NAUTILUS EARLY ACCESS PROGRAM AGREEMENT
This Early Access Program Agreement (the “Agreement”) is made by and between Nautilus Biotechnology, Inc., along with its wholly owned operating subsidiary Nautilus Subsidiary, Inc. (collectively, “Nautilus”) and the Customer set forth in an applicable Quotation (“Customer”), each referred to herein individually as a “Party” and together as the “Parties”, and is effective as of the date of Customer’s acceptance of the applicable Quotation (“Effective Date”) in accordance with the provisions of such Quotation. In consideration of the promises made herein and good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1.0 Definitions. All capitalized terms used in this Agreement shall be given the definitions provided below or as otherwise specifically defined herein. Non-capitalized terms shall be given their ordinary and customary meanings.
1.1 “Affiliate” means any entity which controls, is controlled by, or is under common control with Nautilus or Customer, as the case may be, for so long as such control exists. For purposes hereof, “control” shall mean beneficial ownership of (a) more than fifty percent (50%) of the shares or similar ownership interests of the subject entity entitled to vote in the election of directors (or in the case of an entity that is not a corporation, for the election of the corresponding managing authority); or (b) such lesser percentage as is the maximum control or ownership right permitted in the country where the subject entity exists.
1.2 “Applicable Laws” means all applicable laws, rules, regulations, orders, codes of practice, research governance or ethical guidelines, other requirements of regulatory authorities as well as any export control regulations and sanction control programs as amended from time to time.
1.3 “Analysis Services” means the protein analysis services to be performed by Nautilus on one or more Samples.
1.4 “Background IP” means any Intellectual Property that is either owned, licensed or created by a Party prior to Nautilus’s commencement of the Early Access Program with respect to Customer, or that is created, licensed or acquired by a Party after the commencement of the Early Access Program with respect to Customer, but outside of the Services, and without use of the Confidential Information of the other Party.
1.5 “Cloud Services” means any Nautilus-provided cloud-based software and services for analysis of Instrument Data whether generated by Customer while using a Nautilus Instrument or by Nautilus in carrying out Analysis Services, including without limitation access and use of the Portal, if provided, Nautilus’ proteome analysis and protein identification and quantification software and informatics, data reporting and visualization functionalities, and graphic and other user interface functions of such Portal and cloud-based software and services.
1.6 “Documentation” means any and all Nautilus provided documentation, whether provided in printed or electronic form, including without limitation any and all user manuals, package inserts, Sample specifications and/or requirements, instructions, protocols, data sheets, specifications, performance descriptions of the Platform, and any similar technical documentation, or any aspect or component thereof, including any of the foregoing provided with any updates or upgrades to any Nautilus Products or Services, in all cases whether provided in physical copy, or electronically via Nautilus’ website, the Portal (as defined below) or via other electronic means.
1.7 “Early Access Program IP” means Inventions created or invented in the performance of the Early Access Program.
1.8 “Instrument” means a Nautilus-branded instrument, instrument system, component or subassembly thereof, and any associated accessories or peripherals included therewith.
1.9 “Instrument Data” means any and all data output from the Instrument, including without limitation any processed image files, sample assignments, sample identifiers, system diagnostic data, or any other information output by the Instrument, including without limitation, any imaging and/or detection data obtained from the analysis of Samples using a Nautilus Instrument by Nautilus in its provision of Analysis Services, whether uploaded to any Nautilus hosted or designated cloud server or stored locally on an Instrument.
1.10 “Invention” means any new device, system, composition, design, product, computer program, article, method, process, or improvement or alteration thereon, whether or not patentable, copyrightable, or protectable under any applicable mask works law, protectable as a trade secret or protectable under any similar law.
1.11 “Nautilus Platform” means Nautilus’ protein analysis technology, including any and all associated know-how, trade secrets, tools, instruments, chips, flow cells, reagents, software, algorithms, processes, work flows and techniques (as well as any information related to the performance, confidence and/or accuracy of the analyses performed using any of the foregoing) as utilized by Nautilus for carrying out the characterization of proteins and/or proteomes, as well as any improvements, modifications, or derivative works of any of the foregoing whether conceived, created, or suggested by either Party during the performance of the Services.
1.12 “Party” or “Parties” means Nautilus and Customer individually and collectively, respectively.
1.13 “Portal” means a Nautilus’ user-facing web-based portal through which Nautilus may report Results to the Customer and through which Customer may interact with Customer Data (as defined in the Cloud Services Terms & Conditions attached hereto as Appendix A) and Results using the Cloud Services.
1.14 “Quotation” means a written quotation issued by an authorized Representative of Nautilus and which sets forth Services offered to be provided to or on behalf of Customer by Nautilus and the Price associated with provision of such Services.
1.15 “Relative Performance Data” means any assessment, opinion or conclusion as to the operation, utility and/or performance of the Platform, including without limitation any quality, confidence or accuracy scores or metrics for the foregoing, whether reported by Nautilus or ascertained by Customer, as well as any comparison or benchmarking of the performance of the Platform to any other protein analysis technologies, whether or not based upon or derived from Instrument Data or Results.
1.16 “Representatives” means Nautilus’s and Customer’s respective employees, agents, consultants, officers, subcontractors and Affiliates.
1.17 “Results” shall mean the results of the Analysis Services and relating to the composition and/or make-up of any Samples, including any protein identifications, characterizations, and/or quantifications derived from any Samples, any Sample comparisons, as well as any conclusions, opinions, or assessments related to the Samples that are derived from such analysis. Notwithstanding anything to the contrary herein, Results shall not include (a) any information related to the Nautilus Platform, (b) any information related to any Nautilus-provided control samples, or (c) any Relative Performance Data derived or obtained from the Services (including any Cloud Services) regardless of whether such information is included in any report that includes the Results.
1.18 “Sample” or “Samples” shall mean biological sample materials submitted to Nautilus by Customer for performance of Analysis Services, including any and all lysates, cell samples, tissue samples, purified or fractionated protein samples, as well as any progeny, derivatives, fractions, fragments or components of any of the foregoing.
1.19 “Services” shall mean any services performed by Nautilus on Customer’s behalf and include Analysis Services and Cloud Services.
2.0 Early Access Program
2.1 Overview. Nautilus is developing the Nautilus Platform. In advance of the commercial launch of the Nautilus Platform, Nautilus is establishing an early access program, as described further below (the “Early Access Program”). Through its Early Access Program, Nautilus will, from time to time, provide Analysis Services to Customer in accordance with mutually agreed Quotation.
2.2 Quotation. No Quotation shall become effective or be attached to or made part of this Agreement unless it is accepted by the Customer in accordance with the terms of such Quotation. Any modification to any Quotation shall require a new or reissued Quotation, and only become effective, be attached to, and made a part of this Agreement when issued or re-issued by Nautilus, and accepted by Customer in accordance with the terms of such new or reissued Quotation. To the extent any terms set forth in a Quotation conflict with the terms set forth in this Agreement, the terms of this Agreement shall control unless otherwise expressly agreed in writing by the Parties in such Quotation referencing the applicable provision of this Agreement. Additional Quotations may be added to this Agreement by mutual agreement of the Parties as set forth herein.
2.3 Performance. Nautilus shall use commercially reasonable efforts to perform the Analysis Services on the Samples as set forth in the Quotation at Nautilus facilities and utilizing the Nautilus Platform and Nautilus personnel. Unless expressly provided otherwise in the applicable Quotation, Analysis Services shall consist of analysis of Samples as set forth in the Quotation using the then-current Nautilus Platform to identify and/or characterize proteins and/or proteoforms in the Samples and determine relative quantities of such proteins and/or proteoforms within such Samples. Except as required to carry out the analyses set forth in the Quotation (including any Sample pre-analysis for purposes of determining compliance with any Sample Requirements), Nautilus shall not otherwise perform any analysis on the Samples without Customer’s written consent. Nautilus shall endeavor to carry out the Analysis Services on the Samples in the order in which they are received from Customer, and within a commercially reasonable timeframe. Unless expressly stated in the applicable Quotation, and except as otherwise provided herein, Nautilus shall perform one (1) analysis run on the Nautilus Platform for each provided Sample. Nautilus may, in its sole discretion, elect to perform one or more additional analysis runs for any one or more Samples, subject to the availability of such Samples. Notwithstanding anything to the contrary herein, the Parties acknowledge that (a) delays in analysis of Samples may occur due to operational constraints, and (b) Nautilus reserves the right to determine the timing and ordering of the analysis of Samples as reasonably necessary to manage workflow and resource availability in its sole discretion. Nautilus shall notify Customer of any expected delay in analysis of Samples that is expected to extend beyond ninety (90) days after receipt of the Samples by Nautilus. Analysis Services provided hereunder for any given Sample shall be deemed complete when Nautilus makes the Results available to the Customer through the Portal or by other means.
