Opal’s General Terms & Conditions
These general terms and conditions (these “Terms”) govern any project (“Project”) entered into by Opal Therapeutics, Inc. (“Opal”) and [CLIENT] (“Client”, and each of Opal and Client a “Party” and collectively the “Parties”) as set forth in Opal’s Project plan or any other individual project document(s) agreed to by both Parties (“Proposal”).
1 - Application. With its acceptance of the Proposal, Client accepts that these Terms exclusively govern the Project. Any contradictory, deviating or supplementary terms of Client are hereby excluded, unless explicitly agreed otherwise in writing and signed by Opal.
2 - Client Material. Client will make available to Opal, at Client’s own cost, such material and information identified as “Client Material”, or otherwise outlined in the Proposal to be provided by Client, in order to enable Opal to perform the Project (together with any other material provided by, or obtained by Opal on behalf of, Client for the Project the “Client Material”). The Client Material will remain the exclusive property of Client. Opal will use the Client Material only as necessary to perform the Project under the Proposal. Any Client Material remaining upon completion of the Project under a Proposal will, at the Client’s direction, either be returned to the Client or its designee (at the Client’s cost) or be destroyed.
All Client Material will comply with all specifications set forth in the Proposal and Client will provide Opal with all required safety information/data and safety sheets pertaining to the nature of the Client Material. Except as expressly set forth in the Proposal, Opal will not make or attempt to make derivatives of or modifications to, the Client Material and Opal will not use the Client Material for the benefit of any third party. Opal will not attempt to reverse engineer any of the Client Material or perform any studies to determine the structure, composition, or other makeup of the Client Material, except as expressly set forth in the applicable Proposal. Opal will not administer any of the Client Material to any human. Opal will comply with all applicable laws regarding the handling and use of the Client Material.
Client represents and warrants that (i) it is entitled to provide the Client Material to Opal for the Project; (ii) the Client Material and its use for the Project comply with all applicable statutory and/or regulatory requirements including, if applicable, requirements of data protection laws, and to Client’s knowledge do not infringe any third party rights; and (iii) the Client Material does not contain infectious material, human pathogens or other hazardous properties. The breach of any of the foregoing warranties constitutes a material breach by Client under these Terms.
Client hereby grants Opal a non-exclusive, non-transferable license, or sublicense, as the case may be, solely to use the Client Material for the applicable Project. Opal is entitled, but has no obligation, to test the Client Material for compliance with the specifications set forth in the Proposal, and the license granted above includes such testing. Client acknowledges and agrees that the Project may remain unsuccessful or not meet the intended criteria if the Client Materials fail to meet the specifications set forth in the Proposal.
Unless otherwise agreed in the Proposal, Client will make the Client Material available to Opal within seven (7) working days after the date of the Proposal by delivery DDP (INCOTERMS 2020) at the location of Opal’s facility provided by Opal. Opal assumes no liability whatsoever for any delay of, or other impact on, the Project resulting from Client’s failure to timely and properly make available all Client Material.
3 - Results. Unless otherwise agreed in the Proposal, Opal will be the sole and exclusive owner of all rights in and interest to: (i) the reports or other materials set forth in the Proposal as deliverable to Client; (ii) the data and information contained therein as determined, analyzed, or solved by Opal pursuant to the Project ((i) and (ii), collectively, the “Results”); and (iii) any discoveries, inventions, know-how and the like created, discovered, developed, conceived, reduced to practice, generated or otherwise made by or on behalf of Opal in the course of performing the Project, whether or not patentable, and all related intellectual property in any of the foregoing (the “Inventions”). Client will have the right to negotiate a license to use the Results developed in the course of the Project.
Client expressly acknowledges and agrees that, subject only to (i) the confidentiality obligations hereunder and (ii) Client’s rights in and to Client Material, Opal retains the freedom to enter into collaborations with third parties, which collaborations may involve similar or identical materials as used for the Project and consequently generate similar and/or even identical results as the Results generated under a Project.
4 - Opal Technology. Client acknowledges that Opal is the owner and/or holder of rights in and to proprietary technology, and other intellectual property rights, including but not limited to patent rights, know-how, standard operating procedures and methods regarding its business, services, and products existing prior to the commencement of a Project (together with any modification, development, improvement, invention and know-how thereof or relating thereto the “Opal Technology”). Subject to any rights and licenses granted to Client hereunder, all Opal Technology and Inventions will be, become and remain, at all times, the sole and exclusive property of Opal.
5 - Fees. The fees to be paid by Client for the Project are set forth in the Proposal. All amounts stated in the Proposal are exclusive of applicable statutory VAT, if any. Any VAT to be paid is the responsibility of Client. Invoices will be issued (i) at the commencement of a Project with respect to fixed fees, and (ii) after successfully achieving a milestone with respect to success fees, or as otherwise specified in the Proposal. All payments made by Client are non-refundable upon expiration or termination of the Project for any reason whatsoever. Client will pay all undisputed portions of Opal’s invoices within thirty (30) days of the date of invoice without any deductions.
