These terms and conditions (“Terms”) asdescribed below shall apply to all contracts between Cemvita Factory, Inc. (“Contractor”)and Customer. Contractor and Customer may be hereinafter referred toindividually as a “Party” and collectively as the “Parties.” These Terms areintended to govern and supplement the relationship between the Partiesestablished in the Project Proposal. Any capitalized, yet undefined terms hereinshall have the meaning(s) ascribed to them in the Project Proposal.
WHEREAS, Customer desires to evaluate and explorenew technologies that may improve or enhance its business operations; and
WHEREAS, Contractor is a biotechnology companythat, among other things, is developing new services and technologies for CO2 utilizationand is seeking assistance from Customer to evaluate and implement such newservices and technologies with the ultimate goal of demonstrating them forcommercial use;
NOW, THEREFORE, in consideration of thepremises and the mutual covenants herein contained, for good and valuableconsideration, the receipt and sufficiency of which are hereby acknowledged,the Parties hereto agree as follows:
1.1. Contractorwill perform for Customer the services and provide for Customer thedeliverables, if any, described in the Project Proposal (collectively, the “Services”)on the terms and conditions set forth herein.
1.2. Ifthere is any discrepancy between the Project Proposal and these Terms, theProject Proposal shall control.
1.3. Contractorand Customer may enter into multiple Project Proposals for varying Services,each (along with these Terms) to be construed as separate, distinct agreementsbetween the Parties.
1.4. BothParties expressly acknowledge and agree that the Services are experimental innature, are under development, and may not result in a viable commercialservice. THEREFORE, TO THE MAXIMUMEXTENT PERMITTED BY APPLICABLE LAW, CONTRACTOR DISCLAIMS AND EXCLUDES ALLREPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, ORSTATUTORY, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS AND/OR WARRANTIES OFQUALITY, ACCURACY, TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR APARTICULAR PURPOSE, WITH RESPECT TO ANY SERVICES. CONTRACTOR DOES NOT WARRANTAGAINST INTERFERENCE WITH THE ENJOYMENT OF ANY SERVICES PROVIDED TO CUSTOMER BYCONTRACTOR. CONTRACTOR DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE.
1.5. Customerwarrants to Contractor that any data, models, information, or other materialsprovided to Contractor by Customer for the purpose of performing the Servicesshall be reasonably accurate, complete, and error free. Customer recognizes thenecessity of accurate, complete, and error free information for Contractor toprovide the best quality Services. Customer likewise agrees to be reasonablyavailable for feedback to Contractor and to respond to Contractorcommunications within a reasonable period of time.
2.1. Customerwill pay Contractor for performing the Services in an amount described in theProject Proposal (the “Service Fees”).
2.2. Fiftypercent (50%) of the Service Fees shall be due and paid up-front, uponacceptance of the Project Proposal by Customer. The remaining fifty percent(50%) of the Service Fees shall be due and paid by Customer upon completion ofthe Services (by Contractor’s sole and reasonable judgment) and will beinvoiced directly by Contractor. Once invoiced, the final portion of theService Fees shall be paid by Customer within thirty (30) days. Any amounts dueto Contractor under these Terms not received by the date due will be subject toa service charge of 1.5% per month until paid in full, or the maximum chargepermitted by law, whichever is less.
3. CONFIDENTIALITY ANDNON-DISCLOSURE.
3.1. “ConfidentialInformation” means any proprietary or confidential information or materialof either Party that is disclosed to the other Party, either directly orindirectly, in writing, orally or by inspection of tangible objects (includingwithout limitation documents, prototypes, formulas, plans, systems,technologies, know-how, customer lists, samples, and intellectual property),whether or not such information is designated or identified as “Confidential,”“Proprietary,” or some similar designation. Confidential Information will not,however, include any information that the receiving Party can demonstrate: (a) waspublicly known and made generally available in the public domain prior to thetime of disclosure by the disclosing Party; (b) becomes publicly known and madegenerally available after disclosure by the disclosing Party to the receivingParty through no act or omission of the receiving Party; (c) is already inthe possession of the receiving Party at the time of disclosure by thedisclosing Party; (d) is obtained by the receiving Party from a thirdparty without a breach of the third party’s obligations of confidentiality; or(e) is independently developed by the receiving Party without use of orreference to the disclosing Party’s Confidential Information, as shown by documentsand other competent evidence in the receiving Party’s possession.