2.4 Experimental Services. Notwithstanding anything to the contrary herein, the Parties acknowledge that the Nautilus Platform utilized in the performance of Analysis Services hereunder may be under development and that (a) results of any analysis may be varied, incomplete or inaccurate, (b) Samples may not be compatible with Nautilus Analysis Services, and (c) timing of analysis of Samples may vary and may take longer than expected or estimated.
2.5 System Failure. In the event that an analysis of a Sample produces unsatisfactory results based upon documented internal control metrics and/or reported instrument or system error, as determined by Nautilus (a “Failed Analysis”), Nautilus shall review such Failed Analysis to attempt to determine the cause of such failure (including, at Nautilus’ sole option, further analyzing such Sample to ensure that such Sample meets the Sample Requirements (as defined herein)). Where a Failed Analysis results from a failure of the Nautilus Platform, as indicated by one or more of (a) a failure of the analysis to characterize Nautilus’ internal controls (included with such Failed Analysis) within normal operating parameters, or (b) a reported instrument or system error, then such Failed Analysis shall be deemed a “System Failure.” Any other Failed Analysis shall be deemed a “Sample Failure.” For any System Failure, Nautilus shall attempt to address the perceived cause of such System Failure and shall perform an additional analysis run of such Sample until a satisfactory result, as determined by Nautilus, is obtained based upon documented internal control metrics, up to a maximum of two repeated analysis runs for such Sample, or until the available Sample is exhausted, whichever occurs first. Repeat analyses resulting from System Failures as provided herein shall be performed by Nautilus at no additional cost to Customer. For any Sample Failure, Nautilus shall proceed as set forth in section 3.5, below, with respect to such Sample as a Non-Compliant Sample.
2.6 Regulatory Compliance. Customer acknowledges and agrees that it will at all times use the Results in compliance with all Applicable Laws. Customer further acknowledges that the Analysis Services do not have United States Food and Drug Administration (“FDA”) or a corresponding non-U.S. regulatory agency approval (collectively “Approval”). Customer acknowledges that the Analysis Services are intended FOR RESEARCH USE ONLY and NOT FOR USE IN DIAGNOSTIC PROCEDURES, and that Customer is not authorized to use and shall not use any Analysis Services (or any Results derived therefrom) in contravention of the foregoing restrictions. Unless otherwise expressly stated by Nautilus in writing, Nautilus makes no claim that any results of any Analysis Services (a) may be used for any diagnostic or clinical purpose; (b) has or will have any Approval for use in any diagnostic or other clinical procedure, or for any other use requiring compliance with any law, regulation or governmental policy concerning medical devices, laboratory tests or the like (collectively, “Regulatory Laws”); (c) that any Service will satisfy the requirements of the FDA or any other regulatory agency for any diagnostic or clinical use; or (d) that any Service or its performance is suitable or has been validated for diagnostic or clinical use, for safety and effectiveness, for any specific use or application, or for importation into Customer’s jurisdiction.
3.0 Samples.
3.1 Sample Delivery. Samples shall be delivered to Nautilus no later than the earlier of (a) thirty (30) days after the date of acceptance of an applicable Quotation, and (b) ten (10) business days following Nautilus’ written notification to Customer that Nautilus is prepared to receive Samples hereunder. If Customer anticipates a delay in delivery of Samples to Nautilus, Customer may request a reasonable extension of time for such delivery. Nautilus agreement to such extension shall not be unreasonably withheld, conditioned or denied. Customer’s failure to deliver Samples to Nautilus in accordance with the foregoing timing (including any agreed to extensions) shall result in revocation of any Quotation applicable to such Samples, unless separately agreed to by Nautilus, in writing. Unless otherwise specified in the applicable Quotation, all Samples are to be shipped frozen to Nautilus, freight prepaid, and in accordance with all Applicable Laws. Nautilus shall have no responsibility for any Samples until such Samples are actually received and accepted by Nautilus. Upon receipt, Nautilus will follow commercially reasonable handling, storage and chain-of-custody procedures consistent with its normal processes for similar materials. Once Samples are received by Nautilus, Nautilus may, but is not obligated to, perform initial analyses of such Samples to determine their compliance with the Sample Requirements (as defined herein). In providing Samples, Customer shall account for any potential initial analyses in determining quantity of each Sample to be submitted. Notwithstanding anything else contained herein, Nautilus shall have no liability to Customer for any Samples that are lost or destroyed during transport to, storage, processing or analysis at Nautilus. Unless otherwise agreed to expressly in writing, any Samples that are not consumed in the performance of the analyses contemplated under this Agreement (or any follow-on analyses agreed to by the Parties or as permitted by Section 3.2, below), shall not be required to be retained by Nautilus for more than thirty (30) days following completion of the Services. At Customer’s written request during such thirty (30) day period, Nautilus shall return any unused Samples to Customer at Customer’s sole expense. After such thirty (30) day period, Nautilus shall be entitled to destroy any such unused Samples.
3.2 Use of Samples. Nautilus shall use Samples only in the performance of Services under this Agreement and shall not otherwise, use, analyze or exploit such Samples for its own benefit or for the benefit of any third party. Notwithstanding the foregoing, Nautilus may use its analysis of Samples in performing the Services hereunder for its own internal use in further developing and/or improving the Nautilus Platform, or for such other purposes to which Customer shall have consented in writing.
3.3 Sample Requirements. Customer shall provide Samples to Nautilus of the type and quantity specified in the applicable Quotation. Unless expressly agreed to in the applicable Quotation, all Samples provided to Nautilus hereunder: (a) shall be provided in the volumes, composition, form and format specified in the Documentation; (b) shall not include any known pathogens, or other harmful or toxic chemicals or substances, (c) shall not exceed a BSL-2 biosafety classification, and in any event, shall be clearly marked as to their biosafety classification; and (d) shall not include any substances listed on the United States Department of Agriculture’s Selected Agents and Toxins List, the Australia Group’s List of Human and Animal Pathogens and Toxins for Export Control or List of Chemical Weapons Precursors, or on The Chemical Weapons Convention Schedule of Chemicals (all of the foregoing collectively referred to herein as “Sample Requirements”). Customer represents and warrants that all Samples provided to Nautilus shall meet and comply with the Sample Requirements, and that such Samples shall be delivered to Nautilus in compliance with Applicable Laws, including any and all laws and regulations relating to import/export, transportation, labeling and handling of the Samples. Customer represents and warrants that it has all rights and has provided all notices and obtained all consents, permissions, and authorizations necessary for Nautilus to process the Samples pursuant to this Agreement in compliance with Applicable Laws.
3.4 Sample Information. For any Samples analyzed using the Analysis Services, Customer shall, to the extent available and in accordance with Customer’s standard practices, maintain detailed records setting forth the Samples’ compliance with the Sample Requirements (as defined herein), any included controls or standards in Customer’s analysis, all sample preparation processes and any other pre-analysis sample processing to which such Samples were subjected, any Sample characterization information regarding the protein and/or proteoform content (identity and quantification) against which performance of the Nautilus Platform may be assessed, and any Customer-sourced reagents used in carrying out the analysis of Samples on the Nautilus Platform (collectively “Sample Information”). Customer shall provide such Sample Information to Nautilus upon Nautilus’ reasonable request for verifiability of the Results or troubleshooting purposes.
