Subject to the following terms and conditions, Discovery Genomics agrees to perform, and Customer agrees to pay for, sequencing services of Customer's material for DNA or RNA isolation, including but not limited to blood, saliva, cells, tissue, buccal swabs, and fecal matter along with the material's corresponding information ("Biospecimens") as set forth in the order submitted by Customer through Discovery Genomics' website ("Services"). These Standard Terms and Conditions, together with the Discovery Genomics quote to the Customer, any Customer order accepted by Discovery Genomics, Sample Requirements, Shipping Instructions, and Hazardous Materials Declaration referenced herein, constitute the complete and exclusive agreement between Discovery Genomics and Customer concerning the Services (the “Agreement”), and no addition to, or modification of, any provision of this Agreement, including contrary terms in any Customer purchase order, shall be binding on Discovery Genomics unless made in writing and signed by a duly authorized representative of Discovery Genomics.
Orders
Customer may place orders through the Discovery Genomics website located at https://gslweb.discoveryls.com/index. The order shall be deemed accepted upon Customer's satisfactory submission of the order, Discovery Genomics' receipt of the appropriate Biospecimens and required documentation as set forth herein.
Payment
Customer shall pay Discovery Genomics within thirty (30) days of receipt of an invoice. For Customer orders of $100,000 or more, in the aggregate, Customer shall prepay thirty percent (30%) of the total order amount in advance of Discovery Genomics’ obligation to provide the Services hereunder. For such orders, Discovery Genomics will submit an initial invoice for the thirty percent (30%) prepayment amount and will submit subsequent invoices to Customer for Services rendered on a monthly basis or upon completion of the Services. Invoices not paid timely will be assessed interest of 1.5% per month (or the highest rate allowed by law, whichever is lower), together with all costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) incurred by Discovery Genomics in collecting such overdue amounts.
Discovery Genomics requires receipt of a Purchase Order number from Customer before releasing results.. Payment may be made by check, credit card, or other means specified in an approved purchase order. Payment may be made by check, credit card, or other means specified in an approved purchase order. Payments by credit card will be subject to a 3% processing fee. Payment by check shall be made payable to Discovery Genomics, and forwarded with a copy of the invoice to:
Accounts Receivable
Discovery Life Sciences Genomics
900 Hudson Way
Huntsville, AL 35806
USA
Services for institutions outside the United States, and Services for libraries not prepared by Discovery Genomics, must be pre-paid in their entirety.
Customer is responsible for ensuring Services requested on an order match the Services represented on a quote. In the event that there is a discrepancy between Services requested on an order and Services represented on a corresponding quote, the Services requested on the order take precedence. Billing will be based on Services actually performed.
Biospecimen Handling
All Biospecimens must meet Discovery Genomics' Sample Requirements.
Biospecimens submitted to Discovery Genomics may be assessed for quality under its Quality Control Guidelines.
In the event Customer chooses to proceed with sequencing for a Biospecimen that fails quality control, Discovery Genomics shall not be responsible for the quality of the results produced and all costs associated with the Services will be remain due and payable.
Discovery Genomics will treat any Biospecimen failing quality control that is replaced by Customer as a brand new Biospecimen requiring a new order and new Biospecimen identification number.
Discovery Genomics will not pool Biospecimens. If a Biospecimen shows insufficient quantity for the intended assay, Customer must provide a new aliquot of sufficient volume and concentration. Any unused Biospecimens will be returned to the Customer upon request. Shipping and handling fees will apply.
Any Biospecimen that does not meet the Sample Requirements (i.e., shipped in unlabeled tubes or too diluted) will be assessed an additional Biospecimen handling fee.
Orders with ten (10) or more Biospecimens should be submitted to Discovery Genomics in half-skirt or full-skirt PCR plates with no deep wells. Orders with ten (10) or more Biospecimens that do not arrive in plates may be subject to additional handling charges of up to $25 per Biospecimen at Discovery Genomics’s discretion.
Discovery Genomics does not guarantee sequencing performance of non-Discovery Genomics created libraries.
Further information regarding Discovery Genomics' library services can be located at
https://gslweb.discoveryls.com/information/library.
Customer is responsible for all sequencing costs associated with submitted libraries.
Sequencing services for libraries not prepared by Discovery Genomics must be pre-paid.
Following Customer's submission of an order, Discovery Genomics will send a confirmation e-mail, which
will include a summary of the Requested Services and shipping instructions. All Biospecimens
must comply with the Sample Requirements.