3.2. Exceptas provided in Section 6.3 below, upon termination of the Services, each Partywill promptly return, or if requested by the disclosing Party, confirmdestruction of, the Confidential Information of the other Party that is in itspossession at the time of termination. However, Contractor will have the rightto use and exploit Residuals for any purpose after the return of Customer’sConfidential Information. “Residuals” means ideas, information, andunderstandings retained in the memory of Contractor’s executives, employees,contractors, and/or agents because of their review, evaluation, and testing ofthe Confidential Information of Customer after its return to Customer.
3.3. NeitherParty will disclose any Confidential Information of the other Party to third parties.Likewise, neither Party will disclose any Confidential Information of the otherParty to its employees, contractors, or agents, except as reasonably necessary inorder to perform the receiving Party’s obligations under these Terms. If aParty is required by law to disclose the other Party’s ConfidentialInformation, that Party must give the other Party prompt written notice of therequirement prior to such disclosure so the disclosing Party may seek aprotective order or other protective measure(s) as it wishes.
3.4. NeitherParty will reverse engineer, disassemble, or decompile any prototypes, material,samples, software, or tangible objects that embody the other Party’sConfidential Information and that are provided to the Party. Neither Party mayuse the other Party’s Confidential Information for any purpose other than theprovision of Services under these Terms.
3.5. EachParty will take reasonable measures to protect the secrecy of and avoiddisclosure and unauthorized use of the Confidential Information of the otherParty. Without limiting the foregoing, each Party will take at least thosemeasures that it takes to protect its own most highly confidential information.
3.6. BothParties shall have the right to publicize through press releases, publicannouncements, and otherwise, the existence and general terms of the Servicesand these Terms (without disclosing the Service Fees or ConfidentialInformation), the names of the Parties, and the technical outcomes of theServices. Contractor shall also have the right to disclose to potentialinvestors the existence and terms of the Services and these Terms (includingthe Service Fees), the names of the Parties, the technical outcomes of theServices, and any other matters determined by the Contractor to be reasonablenecessary for funding diligence.
4. OWNERSHIP OF INTELLECTUALPROPERTY; LICENSE TO USE; NON-COMPETE.
4.1. Forthe purposes of these Terms, “IntellectualProperty” means anything that is, has been, or is capable of beingpatented, protected as a trade secret, protected by copyright law, protected bytrademark law, or protected by or under any other U.S. or foreign laws orstatutes relating to intellectual or industrial property rights, including withoutlimitation patents, trademarks, service marks, trade names, copyrights, tradesecrets, works of authorship, moral rights of authorship, know-how, scientificor mathematical outcomes, scientific or mathematical improvements, technologies,and Confidential Information, including any applications for or registrationsof the foregoing.
4.2. AnyIntellectual Property relating to, referring to, comprising, or claiming,technologies relating to CO2 utilization using methods of Synthetic Biologydeveloped during the course of the Services (“Synthetic Biology IP”)shall be the sole and exclusive property of Contractor. To the extent thatCustomer, its employees, agents, or contractors, conceives, develops, inventsor contributes to any Synthetic Biology IP, Customer hereby irrevocably assigns,and agrees to assign, to Contractor the Customer’s entire right, title andinterest in, and to, such Synthetic Biology IP. Contractor shall have the rightto, in its sole judgment, file patent, trademark, or copyright applications,whether in the United States and/or other jurisdiction, with respect to such SyntheticBiology IP in its own name and at its own expense, and take such other steps asare necessary, in the sole judgment of Contractor, to protect its rights insuch Synthetic Biology IP. Upon the reasonable request of Contractor, Customeragrees that it will take all reasonable actions, execute all reasonabledocuments, and cause its employees, agents, and contractors to take all actionsand execute all documents as are reasonably necessary or appropriate to carryout the provisions of this Section 4.2 or to assist Contractor in thepreparation, filing, prosecution, defense, and enforcement of the SyntheticBiology IP, or securing such protection referenced in this Section 4.2. Otherthan as expressly provided in Section 4.4 herein, no licenses, whether express,implied, or otherwise, are provided to Customer in the Synthetic Biology IP.
4.3. Forthe purposes of these Terms, “Background Technology” means allIntellectual Property and Confidential Information developed by or in thepossession of Contractor prior to the Effective Date. Contractor is the soleand exclusive owner of all Background Technology, including without limitationany Background Technology used in performance of the Services. Other than as expressly provided in Section4.4 herein, no licenses, whether express, implied, or otherwise, are providedto Customer in the Background Technology.
