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 services without a Purchase Order or credit card number. Quotes provided 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 or other form of pre-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. Newark, 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 email@example.com.
Orders are not returnable. Once an order is accepted by DNA2.0, it cannot be terminated or returned 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 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.
Customer shall own all right, title and interest in and to (i) sequences provided by CUSTOMER, or (ii) 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.
DNA2.0 treats all account contact information, payment information and DNA/protein sequences submitted by customers as strictly confidential. Information is only disclosed to employees at DNA2.0 bound by a confidentiality agreement on a need-to-know basis to enable the individual to perform their duties. Information is only used for the purpose for which it was disclosed.
Unless covered by separate Non-Disclosure Agreement executed by the parties, Customer acknowledges that all information and materials that come into Customer’s possession or knowledge in connection with past and future purchases of products from DNA2.0 and which is marked, identified, accepted as confidential or proprietary, or may be deemed confidential or proprietary by its nature or by the circumstances of its disclosure (“Confidential Information”), consists of confidential or proprietary information the improper disclosure or use of which will be damaging to DNA2.0. Therefore, Customer agrees to hold all Confidential Information in confidence, to disclose Confidential Information only to those of its employees having a need to know, and not to disclose Confidential Information to any other party. Customer agrees that it will not use any of DNA2.0’s Confidential Information, and to the fullest extent permissible under applicable law, will not modify, reverse engineer, reverse-compile, reverse assemble, synthesize or in any way use any DNA2.0 Confidential Information whether for internal consumption or open market sale, or for any other purpose inconsistent with these Terms and Conditions.
10. Product Use
DNA2.0 products are NOT FOR USE IN HUMANS. DNA2.0 does not submit DNA2.0 products for regulatory review by any government body or other organization, and does not validate them for clinical, therapeutic or diagnostic use, or for safety and effectiveness. CUSTOMER is solely responsible for making sure that the way CUSTOMER uses DNA2.0 products complies with applicable laws, regulations and governmental policies. CUSTOMER must obtain all necessary approvals and permissions CUSTOMER may need. It is solely CUSTOMER’s responsibility to make sure the products are suitable for CUSTOMER’s particular use. CUSTOMER represents and warrants to DNA2.0 that CUSTOMER will properly test, use, and, to the extent authorized, market any products purchased from DNA2.0 and any final articles made from them in accordance with the practices of a technically qualified individual and in strict compliance with all applicable governmental food, drug, device, and cosmetic requirements and other applicable governmental requirements, now and hereinafter enacted.
11. DNA2.0 Products
IP-Free© Products: DNA2.0 cannot guarantee that one or more patents claiming the DNA2.0 IP-Free© Products have not issued or will not issue. By purchasing the DNA2.0 IP-Free© Product, CUSTOMER acknowledges that use of the DNA2.0 IP-Free© Product may be claimed to infringe the intellectual property rights of third parties and that DNA2.0 provides no indemnity or other remedy to CUSTOMER for any such alleged or actual infringement.
DNA2.0 has filed for US patent protection for certain components of its IP-Free© Products. CUSTOMER may use DNA2.0 IP-Free© Products or DNA2.0-synthesized genes in IP-Free© cloning vectors purchased from DNA2.0 according to the Compliance Terms of this Section 11 and the product-specific licenses and terms listed in Section 12 below.
Compliance Terms: CUSTOMER’s use DNA2.0 catalog products and cloning vectors available on DNA2.0’s website, whether or not designated as IP-Free©, (collectively, “DNA2.0 Products”) is subject to any applicable product-specific licenses and terms listed in Section 12 below.
CUSTOMER may not use DNA2.0 Products to perform protein expression and/or purification services for third-party customers without a commercial license from DNA2.0. Please contact firstname.lastname@example.org for information about commercial licensing.
Without prior written authorization from DNA2.0, CUSTOMER may not incorporate any DNA2.0 Product into CUSTOMER’s product and sell such product or otherwise distribute such product to third parties, except as permitted in the Product Transfer term below. Please contact email@example.com to inquire about obtaining such written authorization. DNA2.0 reserves the right to refuse such authorization at its sole and unlimited discretion.
Product Transfer: Subject to any applicable product-specific licenses and terms listed in Section 12 below, CUSTOMER may transfer a DNA2.0 Product to a third party (an “Authorized Transferee”) other than a competitor of DNA2.0 provided that (i) the Authorized Transferee agrees to use the DNA2.0 Product only in accordance with these terms and conditions, (ii) the Authorized Transferee agrees to use the DNA2.0 Product solely to perform services on behalf of CUSTOMER, and (iii) CUSTOMER is responsible for any violation of these terms and conditions by the Authorized Transferee. Customer may transfer any DNA2.0 Product to a competitor only upon the prior written consent of DNA2.0. Notwithstanding the foregoing, pD1300, pD1400, pD2100, pD2500, pD2600, pD3500, and pD3600 Products (Research Use Only Products) may not be transferred to any third party without the prior written consent of DNA2.0
CUSTOMER Representations and Warranties:
By purchasing any DNA2.0 Product, 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, 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.
12. 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, pD2600, pD3500, and pD3600 Products (Research Use Only Products): Any product containing pD1300, pD1400, pD2100, pD2500, pD2600, pD3500, or pD3600-series Vectors (the “Licensed Vectors”) (including Electra vectors, vector configurations for expression of multiple genes and other customized configurations of the Licensed Vectors, and ProteinPaintbox genes or CUSTOMER genes cloned into the Licensed Vectors) is subject to a limited, non-transferable license pursuant to which CUSTOMER acknowledges and agrees that the Licensed Vector may be used for internal research purposes only and may not be used for commercial purposes. For clarity, use for commercial purposes includes any use in manufacturing a product or service that is provided to a third party for consideration. In addition, CUSTOMER acknowledges and agrees that CUSTOMER and any Authorized Transferee (as defined in Section 11) 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 other than an Authorized Transferee, and provided that any transfer to an Authorized Transferee must comply with the Product Transfer terms of Section 11.