6 - Confidentiality. Each Party (“Recipient”), its affiliates and each of its and its affiliates’ respective directors, officers, employees, agents, representatives and professional advisors (“Representatives”) will, for a period of five (5) years after completion or early termination of the respective Project, maintain strictly confidential and not use for any purposes other than the Project any information regarding the other Party (“Discloser”) and/or its business, that is (i) provided or made accessible by or on behalf of the Discloser to, or observed by, the Recipient in connection with the Project; and (ii) either marked or commonly regarded as being of confidential nature (“Confidential Information”). The foregoing obligations of confidentiality and non-use will not apply to Confidential Information that (i) has already been known to the Recipient prior to disclosure hereunder; (ii) is or becomes public knowledge through no fault of Recipient; (iii) was received by Recipient from a third party entitled to disclose it to Recipient; or (iv) was independently developed by Recipient without use of or reference to Confidential Information of Discloser; provided that the Recipient may disclose Confidential Information to (a) those of its Representatives who have a need to know such Confidential Information in order to discharge their duties to the Recipient in connection with the Project, or (b) its prospective or actual collaborators, strategic partners, investors, acquirers, bankers, underwriters, lenders or other financing sources, and to directors, officers, employees, agents and representatives of such third parties, in each cased, who are bound by legally enforceable confidentiality (or similar, such as fiduciary) and non-use duties with respect to such Confidential Information.
Notwithstanding the foregoing, in the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient may make such disclosure to the extent so required; provided, that the Recipient will first give written notice of such requirement to the Discloser, will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and will provide full cooperation and assistance to the Discloser in seeking to obtain such protection.
7 - Warranties. Opal warrants that the Project will be performed in a professional and competent manner and in accordance with all applicable laws and regulations.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, EACH PARTY MAKES NO OTHER WARRANTIES AND HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, IMPLIED OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Without limiting the foregoing, Opal specifically disclaims that the Project will be successful, in whole or in part, and/or that the Results or delivered items, if any, will be suitable for Client’s purposes. The use of the Results or delivered items, if any, by Client is at Client’s sole risk and responsibility and Opal will not assume any liability arising from or related to Client’s use of the Results.
In the event either Party becomes aware of any third party rights which might interfere with the performance of the Project or the use of the Results by Client, such Party will immediately notify the other Party. If either Party has to use any third party's intellectual property rights in order to generate and/or use the Results, each Party has the right to terminate the Project with immediate effect.
8 - Indemnification. Opal will defend, indemnify and hold harmless Client against any and all third party claims, actions, liabilities, costs and expenses, including reasonable lawyers’ fees and court costs (“Claims”) arising from (i) a breach of any of Opal’s warranties set forth herein; and (ii) any grossly negligent, willful or intentionally wrongful act, error or omission by Opal.
Client will indemnify, defend and hold harmless Opal against any and all Claims arising from (i) a breach of any of Client’s warranties set forth herein; (ii) any grossly negligent, willful or intentionally wrongful act, error or omission by Client, (iii) the infringement of third party rights caused by the use of Client Material for the Project in accordance with Client’s instructions and Proposal, or (iv) Client’s use of the Results and delivered items.
Acts and omissions of Representatives of either Party are considered acts and omissions of the respective Party. The foregoing obligations of indemnification will not apply to the extent the Claim results from the indemnified Party or its Representatives’ own negligence or willful misconduct.
The indemnified Party will give the indemnifying Party timely written notice of any Claim and the indemnifying Party, at its sole expense, will have the right to control the defense of such Claim and settle any such liability. Upon the indemnifying Party’s request, the indemnified Party will fully cooperate in the defense.
9 - Liability, Limitation. With the exception of willful misconduct and gross negligence, Opal’s total aggregate liability, whether based on contract or tort, or any other legal basis, will in no event exceed the total amount due by Client to Opal for the Proposal with regard to which the alleged liability arises.
EXCEPT FOR (I) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OF THESE TERMS, OR (II) LOSSES OR DAMAGES RELATED TO BREACH OF THE CONFIDENTIALITY AND NON-USE UNDER SECTION 6 OF THESE TERMS, NEITHER PARTY (INCLUDING THEIR RESPECTIVE AFFILIATES) WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST CONTRACTS OR LOST REVENUES (WHETHER DIRECT OR INDIRECT), HOWEVER CAUSED (INCLUDING THROUGH NEGLIGENCE) AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES ARISING.
10 - Termination. Either Party may terminate the Proposal for cause in case of a material breach by the other Party if the other Party has not cured such breach within fourteen (14) days following written notice by the non-breaching Party. In the event of any such termination, Opal will take all such action as is necessary to terminate all work in progress under the Project in an orderly manner. Within fifteen (15) days of the termination of the Proposal, Opal will deliver to the Client all deliverables from the terminated Proposal (whether completed or work in progress) and will comply with Section 6 with respect to Confidential Information. Upon termination (except in case of termination by Client for cause) Opal will invoice, and Client will pay (i) all fees for the work performed for the Project until, or otherwise due on or before, the effective date of termination, including, in case of an agreed success fee, a corresponding portion of such success fees and (ii) all non-cancellable costs and all costs actually incurred by Opal, to the extent set forth in the Proposal. Fees paid prior to termination are non-refundable.
11 - Subcontracting. Client hereby expressly acknowledges, agrees and consents, that Opal (i) may sub-contract, and/or perform at external facilities, certain activities under a Project and (ii) as necessary for such subcontracting, provide information and/or transfer Client Material to third party subcontractors and/or external facilities.
12 - Miscellaneous. These Terms and the Proposal will be governed by and construed in accordance with the laws of the State of California without reference to conflict of laws principles. Any amendments and supplements to these Terms or the Proposal must be in writing and duly signed by both Parties. The Proposal may not be assigned by either Party, in whole or in part, without the prior written consent of the other Party. The Parties irrevocably waive their right to trial by jury in any action or proceeding arising out of or in connection with these Terms or the Project.