4.4. Contractor hereby grants to Customer a limited, non-commercial, non-exclusive, royaltyfree license to Background Technology and Synthetic Biology IP for the Term of Services. The license is expressly limited to Customer’s use of the BackgroundTechnology and Synthetic Biology IP to evaluate the effectiveness and viabilityof the Services. The license shall terminate automatically at the end of theTerm. The license may not be assigned, sublicensed, or otherwise transferred toany third party, in any way, without Contractor’s prior written consent.
4.5. Forthe Term of these Terms and for a period of one (1) year thereafter (the “RestrictedPeriod”), Contractor shall not perform, for any competitor of Customer,Services that are the same as those provided to Customer. By way of examplewithout limitation, if Contractor engages with Customer for a project toproduce bioethylene from CO2, during the Restricted Period, Contractor will notengage with a competitor of Customer for a project to produce bioethylene fromCO2. This Section 4.5 is to be construed as strictly as possible in favor ofContractor so as not to impede Contractor’s ability to operate, conductbusiness, and perform services for entities other than Customer.
4.6. To the extent the Contractor Proposal
involves a technical evaluation and feasibility study, the Parties acknowledge
that no representation or warranty of success is made or given. Nothing
contained in this Agreement shall be construed as a warranty on the part of
either Party that any results will be achieved by such Party, or that any
particular intellectual property developed during the evaluation period will be
5. REPORTS; PUBLICATIONS.
5.1. Contractorwill keep Customer orally up-to-date as to Contractor’s progress in performingthe Services and Contractor will, when reasonably requested by Customer,prepare written reports with respect to the progress. It is understood that anytime required in the preparation of the written reports will be considered timedevoted to the performance of the Services.
5.2. Duringthe term of these Terms and through the Restricted Period, Customer shallprovide advance notice to Contractor of any publications, technical papers,articles, reports, or the like (collectively, “Publications”), made byor on behalf of Customer and/or Customer’s employees, agents, or affiliates,regarding Synthetic Biology IP. Such advance notice shall be given with enoughtime to reasonably allow Contractor to decide whether or not to participate inthe Publications. Notwithstanding theforegoing, any Publications made by or on behalf of Customer and/or Customer’semployees, agents, or affiliates, regarding Synthetic Biology IP shall includeproper references and credits to Contractor.
6. TERM AND TERMINATION;SURVIVAL.
6.1. TheseTerms will commence on the Effective Date and continue for the Term as providedin the Project Proposal, unless terminated earlier pursuant to Section 6.2,below.
6.2. EitherParty may terminate these Terms for convenience upon thirty (30) days’ written noticeto the other Party; however, either Party may terminate these Terms immediatelyand without prior notice to the other Party if the terminating Party believessuch immediate termination is necessary to protect its Intellectual Property,customers, employees, contractors, or agents. Termination of these Terms willalso terminate the Services. Upon early termination for any reason, allremaining Service Fees shall become immediately due and payable by Customer(such remaining Service Fees to be reduced proportionately by the length oftime remaining in the Term; however, in no event will Customer be refunded thefirst fifty percent (50%) payment of Service Fees if these Terms are terminatedearly by Customer).
6.3. Upontermination, Contractor may, in its sole discretion, retain any samplesprovided by the Customer as part of the Services, but Contractor is notobligated to maintain such samples and will have no liability for the loss ordestruction of samples.
6.4. Uponexpiration or early termination of these Terms, all rights and duties of theParties toward each other will cease, except Sections 1.4, 3, 4, 6, 7, and 8will survive.
7. LIMITATION OF REMEDIESAND DAMAGES.
7.1. NOTWITHSTANDINGANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, CONTRACTOR WILL NOT, UNDERANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL,SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OR THESERVICES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVENIF CONTRACTOR IS AWARE OF THE LIKELIHOOD OF THESE DAMAGES OCCURRING.
7.2. UNDERNO CIRCUMSTANCES WILL CONTRACTOR’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OFOR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS),REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASEDON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TOCONTRACTOR UNDER THESE TERMS DURING THE SIX (6) MONTHS PRECEDING THE DATE OFTHE ACTION OR CLAIM.