Vectors with FH8 solubility tag: The FH8 solubility tag is licensed from Hitag and is available for research use only. A separate license is required for any commercial use, including the development of commercial products or services. Information about commercial licenses may be obtained from Hitag Biotechnology. Lda, Biocant Park L4 N4, 3060-197, Cantanhede, Portugal.
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.)
WPRE License: DNA2.0 has a limited license under patents owned by the SALK Institute for Biological Studies that permits DNA2.0 to sell products containing WPRE 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 by a purchaser for any purpose other than for research is unauthorized and prohibited. Administration to humans and use in human diagnostics is also prohibited. The Salk Institute actively licenses its patents for commercial uses, and a commercial use license may be available for Salk’s WPRE patents. If you wish to inquire about such a license, please contact: Office of Technology Development, The Salk Institute for Biological Studies, 10010 North Torrey Pines Road, La Jolla, CA 92037. Phone: (858) 453-4100 extension 1278. Fax: (858) 546-8093.
Third-party Licenses: Purchase of certain DNA2.0 products may be subject to third-party license requirements. CUSTOMER will be informed of any such license requirements in these terms and conditions or during the ordering process. Before an order will be completed, CUSTOMER must agree to obtain all such required licenses.
For four (4) years after the later of delivery of DNA2.0 products or provision of final services, DNA2.0 may audit Customer for its compliance with the provisions of this Agreement. Any audit or inspection under this section will be conducted during Customer’s regular business hours, in a manner that does not unreasonably interfere with Customer’s operations. Any audit may be conducted by personnel of DNA2.0 or an independent certified public accountant or other expert selected by DNA2.0. If Customer is found noncompliant with this Agreement in any way, Customer shall promptly reimburse DNA2.0 for all costs associated with the audit, along with any discrepancies discovered plus interest at the highest rate permitted by law.
13. DNA2.0 Warranty
DNA2.0 warrants that its products will have the sequence requested by CUSTOMER and will be consistent with the DNA sequencing trace files 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.
DNA2.0 will perform protein expression services in accordance with the material terms of the written quote. CUSTOMER acknowledges and agrees that DNA2.0 does not represent, warrant, or guarantee that (1) DNA2.0 will be able to generate protein from the sequences provided, or (2) if DNA2.0 is able to generate protein from the sequences provided, any particular quantity or quality of such protein will be produced. In the event that DNA2.0’s performance of the services fails to provide an adequate quantity or quality of product, DNA2.0 will contact CUSTOMER before undertaking additional services for which additional charges may apply.
14. 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.
15. 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 Newark, 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 trace files 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.
17. Governing Law; Arbitration
Unless otherwise agreed, California law (excluding any choice of law rules) will govern the interpretation and enforcement of these Terms and Conditions and the relationship between Customer and DNA2.0.
Customer and DNA2.0 agree to settle by final and binding arbitration any controversy or claim between them, including without limitation these Terms and Conditions, and/or any product or service, whether based on contract, tort, fraud, misrepresentation, or other legal theory. A single arbitrator will conduct the arbitration in Palo Alto, California under the then current rules and supervision of the American Arbitration Association, including rules governing who shall decide arbitrability. Customer and DNA2.0 will select an arbitrator from a panel of persons knowledgeable in gene synthesis or antibodies or life sciences generally as applicable. The arbitrator will have the authority to award temporary and permanent injunctive relief, but may not award punitive or exemplary damages to either party. The decision and award of the arbitrator will be final and binding and may be entered in any court having jurisdiction. Customer and DNA2.0 will pay their own attorney’s fees associated with the arbitration, and will pay other costs and expenses of the arbitration as the rules of the American Arbitration Associate provide.
Neither party may bring any action, regardless of form, these Terms and Conditions, or any product or service more than one year after the party bringing the action knew or should have known that the cause of action accrued.
18. 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.
Neither party shall be liable to the other for delays or failures to perform if the delay or failure is caused by shortage of labor, labor disputes, war, act of enemies, riots, insurrection, civil commotion, federal, state or municipal action, statute ordinance, or regulation, fire, flood, earthquake, accident, storm, explosions, acts of God, the inability to obtain essential materials or other resources, or other causes beyond the party’s reasonable control. In the event of an excusable delay as defined above, the affected party shall notify the other party in writing of such delay and an equitable adjustment shall be made in the completion schedules and any other affected terms.
Neither party may assign its rights or obligations under these Terms and Conditions without the prior written consent of the other, except (i) as an incident to the transfer of all or substantially all of its business, and (ii) DNA2.0 may assign any such agreement to any of the companies owned or controlled by it.
DNA2.0 and Customer are contractors independent of one another. Nothing herein or in the purchase order process is intended to or will constitute either party as an agent, legal representative, or partner of the other for any purpose.
A waiver of a breach of any term of any customer agreement or these Terms and Conditions will not be construed as a waiver of any succeeding breach of that term or as a waiver of the term itself. A party’s performance after the other’s breach will not be construed as a waiver of that breach.
All notices required or permitted and all requests for approvals, consents, and waivers must be in writing and must be delivered to the parties at their respective addresses by a method providing for proof of delivery. Any notice or request will be deemed to have been given on the date of receipt.
Customer and its affiliates hereby covenants that they will not (i) use the DNA2.0 trademark or trade name or (ii) cause any advertising publicity, release, or other disclosure of information concerning these Terms and Conditions or any contract with DNA2.0 without DNA2.0 ’s prior written consent.