Terms and Conditions | Barnwell Bio

BARNWELL BIO TERMS AND CONDITIONS

Barnwell Bio’s Offering

Services. Barnwell Bio provides various offerings. Each offering, if selected, is set forth in the Order, and the Order will include, at a minimum and as applicable: (a) a detailed description of the offering on a subscription basis and the related services to be provided by Barnwell Bio (collectively, the “Services”), (b) the duration the Services will be provided (“Service Period”), (c) the associated fees (“Fees”), payment terms, and billing information, and (d) the contact information of both parties. To the extent any term or condition of the Order conflicts with these Terms, these Terms will control, unless otherwise expressly stated in the Order with reference to the specific terms and conditions to be superseded.

1.1

Users. Subject to the terms and conditions of this Agreement, Barnwell Bio will use commercially reasonable efforts to make the Services available to Customer and Customer’s authorized users (each, a “User”) pursuant to the Order. Customer is responsible for all acts and omissions of the Users, and any act or omission by a User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customers will make all Users aware of this Agreement’s provisions as applicable to such User’s use of the Service (or any component thereof) and will cause Users to comply with such provisions.

1.2

1.3

Modifications. Barnwell Bio may from time to time modify the Services in Barnwell Bio’s sole discretion. If any such modification materially and negatively impacts Customer’s access or use of the Services, Barnwell Bio will inform Customer reasonably in advance of the features and timing of the modification.

1.4

Restrictions. Customer will ensure that its use of the Services is at all times compliant with this Agreement and all applicable law. Except as expressly authorized by this Agreement, Customer may not (i) modify, disclose, alter, translate, or create derivative works of the Services (or any components thereof), (ii) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign, or otherwise dispose of the Services (or any components thereof), (iii) use the Services to store or transmit any viruses, software routines, or other code designed to permit unauthorized access, to disable, erase, or otherwise harm software, hardware, or data, or to perform any other harmful actions, (iv) copy, frame, or mirror any part or content of the Services, (v) build a competitive product based on the Services or service, or copy any features or functions of the Services, (vi) interfere with or disrupt the integrity or performance of the Services, (vii) attempt to gain unauthorized access to the Services or their related systems or networks, (viii) disclose to any unrelated third party any performance information or analysis relating to the Services, (ix) remove, alter, or obscure any proprietary notices in or on the Services including copyright notices, (x) reverse engineer, decompile, disassemble, decrypt, re-engineer, reverse assemble, reverse compile or otherwise translate, create, or create the source code of the Services or their structural framework (in whole or in part), or perform any process intended to determine the source code for the Services, (xi) circumvent or attempt to circumvent any technological protection measures intended to restrict access to or use of any portion of the Services or the functionality of the Services, (xii) take any action that imposes an unreasonable or disproportionately large load on the Services, (xiii) use the Services in any way that may violate any applicable law, rule, or regulation, for any purpose that is illegal in any way or that advocates illegal activity, or (xiv) cause or permit any User or third party to do any of the foregoing.

Use Requirements. Customer is responsible for maintaining the confidentiality of its User passwords, IDs, and other credentials and login information (collectively, “Passwords”), and Customer agrees that Barnwell Bio has no liability with respect to the use of any Passwords. Customer acknowledges that Passwords are personal to each User, and Customer is responsible for ensuring that each Password is used only by the applicable User. Customer must notify Barnwell Bio immediately if Customer has reason to believe that the security of Customer’s account has been compromised or if any of the Services have been accessed by any unauthorized individuals.

1.5

Third Party Providers. Barnwell Bio may use its subcontractors (including third-party providers) to provide all or a portion of the Services, which may have a separate agreement with Customer or, if not, may impose certain restrictions or additional terms and conditions (“Third-Party Terms of Service”). If applicable, the Third-Party Terms of Service are incorporated into this Agreement by reference. In the event of conflict between the terms and conditions of the Third-Party Terms of Service and the terms and condition of this Agreement, the terms and conditions of the Third-Party Terms of Service will govern with respect to such portions. Customer agrees to abide by the terms and conditions of the Third-Party Terms of Service provided by Barnwell Bio, if applicable. Barnwell Bio disclaims any liability with respect to such portions of the Services. Customer agrees that such third-party providers are third-party beneficiaries of all terms applicable to them.

Fees and Payment Terms

Fees. Customer will pay, or cause to be paid, to Barnwell Bio the Fees in accordance with the payment terms set forth in the Order. The Fees do not include taxes. All payments must be made (a) in U.S. Dollars and (b) by check or by bank wire transfer in immediately available funds to an account designated by Barnwell Bio. Upon termination of this Agreement, Barnwell Bio will be paid Fees on the basis set forth in the Order accrued before termination of this Agreement and in accordance with this Agreement.

