DNA2.0 Terms and Conditions
BY PLACING AN ORDER, CUSTOMER ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMERS THAT DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT SHOULD NOT PLACE AN ORDER. ONCE CUSTOMER ACCEPTS THESE TERMS AND CONDITIONS, CUSTOMER CANNOT SUBSEQUENTLY DECLINE OR MODIFY ANY TERM OR CONDITION WITHOUT THE PRIOR WRITTEN CONSENT OF DNA2.0 INC. (“DNA2.0”).
1. Biosecurity Compliance
Safety and biosecurity are chief priorities of DNA2.0. We are a founding member of the International Gene Synthesis Consortium (IGSC). In accordance with US Federal guidelines, the consortium has established and strictly follows a Harmonized Screening Protocol to promote biosecurity.
DNA2.0 screens all incoming orders against the IGSC list of select agents. This list is based on sequences identified by the US Centers for Disease Control (CDC), US Dept of Commerce (USDC), US Dept of Agriculture (USDA), and the Australia Group. We reserve the right to refuse any order.
2. Purchase and Payment
DNA2.0 will not commence gene synthesis without a Purchase Order or credit card number. Quotes provided for gene synthesis orders expire after 30 days with no further notice from DNA2.0. DNA2.0 reserves the right to require pre-payment on any order, in DNA2.0’s sole discretion. A $60 USD surcharge is added to invoices paid by wire transfer. Payment is net 30 days for payments made by Purchase Order or wire transfer. DNA2.0 reserves the right to conduct a customer credit check and not to extend net 30 invoicing, in DNA2.0’s sole discretion. Payment also can be made by credit card (Visa, American Express or MasterCard), but only at the time of invoicing (net 0). Credit card payments after invoicing date are assessed a 5% transaction fee. Shipping fees will be incurred by CUSTOMER for multiple partial order shipments. DNA2.0 will assess a late fee of 1.5% per month on all amounts not paid 30 days after delivery of product, unless otherwise stated on invoice. Full and complete payment of invoice is required for transfer of ownership of purchased product.
3. Cancellation of Orders
Once an order (defined as receipt by DNA2.0 of a Purchase Order and payment) is accepted by DNA2.0, it cannot be cancelled and CUSTOMER will be responsible for payment of the total amount of the order.
4. Shipping Charges
DNA2.0 products are sold F.O.B. Menlo Park, CA. Title and risk of loss passes to CUSTOMER upon transfer to shipper. DNA2.0 products are shipped by overnight courier service, unless otherwise requested.
5. Inspection of Goods
Upon receipt of shipped goods, CUSTOMER will inspect the shipment promptly for damages, shortages and correct identity of product. Any claims of non-conformity must be submitted to DNA2.0 within 30 days of shipment. If CUSTOMER fails to provide such claim within that period, the shipment will be deemed accepted by CUSTOMER.
Non-conforming goods will be replaced or authorized for return and credit at DNA2.0’s option. To submit a claim, please contact us at 1.877.DNA.TOGO or by e-mail at info@DNA20.com.
DNA fragment orders are not returnable. Once an order is accepted by DNA2.0, it cannot be terminated without written consent of DNA2.0.
7. Genes and Custom Cloning: Representations and Indemnities
DNA2.0 can clone synthetic genes into custom vectors. CUSTOMER will provide DNA2.0 with the custom vectors necessary for DNA2.0 to provide the requested services. Such custom vectors shall remain the property of CUSTOMER throughout the cloning and sequencing process. CUSTOMER hereby grants DNA2.0 a limited, non-exclusive, royalty-free license to use the custom vectors and the gene sequences for the purpose of performing the services. By agreeing to the terms and conditions of this Agreement and providing DNA2.0 with the custom vectors and the gene sequence, CUSTOMER represents and warrants that it has the power and authority to grant the foregoing license, or otherwise has obtained all licenses and rights, including all intellectual property rights, necessary for DNA2.0 to provide the requested services.
CUSTOMER hereby agrees to and shall indemnify and hold harmless DNA2.0 and its affiliates and their 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, including but not limited to any claims of patent infringement or other intellectual property-related claims.
