These Terms & Conditions (“Agreement”) are for the purpose of the supply by Clutch Biotechnologies Inc, a Delaware corporation  (“Clutch”) of certain products to the Client identified in the quotation offer (the “Client”), all as described under and subject to the terms and conditions of this Agreement. Client and Clutch may be referred to herein individually as a “Party” and collectively as the “Parties.”

1.      PRODUCT ORDERS

1.1             Product Orders. During the term of this Agreement, the Client may, from time to time, request custom-designed products ("Products") by submitting a written request to Clutch (each, a “Batch Submission”). Each Batch Submission shall contain all necessary specifications and descriptions to enable Clutch’s manufacture and supply of the applicable Product(s), including any applicable genetic sequences. Clutch shall provide an initial written quotation (a “Quotation”) reflecting the price and essential terms pertaining to the manufacture and supply of such Products. Any written orders for Products submitted by Client (each, an “Order”) will reference the applicable Quotation and will be governed by its terms and the terms of the corresponding Batch Submission. After receiving any Order, Clutch may inform the Client of any discrepancies and/or necessary adjustments. No Order shall be binding on Clutch unless and until it is accepted in writing.

1.2             Product Supply. Following the acceptance of an Order in compliance with this Agreement, Clutch shall use commercially reasonable efforts to synthesize and supply the specified Products as outlined in the accepted Order and Batch Submission. Clutch has the right to cancel any Order if it determines, using reasonable discretion, that cancellation is necessary due to concerns regarding biosecurity, patent violations, export constraints, or practicality. Such cancellation shall not create any liability for Clutch, with the understanding that a portion of prepaid sums for the cancelled Products shall be applied to future transactions under this Agreement. Furthermore, this Agreement does not prevent Clutch from offering similar or identical products and services to third parties, provided such actions do not breach any confidentiality or non-use obligations stated herein.

1.3             Vendor Use. Clutch reserves the right to engage third-party vendors to perform services as necessary to fulfill its obligations under this Agreement. Clutch shall ensure that any such vendors are bound by confidentiality and quality obligations that are at least as protective as those set forth in this Agreement.

1.4             Shipment. Clutch shall use good faith efforts to ship Products by the specified target delivery date present in the Order, if any. Clutch reserves the right to ship the Products in batches if this has been previously arranged with the Client. All Products will be shipped EXW (Incoterms 2020) Clutch's facility to the address specified by the Client using Clutch’s selected means and carrier, unless otherwise specified in the Order. The transfer of risk of loss or damage to the Products shall pass to the Client upon delivery of the Products to the Client.

1.5             Returns & Refunds. The purchase of credit bundles by the Client, utilized for Clutch's services, is irrevocable and nonrefundable. In the event that any Product supplied under an Order does not materially comply with the specifications ascribed by Clutch within the Order, excluding any non-compliance arising during or following shipment, the Client must notify Clutch within twenty (20) days after receipt thereof (any such Product, a “Non-Conforming Product”). Failure to provide such notification by such deadline shall constitute full acceptance of the Products as compliant with the Agreement. If Clutch is notified of such Non-Conforming Product(s) by the applicable deadline, Clutch shall, at Client’s request, use commercial reasonable efforts to deliver replacement Products in a timely manner. Notwithstanding the foregoing, Clutch reserves the right to cancel the Order (with a corresponding credit refund) if Clutch has already provided a replacement for a previous similar Order or if Clutch is unable to produce conforming Products. This clause states the Client's sole remedy and Clutch's sole liability for Products that fail to comply with the applicable specifications. Should Clutch determine, via an independent laboratory analysis, that the original Product(s) are in fact conforming after examination, the Client will be responsible for all related costs for shipment and evaluation, and Clutch is under no obligation to replace the Products. Clutch shall not be obligated to provide replacements or otherwise repeat any manufacturing services except as expressly set forth in this Agreement.

2.      CLIENT SEQUENCES, MATERIALS, RESTRICTIONS AND RESPONSIBILITIES

2.1             Client Resources. Client shall, at its expense, promptly provide Clutch with any materials required for the manufacturing and supply of Product that the applicable Batch Submission or Quotation indicates to be Client’s responsibility (collectively, "Client Materials"). The Client represents and warrants that (a) it has the right  to transfer such Client Materials and any information provided in the Batch Submission (collectively, “Client Resources”) to Clutch for Clutch's use under this Agreement; (b)  such Client Resources will not contain identifiable information or breach any legal or biosecurity restrictions; and (c) the Client Materials will not include an restricted substances such as FSAP-regulated toxins, radioactive elements, or hazardous materials. The Client guarantees full written disclosure of any potential hazards linked to any Client Resources. Clutch retains the discretion to review all Orders and corresponding Client Resources to assure biosecurity compliance, rejecting or terminating any Orders as necessary. The Client agrees to cooperate with Clutch in such evaluations.