7.3. EACHPROVISION OF THEES TERMS THAT PROVIDES FOR A LIMITATION OF LIABLITY, DISCLAIMEROF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMSBETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BYCONTRACTOR TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAINBETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OFALL OTHER PROVISIONS OF THESE TERMS AND EACH OF THESE PROVISIONS WILL APPLY EVENIF ANY WARRANTIES IN THESE TERMS HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
8. GENERAL TERMS.
8.1. TheseTerms may be assigned by either Party upon prior written notice to the otherParty.
8.2. The relationship of the Partieshereto is that of independent contractors. Nothing in these Terms, and nocourse of dealing between the Parties, shall be construed to create or imply anemployment or agency relationship or a partnership or joint venture relationshipbetween the Parties or between one Party and the other Party’s employees oragents. Each of the Parties is an independent contractor and neither Party hasthe authority to bind or contract any obligation in the name of or on accountof the other Party or to incur any liability or make any statements,representations, warranties or commitments on behalf of the other Party, orotherwise act on behalf of the other.
8.3. These Terms will be governed by andinterpreted in accordance with the laws of the State of Texas, without givingeffect to the principles of conflicts of law therein.
8.4. Anydispute or controversy arising out of or relating to the interpretation,construction, performance, or breach of these Terms will be settled by bindingarbitration in accordance with the rules then in effect of the AmericanArbitration Association and will be held in Houston, Texas. The arbitrator maygrant injunctions or other relief in the dispute or controversy. The decisionof the arbitrator will be final, conclusive, and binding on the Parties to thearbitration. Judgment may be entered on the arbitrator’s decision in any courtof competent jurisdiction. Notwithstanding the above, the Parties may seekinjunctive relief in any court of competent jurisdiction for a breach ofSections 3 or 4 of these Terms without the necessity of posting a bond.
8.5. TheseTerms are in addition to, and do not limit, any rights that either Party mayhave under trade secret, copyright, patent or other laws that may apply to thesubject matter of these Terms both during and after the Term. It is expresslyunderstood and agreed that the Arbitration provision of Section 8.4 herein doesnot apply to patent infringement, copyright infringement, trademarkinfringement, and trade secret misappropriation actions.
8.6. Customerwill not, during the Term and for a period of one (1) year thereafter, directlyor indirectly, for its own account or for the account of others, urge, induce,entice, or in any manner whatsoever solicit any employee of Contractor directlyinvolved in Services to leave the employment of Contractor. For purposes of theforegoing, urge, induce, entice or solicit shall not be deemed to mean: (a)circumstances where an employee of Contractor initiates first contact with Customerwith regard to possible employment; or (b) general solicitations of employmentnot specifically targeted at employees of Contractor, including responses togeneral advertisements.
8.7. TheseTerms and the Project Proposal constitute the entire agreement between theParties with respect to the subject matter hereof and supersedes any prioragreement, representations, promises, or communications between the Parties,whether written, oral, electronic or otherwise. No change, modification,amendment, or addition of or to these Terms or any part thereof shall be validunless in writing and signed by authorized representatives of the Parties.
8.8. Nowaiver of any term or right in these Terms shall be effective unless inwriting, signed by an authorized representative of the waiving Party. Thefailure of either Party to enforce any provision of these Terms shall not beconstrued as a waiver or modification of such provision, or impairment of itsright to enforce such provision or any other provision of these Termsthereafter.
8.9. Eachof the Parties hereby represents and warrants that it has the power andauthority to execute, deliver and perform these Terms, that these Terms havebeen duly authorized by all necessary corporate action on the part of suchParty, that these Terms constitute a legal, valid, and binding obligation ofeach such Party and that the execution, delivery and performance of these Termsby such Party does not contravene or conflict with any provision of law or ofits charter or bylaws or any material agreement, instrument, or order bindingon such Party.
8.10. Ifany term of these Terms is to any extent illegal, otherwise invalid, orincapable of being enforced, such term shall be excluded to the extent of suchinvalidity or unenforceability; all other terms hereof shall remain in fullforce and effect; and, to the extent permitted and possible, the invalid orunenforceable term shall be deemed replaced by a term that is valid and enforceableand that comes closest to expressing the intention of such invalid or unenforceableterm. If application of this severability provision should materially andadversely affect the economic substance of the transactions contemplatedhereby, the Party adversely impacted shall be entitled to compensation for suchadverse impact, provided the reason for the invalidity or unenforceability of aterm is not due to serious misconduct by the Party seeking such compensation.