3.5 Non-Compliant Samples. For any Samples that are determined to not meet the Sample Requirements (“Non-Compliant Samples”), Nautilus may, in its sole discretion, elect to: (a) carry out the analysis of such Non-Compliant Samples in the form, format and/or timing in which they were provided, (b) with Customer’s advanced written consent, process such Non-Compliant Samples such that they meet the Sample Requirements, and perform the analysis of such Samples in accordance herewith, provided that costs for any processing services provided under this section shall be disclosed to Customer in advance, which costs may be separately invoiced to Customer; or (c) reject such Non-Compliant Samples and return such Non-Compliant Samples to Customer at Customer’s cost (or at Customer’s election, destroy such Non-Compliant Samples). In the event that Nautilus elects (a) or (b) above, then Nautilus shall notify Customer of such election, and Customer shall have five (5) business days to consent to Nautilus’ further processing of such Samples. If Customer fails to provide consent within the aforementioned timeframe, then Nautilus shall return such Samples to Customer in accordance with (c), above. In addition to the foregoing, Customer acknowledges and agrees that Customer’s provision of Non-Compliant Samples may impact such Sample’s compatibility with analysis using the Nautilus Platform, as well as the quality, timing and overall results of the Services, and that Nautilus shall have no liability to Customer, and Customer shall be entitled to no discount or credit for Nautilus’ analysis of any Non-Compliant Samples. Additionally, any Sample analysis that results in a Sample Failure may be invoiced by Nautilus to Customer as completed Services with respect to such Non-Compliant Sample. Nautilus may invoice Customer, and Customer shall be obligated to pay for all costs associated with any processing and/or repeat analyses of any Non-Compliant Samples. Costs for any additional Sample processing shall be invoiced on a time and materials basis based upon Nautilus’ then-effective FTE rate, or as otherwise agreed by the Parties in writing signed by their respective authorized Representatives, while costs for any repeat analysis of Non-Compliant Samples shall be invoiced Nautilus’ full per Sample analysis rate, exclusive of any discounts applied in any applicable Quotation, unless otherwise agreed by the Parties in writing signed by their respective authorized Representatives.
3.6 Sample Anonymization. To the extent that any Samples are derived from any human source, Customer represents and warrants that all personally identifying information (“PII”) related to the Samples shall have been anonymized in accordance with Applicable Laws and that no PII related to the Samples will be disclosed to Nautilus. Customer shall comply with all Applicable Laws related to PII, including without limitation, the Health Insurance Portability and Accountability Act of 1996, Regulation (EU) 2016/679, and the “UK GDPR” as defined in section 3 of the UK Data Protection Act 2018. Nautilus expressly disclaims any liability for any unauthorized or illegal transfer, disclosure, communication, storage, handling or processing of any PII in breach of the foregoing warranty by Customer. Nautilus shall not be responsible for any PII that is stored, communicated, transmitted, processed or otherwise included in any Instrument Data or Results in breach of the foregoing, and Customer shall indemnify, defend and hold Nautilus harmless for any such breach in accordance with Section 10.5.
4.0 Data Management.
4.1 Results. Following analysis of the Instrument Data (as defined herein), Nautilus shall report to Customer Results that, unless otherwise expressly set forth in the Quotation, will include Nautilus’ internally validated assessment of the proteins and/or proteoforms identified from such Instrument Data and the protein and/or proteoform counts, as well as any then available accuracy metrics, as determined using the Nautilus Platform. Such Results shall be reported to the Customer in a Nautilus designated format, e.g., as a csv or pdf file, through the Portal or by other means, such as by e-mail or delivery of a physical report. Nautilus shall use commercially reasonable efforts to complete the analysis of the Instrument Data using Nautilus then available systems and personnel, as necessary, and shall endeavor to report Results to the Customer within a commercially reasonable timeframe following Nautilus’ receipt of such Instrument Data. Nautilus shall exercise commercially reasonable care in maintaining the security and confidentiality of any Instrument Data and/or Results, including such Instrument Data or Results stored in or transmitted to Nautilus through the Portal or otherwise. Customer’s access and use of the Cloud Services, including the Portal, is subject to Customer’s agreement to additional terms and conditions including the Cloud Services Terms & Conditions attached hereto as Appendix A, as well as any additional terms available upon Customer’s login to the Portal. Nautilus may, where reasonable and in its sole discretion, elect to deliver to Customer, via the Portal or otherwise, the Results as to a subset of the Samples set forth in the applicable Quotation, for example, where there are delays in Customer’s provision of Samples to Nautilus, where such Quotation includes Analysis Services for a large number of Samples, and/or for other unforeseen delays in analyzing some portion of Samples. Nautilus Analysis Services provided hereunder for any given Sample shall be deemed complete upon Nautilus’ delivery of the Results to the Customer as set forth above. Any additional Services, including any additional analysis, characterization, evaluation, or interpretation services and/or reports that are set forth within the applicable Quotation, shall be deemed complete upon delivery to Customer. For the avoidance of doubt, Results shall not include any information related to the Nautilus Platform, regardless of whether such information is included in any report that includes the Results. Notwithstanding anything to the contrary herein, the Parties each acknowledge and agree to the terms of the Data Processing Addendum.
4.2 Transmission of Instrument Data. Customer acknowledges and agrees that Instrument Data shall be transmitted to Nautilus’ cloud-based servers for subsequent analysis and reporting Results back to Customer through Cloud Services and that such Cloud Services are subject to additional terms and conditions applicable to their use as set forth in the Cloud Services Terms & Conditions attached hereto as Appendix A, and that Customer hereby acknowledges and agrees to the Cloud Services Terms & Conditions. Notwithstanding the foregoing, Customer acknowledges that Nautilus’ Portal is developmental in nature, and as such. Results may be reported back to Customer by alternative means, including, for example, via electronic mail or presentation of a physical report
4.3 Data Storage, Processing and Protection. Nautilus shall employ security measures as set forth in the Information Security Addendum linked here [Information Security Addendum], and in no event, less than commercially reasonable security measures, to protect the privacy, security, and confidentiality of Customer information and data, including any Samples and Results. Nautilus and Customer will comply with their respective obligations under the Data Processing Addendum with respect to Covered Data (as such term is defined in the Data Processing Addendum).
4.4 Data Access, Reporting and Feedback. Customer acknowledges and agrees that the Early Access Program is intended to provide Nautilus with detailed information on the operation, use and effectiveness of the Nautilus Platform in carrying out protein analysis of biological samples, and that as consideration for Nautilus providing access to the Early Access Program to Customer for use in analysis of its Samples, Nautilus shall be entitled to receive certain information relating to the Early Access Program as set forth in greater detail herein.
5.0 Cost, Invoicing and Payment.
5.1 Cost. The cost of Services under the Early Access Program shall be stated in the applicable Quotation. Customer shall bear all costs associated with any preparation for and shipment of Samples to Nautilus facilities. Unless expressly stated otherwise in the Quotation, Nautilus Services are priced and sold in defined lots of multiple Samples as set forth in the Quotation (“Lot”). If Customer provides Samples in quantities that result in any incomplete Lots, then Nautilus shall perform Analysis Services on such incomplete Lots, and Customer shall be responsible for the price for such Analytical Services stated in the Quotation as if Nautilus had performed Analysis Services for the complete Lot. If Customer notifies Nautilus at the time of delivery of Samples that result in any incomplete Lot that additional Samples to complete such Lot are delayed and will be forthcoming, then Nautilus may, in its sole discretion, agree to hold processing of such incomplete Lot pending arrival of the delayed Samples and provide Customer with written notification of such agreement, provided that Nautilus shall not hold processing of any incomplete Lot for more than 15 days from the date of receipt of first Samples in such incomplete Lot.