2.2             Clutch Use & Maintenance of Client Materials. Client hereby grants Clutch and its affiliates a nonexclusive license to utilize the Client Resources solely to manufacture and supply Products in accordance with this Agreement and to improve Clutch's service offerings. Clutch may retain certain DNA products, including self-replicating, circular DNA and standard oligonucleotide products, in the Client's biorepository (“Biorepository”). Clutch retains the sole discretion to decide which products or materials meet the eligibility criteria for the Biorepository. Except as provided below, Clutch commits to maintaining adequate stock levels of all eligible products in the Biorepository and will replenish stocks as required for manufacturing of Products hereunder. Client acknowledges and agrees that materials constituting temporary samples, which include but are not limited to linear DNA fragments, gene fragments, non-standard single-stranded DNA oligos, PCR products, and client-provided genomic DNA, will not be restocked and are subject to a finite period of availability as determined by Clutch in its sole discretion. Upon expiration of this period, the Client bears the cost and/or responsibility for providing a fresh supply of any such temporary samples. All samples maintained in the Biorepository, including temporary samples, will incur a monthly fee. Requests by the Client for materials from the Biorepository, for uses other than the manufacture of Products hereunder, may result in additional fees. In the event of the termination of this Agreement, Clutch shall return to the Client those contents of the Biorepository that are defined as eligible, strictly in the form of a DNA product. Clutch is not responsible for returning any remaining Client Resources that were not incorporated into the Biorepository and is not liable for any damage or loss to such Client Resources. The Client acknowledges and agrees that it has reviewed and accepts Clutch’s Privacy Policy.

2.3             Limitations and Restrictions on Use of Products. Products are designated solely for internal applications, and the Client is prohibited from selling, redistributing, or transferring the Products, except to designated service providers or collaborators ("Authorized Transferees"). The Products shall not be used in humans or for human or animal diagnostic or therapeutic purposes, or investigational purposes in consumables. All use of Product by the Client or Authorized Transferees must be in strict adherence to applicable laws and regulations and the other requirements of this Agreement. The Client shall not (and shall ensure that others do not) reverse engineer or otherwise attempt to determine the structure or composition of any Products, with the exception of analyses to confirm proper nucleotide sequences.

3.      PURCHASE PRICE; FEES AND PAYMENT TERMS

The Client shall compensate Clutch for the manufacturing and supply of Products and related services as described in this Agreement by paying the fees and other payments set forth in the applicable Quotation (collectively, “Fees”). In addition to the Order-based Fees, the Client will incur Fees consisting of monthly recurring charges for the maintenance of its biorepository and any software subscriptions provided by Clutch. All Fees are due within thirty (30) days of a written invoice issued by Clutch, unless otherwise stated in the Quotation. Unless explicitly provided otherwise within this Agreement or the applicable Quotation, all Fees, including the recurring charges for biorepository maintenance and software subscriptions, are non-cancelable, non-creditable, and non-refundable. In the event any Fees are not paid by the applicable due date, Clutch reserves the right, as a non-exclusive remedy, to suspend any further completion or delivery of pending Orders until such outstanding Fees are fully paid. The Client will also bear responsibility for any and all shipping, handling, freight, insurance, taxes and duties applicable to the Products supplied and services rendered under this Agreement. To the extent that such amounts are included in the Client’s invoice, Client shall remit payment therefor as part of the total Fees due.

4.      INTELLECTUAL PROPERTY

4.1             Ownership and Assignments: The Client shall retain ownership of the Client Resources. Clutch shall retain all proprietary interests in its intellectual property pertaining to product synthesis, software development, and manufacturing processes ("Clutch Manufacturing Technology"), irrespective of the development contribution from any Party. The Client shall, and hereby does, assign to Clutch any interest it may have in the Clutch Manufacturing Technology. This Agreement does not imply the transfer of any additional intellectual property rights except as expressly delineated herein.

4.2             External References in Clutch Materials: Clutch-provided documentation accompanying the Products may include references to external third-party resources ("Third Party Resources"), such as informational sources, hardware, software, or web-based services. The presence of these references does not constitute Clutch's endorsement of such Third Party Resources. Clutch assumes no responsibility should Client elect to make sure of such Third Party Resources.