For custom cloning projects, no turnaround guarantee is offered. If DNA2.0 fails to clone the DNA fragment in three attempts (for commercially available vectors shipped directly from the manufacturer) or two attempts (for all other vector preparations), DNA2.0 reserves the right to ship the gene cloned into our in-house vector or as a linear PCR fragment and refund to CUSTOMER the custom cloning fee.
8. Intellectual Property
CUSTOMER 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 DNA2.0 in connection with any services to be provided to CUSTOMER by DNA2.0. CUSTOMER hereby agrees to and shall indemnify and hold harmless DNA2.0 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 DNA2.0 in connection with services provided to CUSTOMER.
DNA2.0 will claim no ownership interest or intellectual property rights in sequences provided by CUSTOMER, or in sequences designed by DNA2.0 for CUSTOMER and paid for in full by CUSTOMER (collectively, the “CUSTOMER Work Product”). Upon completion of the Services, DNA2.0 will retain one copy of the CUSTOMER Work Product for archival purposes and as required by applicable biosecurity laws and regulations.
Ownership of all proprietary tools used, developed or improved in providing the Services, including but not limited to gene synthesis process and assembly improvements, optimization algorithms, and related know-how, including any proprietary software created therefor, at all times will remain the property of DNA2.0.
DNA2.0 uses proprietary gene and codon optimization methods to optimize the expression properties of DNA sequences in order to fulfill CUSTOMER’S order. These proprietary methods are covered by United States Patents Nos. 7,561,972, 7,561,973, 8,126,653, 8,401,798 and related pending patent applications, each of which has been assigned to DNA2.0. By requesting a quote or placing an order for optimized genetic sequences, CUSTOMER agrees not to synthesize, or authorize or permit any third-party to synthesize, the optimized sequences provided to CUSTOMER pursuant to the terms of the quote or order, or sequences derived using information from these sequences.
9. DNA2.0 “IP-Free©” Catalog Items
Freedom to Operate: DNA2.0 has searched United States patent databases for the sequences encoding DNA2.0’s catalog products and has not found any issued patents or published patent applications with any claims relying on the nucleic acid sequence of DNA2.0’s catalog products designated as IP-Free© or any amino acid sequence encoded by the DNA2.0 catalog products. DNA2.0 is not aware of any pending unpublished patent applications that may be infringed by the DNA2.0 IP-Free© catalog products. However, DNA2.0 cannot guarantee that one or more patents claiming the DNA2.0 IP-Free© catalog product have not issued or will not issue. By purchasing the DNA2.0 IP-Free© catalog product, CUSTOMER acknowledges that use of the DNA2.0 IP-Free© catalog product may be claimed to infringe the intellectual property rights of third parties and that DNA2.0 provides no indemnity to CUSTOMER for any such alleged or actual infringement.
Compliance Terms: DNA2.0 has filed for US patent protection for certain components of its IP-Free© products. Subject to any applicable product-specific licenses and terms (see Section 10 below), CUSTOMER may use DNA2.0 IP-Free© catalog products or DNA2.0-synthesized genes in IP-Free© catalog vectors purchased from DNA2.0 (collectively, “IP-Free© Products”) to make proteins and peptides for research and commercial use. In addition, subject to any applicable product-specific licenses and terms, DNA2.0 authorizes CUSTOMER to incorporate IP-Free© Products into CUSTOMER’S product. CUSTOMER may sell or distribute such product incorporating IP-Free© Products to third parties provided that (i) CUSTOMER is not a direct competitor of DNA2.0 as a provider of synthetic genes, DNA constructs, gene design and/or protein engineering services, (ii) CUSTOMER has obtained any third-party licenses required for that product, (iii) CUSTOMER’s sale or distribution does not conflict with any product-specific license or term, (iv) CUSTOMER’S product performs an additional function not performed by the DNA2.0 IP-Free© Product, and (v) CUSTOMER prominently acknowledges the incorporation of the DNA2.0 IP-Free© Product on the front, side or back of the CUSTOMER’S product packaging and/or advertising materials in a font at least as large as that used for the majority of the other text in that packaging and/or advertising materials. In circumstances where CUSTOMER cannot satisfy each of these criteria, CUSTOMER warrants that the DNA2.0 IP-Free© Product (i) will be for single laboratory/company use only, and (ii) will not be distributed to any other party without DNA2.0’s written permission.