5.2 Invoicing and Payment. Upon completion of Analysis Services set forth in the applicable Quotation and delivery of Results to Customer, Nautilus shall issue to Customer an invoice for the costs of such Analysis Services set forth in such Quotation. Where Nautilus has elected to deliver Results to Customer as to a subset of Samples set forth in the applicable Quotation, Nautilus may, again in its sole discretion, issue one or more intermediate invoices to Customer for the Analysis Services completed and Results provided as of the date of such delivery. Customer’s obligation to pay Nautilus for Services hereunder shall accrue upon delivery of Results to Customer (which Results may include identification of any Non-Compliant Samples for which Customer is obligated to pay under Section 3.5), and notwithstanding any post delivery communications, discussions or other interactions between Nautilus and Customer. Invoices shall be due and payable no later than thirty (30) days after the date of such invoice.
6.0 Intellectual Property.
6.1 Background IP. Each Party shall retain all ownership rights in and to such Party’s Background IP, and except as is expressly provided herein, neither Party shall have any right, license or claim to any Background IP of the other Party.
6.2 Program IP. Except as expressly provided herein, Early Access Program IP that is solely created or invented by one Party shall be solely and exclusively owned by that Party, and Early Access Program IP that is jointly created or invented by both Parties shall be jointly owned by both Parties, with all rights appurtenant to such joint ownership, except that neither Party shall have any obligation of accounting to the other Party for such jointly owned Early Access Program IP. Notwithstanding the foregoing: (a) Customer shall own all right, title and interest in and to all Early Access Program IP relating to the make-up, characterization, and identification of Samples, including any conclusions about such Samples as derived from any of the foregoing; and (b) Nautilus shall own all right, title and interest in and to all Early Access Program IP that relates to the Nautilus Platform, its use, make-up, utility, or applications, including any User Feedback. In addition, to the extent a Party (“Creating Party”) creates any Early Access Program IP that is owned by the other Party (“Owning Party”) as provided in (a) and (b) above, then such Creating Party agrees to assign and hereby does assign such Early Access Program IP to such Owning Party, and will reasonably cooperate with the Owning Party in its efforts to perfect any intellectual property rights in and to such Early Access Program IP.
6.3 Samples. As between Nautilus and Customer, Customer shall retain sole and exclusive ownership of the Samples (including any progeny, component compositions or other derivatives thereof) including any and all Intellectual Property embodied therein. Except as is necessary for the performance of Analysis Services hereunder or as expressly agreed to by the Parties, Nautilus shall acquire no right or license in or to the Samples. Nothing in the foregoing shall vest with Customer any ownership right or interest in and to any aspect of the Nautilus Platform (including without limitation, any tools, consumables, instruments, reagents, compositions or components, or intellectual property rights therein any of the foregoing) that is, in the performance of Analysis Services hereunder, combined or coupled with or to any Sample or Sample component.
6.4 Results. As between Nautilus and Customer, Customer shall have sole and exclusive ownership of the Results, including any and all Intellectual Property embodied therein, and except as provided below, shall retain all rights of use therefor, and Nautilus shall retain no right or license in or to the Results. Notwithstanding anything to the contrary in the Agreement, Customer and Nautilus agree that: (a) Customer shall not publish any Relative Performance Data or otherwise use the Results in making any public comparison between the Nautilus Platform and any other then available proteomics analysis solution, without the express written consent of Nautilus; (b) Nautilus shall be permitted access to and use of any and all Sample Information and Results for the purpose of evaluating, troubleshooting and improving the performance and operation of the Nautilus Platform without any obligation of reporting to Customer any information related to the outcome of such use, provided that such use is otherwise in accordance with the confidentiality provisions of this Agreement; (c) subject to Customer’s written consent in response to a Nautilus written request, Nautilus may use the Results, in whole or in part in one or more Nautilus publications, including Nautilus marketing materials and collateral, in support of the Nautilus Platform; and (d) Customer shall obtain Nautilus written consent prior to identifying Nautilus or using any Nautilus trademarks in any proposed publication of Customer Results. Parties will endeavor to provide any consent required above within thirty (30) days. Notwithstanding Customer’s ownership of the Results, Customer represents and warrants that it will not export or re-export any proteomic data provided with such Results in violation of any applicable data protection or security laws or regulations.
6.5 Nautilus Platform. Customer acknowledges and agrees that as between Customer and Nautilus, Nautilus shall own all right, title and interest in and to the Nautilus Platform including any and all IP rights embodied therein, and that except solely to the extent necessary for Customer to utilize the Results in Customer’s own internal research, Customer is granted no right or license under any Nautilus intellectual property rights, either expressly, by implication or estoppel, or by any other means, and all such rights are expressly reserved for Nautilus.
7.0 Confidentiality. In carrying out their respective obligations under this Agreement, each Party may disclose to the other Party, information that it considers confidential and proprietary (“Confidential Information”). For purposes of this Section 7.0, a Party disclosing information shall be referred to as the “Discloser” while the Party receiving such information shall be referred to herein as the “Recipient.”
7.1 Confidential Information. As used herein, Confidential Information shall include any non-public information that is disclosed by the Discloser to the Recipient, directly or indirectly, under this Agreement. Without limiting the foregoing, Confidential Information may include, but not be limited to, all information, procedures, scientific methods, system engineering and assay designs, product development strategies, developments, results, data, know-how, marketing strategies, Quotations, pricing, protocols, clinical reports, investigator brochures, conclusions, technologies, and inventions, disclosed hereunder. All Confidential Information shall, if disclosed in writing, be marked “Confidential” by the Discloser and, if disclosed orally, shall be identified as confidential at the time of disclosure, provided that failure to designate or identify any such information as Confidential shall not change the confidential status of such information if a reasonable person would know that the information was confidential and proprietary. For purposes hereof, the Parties acknowledge and agree that regardless of any failure to so mark or designate or irrespective of the perception of any reasonable person, (a) any and all information relating to the Nautilus Platform, as well as any information relating to the utility, functionality and/or quality of Results shall be deemed the sole and exclusive Confidential Information of Nautilus hereunder; and (b) any and all information relating to the Samples, their composition, including protein identification and/or quantification that is derived from the Samples, shall be deemed the sole and exclusive Confidential Information of Customer, hereunder.
7.2 Maintenance of Confidentiality. Recipient will not disclose Discloser’s Confidential Information to any third party or to Recipient’s employees, except to those Representatives of the Recipient who are required to have the information in order to carry out Recipient’s obligations or exercise Recipient’s rights granted under the Agreement and who are under obligations of confidentiality, non-use and non-disclosure at least as restrictive as those herein. Recipient will take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Discloser’s Confidential Information. Without limiting the foregoing, in protecting Discloser’s Confidential Information, Recipient shall take at least those measures that it takes to protect its own most highly confidential information, but in any case no care less than reasonable care.
7.3 Non-Use of Confidential Information. Recipient shall not use the other Discloser’s Confidential Information for any purpose except to the extent necessary for Recipient to carry out its obligations under the Agreement, or as is otherwise expressly permitted under the Agreement. Neither Party will reverse engineer, disassemble, or decompile any reagents, chemistries, formulations, designs, instruments, prototypes, software, or other tangible objects that embody the other Party’s Confidential Information and that are provided to the Party in accordance with the Agreement.
7.4 Exceptions. The foregoing obligations of confidentiality, non-disclosure and non-use shall not apply to any information that (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the Discloser; (b) becomes publicly known and made generally available after disclosure by the Discloser to the Recipient through no action or inaction of the Recipient; (c) is already in the possession of the Recipient at the time of disclosure by the Discloser, as shown by the Recipient’s files and records; (d) is obtained by the Recipient from a third party without a breach of the third party’s obligations of confidentiality; or (e) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information, as shown by documents and other competent evidence in the Recipient’s possession. Recipient may disclose the Discloser’s Confidential Information if required by law or judicial or governmental order, so long as the Recipient gives the Discloser prompt written notice of the requirement prior to the disclosure and assists Discloser in obtaining an order protecting the information from public disclosure.
