PARAGON GENOMICS CUSTOM PCR PRIMER OR PANEL DESIGN SERVICE AGREEMENT (V4, Updated on July 14, 2023)
Paragon Genomics, Inc. (“PGI”) offers its customers custom Polymerase Chain Reaction (PCR) primer or panel design service. By entering into this Agreement, dated as of _____________ (the “Effective Date”), PGI and you (the “Client”) agree to adhere to the terms and conditions outlined herein (the “Terms”).
1. Definitions.
“Effective Date” means the execution date of this agreement defined above or the acceptance date if this agreement is accepted by the Client via the design submission form on PGI’s ParagonDesigner web portal that currently has its web address at https://www.paragongenomics.com/custom-ngs-amplicon-panels/paragondesigner/.
“Panel” means a combination of PCR primers to be used together in a single or multiple PCR reaction pools for any specific genomic assay application.
“PGI Primer Sequences” means any primer sequences generated by PGI’s proprietary custom PCR primer design software using target gene lists, genomic coordinates, or other client or PGI information.
“PGI Primer Pools” means any synthesized primers using any PGI Primer Sequence information.
“PGI Reagents” means any PGI’s proprietary targeted sequencing library preparation reagents and kits, including CleanPlex® and AgriType® targeted library kits. PGI Primer Pools and PGI Reagents must be used together to construct targeted sequencing libraries.
“PGI Products” means PGI Primer Pools and PGI Reagents.
2. Obligations.
2.1. The Client’s Obligations.
(i) The Client shall use its commercially reasonable efforts to submit to PGI a final list of target genes and/or genomic coordinates (the “Target Content”) in the format specified by PGI for any custom design requested by the Client. The design request submission shall be done via the ParagonDesigner web portal. If it is not feasible to submit such a design request via the web portal, the submission can be sent via email to [email protected].
(ii) Once the design request is accepted by PGI, the Client shall refrain from making unnecessary changes to the already-finalized Target Content as there could be significant computing and bioinformatics labor costs associated with such changes. PGI reserves the right to charge reasonable design fees for complicated panel designs or designs involving excessive Target Content changes due to the Client’s project scope changes or omissions.
(iii) The Client shall respond to PGI team’s questions about the project application and Target Content in a timely manner so that PGI can gather accurate and complete information to carry out and ensure the quality of the design.
(iv) Once a design is initiated (primers being designed in silico) by PGI, the Client shall not suspend or cancel a design project without a valid reason. Any suspension or cancellation shall be approved by both parties in writing. If the Client unilaterally cancel the project after the design initiation due to reasons other than PGI’s fault or any technical feasibility issues, PGI reserves the right to charge a design fee based on the bioinformatics labor and computing costs incurred from the initiation date to the cancellation date.
(v) Once a design review package including a target coverage report is shared with the Client by PGI, the Client shall use its reasonable efforts to provide feedback to PGI and approve the design accordingly if the coverage meets the Client’s expectation that were agreed upon at the beginning of the project by both parties.
(vi) Once the target coverage report and, if needed, a final price quote (updated from the initial price quote specified in Section 2.2 (ii) if the final amplicon count is significantly different from the initial estimate) are accepted by the Client, the Client is legally bound to place a purchase order for the corresponding PGI Products within 30 days of the above acceptance. For any large panel that entails significant upfront oligo synthesis costs on PGI’s part, PGI reserves the right to charge an upfront fee to the Client to cover its partial or full oligo costs and the upfront fee will be applied as credit to the invoice for the ordered PGI Products. The upfront fee must be paid prior to PGI initiating oligo synthesis.
2.2. PGI’s Obligations.
(i) Upon entering this agreement and receiving a design request including the final Target Content from the Client, PGI shall use its commercially reasonable efforts to review the request, assess technical feasibility and respond to the Client with its decision of acceptance or declination in a timely manner.
(ii) Based on an initially estimated number of amplicons and the number of reactions needed by the Client, PGI Sales team will provide a price quote on the PGI Products associated with the design to the Client.
(iii) Once the Client accepts the price quote and PGI accepts the design request, PGI shall assign appropriate bioinformatics and project management FTEs to the design project, assign a project / panel identification number (PGD #) to the design and ensure that all information required for the design is collected from the Client.
(iv) PGI shall allocate proper computing resources for the design.
(v) If the Client has valid reasons to make limited change to its Target Content that will not significantly increase PGI’s costs, PGI shall not withhold its approval unreasonably.
(vi) PGI shall inform the Client of design status promptly via its web portal or email.
(vii) PGI shall deliver a design review package including a target coverage report to the Client prior to the Client’s placing an order for the PGI Products associated with the design.
(viii) Once a purchase order (and an upfront fee if required) is received for the PGI Products, PGI shall initiate the primer synthesis and kit manufacturing process and deliver the reagents to the Client in a timely manner.