CUSTOMER Representations and Warranties:
By purchasing DNA2.0 Catalog Products, CUSTOMER represents and warrants that CUSTOMER will comply with the compliance terms set forth above and any applicable product-specific terms specified below.
By purchasing any DNA2.0 product (whether or not designated as IP-Free©), CUSTOMER represents and warrants that CUSTOMER has obtained all third-party licenses and rights, including all patent and intellectual property rights, necessary for making, using, and selling the DNA2.0 product.
CUSTOMER hereby agrees to and shall indemnify and hold harmless DNA2.0 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 representations and warranties or arising out of any action related to actual or alleged infringement of third-party patents directed at the DNA2.0 product.
10. Product-specific licenses and terms
Pichia Strains: Proteins and peptides made with DNA2.0 catalog Pichia strains (the “Pichia Strains“) are IP-Free©, and can be used commercially without license obligations. However, neither the Pichia Strains, nor any strains derived from the Pichia Strains, may be transferred or sold to third parties, resold, modified for resale, or used to provide a service of any kind to third parties, including, without limitation, reporting the results of customer activities for a fee or other form of consideration.
pD1300, pD1400, pD2100, pD2500 and pD2600 Products: Any product containing pD1300, pD1400, pD2100, pD2500 and pD2600 Vectors (the “Licensed Vectors”) (including Electra vectors, vector configurations for expression of multiple genes, and ProteinPaintbox® genes or CUSTOMER genes cloned into the Licensed Vectors) is subject to a limited use license pursuant to which CUSTOMER acknowledges and agrees that CUSTOMER may not (a) modify the Licensed Vectors in any way, including but not limited to replacing any protein-encoding sequence with any other protein-encoding sequence; (b) reverse-engineer, deconstruct, or disassemble the Licensed Vectors; (c) create any variant or derivative vector of the Licensed Vectors; or (d) transfer, disclose, or otherwise provide access to the Licensed Vectors (including sequences of same) to any third party unless (i) the Transferee agrees to use the Licensed Vectors only in accordance with these terms and conditions, and (ii) CUSTOMER is responsible for any violation of these terms and conditions by the Transferee. DNA2.0 shall not assert any rights to intellectual property it owns or controls, including in the Licensed Vectors, against CUSTOMER to the extent that such assertion of rights would prevent CUSTOMER from making, having made, using or selling proteins expressed from the Licensed Vectors, except pD2500 & pD2600 Vectors with control genes (see paragraph below).
pD2500 & pD2600 Vectors with control genes: Purchase of pD2500 and pD2600 Vectors with control genes is subject to a limited use license pursuant to which CUSTOMER acknowledges and agrees that pD2500 & pD2600 Vectors with control genes are for research use only, and not for any commercial uses. Excluded uses include without limitation manufacturing; providing a service; therapeutic, diagnostic and prophylactic uses; and any other commercial uses. Use of this product for any purpose other than for research is unauthorized and prohibited. Administration to humans or animals and any other use in humans or animals is also prohibited.
Electra Vectors: The purchase of DNA2.0 Electra Vectors conveys to CUSTOMER the right to use only the purchased amount of the linearized Electra Vector. (For clarity, once CUSTOMER’s ORF of interest has been cloned into the Electra Vector, CUSTOMER may replicate the resulting plasmid.) CUSTOMER may incorporate DNA2.0 Electra Vectors into CUSTOMER’S product as specified in Section 9 above, provided that CUSTOMER does not resell the Electra Vectors or vectors derived from the Electra Vectors as standalone vectors or incorporated into cloning kits.
Third-party Licenses: Purchase of certain DNA2.0 products may be subject to third-party license requirements. CUSTOMER will be informed in the ordering process of any such license requirements. Before an order will be completed, CUSTOMER must agree to obtain all such required licenses.
11. DNA2.0 Warranty
DNA2.0 guarantees that its products will have the sequence requested by CUSTOMER and will be consistent with the DNA sequencing tracefiles obtained by DNA2.0 during the performance of synthesis services and provided with each product except to the extent the sequence is not stable in E. coli, in which case DNA2.0 will communicate with CUSTOMER regarding appropriate alternatives. DNA2.0 does NOT guarantee the nucleotide sequence of the cloning vector. Claims under this warranty must be submitted within 30 days of shipment.