7.5 Return or Destruction of Confidential Information. Upon any expiration or termination of the Agreement, Recipient shall, upon request of Discloser, return to Discloser, or destroy, any and all manifestations of Discloser’s Confidential Information in Recipient’s possession, and certify such destruction in writing; provided, however, that the Recipient may retain any Confidential Information (subject at all times to the restrictions on use and disclosure in this Section 7.0), to the extent: (a) required to determine its rights and obligations hereunder, (b) required by Applicable Laws, and (c) archived pursuant to the Recipient’s regular data archiving and record retention policies. Notwithstanding the foregoing, Nautilus has no obligation to return or destroy any information subject to Nautilus’ continued permitted use under Section 7.4.
7.6 Publication and Publicity. Nautilus and Customer acknowledge that it may be desirable to publish the Results in whole or in part. In the event that either Party wishes to publish the Results, the Party seeking to publish the Results shall provide to the other Party a substantially final copy of the proposed publication at least fifteen (15) days prior to its submission, in order for such other Party to review such draft publication and redact any of such other Party’s Confidential Information that may be included therein or file any necessary patent applications to protect such other Party’s Intellectual Property that may be embodied therein. In addition to the foregoing, the Parties acknowledge and agree that Nautilus shall have the right to publicly disclose Customer’s participation in Nautilus’ Early Access Program as a result of this Agreement, provided that in doing so, Nautilus shall not disclose any Customer Confidential Information, and provided further that Nautilus shall provide Customer with an overview of the content of the proposed public disclosure in advance of any first such disclosure of such content and shall incorporate Customer’s reasonably requested changes to any such public disclosure.
8.0 Term; Termination. This Agreement shall become effective on the Effective Date, and, unless earlier terminated or extended by written agreement of the Parties, shall expire twelve (12) months thereafter. This Agreement or any applicable Quotation may be terminated by either Party, without cause, upon sixty (60) days’ advanced written notice to the other Party. This Agreement may be terminated immediately by either Party serving notice in writing to the other Party where the other Party commits a material breach of this Agreement and such breach, if remediable, is not remedied within thirty (30) days of receiving written notice to do so. The obligations of the Parties contained in Sections 1.0, 2.6, 3.6, 4.0, 5.0, 6.0, 7.0, 8.0, 9.0, 10.0 and 11.0 hereof shall survive expiration or termination of any Quotation and/or this Agreement. Notwithstanding any termination hereunder, unless otherwise agreed to by Nautilus, in writing, Customer shall remain obligated to Nautilus for payment for the cost of all Analysis Services set forth in an applicable Quotation for any Samples received by Nautilus prior to the effective date of such termination, and for which Nautilus has commenced processing for performance of the Analysis Services.
9.0 Warranties; Disclaimer.
9.1 Warranty Disclaimer; No Other Warranties. NAUTILUS HEREBY DISCLAIMS ALL OTHER REMEDIES AND WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), IN EACH CASE HOWEVER ARISING, INCLUDING WITHOUT LIMITATION FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE, OR OTHERWISE. ANY SERVICE PROVIDED WITHOUT A WRITTEN WARRANTY FROM NAUTILUS IS PROVIDED “AS IS” WITHOUT (AND NAUTILUS HEREBY DISCLAIMS) ANY WARRANTY, STATUTORY, EXPRESS, IMPLIED OR OTHERWISE.
9.2 Third Party Disclaimers. Notwithstanding any provision to the contrary herein, and unless otherwise expressly indicated in a Quotation, none of Nautilus’ suppliers or licensors of any item provided by Nautilus, or any portion thereof (under the Agreement or otherwise) (each, a “Supplier”) provides ANY WARRANTY WHATSOEVER, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE TO CUSTOMER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE DISCLAIMED. EXCEPT AS OTHERWISE EXPRESSLY INDICATED IN A QUOTATION, IN NO EVENT SHALL ANY SUPPLIER BE LIABLE TO CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, DIRECT, INDIRECT OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT AND/OR PROVISION OF SERVICES.
9.3 Disclaimer of Results. Customer acknowledges and agrees that all Results provided by Nautilus hereunder are limited by the capabilities of the Nautilus Platform which remains under development, and as such, Nautilus does not guaranty that the Results will accurately or completely identify and/or quantify the proteins contained within the Samples, or that the Samples will be compatible with analysis on the Nautilus Platform, or that the Results will be compatible with any product or software environment offered by Nautilus in the future.
10.0 Indemnification; Liability.
10.1 Indemnification of Customer. Subject to Sections 10.2 and 10.3 below, Nautilus agrees to defend Customer against any third party claim, proceeding or action (“Claim”) against Customer to the extent the Claim alleges that any Analysis Services performed by Nautilus hereunder, directly infringes any patent, copyright, or other intellectual property right of such third party (“Nautilus Indemnifiable Claim”). Nautilus will pay all damages awarded, and settlements approved in writing by an authorized representative of Nautilus, in connection with any Nautilus Indemnifiable Claim, provided that (a) Customer has provided to Nautilus written notice of the applicable Claim within thirty (30) days of receipt of such Claim by Customer, or such earlier time as is required to avoid prejudice to Nautilus and its ability to defend such Claim, (b) Customer allows Nautilus to control the defense and settlement of the Nautilus Indemnifiable Claim, and (c) Customer provides to Nautilus, at no cost to Nautilus, reasonable assistance in connection with the defense and settlement of such Nautilus Indemnifiable Claim. Customer shall be permitted hereunder to employ counsel of its own choosing and at its own expense to assist Customer with respect to any such Nautilus Indemnifiable Claim, provided that the foregoing permission shall in no way obligate Nautilus or its counsel to consult with or advise such Customer’s counsel, or impart to Customer or Customer’s counsel any control of the defense and/or settlement of the Nautilus Indemnifiable Claim.
10.2 Exceptions. Nautilus indemnification obligations set forth above, shall not apply with respect to any Claim against Customer that results from (a) any Claim that the Samples as provided by Customer, their use, handling, reproduction and/or modification infringes the intellectual property and/or ownership rights of any third party, (b) any modification of Analysis Services and/or Results other than by Nautilus or its authorized service provider, (c) any use of Results other than in accordance with the this Agreement (including without limitation use for diagnostic or other non-research uses), (d) Customer’s actions or inactions unrelated to the Samples and/or Analysis Services, or (e) any custom Analysis Services that are provided in compliance with Customer’s instructions, specifications or designs, to the extent such instructions, specifications or designs materially differ from products and services that Nautilus generally makes available to its customers (subsections (a)-(e) are collectively referred to herein as “Excluded Causes”).
10.3 Remedy. In the event there is a Nautilus Indemnifiable Claim, or Nautilus believes a Nautilus Indemnifiable Claim is likely, alleging intellectual property infringement with respect to any Analysis Services rendered to Customer hereunder, in addition to defending Customer against such Indemnifiable Claim as set forth herein, Nautilus shall be entitled, without obligation to do so, to (a) modify the Analysis Services so they are no longer infringing, (b) obtain a license with respect to the applicable intellectual property rights, or (c) cease any provision of Analysis Services to Customer and provide to Customer a refund of the price paid by Customer to Nautilus for such Analysis Services, subject to reasonable deductions for value already delivered to Customer. Nautilus will have no liability or obligation with respect to any alleged infringement occurring after the date Nautilus makes any such remedy available to Customer.
10.4 Exclusive Obligation. Notwithstanding anything to the contrary in this Agreement or elsewhere, the foregoing Sections 10.1-10.3 state Nautilus’ sole liability and obligation, and Customer’s exclusive remedy, arising out of any actual or alleged intellectual property infringement of any kind, or any actual or alleged breach of any representation or warranty (statutory, express or implied) regarding non-infringement, anywhere in the world.
10.5 Indemnification of Nautilus. Customer agrees to defend Nautilus against any Claim (a) to the extent the Claim alleges infringement of any patent, copyright, or other intellectual property right as a result of any Excluded Cause, or (b) that arises in connection with Customer’s use of Analysis Services and/or Results (i) for any clinical purpose or application, (ii) in violation of any Applicable Laws, (iii) in violation of the Terms of this Agreement, including, without limitation, the provisions of Section 2.6, above; or (iv) in the provision of services under any “fee for service” agreement or other arrangement (collectively a “Customer Indemnifiable Claim”). If Customer is a U.S. state, city, town or other municipality, or a public university, college or other not-for-profit institution chartered under the laws of a U.S. state, this section shall apply to the maximum extent permitted by Applicable Laws. This section shall not apply if Customer is an agency of the U.S. Government; in such case, Customer’s liability shall be limited by the Federal Tort Claims Act, 28 USC 2671, et seq.