Discovery Genomics prefers to accept Biospecimens in one of two forms: purified RNA/DNA or completed libraries. Biospecimens sent in any other state (amplified nucleic acids, libraries in a semi-complete state) may be accepted; provided, however Discovery Genomics will not guarantee performance nor accept liability for Biospecimens arriving at any state other than purified RNA/DNA or Discovery Genomics-completed library. Discovery Genomics has implemented many quality control/quality assurance procedures throughout all steps of every protocol; if any step was completed incorrectly by Customer it can have significant implications for downstream performance.
Therefore, any Customer choosing to send semi-complete Biospecimens or libraries is assuming all risk of poorly performing Biospecimens, as Discovery Genomics will not guarantee any work not performed in-house.
ChIP-seq experiments are by nature extremely complex and contain a large number of variables, including DNA sonication sizes, cross-linking protocols, immunoprecipitation efficiency, post-IP purification, and limited quantities of DNA produced. If Discovery Genomics is not able to quality control the submitted ChIP DNA, it is impossible to predict the performance of an experiment, both from a technical standpoint (i.e. will a high-quality sequencing library be produced) and from an analysis standpoint (i.e. will the results show expected, high quality data). For any Biospecimens that do not meet input
specifications, or are not able to be quality controlled due to limited DNA amounts or volume, we will not warranty any technical aspects or analysis performance. For ALL Biospecimens submitted for ChIP-seq, Discovery Genomics makes no warranties for analysis performance, meaning that the results are not guaranteed to be what are expected or are valuable because Discovery Genomics has no control over the highly complex nature of the ChIP portion of a ChIP-seq experiment. Discovery Genomics can only work with the DNA it receives, and because Discovery Genomics does not know the true nature of what is received, the outcome cannot be predicted. For all but the most experienced labs who have a long track record of success with ChIP technologies, Discovery Genomics recommends using a full-service provider such as
Active Motif.
Delivery and Retention of Data
Discovery Genomics will typically deliver DNA sequencing order results in fastq files (raw reads and quality scores) unless other formats are requested on the Customer's order. Analysis of most types can be performed for additional fees. This analysis includes alignment to a genome (reference or non-standard, providing a genome exists). For 30X human whole genome sequencing, the preferred analysis option is processing with the DRAGEN platform from Illumina.
RNA-Seq results will be delivered in fastq files. All RNA-seq data analysis, including alignment, is available but not included in standard experiment costs. A basic RNA-seq analysis (alignment, differential expression assessment between two or more Biospecimens) may be performed as fee-for-service. Any analysis beyond basic RNA-seq becomes collaborative in nature, but analysis fees still apply.
Fastq files and results in other formats as requested by Customer will be distributed either through the website or via external hard drives. Hard drives can be purchased from Discovery Genomics. These files will be copied to one location (hard drive or webserver) as part of the service cost. These files will be removed from their active download link after one (1) month from upload. Customer may, by written notice within seven (7) days of the end of the one (1)-month retention period, request Discovery Genomics continue to make fastq files and results in other formats as requested by Customer available for download for an additional ten (10) days. Additional copies will be subject to additional fees.
Raw data of results, in fastq format, from Customer orders is backed up and retained in archival storage for one (1) year, but alignments are not. If Customer raw data of results must be extracted and/or re-analyzed during the archival period, additional fees apply, and such extraction and/or reanalysis is subject to a commercially reasonable turnaround time. After the one (1)-year archival period, Customer raw data of results shall be destroyed, without further notice to Customer, in accordance with these terms and conditions, as may be modified from time to time.
Customer agrees that any Biospecimen results retained by Discovery Genomics may be used for internal lab purposes, including but not limited to lab optimization, equipment calibration and testing, creation of processes, procedures, methods, and techniques for the sequencing and analysis of genomic data, and software development and improvement.
