1. Basis of Contract
1.1 These terms and conditions (“Conditions”) apply to any contract between Touchlight AAV Limited (company number 10677209) of 40 Queen Anne Street, London W1G 9EL (“Touchlight AAV”) and a customer (“Customer”) for the sale and purchase by the Customer of AAV dbDNA for its use in exploratory research and development into AAV production, including clinical development(“Contract”), to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.2 For the purposes of these Conditions “AAV dbDNA” means any linear, double stranded, covalently closed DNA molecule flanked at each end by protelomerase binding sequences or part thereof, comprising any element that can be used in the manufacture of adeno-associated virus (“AAV”), including, but not limited to (i) a transfer gene and one or more AAV inverted terminal repeats, (ii) a rep, a cap, or combination thereof, and/or (iii) helper elements.
1.3 Any order by the Customer for the supply of AAV dbDNA for exploratory non-commercial research purposes, whether via submission of a purchase order form, the Customer’s written acceptance of Touchlight AAV’s quotation, or otherwise (“Order”) constitutes an offer by the Customer to purchase AAV dbDNA in accordance with these Conditions. The Order shall only be deemed to be accepted when Touchlight AAV issues a written acceptance of the Order, at which point a binding Contract shall come into existence.
2. Manufacture and use of AAV dbDNA
2.1 Touchlight AAV shall manufacture the AAV dbDNA in accordance with the specifications agreed in writing by the Customer and Touchlight AAV (“Specifications”).
2.2 The Customer shall use AAV dbDNA supplied under the Contract only for the purposes set out in clause 1.1 . The sale and supply of AAV dbDNA by Touchlight AAV to the Customer do not convey any licence for the Customer to manufacture, develop, commercialise or otherwise reproduce AAV dbDNA.
3.1 AAV dbDNA will be delivered Ex Works (Incoterms 2010) from Touchlight AAV’s manufacturing site or such other location as the parties may agree in writing. Title and risk in the AAV dbDNA shall pass to the Customer on delivery. Any quoted delivery dates are approximate only, and the time of delivery is not of the essence.
4.1 Touchlight AAV warrants that on delivery in accordance with clause 3 the AAV dbDNA shall conform with the Specifications. Touchlight AAV shall, at its option, replace or refund the price of any non-confirming AAV dbDNA, provided the Customer gives notice in writing to Touchlight AAV within 10 days of receipt that some or all of the AAV dbDNA does not comply with the warranty set out in this clause 4.1 and Touchlight AAV is given a reasonable opportunity to examine such AAV dbDNA to determine whether it is non-conforming.
4.2 Except as provided in this clause 4 , neither Touchlight AAV nor any of its affiliates shall have any liability to the Customer in respect of any failure of the AAV dbDNA to comply with the warranty set out in clause 4.1 . The AAV dbDNA is provided to the Customer “as is” without any warranty of merchantability or fitness for a particular purpose or any other warranty, express or implied.
5. Price and payment
5.1 The price of the AAV dbDNA shall be the price set out in the Order. The price excludes amounts in respect of value added tax.
5.2 Touchlight AAV shall invoice the Customer for the AAV dbDNA on delivery in accordance with clause 3 . The Customer shall pay the invoice within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Touchlight AAV. Late payments shall attract interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time, with interest accruing on a daily basis from the due date until actual payment of the overdue amount.
6. Intellectual Property
6.1 Any intellectual property that is owned by or licensed to Touchlight AAV or the Customer or their respective affiliates at the date of the Contract (“Background Intellectual Property”) is and shall remain the exclusive property of the party that owns it (or its licensor). The Customer shall not use Touchlight AAV’s Background Intellectual Property other than as strictly required for its exploratory non-commercial research into AAV dbDNA. The Customer shall not, nor shall it permit any third party to, reverse engineer the AAV dbDNA or any of Touchlight AAV’s Background Intellectual Property.
6.2 Any intellectual property that arises or is developed or generated in connection with the Customer’s exploratory research into AAV dbDNA (“Customer Arising IP”) shall be the exclusive property of the Customer. The Customer grants to Touchlight
AAV and its affiliates a worldwide, perpetual, non-exclusive, royalty free licence (with the right to sub-license) to use any Customer Arising IP that is an improvement to Touchlight AAV’s Background Intellectual Property for any purpose.
7.1 The Customer shall indemnify Touchlight AAV and its affiliates against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Touchlight AAV or its affiliates in connection with any claim made by a third party against such (a) in respect of losses, injury or damage which arise as a result of any materials supplied by the Customer or from the use by Customer of any AAV dbDNA manufactured in accordance with clause 4.1 , or (b) for any actual or alleged infringement of a third party’s intellectual property rights arising out of supply or use of AAV dbDNA supplied under the Contract (other than to the extent arising as a result of the use of Touchlight AAV’s Background Intellectual Property in accordance with clause 6.1 ). This clause 2.2 shall survive termination of the Contract.
8.1 Without limiting its other rights or remedies, Touchlight AAV may terminate this Contract with immediate effect by giving written notice to the Customer if (a) the Customer commits a material breach of any term of the Contract and fails to remedy that breach within 30 days of notice in writing to do so; or (b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors, being wound up, having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.
8.2 On termination of the Contract for any reason the licence granted under clause 6.1 shall immediately terminate and the Customer shall immediately pay to Touchlight AAV all of Touchlight AAV’s outstanding unpaid invoices and interest. 8.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude Touchlight AAV’s liability for (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; or (c) any matter in respect of which it would be unlawful for Touchlight AAV to exclude or restrict liability.
9.2 Subject to clause 9.1 neither Touchlight AAV nor its affiliates shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and total liability to the Customer in respect of all other losses arising under or in connection with this Contract, shall in no circumstances exceed 100% of the amounts actually paid by the Customer to Touchlight AAV under this Contract.
10.1 Where the parties have entered into a separate confidentiality agreement in relation to the potential supply of to AAV dbDNA, the terms of that agreement shall continue to apply. Otherwise, each party undertakes that it shall not at any time during this Contract, and for a period of 5 years after termination of the Contract, disclose to any person any confidential information provided directly or indirectly by the other party in oral or documentary form, by way of models, biological or chemical materials, or other tangible or intangible form, and whether provided before, on, or after the date of the Contract.
10.2 Each party may disclose the other party’s confidential information (a) to its officers, directors and employees who reasonably need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract, provided that each party shall ensure that such officers, directors and employees enter into binding confidentiality obligations on terms no less onerous than those set out in this clause 10 ; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority, provided that before making such a disclosure its shall inform the other party of the proposed disclosure and permit that party to make representations to such authority in respect of the confidential treatment of the information in question.
11.1 Assignment and other dealings. Touchlight AAV may at any time assign or subcontract or deal in any other manner with its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract or deal in any other manner with its rights or obligations under the Contract without the prior written consent of Touchlight AAV.
11.2 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties or their authorised representatives.
11.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified or deleted to the minimum extent necessary to make it valid, legal and enforceable. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.4 Governing law and jurisdiction. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.