10.6 Procedures. A Party that intends to claim indemnification under this Section 10.0 (the “Indemnitee”) shall promptly notify the other Party (the “Indemnitor”) in writing of any Claim in respect of which the Indemnitee intends to claim such indemnification, and the Indemnitor shall have the right to control the defense and/or settlement thereof; provided that the Indemnitee shall have the right to participate, at its own expense, with counsel of its own choosing in the defense and/or settlement of such Claim. The Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement or agree to any disposition that imposes any conditions or obligations on the Indemnitee. The failure to deliver written notice to the Indemnitor within a reasonable period of time after the commencement of any such Claim shall relieve such Indemnitor of any liability to the Indemnitee under this Section 10.0, solely to the extent such failure is prejudicial to the Indemnitor’s ability to defend such Claim. The Indemnitee under this Section 10.0, and its employees, at the Indemnitor’s request and expense, shall provide full information and reasonable assistance to Indemnitor and its legal representatives with respect to such Claims covered by this indemnification.
10.7 Limitation of Liability. NAUTILUS’ LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT AND/OR PROVISION OF SERVICES SHALL BE LIMITED TO THE AMOUNT PAID BY THE CUSTOMER FOR THE SERVICES GIVING RISE TO THE LIABILITY, AND IN NO EVENT SHALL NAUTILUS’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT AND SERVICES EXCEED THE TOTAL AMOUNTS RECEIVED BY NAUTILUS FROM CUSTOMER UNDER THE AGREEMENT. IN NO EVENT SHALL NAUTILUS BE LIABLE FOR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, WARRANTY, PURSUANT TO ANY STATUTE, OR ON ANY OTHER BASIS, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT AND/OR THE PROVISION OF SERVICES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT NAUTILUS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM OR RELATED TO LOSS OF USE, LOSS OF SAMPLE, LOSS OF DATA, OR DOWNTIME, OR FOR LOSS OF REVENUE OR PROFITS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11.0 Miscellaneous.
11.1 Governing Law and Venue. This Agreement and any disputes arising out of or relating to this Agreement (including its formation or termination) (“Disputes”) shall be governed by and interpreted in accordance with the laws of the State of California, U.S.A., (provided, however, that if Customer is a U.S. state, city, town or other municipality, or a public university, college or other not-for-profit institution chartered under the laws of a U.S. state, the law of such state shall govern), excluding in all cases choice of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. If Customer is located within the U.S., any Disputes may be brought in the state courts located in San Mateo County, California or the U.S. District Court for the Northern District California, and each Party consents to the personal and non-exclusive jurisdiction and venue of these courts. This section shall not apply if Customer is an agency of the U.S. Government.
11.2 Severability. If any section, paragraph, provision or clause or any portion thereof in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction in which this Agreement are being performed, the remainder of this Agreement shall be valid and enforceable.
11.3 Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by first class mail (registered or certified if available; air mail if overseas), postage prepaid, or otherwise delivered by hand, commercial courier service, messenger, electronically, or by telecopy, addressed to the addresses listed in a Quotation (or to Customer’s address listed in its purchase order) or at such other address furnished with a notice in the manner set forth herein. Such notices shall be deemed to have been effective when delivered or, if delivery is not accomplished by reason of some fault or refusal of the addressee, when tendered (which tender, in the case of mail, shall be deemed to have occurred upon posting, and in the case of electronic communication or telecopy (fax), shall be deemed to have occurred upon transmission). All notices shall be in English.
11.4 Entire Agreement. The Agreement constitutes the complete, exclusive and entire agreement between Nautilus and Customer. Any terms and conditions provided by Customer shall be null and void, and are hereby expressly rejected by Nautilus, regardless of whether or when Customer has submitted such other terms and conditions. Fulfilment of Customer’s order does not constitute acceptance of Customer’s terms and conditions, and does not serve to modify or amend the Agreement. No variation to these Terms shall be binding unless agreed in writing between Nautilus and Customer. Notwithstanding the foregoing, if any Customer purchase order that is accepted by Nautilus contains, includes or incorporates by reference any additional or different terms as are contained herein, and solely to the extent that such additional terms or conditions (referred to herein as “Additional Customer Terms”) are ultimately deemed to be a part of the Agreement between Nautilus and Customer as a result of acceptance of such Customer’s purchase order (e.g., by express written agreement of the parties or by application of legal doctrine), then such Agreement will consist of the following documents and terms to the extent they exist (notwithstanding any provision to the contrary in such documents) (1) these Terms (including the Cloud Services Terms & Conditions, the Information Security Addendum and Data Processing Addendum; (2) the Quotation (if any); (3) terms in the Customer’s Purchase Order relating to name, part number and quantity of Products and/or Services purchased, ship to and bill to addresses, and if accurate, price for such Products and/or Services; and (4) the Additional Customer Terms, and any conflict among the documents shall be resolved by giving them priority in the order that they are presented herein. Third party components may be subject to additional terms and conditions not set forth herein. All Quotations shall be personal to the Customer identified in such Quotation, and no Quotation may be transferred or assigned by a Customer without the express written consent of Nautilus. Any Quotation that is subject of any attempted transfer or assignment in violation of the foregoing shall be null and void.
11.5 Waiver. No waiver by Nautilus of any breach of the Agreement by Customer shall be considered as a waiver of any subsequent breach of the same or any other provision. Any purported waiver by Nautilus will be void and ineffective unless it is in writing and signed by a properly authorized Representative of Nautilus.
11.6 Force Majeure. Except for the payment of money, neither Party shall be liable to the other Party for any failure or delay in the performance of any of its obligations under this Agreement for the period and to the extent such failure or delay is caused by civil unrest, threat of or actual acts of terrorism or war, embargoes, governmental actions, acts of God, earthquakes, floods, storms, fires, supplier delay, accidents, explosions, epidemics, quarantine restrictions, or other such contingencies beyond the reasonable control of the applicable party (“Force Majeure”). The Party affected shall notify the other Party as soon as practicable of any anticipated delay due to Force Majeure.
11.7 Headings. Headings used herein are provided for convenience of reference only and shall in no way affect the interpretation of this Agreement.
11.8 Independent Contractors. The Parties are independent contractors and nothing in this Agreement or the performance of the Parties under this Agreement shall constitute (or be deemed to constitute in law or in equity) a partnership, agency, distributorship, fiduciary, employment or joint venture relationship between the Parties. The Parties are not affiliated and neither has any right or authority to bind the other in any way.
11.9 Assignment. Neither Party may assign this Agreement without the express written consent of the other Party. Notwithstanding the foregoing, each Party may freely assign this Agreement to an Affiliate or to a successor in interest in the event of an acquisition of all or substantially all assets of such Party that relate to the subject matter of this Agreement.
11.10 Third Party Beneficiaries. This Agreement has been made and is made solely for the benefit of Nautilus and Customer and their respective permitted successors and assigns.
11.11 Import and Export Compliance. Customer shall be responsible for compliance with any and all import and export laws or regulations in shipping Samples from Customer’s location to Nautilus, including compliance with all customs, labeling, and tax requirements associated with such import or export of Samples from Customer’s home country to the United States.
11.12 Non-Exclusivity of Services. Customer acknowledges and agrees that Nautilus may be providing services to multiple different entities in multiple areas, including performing analyses in similar fields and/or using similar sample types. Nothing in this Agreement shall prevent Nautilus from performing such services on behalf of other entities, provided at all times that Nautilus shall be bound by the confidentiality, non-disclosure and non-use provisions of this Agreement with respect to Customer’s Confidential Information.