3.1

Interest and Additional Terms. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Customer will be responsible for all sales, use, value added, withholding or other taxes or duties arising under or otherwise in connection with this Agreement, other than Barnwell Bio’s income taxes. If Barnwell Bio pays any such taxes on Customer’s behalf, Customer will promptly, but in no event more than 10 days after Barnwell Bio’s invoice to Customer, reimburse Barnwell Bio for such payment.

3.2

Term, Termination, and Effect of Termination

Term. This Agreement commences on the Effective Date and, unless earlier terminated as set forth in Section 4.2, continues until the end of the Service Period.

4.1

Termination. Either party may terminate this Agreement: (a) for cause, if the other party materially breaches this Agreement and does not remedy such breach within 30 days after its receipt of written notice of such breach and intent to terminate or (b) upon written notice to the other party upon the insolvency or bankruptcy of the other party. Notwithstanding any terms to the contrary in this Agreement, Barnwell Bio may suspend the provision of the Services (or any portion thereof) without liability if Barnwell Bio reasonably determines that: (i) Customer failed to pay any undisputed Fees when due, or (ii) Barnwell Bio is required by any applicable law to suspend the Services.

4.2

Effects of Termination. Any termination of this Agreement by either party will be without prejudice to any claims for damages or other rights against the other party that preceded termination. Promptly upon termination of an Order or this Agreement, unless otherwise expressly agreed in writing by the parties: (a) Barnwell Bio will invoice Customer for all Services performed but not yet paid, and Customer will pay all such invoiced amounts within 30 days thereafter, (b) Customer will return to Barnwell Bio or dispose of (at Barnwell Bio’s sole discretion) any Materials in its possession or control, (c) Barnwell Bio will terminate all Services in progress, and (d) each party will return to the other party or destroy all tangible items regarding the Confidential information of the other party and all copies thereof. In no event will Customer be entitled to any refunds of any Fees paid or payable prior to termination. Notwithstanding any terms to the contrary in this Agreement, Sections 1.4, 2, ‎4.3, 6, ‎7, ‎8, ‎9, ‎10.2, and 11 will survive any termination or expiration of this Agreement.

4.3

Representations and Warranties. Each party represents and warrants that: (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver, and perform its obligations under this Agreement, (c) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement, and (d) this Agreement is valid, binding, and enforceable against it in accordance with its terms. Additionally, Barnwell Bio warrants to Customer that the Services will be performed with reasonable care in a diligent and workmanlike manner, consistent with Barnwell Bio’s published specifications and in compliance with all applicable law. Barnwell Bio’s sole obligation and liability and Customer’s sole and exclusive remedy for breach of this warranty will be for Barnwell Bio to re-perform any Services brought to its attention by Customer within 15 days after the Services are performed.

Disclaimer. EXCEPT AS SET FORTH IN SECTION 5, THE SERVICES AND THE MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS, OR CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE), INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, BARNWELL BIO, ITS AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THE SERVICES NOR THE MATERIALS WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR OTHERWISE PRODUCE ANY PARTICULAR RESULTS. “Affiliate” means, with respect to an entity, any entity that controls or is controlled by such entity, or is under common control with such entity, wherein an entity will be deemed to control another entity if it owns or controls, directly or indirectly, more than 50% of the voting equity of another entity (or other comparable interest for an entity other than a corporation).

Indemnity

Barnwell Bio Indemnity. Barnwell Bio, at its sole expense, will defend Customer, its Affiliates, and its and their respective directors, officers, employees, consultants and agents (“Customer Parties”) from and against any and all third-party claims, suits, actions or proceedings (each a “Claim”), and indemnify Customer Parties from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including reasonable attorneys’ fees, costs, penalties, interest and disbursements) (“Losses”) that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by Barnwell Bio, in each case to the extent arising out of Barnwell Bio’s infringement or misappropriation of the intellectual property rights of any third party in performing the Services (“Infringement Claim”). In the event of an Infringement Claim, or of any occurrence or state of facts that may give rise to an Infringement Claim, Barnwell Bio may, at its election, and sole expense: (a) modify the Services so that such Services are non-infringing and functionally equivalent, (b) replace the Services with non-infringing Services that are functionally equivalent, (c) obtain the right for Customer to continue using the Services, or (d) terminate this Agreement. The remedies set forth herein are the sole and exclusive remedies available to Customer in connection with an Infringement Claim.

7.1

Customer Indemnity. Customer, at its sole expense, will defend Barnwell Bio, its Affiliates, and its and their respective directors, officers, employees, consultants and agents (“Barnwell Bio Parties”) from and against any Claim, and indemnify the Barnwell Bio Parties from any related Losses, to the extent resulting from or arising in connection with Customer’s use of the Services.