DNA2.0’s turnaround guarantee is not valid for orders requiring custom cloning, genes encoding high GC, stretches of homopolymers, extensive repeats or genes longer than 3kb.
In the event a designed DNA fragment cannot be cloned into the CUSTOMER’s choice of vector because of toxicity to the E. coli host or for other reasons, DNA2.0 reserves the right to ship the fragment in a different vector, provide sequence-verified cloned parts, or provide sequence-verified linear DNA. Any product that is not identical to the requested sequence will be replaced or authorized for return and credit, at DNA2.0’s option. These are the sole remedies for any breach of the foregoing warranty.
12. DISCLAIMER OF WARRANTY
THE WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR INFRINGEMENT, ARE EXCLUDED AND HEREBY DISCLAIMED. DNA2.0 SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, CONTINGENT, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFIT OR OTHER ECONOMIC LOSS, ARISING IN CONNECTION WITH CUSTOMER’S USE OF OR INABILITY TO USE THE GOODS AND SERVICES PROVIDED BY DNA2.0.
DNA2.0 WILL NOT BE LIABLE FOR ANY USE BY CUSTOMER OF PRODUCTS OR SERVICES OR FOR ANY LOSS, CLAIM, DAMAGE, OR LIABILITY OF ANY KIND OR NATURE THAT MAY ARISE FROM THE USE, HANDLING, OR STORAGE OF SUCH PRODUCTS OR SERVICES.
IN NO EVENT WILL DNA2.0’S TOTAL LIABILITY, IF ANY, EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE PRODUCTS OR SERVICES.
DNA2.0 PROVIDES NO WARRANTY OR GUARANTEE TO CUSTOMER THAT THESE PRODUCTS AND SERVICES, AND CUSTOMER’S USE THEREOF, ARE FREE FROM INFRINGEMENT OF ANY THIRD-PARTY PATENTS OR OTHER THIRD PARTY PROPRIETARY RIGHTS.
13. Quality Assurance Verification and Animal-Free Media
Quality Assurance Verification: DNA2.0 certifies that unless otherwise specified in writing, all materials shipped in fulfillment of purchase orders have been manufactured by DNA2.0, Inc. in Menlo Park, California, USA, in strict accordance with DNA2.0’s standard operating procedures. Synthetic oligonucleotides are assembled into the full-size DNA fragment, which is experimentally verified. The assembled fragment is sequence-verified on both strands (with acceptance to the termini) using capillary electrophoresis DNA analysis. All instrumentation is calibrated to current industry standards at the time of testing, and every analyst is trained to use the analytical application on each instrument. Corresponding DNA sequence tracefiles are available for download from CUSTOMER’s DNA2.0 online account. DNA2.0 tracks and stores origins and lot numbers for each component of the gene synthesis process. Each step of the gene synthesis process is time-stamped and bar-coded. Each synthesized DNA fragment encodes the expected DNA sequence.
BSE/TSE Declaration: DNA2.0 certifies that shipped DNA is free from BSE (Bovine spongiform encephalopathy) and TSE (Transmissible spongiform encephalopathy). Unless otherwise specified in writing, DNA2.0 products are produced from animal-free media.
Should any provision of this Agreement be deemed invalid, entirely or in part, by a court of competent jurisdiction, such invalidity shall not affect the validity of the remaining provisions, which shall not be impaired in any way and shall remain in full force and effect. The parties agree to replace the invalid provision by a valid provision that comes as close as possible to the economic intentions of the parties as evidenced by such invalid provisions.
15. Governing Law
This Agreement will be interpreted and governed by the law of the State of California, excluding its conflicts of laws rules.
16. Outside the USA
The information on DNA2.0’s Web site and DNA2.0’s products and services are intended only for customers in the United States of America. Regulatory requirements, laws, and distribution of information about genetic material may vary from country to country. The information may not be appropriate outside the United States of America. CUSTOMER is responsible for complying with all applicable laws necessary for DNA2.0 to provide the products and services to CUSTOMER outside the United States, and CUSTOMER hereby agrees to and shall indemnify and hold harmless DNA2.0 and its affiliates and their officers, agents, and employees from any failure by CUSTOMER to do so.