5.      CONFIDENTIALITY

“Confidential Information” refers to all data or knowledge disclosed or made available by one Party (the "Disclosing Entity") to the other Party (the "Recipient") under this Agreement, which is either explicitly labeled as "Confidential" or "Proprietary," or would be recognized to be confidential by a reasonable person given the circumstances of its disclosure or the intrinsic nature of the data itself. "Confidential Information" excludes any data that (i) is already public knowledge or subsequently becomes public through no fault of the Recipient; (ii) was already in the rightful possession of the Recipient without confidentiality commitments at the time of disclosure by the Disclosing Entity, as verified by the Recipient’s contemporaneous written documentation; or (iii) is rightfully obtained by the Recipient on a non-confidential basis from a third party. The Recipient shall (a) use the Confidential Information solely for the purposes of exercising its rights and performing its obligations under this Agreement, (b) not disclose such Confidential Information to any third parties except on a need-to-know basis to  its personnel or agents who are bound by non-disclosure and non-use obligations that are no less protective than those in this Agreement, , and (c) employ safeguarding measures for the Disclosing Entity’s Confidential Information mirroring those the Recipient applies to its confidential material of a similar type. Client Materials shall be deemed the Client’s Confidential Information. The proprietary methodologies and technologies developed or utilized by Clutch in the manufacturing process shall constitute Clutch's Confidential Information. The terms of this Agreement, as well as the terms of any Quotation or Order, shall be treated as Confidential Information of both Parties. In events where the Recipient is compelled by law to disclose any Confidential Information of the Disclosing Entity, only that portion mandated by law will be disclosed, maintaining the confidentiality of the remainder. Upon the conclusion or revocation of this Agreement, or at the request of the Disclosing Entity, the Recipient shall promptly return or destroy all physical representations of the Disclosing Entity’s Confidential Information, including all duplications (save for any Confidential Information which falls under a persistent license granted to the Recipient). Nevertheless, the Recipient may preserve a portion of the Confidential Information under strict confidentiality for legal record-keeping necessities and to adhere to the ongoing directives of this Agreement and prevailing legal statutes. Both Parties explicitly acknowledge that any actual or threatened violation of this Section 5 by the Recipient could result in harm to the Disclosing Entity that monetary damages alone may not sufficiently address. Therefore, in addition to any legal remedies that are available, the Disclosing Entity shall be entitled to pursue equitable and injunctive relief to prevent or rectify such breaches, without the necessity of posting a bond.

6.      LIMITATION AND DISCLAIMER OF WARRANTIES

THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE, AND NO REPRESENTATION, WARRANTY OR OTHER STATEMENT NOT EXPRESSLY CONTAINED IN THIS AGREEMENT WILL BE BINDING ON CLUTCH.

7.      INDEMNIFICATION; LIMITATION OF LIABILITY

7.1             Client shall indemnify, defend and hold harmless Clutch, its affiliates and its officers, members, directors, employees, consultants, contractors and agents (collectively, "Clutch Indemnified Parties") from and against any and all claims, suits, actions or proceedings asserted by any third party and all related losses, damages, costs, expenses, and liabilities (including reasonable counsel fees and disbursements) (collectively, "Losses") to the extent arising out of or resulting from: (i) the use of or reliance on the services or deliverables provided by Clutch hereunder, including any Product manufactured or supplied by or on behalf of Clutch hereunder, whether by Client or any third party; (ii) an allegation that any Client Material infringes or otherwise violates the intellectual property rights of any third party; (iii) any breach of this Agreement by Client; or (iv) the gross negligence or willful misconduct of Client; provided, however, that Client shall not be obligated to indemnify, defend, or hold Clutch harmless from Losses to the extent arising out of the Clutch’s breach of this Agreement or the negligence or willful misconduct of any Clutch Indemnified Party(ies).

7.2             Limitation of Liability.  IN NO CASE SHALL CLUTCH’S MAXIMUM LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED IN THE AGGREGATE THE ACTUAL FEES RECEIVED BY CLUTCH DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.  IN NO EVENT SHALL CLUTCH BE LIABLE FOR: (a) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF OPPORTUNITIES, LOSS OF DATA, OR LOSS OF USE DAMAGES, ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (b) DAMAGES RELATING TO ANY CLAIM THAT AROSE MORE THAN ONE (1) YEAR PRIOR TO THE INSTITUTION OF SUIT THEREON.

8.      TERM AND TERMINATION

The This Agreement is effective as of the Effective Date and will remain in effect until it is terminated pursuant to this Section 8. Each Party shall have the right to terminate this Agreement for any reason, or for no reason, on thirty (30) days’ written notice to the opposing Party. Any Orders that are in process but not completed by the date of termination will nonetheless be fulfilled and concluded post-termination, except in the case of termination by Clutch as a result of Client’s non-payment or any other non-compliance by Client. Client shall pay in full for all Product delivered. Sections 2.3, 2.4, 3, 4, 5, 6, 7, 8, and 9 shall survive any termination of this Agreement.