7.2

Procedure. The indemnifying party’s indemnification obligations under this Section 7 are conditioned upon the indemnified party: (a) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of it, (b) granting the indemnifying party the option to solely control the defense (including the right to use its own counsel) and settle the Claim (except that the indemnified party must approve any settlement that requires an affirmative obligation of the indemnified party), and (c) providing reasonable cooperation to the indemnifying party and assistance in the Claim’s defense or settlement.

7.3

Limited Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY IN ANY MANNER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING LOST PROFITS AND LOST REVENUE) ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF OR AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. OTHER THAN CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER OR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT. THE LIMITATIONS SET FORTH ABOVE WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. THE PARTIES AGREE THAT THE LIMITED WARRANTIES AND LIMITED LIABILITY ALLOCATE THE RISKS OF THESE TERMS AND CONDITIONS BETWEEN THE PARTIES, AND THAT SUCH ALLOCATION OF RISK IS REASONABLE. THIS ALLOCATION IS REFLECTED IN THE PRICING OF THE SERVICES AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION ‎8 IS INTENDED TO OR WILL LIMIT OR RESTRICT DAMAGES AVAILABLE FOR (A) A PARTY’S FRAUD OR WILLFUL MISCONDUCT OR (B) A PARTY’S INFRINGEMENT OR OTHER VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

Confidentiality

9.1

9.2

Definition. “Confidential Information” means any and all information and data (whether in oral, written, or other tangible or intangible form) that: (a) is provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) under this Agreement (whether before, on, or after the Effective Date), and (b) if disclosed in writing or other tangible medium is marked or identified as confidential at the time of disclosure to the Receiving Party, is acknowledged at the time of disclosure to be confidential, or otherwise should reasonably be deemed to be confidential. Notwithstanding the foregoing, Confidential Information of a party will not include that portion of such information and data which, and only to the extent, the Receiving Party can establish by written documentation: (i) is known to the Receiving Party prior to receipt thereof from the Disclosing Party, (ii) is disclosed to the Receiving Party free of confidentiality obligations by a third party who has the right to make such disclosure, (iii) is or becomes part of the public domain through no fault of the Receiving Party, or (iv) is independently developed by persons on behalf of the Receiving Party without use of or reference to the information disclosed by the Disclosing Party.

Obligations. The Receiving Party will maintain in confidence the Confidential Information during the term of this Agreement and for the 5-year period commencing upon the effective date of termination of this Agreement, and will not use such Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations or exercising the Receiving Party’s rights under this Agreement. In addition, the Receiving Party will only disclose Confidential Information to its Affiliates, directors, officers, employees, vendors and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement, provided such Affiliates, directors, officers, employees, vendors and/or contractors are under an obligation to maintain the confidentiality of the Confidential Information.

Permitted Disclosures. Each party agrees that the terms and conditions of this Agreement will be treated as Confidential Information of both parties and will not be disclosed to any third party; provided, however, that each party may disclose the terms and conditions of this Agreement in confidence: (a) to such party’s legal counsel, accountants, banks, financing sources, and their advisors, (b) in connection with the enforcement of this Agreement or rights under this Agreement, (c) in connection with an actual or proposed equity investment, merger, acquisition, or similar transaction, or (d) to governmental or regulatory authorities in connection with examinations or audits. The Receiving Party may disclose Confidential Information that is required to be disclosed by law or regulation or by a subpoena or order issued by a court of competent jurisdiction (each, a “Court Order”), but solely on the conditions that the Receiving Party: (i) gives the Disclosing Party written notice of the Court Order promptly after receiving it, if permitted by applicable law or regulation, and (ii) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to the disclosure of the information required by the Court Order and seek a protective order or other appropriate relief.

9.3

Equitable Relief. Each party acknowledges that a breach of this Section 9 cannot reasonably or adequately be compensated in damages in an action at law and that such a breach will cause the other party irreparable injury and damage. By reason thereof, each party agrees that the other party will be entitled, in addition to any other remedies it may have under this Agreement or otherwise, to seek preliminary and permanent injunctive and other equitable relief to prevent or curtail any breach of the obligations relating to Confidential Information set forth herein.

9.4

Materials, Results and Data

10.

Materials. Barnwell Bio will provide to Customer sample collection kits (the “Materials”). Customer will use the Materials only to obtain samples as described in the SOW and will transfer such samples to Barnwell Bio’s designee. Customer will not resell, sublease, or otherwise provide the Materials to any third party other than Barnwell Bio’s designee. Customer represents and warrants that Customer has all rights, licenses, consents, and permissions required to collect the samples and provide them to Barnwell Bio as set forth in this Agreement.