Customer's Warranties and Representations
Biospecimens provided by Customer shall, and Customer represents and warrants that such Biospecimens shall: (a) be collected in accordance with the requirements of Customer’s Institutional Review Board, Ethics Committee, or privacy board, as the case may be; (b) be pseudonymized or de-referenced (e.g., contain no information that could reasonably be used to identify any human subject from which it was obtained); (c) have proper, validly executed informed consents (if required) from any subjects from which the Biospecimen was obtained; (d) have proper, validly executed, explicit consents, and have been collected in compliance with any applicable laws and regulations, including without limitation any protection of personal information laws; (e) have all necessary Customer approvals related to the Services; (f) have no obligations for Discovery Genomics with respect to any specific identification methods or labeling and no duty to report results except to Customer; (g) not infringe, nor shall Discovery Genomics’s utilization of the Biospecimen infringe, the intellectual property rights of any third party; (h) be safe and non-hazardous and not present a risk of bodily harm or property damage to Discovery Genomics; and (i) be sufficient and appropriate on which to perform the Services, with any special handling and/or delivery requirements for Biospecimens described in the order.
Customer also represents and warrants that Customer shall (a) include specific written instructions related to the processing, storage, handling, or transmission of the Biospecimens or any derivatives reasonably necessary for the provision of the Services; (b) at all relevant times remain duly and effectively authorized to give the instructions set out herein and that such instructions comply with all laws, rules, and regulations in relation to the Biospecimens and that the processing of the Biospecimens will not cause Discovery Genomics to be in breach of any applicable laws; (c) be solely responsible for the accuracy, quality, and legality of the Biospecimens provided by or on behalf of the Customer, including the means by which the Customer acquired the Biospecimens and the instructions regarding the processing of the Biospecimens provided; and (d) not provide any Biospecimens in violation of the warranties and representations set forth in this Agreement.
By submitting an order, the submitter represents and warrants that he/she is a duly authorized representative of Customer and is authorized to legally bind Customer hereto.
Discovery Genomics' Disclaimer of Warranties and Representations
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, DISCOVERY GENOMICS MAKES NO, AND EXPRESSLY DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE SERVICES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF RESULTS, NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, AND THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE.
ALL SERVICES PROVIDED BY DISCOVERY GENOMICS UNDER THESE TERMS AND CONDITIONS ARE FOR RESEARCH PURPOSES ONLY AND ARE NOT TO BE USED FOR DIAGNOSIS OR TREATMENT OF ANY CONDITION OR DISEASE.
Data Privacy
Customer shall not disclose or transmit personally identifiable information (“PII”) to Discovery Genomics unless specifically agreed to in advance in writing. Discovery Genomics will not attempt to identify any person from any such PII if so provided. In the event Customer inadvertently provides any PII (“Inadvertent Personal Information”), Customer shall immediately notify Discovery Genomics in writing. Discovery Genomics shall use commercially reasonable efforts to secure Inadvertent Personal Information according to its then-current information security policies but shall not be liable for any unauthorized access, loss, or use of Inadvertent Personal Information. Discovery Genomics shall promptly delete all Inadvertent Personal Information it receives, and shall not process (as such term is defined under European Union General Data Protection Regulation 2016/679 (“GDPR”)) any Inadvertent Personal Information.
In the event that Discovery Genomics agrees to receive or access Customer’s “Personal Data” of European residents, Customer is deemed to be the “Data Controller” for the purposes of GDPR compliance (as such capitalized terms are defined under GDPR). Customer shall at all times during this Agreement comply with all applicable provisions of GDPR, including but not limited to provisions regarding collection of personal data, obtaining consent, providing required notice, securing collected personal data, allowing access by the individuals whose personal data is collected (and allowing for correction of inaccuracies), maintaining the confidentiality of collected Personal Data, and using the collected Personal Data only for purposes stated in required notices.
Customer shall promptly notify Discovery Genomics if it receives a request from a “Data Subject” or individual under any applicable law in respect of Personal Data that has been transmitted to Discovery Genomics and shall ensure that the Customer responds to that request as required by applicable laws.
Customer shall promptly notify Discovery Genomics if it receives a request from a “Data Subject” or individual under any applicable law in respect of Personal Data that has been transmitted to Discovery Genomics and shall ensure that the Customer responds to that request as required by applicable laws.
Patents and Inventions
It is recognized and understood that certain existing inventions and technologies may be the separate property of one party or the other, and that no existing intellectual property right of either party shall be affected by this Agreement.
Except as expressly provided herein, nothing in this Agreement shall be construed as granting or implying any rights to either party pertaining to background intellectual property rights of the other party, under any patents or intellectual property rights associated therewith.