3. Confidentiality.
3.1. Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, gene lists, genomic coordinates, primer sequences, trade secrets, know-how, business operations, plans, strategies, and pricing.
3.2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
3.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(ix) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(x) not disclose or permit access to Confidential Information other than to its Representatives who (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this section, and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this section.
4. Intellectual Property Rights; Licensing.
Any patents, copyrights, trade secrets, trademarks and other Intellectual Property Rights owned by a party prior to the Effective Date or developed by such party independently of the Agreement (collectively, the “Background IP”) shall be owned by such party. Nothing contained herein shall be construed as transferring ownership of Background IP from a party to another.
Any patents, copyrights, trade secrets, trademarks and other Intellectual Property Rights developed under this Agreement shall belong solely to the party developing such Intellectual Property Rights, or if developed jointly by the Client and PGI, shall belong to the parties jointly. For the avoidance of doubt, (i) the Client’s pre-existing genomic targets, sequences and instruction shall belong solely to the Client, and (ii) any primer sequences generated by PGI’s proprietary designer software shall belong solely to PGI, provided that, subject to the Client’s compliance with its payment obligations with respect to the PGI Reagents and PGI Primer Pools, PGI agrees to grant to the Client a limited, non-exclusive, non-transferrable, non-sublicensable, and royalty-free license, during the Term of the Agreement, to use such primer sequences solely with the PGI Reagents for Research Use Only (RUO). Commercial testing services using PGI Primer Sequences and PGI Reagents are allowed.
5. Restrictions. The Client shall not at any time, directly or indirectly:
(i) use PGI Primer Pools in conjunction with any reagent other than the PGI Reagents;
(ii) analyze, modify, attempt to modify, reverse-engineer, or otherwise seek to determine the formulation or structure of any PGI Products or any Intellectual Property Rights of PGI;
(iii) transfer, assign, sublicense the PGI Primer Sequences to any third party without the written consent of PGI.
6. Disclaimer.
ALL PRODUCTS AND SERVICES, AND ANY OTHER INFORMATION, MATERIALS, OR WORK PRODUCT PROVIDED BY PGI ARE PROVIDED “AS IS” AND PGI HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, AND PGI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
7. Limitations of Liability.
7.1. Exclusion of Damages. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY NOR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS, WILL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INJURY TO OR LOSS OF GOODWILL, LOSS OF DATA, REPUTATION, BUSINESS, PRODUCTION, REVENUES, PROFITS, ANTICIPATED PROFITS, CONTRACTS, OR OPPORTUNITIES (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHERWISE (INCLUDING THE ENTRY INTO, PERFORMANCE, OR BREACH OF THE AGREEMENT), REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR THE PARTY AGAINST WHOM SUCH LIABILITY IS CLAIMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
7.2. Maximum Liability. THE PARTIES ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF WHETHER THE ACTION OR CLAIM IS BASED ON CONTRACT, TORT, WARRANTY OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID, IF ANY, BY THE CLIENT TO PGI UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH LIABILITY.
7.3. Exceptions. The limitations of liability set forth in Sections 7.1 and 7.2 will not apply to (a) breach by a party of the confidentiality obligations under this Agreement, (b) breach by a party of provisions relating to the use and protection of Intellectual Property Rights under this Agreement, (c) misappropriation or infringement by a party of the other party’s Intellectual Property Rights, (d) either party’s payment obligations under this Agreement; (e) either party’s liability under its indemnification obligations; and (f) any liability which cannot be excluded under applicable law.
8. Indemnification.
The Client agrees to indemnify, defend and hold PGI and its parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand due to or arising out of the Client’s use of PGI Products in any manner not specified by PGI’s product documents or the Client’s violation of any law or the rights of a third party.
9. Term, Termination and Survival.
9.1. Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect for three (3) years (the “Initial Term”).
9.2. Renewal Term. This Agreement will automatically renew for successive three (3) years terms, unless terminated earlier pursuant to any of the Agreement’s express provisions or either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then current term (each, a “Renewal Term” and together with the Initial Term, the “Term”).
9.3. Termination. Either party may terminate this Agreement upon the material breach of the other party. In addition:
(i) either party may terminate this Agreement, effective on written notice to the other party, if the other party defaults in the performance of any material obligation under this Agreement and such default remains uncured for thirty (30) days after the breaching party receives a written notice of default from the non-breaching party; and
(ii) either party may terminate this Agreement, effective immediately, if the other party: (a) is dissolved or liquidated or takes any corporate action for such purpose; (b) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (c) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
9.4. Survival. Upon any expiration or termination of this agreement, the following terms shall survive: Confidentiality, Limitations of Liability, Indemnification. All terms that by their nature survive termination or expiration of this Agreement, will survive.
10. Controlling Law.
This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision.
11. Entire Agreement.
This Agreement contains the entire Agreement related to this subject matter and supersedes all prior or contemporaneous agreement, written or oral, between the parties. If any terms of this Agreement are invalid or unenforceable, the other terms remain in effect.