9.      GENERAL PROVISIONS

9.1             No provision of this Agreement shall be amended or modified except by written agreement executed by both Parties.  Any waiver by either Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of such provision or any other provision hereof.

9.2             Each party hereby agrees that each provision herein shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein.  Moreover, if one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable under applicable law, such provision or provisions shall be construed by the appropriate judicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with applicable law.

9.3             This Agreement may not be assigned without the written consent of the other Party; provided, however, either Party may assign this Agreement in its entirety in connection with a merger, consolidation, or a sale or transfer of all or substantially all of the assets to which this Agreement relates, except Client shall not be permitted under this proviso to assign this Agreement to any competitor of Clutch engaged in the laboratory services business.  Any attempted assignment in violation of this Section 9.3 shall be null and void.  Except as otherwise expressly provided herein, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, assign, heirs, executors and administrators of the parties hereto.

9.4             This Agreement and all matters and issues collateral thereto shall be governed by the laws of California, without regard to its conflict of law principles that would provide for the application of the laws of a different jurisdiction.  The Parties hereby expressly consent to the personal jurisdiction of the state and federal courts located in the Northern District of California and hereby submit to the exclusive jurisdiction of such courts to resolve any and all claims arising out of, or relating in any way to, this Agreement and Clutch’s relationship with the Client.  In any action or proceeding to enforce or interpret this Agreement, the prevailing Party will be entitled to recover from the other Party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

9.5             This Agreement, together with all exhibits, attachments, schedules and appendices hereto and including any Order and related Quotation and Batch Submission contain the entire agreement between the parties hereto with respect to the subject matter hereof.  All other negotiations and agreements (written or oral) between the Parties are superseded by this Agreement and there are no representations, warranties, understandings or agreements other than those expressly set forth herein.

9.6             In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (other than the payment of money) as a result of any act of God, fire, casualty, flood, war, terrorism, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, pandemic, public health emergency, destruction of production facilities, insurrection, inability to obtain labor, materials, equipment, transportation or energy sufficient to meet needs, or any other cause beyond the reasonable control of such Party (“Force Majeure Event”), and if such Party shall have used reasonable efforts to avoid such occurrence and minimize its duration and has given prompt written notice thereof to the other Party, then the affected Party’s failure to perform shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.  Notwithstanding the foregoing, the Party unaffected by a Force Majeure Event may, by written notice to the affected Party, terminate this Agreement at any time that the applicable Force Majeure Event has continued for more than thirty (30) days.

9.7             Each Party acknowledges awareness of the “Screening Framework Guidance for Providers of Synthetic Double-Stranded DNA” (the “Guidance”) promulgated by the United States Department of Health and Human Services, which sets forth recommended standards for screening synthetic double-stranded DNA (dsDNA) orders to ensure they comply with U.S. regulations, with the aim of mitigating biosecurity concerns and potential misuse of synthetic dsDNA products. Clutch assumes no responsibility for any services or deliverables that may contravene the recommendations or baseline standards outlined in the Guidance. Client retains sole responsibility for ensuring that all contract work, especially involving synthetic dsDNA, aligns with the Guidance’s recommendations and any other associated regulations.

9.8             Each Party agrees not to use or refer to this Agreement or activities conducted herein in any publicity or other promotional activity, or use the names or marks of the other party, in each case without express prior written permission of the other Party.

9.9             The Parties hereto are independent contractors.  Nothing herein shall be deemed to constitute either party as the representative, agent, partner or joint venture of the other.  Neither Party is authorized nor shall it have the power or authority to bind the other Party or incur any liability or obligation, or act on behalf of the other Party.  At no time shall either Party represent that it is an agent of the other, or that any of the views, advice, statements and/or information that may be provided in connection with performance under this Agreement are those of such party.

9.10          The Parties do not intend the benefits of this Agreement to inure to any third party not a signatory hereto.  Notwithstanding anything contained herein or any conduct or course of conduct by any Party hereto, before or after signing this Agreement, this Agreement shall not be construed as creating any right, claim, or cause of action against either Party by any person or entity not a party to this Agreement.

9.10          This Agreement may be executed in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.  This Agreement may be validly executed by means of exchanging signatures through facsimile, PDF or electronic signature (including DocuSign or the like), which shall have the same legal force and effect as the exchange of original signatures.

Version: v1.0.1

Date updated: 2025-01-09