Following the settlement of all invoices, all right, title, and interest to the sequence data shall be the exclusive property of the Customer, and shall be deemed to be works made for hire, and/or otherwise assigned to Customer. All intellectual property rights to work resulting from unpaid Services shall remain the exclusive property of Discovery Genomics. Notwithstanding anything herein to the contrary, intellectual property relating to Discovery Genomics’ processes, procedures, methods, and techniques in regard to: (i) performing nucleic acid sequence capture and nucleic acid sequencing, (ii) analyzing the data from the nucleic acid sequence capture and sequencing, and (iii) genotyping developed, produced, or prepared by Discovery Genomics in the performance of the Services under this Agreement, including without limitation all intellectual property rights therein, shall be the exclusive property of Discovery Genomics.
Any patent rights or any other rights to intellectual properties arising from research funded by the National Institute of Health or any other federal agency are expressly made subject to the rights of the U.S. Government (as set forth in United States Code, Title 35, Chapter 38 and implementing regulations thereof), including a non-exclusive, irrevocable, royalty-free license heretofore granted to the U.S. Government.
The terms of the "Patents and Inventions" section shall survive any termination or expiration of this Agreement.
Confidentiality
Neither party shall use the Confidential Information (hereinafter defined) of the other party except to perform the Services, and neither party shall disclose the other party's Confidential Information to any third party. "Confidential Information" shall mean all confidential, trade secret, and proprietary data, know-how, technical and non-technical materials and other information that one party provides or discloses to the other in connection with the Services, and shall include sequencing processes, techniques or know how, the concept, design, configuration, and implementation of the Services, pricing information and any other information related to methods used in or performance of the Services. Sequence data provided to Customer for Customer's Biospecimens shall be Customer's Confidential Information. All confidentiality obligations under this Agreement shall survive the termination of this Agreement.
Each party's obligations of nondisclosure and the limitations upon the right to use the Confidential Information shall not apply to the extent that such party can demonstrate that the Confidential Information: (a) was in the possession of the receiving party prior to the time of disclosure; or (b) is or becomes public knowledge through no fault or omission of the receiving party; or (c) is obtained by the receiving party from a third party under no obligation of confidentiality to the other party; or (d) is required to divulge either by a court of law or in order to comply with any federal, state or local law or regulation (after providing the disclosing party with reasonable notice and with an opportunity to obtain a protective order or other relief); or (e) to its legal counsel or accountants to the extent necessary to comply with its tax or audit requirements.
Remedies and Limitation of Damages
Discovery Genomics agrees to perform the Services set forth in the accepted order from Customer pursuant to the terms and obligations of this Agreement. In the event that any Services do not conform to Customer’s order, upon written notification from Customer, as the sole and exclusive remedy for such non-conformance, Discovery Genomics shall, at its sole option and discretion, either re-perform such Services at no additional charge to Customer or refund to Customer all fees paid by Customer for the non-conforming Services. Discovery Genomics will have the right to determine the method and means of performing the Services set forth in the order.
IN ANY ACTION BETWEEN THE PARTIES, IN NO EVENT SHALL DISCOVERY GENOMICS OR ITS MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS AND ITS SUCCESSORS, HEIRS AND ASSIGNS, BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGES, INTERRUPTION OR LOSS OF BUSINESS, INTERRUPTION OR LOSS OF USE, OR INJURY TO PROPERTY AND LOST PROFITS, ARISING IN ANY WAY OUT OF, OR IN ANY WAY RELATED TO, OR TOUCHING UPON CUSTOMER'S ORDER OR THE SERVICES, HOWEVER CAUSED AND WHETHER UNDER ANY CONTRACT, WARRANTY, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, REGARDLESS OF WHETHER DISCOVERY GENOMICS SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY OF THE FOREGOING. IN NO EVENT SHALL THE LIABILITY OF DISCOVERY GENOMICS ARISING IN ANY WAY OUT OF, OR IN ANY WAY RELATED TO, CUSTOMER'S ORDER OR THE SERVICES, HOWEVER CAUSED AND WHETHER UNDER ANY CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNTS PAID BY CUSTOMER TO DISCOVERY GENOMICS UNDER CUSTOMER'S ORDER.
General
This Agreement constitutes the complete and exclusive agreement between Discovery Genomics and the Customer concerning these Services and no addition to or modification of any provision of this Agreement shall be binding on Discovery Genomics unless made in writing and signed by a duly authorized representative of Discovery Genomics. This Agreement shall be construed in its entirety according to its plain meaning and shall not be construed against either party. Discovery Genomics rejects any additional or different terms or conditions contained in Customer's response, communications, or other documentation (including Customer-generated purchase orders), and such additional or different terms or conditions shall be void and of no effect and shall not apply. These terms and conditions may be modified from time to time as posted on the Discovery Genomics website.
