to such expiration or termination (including without limitation any Fees owed by Customer) or any breach of these Terms committed before such expiration or termination.
10. EXPORT CONTROLS; NO GOVERNMENT CONTRACT.
10.1 Customer acknowledges and agrees that the Products and information that Customer receives from Tierra hereunder may be subject to United States and foreign export control laws and regulations. Customer may not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any such Products or information (including products derived from or based on our Products or information) in violation of such laws.
10.2 These Terms and the Products are not for government customers or government contractors. Customer represents and warrants that the Products and services contemplated hereunder are not subject to the U.S. Federal Acquisition Regulations or comparable regulations of other jurisdictions (collectively, “FARs”). If Customer is a governmental entity or seeking to enter into these Terms as a government contractor (or if any FARs would otherwise apply hereto), Customer shall notify Tierra in advance and obtain Tierra’s prior written consent (and/or enter into such additional agreements or terms requested by Tierra through a mutually executed document) prior to ordering or receiving any goods or services hereunder.
11. FORCE MAJEURE. Neither Party will be liable for any delays or failures in performance under these Terms (other than payment obligations under these Terms) due to circumstances beyond its reasonable control, including without limitation, acts of God, pandemic, disease, war, terrorism or the public enemy, riot, civil commotion or sabotage, expropriation, condemnation of facilities, changes in law, national or state emergencies or other governmental action, strikes, lockouts, work stoppages or other such labor difficulties, floods, droughts or other severe weather, fires, explosions or other catastrophes, or any other reason where failure to perform is beyond the reasonable control of the nonperforming Party.
12. CHANGES TO THE TERMS. We may update these Terms from time to time. If we believe that the changes are material, we will notify you by posting the changes on the Site or and/or sending you an email or message about the changes. Changes will be effective upon the posting of the changes unless otherwise specified. You are responsible for reviewing and becoming familiar with any changes. Your use of the Services following the changes constitutes your acceptance of the updated Terms.
13. MISCELLANEOUS. These Terms shall be governed by the laws of the State of California, without respect to its conflict of laws principles. The exclusive place of jurisdiction for all disputes arising from or in connection with these Terms is San Francisco, California. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and remain in full force and effect while the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. 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 successor in interest in connection with any merger, consolidation, reorganization or sale of such Party or all or substantially all the assets to which these Terms relate. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. If any provision of these Terms is deemed invalid, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect. Each Party must deliver all notices, consents, and approvals required or permitted under these Terms in writing to the other Party at the address provided to Tierra during check-out (for notices to Customer) or at the address identified on the Site as Tierra’s corporate headquarters (for notices to Tierra), by personal delivery, by certified or registered mail (postage prepaid and return receipt requested), by a nationally-recognized overnight carrier or by email (except for notices of breach or termination) with electronic verification of receipt. Notice will be effective upon receipt or refusal of delivery. Each Party may change its address for receipt of notice by giving notice of such change to the other Party. No waiver by any Party of any breach of these Terms or failure of any Party to take action to enforce or assert any right or remedy hereunder shall be deemed a waiver of any prior, concurrent, or subsequent breach. No waiver shall be effective unless made in a signed writing. No modification of or amendment to these Terms will be effective unless in writing and signed by both Parties. Customer shall not name or refer to Tierra as a supplier of Customer nor use Tierra’s logos or trade names for publicity, marketing, or any other external communications without Tierra’s prior written consent. Neither Party is authorized to bind, make any commitment, or otherwise act on behalf of the other Party. These Terms shall constitute the entire agreement between Tierra and Customer regarding the supply of Products to Customer and supersede all previous and contemporaneous negotiations, representations, or agreements, written or oral, regarding the subject matter hereof.