APPENDIX A
NAUTILUS CLOUD SERVICES TERMS & CONDITIONS
These terms and conditions (“Cloud Services Terms”) apply to the Cloud Services (as defined herein) offered by Nautilus Biotechnology, Inc., along with its wholly owned operating subsidiary Nautilus Subsidiary, Inc. (collectively, “Nautilus”). Any of the following shall constitute Customer’s (as defined herein) unqualified acceptance of these Cloud Services Terms: (a) Customer’s written acknowledgement of these Cloud Services Terms; (b) Customer’s or one of its Users’ use of the Cloud Services and/or access to the Portal (each as defined herein); or (c) any other act or expression of acceptance by Customer.
1.0 Definitions. All capitalized terms used in these Cloud Services Terms shall be given the definitions provided below or as otherwise specifically defined herein or in the Customer Agreement (as defined below) into which incorporate these Cloud Services Terms by reference. Non-capitalized terms shall be given their ordinary and customary meanings.
1.1 “Aggregated Data” means Usage Data (as defined below) of multiple different customers and/or users that is aggregated and/or compiled to provide general patterns, trends or other information on general customer use of Cloud Services.
1.2 “Customer” means, for purposes of these Cloud Services Terms, an entity who purchases or otherwise obtains from Nautilus products and/or services that require the use of the Cloud Services.
1.3 “Customer Agreement” means an agreement between Customer and Nautilus, or other terms otherwise agreed upon by Customer and Nautilus, regarding the provision of products and/or services by Nautilus to Customer.
1.4 “Customer Data” means any data, information or Samples that: (a) Customer (including its Users) submits to the Cloud Services, including from Third Party Platforms; and (b) Customer submits to Nautilus to submit to the Cloud Services, which includes any data resulting from the use of the Cloud Services that is derived from analysis of Customer Samples analyzed by Nautilus on Customer’s behalf, including without limitation, the Results.
1.5 “Customer Systems” means Customer’s hardware, software, other technology, and infrastructure that Customer is required to provide and maintain in order for Customer to access and use the Portal.
1.6 “Data Processing Addendum” means the Data Processing Addendum linked here [Data Processing Addendum].
1.7 “Force Majeure Event” means an event beyond a Party’s reasonable control that causes such Party to fail to perform under these Cloud Services Terms, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, or natural disaster.
1.8 “Log-in Credentials” means the mechanisms designated by Nautilus for Customer to access the Cloud Services, if applicable.
1.9 “Process” means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.
1.10 “Prohibited Data” means any: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards; (d) personally identifying information of any individual from whom a Sample is obtained or derived, e.g., as a blood, tissue or other biological material sample obtained from such individual (“PII”); (e) other information subject to regulation or protection under specific Applicable Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (f) social security numbers, driver’s license numbers, or other government ID numbers; or (g) any data similar to that which is protected under the above Applicable Laws.
1.11 “Subscription Period” means the period during which Customer or User shall be permitted access to the Cloud Services. Notwithstanding anything to the contrary herein, for Customers using Cloud Services on a Trial or Beta basis, for any given Quotation, the Subscription Period shall expire on the date upon which Nautilus reports to the Customer the Results applicable to such Quotation in accordance with the terms of the Customer Agreement(s) applicable to such Trial or Beta use. For Customers purchasing Nautilus commercial Products and/or Services, the Subscription Period shall be the longer of: (a) one (1) year from the date of (i) delivery of a Nautilus Instrument to Customer, or (ii) Customer’s delivery to Nautilus of Samples for performance of analysis services by Nautilus, in either case for which the Cloud Services are to be used, or (b) the Cloud Services Subscription Period expressly set forth in a Quotation applicable to a delivered Instrument or analysis services to be performed by Nautilus, if different from (a), above.
1.12 “Third-Party Platform” means any third-party platform, add-on, service, or product not provided by Nautilus that Customer elects to integrate or enable for use with Cloud Services.
1.13 “Trial or Beta” means access to the Cloud Services or features thereof on a free or trial basis or as an alpha, beta, or early access program offering, including any access under any Early Access or Beta Program agreement.
1.14 “Updates” means any updates, modifications, or bug fixes to the Cloud Services, Platform or Documentation that Nautilus provides free of additional charge to users of the Cloud Services.
1.15 Upgrades” means additions, enhancements, upgrades, new services, or modules that include new features and substantial increases in functionality to the Cloud Services that Nautilus makes available to the existing users of Cloud Services for an additional fee.
1.16 “Usage Data” means information generated from the use of the Cloud Services, which data does not identify Users, or any other natural human persons, such as technical logs, data, and learnings about Users’ use of the Cloud Services.
1.17 “User” means any employee or contractor of Customer or its Affiliates that Customer allows to use the Cloud Services on Customer’s behalf.
2.0 Cloud Services
2.1 Permitted Use. Subject to Customer’s compliance with these Cloud Services Terms, Customer may access and use the Cloud Services only for its internal business purposes in accordance with the Documentation, these Cloud Services Terms, and any Customer Agreement(s) referencing and incorporating these Cloud Services Terms.
2.2 Users. Only Users, using Log-in Credentials, may access and use the Cloud Services. Each User must keep its Log-in Credentials confidential and may not share them with anyone else. Customer is responsible for its Users’ compliance with these Cloud Services Terms and all actions taken through their Log-in Credentials. Customer will promptly notify Nautilus if it becomes aware of any compromise of any Log-in Credentials. Nautilus may Process Log-in Credentials in connection with Nautilus’ provision of the Cloud Services or for Nautilus’ internal business purposes. Nautilus may suspend or revoke access to Cloud Services for any User for which Nautilus reasonably suspects (i) such User’s Login Credentials have been compromised or shared with any other party in violation of these Cloud Services Terms, and/or (ii) is utilizing the Cloud Services in violation of these Cloud Services Terms or is otherwise violating the terms of the Customer Agreement(s); provided, however, that Nautilus will use commercially reasonable efforts to provide prior notice and opportunity to cure before permanent revocation, except where immediate suspension is necessary to protect the security of or prevent material harm to any Nautilus systems or services.
2.3 Restrictions. Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense a Cloud Service to a third party (other than Users); (b) use a Cloud Service on behalf of, or to provide any product or service to, third parties; (c) use a Cloud Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to a Cloud Service, except to the extent expressly permitted by Applicable Laws (and then only with prior notice to Nautilus); (e) modify or create derivative works of a Cloud Service or copy any element of a Cloud Service; (f) remove or obscure any proprietary notices in a Cloud Service; (g) publish any Relative Performance Data about a Cloud Service provided in conjunction with any early access, Trial or Beta use, program or agreement; (h) interfere with the operation of a Cloud Service, circumvent any access restrictions, or conduct any security or vulnerability test of a Cloud Service; (i) transmit any viruses or other harmful materials to a Cloud Service; (j) take any action that risks harm to others or to the security, availability, or integrity of a Cloud Service; or (k) access or use a Cloud Service in a manner that violates any Applicable Laws. Additionally, Customer must not use a Cloud Service with any Prohibited Data. Customer acknowledges that the Cloud Services are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Nautilus is not a Business Associate as defined under HIPAA. Notwithstanding anything else in these Cloud Services Terms, Nautilus has no liability for Prohibited Data or use of a Cloud Service.
2.4 Regulatory Compliance. Customer acknowledges and agrees that it will at all times use the Cloud Services in compliance with all Applicable Laws. Customer further acknowledges that the Cloud Services do not have United States Food and Drug Administration or a corresponding non-U.S. regulatory agency approval. Customer acknowledges that the Cloud Services are intended FOR RESEARCH USE ONLY and NOT FOR USE IN DIAGNOSTIC PROCEDURES, and that Customer is not authorized to use and shall not use the Cloud Services in contravention of the foregoing restrictions.
3.0 Updates; Upgrades. Unless stated otherwise in a Customer Agreement, Nautilus will make Updates to Cloud Services as Nautilus makes them available to its users of the applicable Cloud Services generally. Customer’s purchase of access to Cloud Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written public or private comments made by Nautilus regarding future functionality or features of the Cloud Services. From time to time, Nautilus, in its sole discretion, may make available Upgrades under additional or different terms. Nothing in these Cloud Services Terms obligates Nautilus to make Upgrades available to Customer as part of the Cloud Services or otherwise unless specifically included in a Customer Agreement. Notwithstanding anything to the contrary herein, nothing provided in this section shall guaranty that any Update or Upgrade will be backwards compatible with any previously obtained Customer Data.