Although Discovery Genomics prefers and requests that its Services be acknowledged in any Customer publication related to, derived from, or based on the Services, such acknowledgement is not a prerequisite for processing Biospecimens. If, however, a Discovery Genomics staff member provides intellectual input to a project, he or she should be listed in the author line. This contribution may be in the form of data analysis, application of a protocol in a new or unique way, or writing a section of the manuscript.
Unless otherwise terminated in accordance with the provisions herein, the term of this Agreement shall begin on the confirmation of acceptance of Customer's order and shall end upon delivery of the results to Customer. Either party may terminate this Agreement, with or without cause, upon not less than thirty (30) days' written notice to the other party. Termination of this Agreement shall not relieve a party from its obligations incurred prior to the termination date. In the event of any termination or expiration of this Agreement, all rights, obligations, or liability that by their nature or express duration extends beyond termination, will survive termination.
Neither this Agreement, nor the rights or obligations hereunder, shall be assignable, transferable (including by way of sale, lease, license, assignment, merger, reorganization, reverse merger, conversion, division, domestication, operation of law or otherwise), sublicensable or delegable by Customer without Discovery Genomics’ prior written consent, and any attempt or offer to do so without the prior written consent of Discovery Genomics shall be considered a material breach of this Agreement and considered void. Notwithstanding the foregoing, Discovery Genomics may assign this Agreement and its right and obligations hereunder in association with any sale or transfer of substantially all of its assets or to one of its affiliates in connection with an internal reorganization.
In performances of all Services hereunder, the parties to this Agreement shall be deemed to be independent contractors and neither party is a partner, employee, agent or joint venture of or with the other. Neither Customer nor Discovery Genomics will have the authority to enter into agreements of any kind on behalf of the other, or otherwise bind or obligate the other in any manner to any third party, by virtue of the relationship contemplated herein.
Neither party shall be liable for any failure to perform as required by this Agreement to the extent such failure to perform is due to circumstances reasonably beyond such party's control, including, without limitation, labor disturbances or labor disputes of any kind, accident, failure of any governmental approval required for full performance, changes in governmental regulation, changes in the law by any federal, state, or local entity rendering the Services illegal, civil disorders or commotions, acts of aggression, acts of terrorism, acts of God, earthquakes, other force majeure events or other energy or other conservation measures imposed by law or regulation, explosions, failure of utilities, mechanical breakdowns, material shortages, disease, or other such occurrence, provided that, as a condition to the claim of nonliability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
No failure by a party to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver of such right and no single or partial exercise of any right under this Agreement by a party shall preclude any other or future exercise of such right or any other right under this Agreement by that party.
If any section, portion, provision, paragraph, clause, sentence, language or word of this Agreement is determined to be illegal, invalid, voidable or unenforceable for any reason whatsoever, the remainder of this Agreement shall continue in full force and effect as though such portion had not been contained herein.
The parties agree that this Agreement is solely for the benefit of the parties and not for the benefit of any third party and that this Agreement is not intended to be enforced by any third party.
This Agreement, and any disputes arising therefrom or related thereto, shall be governed by the laws of the State of Alabama, without regard to its principles of conflict of law. The parties further agree that the sole and exclusive jurisdiction and venue for any action or proceeding arising out of or relating to this Agreement, including for breach hereof, shall be in any federal or state court situated in Madison County, Alabama, and the parties irrevocably consent to such exclusive jurisdiction in such courts and to the proper venue therein.
BREXIT. If a Brexit Trigger Event occurs, Discovery Genomics may require the Customer to negotiate in good faith an amendment to the previously agreed upon terms of the services to be performed (including, but not limited to, the delivery dates and pricing) to alleviate the Brexit Trigger Event. If the parties are unable to complete an amendment within 30 days of the notice of the impacted party, Discovery Genomics may terminate its performance without penalty or damages owing to the Customer. For purposes of this Section, “Brexit Trigger Event” means any of the following events: (a) an adverse impact on Discovery Genomics’ ability to perform in accordance with the originally agreed upon terms; (b) an increase in the costs incurred by Discovery Genomics in performing in accordance with the originally agreed upon terms of at least 5% since the price for the services was last agreed.