10.1

Results and Data. Barnwell Bio may use the samples to generate data, and, in the course of the Services, generate analytical results that will be summarized in written reports made available through the Services (such reports, the “Results”). Customer is solely responsible for all use by Customer of the Results and for evaluating the Results for accuracy and appropriateness for each use case. Customer acknowledges that due to the nature of the Services, the Results may not be unique, and the Services may generate, to or for Barnwell Bio or a third party, data that is the same as or similar to Results. As between the parties and subject to the grants expressly set forth in this Agreement, Customer owns all right, title, and interest (including all intellectual property rights) in and to the Results, and Barnwell Bio hereby assigns to Customer all such right, title, and interest. Customer hereby grants to Barnwell Bio a non-exclusive, irrevocable, perpetual, royalty-free, worldwide license and right to use, reproduce, and otherwise exploit the samples and Results, including to (a) provide the Services, (b) create de-identified or anonymized data sets that do not directly or indirectly identify Customer or any individual (“Aggregate Data”), (c) develop and improve Barnwell Bio technologies and offerings, and (d) offer and provide Barnwell Bio technologies and offerings to third parties. As between the parties, Barnwell Bio solely owns all right, title, and interest in and to any Aggregate Data and any data, information and material created by Barnwell Bio with such Aggregate Data. Aggregate Data may be made publicly available and may be used for any legal purpose, so long as the Aggregate Data does not directly or indirectly identify Customer.

10.2

No Implied Rights. Only the licenses and rights expressly granted herein will be of legal force and effect. No license or other right will be created hereunder by implication, estoppel or otherwise.

10.3

General Provisions

11.

Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without resorting to its conflict of law provisions. Each party submits to the exclusive jurisdiction of any state or federal court sitting in New York, New York (the “Chosen Courts”) in any litigation arising out of or relating to this Agreement, agrees that all claims in respect of any such litigation will be heard and decided only in any such Chosen Court, waives any claim of inconvenient forum or other challenge to venue in any such Chosen Court, and agrees not to bring or maintain any such litigation before any tribunal other than the Chosen Courts (except, for clarity, in any proper appeal from a Chosen Court).

11.1

Independent Contractors. Each party hereby acknowledges that the parties will be independent contractors and that the relationship between the parties will not constitute a partnership, joint venture or agency. Neither party will have the authority to make any statements, representations or commitments of any kind, or to take any action, which will be binding on the other party, without the prior consent of the other party to do so.

11.2

No Third-Party Beneficiaries. The parties agree that there are no third-party beneficiaries of the rights granted to either party pursuant to this Agreement.

11.3

Feedback. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments, or other feedback provided by Customer to Barnwell Bio with respect to Barnwell Bio or the Services (collectively, “Feedback”) will constitute Confidential Information of Barnwell Bio. Further, Barnwell Bio will be free to use, reproduce, and otherwise exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind.

11.4

Force Majeure. Neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including acts of God (fires, storms, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service by any service providers, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.

11.5

Electronic Communications. Barnwell Bio may deliver all communications to Customer electronically, which may include by email to the email address Customer provides to Barnwell Bio. Barnwell Bio’s electronic communications to Customer may transmit or convey information about action taken on Customer’s request, portions of Customer’s request that may be incomplete or require additional explanation, any notices required under applicable law, and any other notices. Customer agrees to do business electronically with Barnwell Bio and to receive electronically all current and future notices, disclosures, communications, and information, and that the aforementioned electronic communications satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day of receipt as evidenced by such email.

11.6

Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned, or delegated by Customer, by operation of law or otherwise, without the prior written consent of Barnwell Bio, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Barnwell Bio may freely transfer, assign, or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.

11.7

Amendments and Waivers. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.

11.8

Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement are not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.

11.9

Interpretation. The words “include,” “includes,” or “including,” when used in this Agreement are non-limiting and will be deemed to be followed by the words “without limitation.” The words “hereof,” “herein,” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement. The phrase “to the extent” will mean the degree to which a subject or other matter extends, and such phrase shall not simply mean “if.” The term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” Unless otherwise expressly set forth in this Agreement, references herein to a specific Section, Subsection, Exhibit or Schedule refer, respectively, to Sections, Subsections, Exhibits or Schedules of this Agreement. The heading references in this Agreement are for convenience of reference only and will not affect any of the provisions hereof. In the event that any notice or other action is required to be taken by a party under this Agreement on a day that is not a business day, then such notice or other action shall be deemed to be required to be taken on the next occurring business day. Each party acknowledges that it has had the opportunity to review this Agreement with legal counsel of its choice, and there will be no presumption that ambiguities will be construed or interpreted against the drafter.

11.10

11.11