4.0 Data
4.1 Use of Customer Data. Customer hereby grants to Nautilus the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, modify, and create derivative works from Customer Data only as necessary to: (a) provide any Cloud Services and related support services; (b) derive or generate Usage Data; (c) create and compile Aggregated Data; and (d) as otherwise required by Applicable Laws or as agreed to in writing between the Parties, including in a Customer Agreement.
4.2 Usage Data; Aggregated Data. Nautilus may Process Usage Data and Aggregated Data for internal business purposes, such as to: (a) track use of Cloud Services for billing purposes; (b) provide support for Cloud Services; (c) monitor the performance and stability of the Cloud Services; (d) prevent or address technical issues with the Cloud Services; (e) to improve Cloud Services, its other products and services, and to develop new products and services; and (f) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data.
4.3 Security. For as long as it Processes Customer Data, Nautilus shall maintain any such Customer Data in accordance with the information security measures that are set forth in any Data Processing Addendum and/or Information Security Addendum linked here [Information Security Addendum] that is part of the Customer Agreement, and in any event, commercially reasonable security measures. To the extent Nautilus will Process any personal data of Customer or any User to provide Cloud Services to Customer pursuant to these Cloud Services Terms, each Party will comply with its obligations in the Data Processing Addendum linked here [Data Processing Addendum].
4.4 Data Retention. Nautilus shall retain any and all Customer Data for the duration of the Subscription Period and for a period of one (1) year thereafter (collectively, the “Retention Period”). After the expiration of the Retention Period, Nautilus shall be entitled to delete any and all Customer Data on Nautilus Cloud systems, and shall have no further obligation to Customer with respect to the Customer Data.
5.0 Customer Obligations. Customer will provide and maintain any Customer Systems. Customer is responsible for its Customer Data, including its content and accuracy, and will comply with Applicable Laws, these Cloud Services Terms, the Documentation, and Customer Agreement when using the Cloud Services. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Nautilus to Process Customer Data set forth in these Cloud Services Terms without violating or infringing Applicable Laws, third-party rights, or terms or policies that apply to the Customer Data.
6.0 Suspension of Cloud Services. Nautilus may immediately suspend or revoke Customer’s access to any or all of the Cloud Services if: (a) Customer breaches Section 2.2 (Users), Section 2.3 (Restrictions) or Section 5.0 (Customer Obligations); (b) changes to Applicable Laws or new Applicable Laws require that Nautilus suspend a Cloud Service or otherwise may impose additional liability on the part of Nautilus; or (c) Customer’s actions risk harm to any of Nautilus’ other users or the security, availability, or integrity of a Cloud Service. Where practicable, Nautilus will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Nautilus may restore Customer’s access to the suspended Cloud Service(s).
7.0 Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not these Cloud Services Terms. Nautilus does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Cloud Services or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Cloud Services, Customer agrees that Customer shall have sole responsibility and liability for ensuring the use of such Third Party Platform with these Cloud Services complies with these Cloud Services Terms, authorizes Nautilus to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf.
8.0 Warranties; Disclaimer.
8.1 Disclaimer of Warranty for Cloud Services. Customer acknowledges and agrees that the Cloud Services provided by Nautilus hereunder are developmental in nature, are limited by the capabilities of the Nautilus Platform which remains under development, and as such, Nautilus does not guaranty that the Cloud Services will perform to any particular specification or requirement, or that any Results provided as a result of the Cloud Services will accurately or completely identify and/or quantify the proteins contained within the Samples, or that the Samples will be compatible with analysis on the Nautilus Platform, or that the Results will be compatible with any product or software environment offered by Nautilus in the future.
8.2 Warranty Disclaimer; No Other Warranties. NAUTILUS DOES NOT WARRANT THAT CUSTOMER’S USE OF THE CLOUD SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT NAUTILUS WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. NAUTILUS IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE NAUTILUS’ CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD. IN NO EVENT SHALL NAUTILUS BE LIABLE FOR COSTS OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES FOR BREACH OF WARRANTY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1 (PERFORMANCE WARRANTY), ALL CLOUD SERVICES ARE PROVIDED “AS IS” WITHOUT (AND NAUTILUS HEREBY DISCLAIMS) ANY WARRANTY, STATUTORY, EXPRESS, IMPLIED OR OTHERWISE.
8.3 Third Party Disclaimers. Notwithstanding any provision to the contrary herein, and unless otherwise expressly indicated in the Documentation, none of Nautilus’ suppliers or licensors of any item provided by Nautilus, or any portion thereof (under these Cloud Services Terms or otherwise) (each, a “Supplier”) provides ANY WARRANTY WHATSOEVER, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE TO CUSTOMER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE DISCLAIMED. EXCEPT AS OTHERWISE EXPRESSLY INDICATED IN THE DOCUMENTATION, IN NO EVENT SHALL ANY SUPPLIER BE LIABLE TO CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, DIRECT, INDIRECT OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE CLOUD SERVICES TERMS.
9.0 Term and Termination. The term of these Cloud Services Terms shall commence on the Effective Date of the Customer Agreement(s) referencing and incorporating these Cloud Services Terms, and expire on the earlier of (a) the expiration of the Subscription Period, (b) any termination of the Customer Agreement(s) referencing and incorporating these Cloud Services Terms and (c) Nautilus’ revocation of Customer’s access to the Cloud Services in accordance with these Cloud Services Terms, unless terminated earlier in accordance with this section, or extended by written agreement of both Parties. Either Party may terminate these Cloud Services Terms with immediate effect upon the breach of any material provision of these Cloud Services Terms by the other Party. ; provided however, that the terminating Party will use commercially reasonable efforts to provide prior written notice and a thirty (30) day cure period before termination, except where immediate termination is necessary to prevent harm or comply with Applicable Laws. Upon expiration or termination of these Cloud Services Terms, Customer’s access to and Nautilus’ obligations to provide the Cloud Services shall terminate. After expiration or termination of these Cloud Services Terms, Nautilus will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. These Sections survive expiration or termination of these Cloud Services Terms: 1.0 (Definitions), 2.3 (Restrictions), 2.4 (Regulatory Compliance), 4.0 (Data), 8.2 (Warranty Remedy), 8.3 (Warranty Disclaimer; No Other Warranties), 8.4 (Third Party Disclaimers), 9.0 (Term and Termination), 10.0 (Trial or Beta use), 11.0 (Ownership), and 12.0 (Miscellaneous). Except where an exclusive remedy is provided in these Cloud Services Terms, exercising a remedy under these Cloud Services Terms, including termination, does not limit other remedies a Party may have.
10.0 Trial or Beta Use. If Customer receives access to Cloud Services or features thereof on a Trial and/or Beta basis, use thereof is permitted only for Customer’s internal evaluation during the period designated by Nautilus. Trial and/or Beta use is optional, may be subject to additional terms and conditions, and unless expressly agreed to otherwise by the Parties, in writing, either Party may terminate Trial or Beta use at any time for any reason. Trial and/or Beta use may be inoperable, incomplete, or include features that Nautilus may never release. Notwithstanding anything else in these Cloud Services Terms, Nautilus provides no warranty, indemnity, or support for Trial or Beta use, and its liability for Trial or Beta use will not exceed US$50.
11.0 Ownership. Except as expressly provided in these Cloud Services Terms or in any other Customer Agreement, as between the Parties, Customer retains all intellectual property rights and other rights in and to all Customer Data provided to Nautilus and the Results. Except for Customer’s use rights in these Cloud Services Terms, Nautilus and its licensors retain all intellectual property rights and other rights in the Cloud Services, any Technical Services, any deliverables, Documentation, Usage Data, and Nautilus technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Nautilus. If Customer provides Nautilus with feedback or suggestions regarding the Cloud Services, Nautilus may use the feedback or suggestions without restriction or obligation.