Data Use Agreement

This agreement governs how you can and cannot use data received from Takara Bio USA, Inc. (“TBUSA”). As explained in the agreement, you can use the TBUSA data for your research and other internal uses, including comparing the TBUSA data with other data and verifying research results as per the terms of this agreement. You cannot share TBUSA’s data with others or use TBUSA’s data for other purposes (e.g., building your own products, training AI, etc.). If you make anything with TBUSA’s data, TBUSA may have certain rights. Please read this document carefully to understand all of your obligations if you choose to receive TBUSA’s data.

By clicking “I Accept” and/or by downloading or otherwise accessing the TBUSA Data (defined below), you (“Recipient”) hereby enter into this Data Use Agreement (this “Agreement”) with TBUSA, effective as of your date of downloading or otherwise receiving the TBUSA Data (the “Effective Date”). TBUSA and Recipient may be referred to, individually, as a “Party” and, collectively, as the “Parties” in this Agreement.

1. Definitions; Interpretation.

1.1. Defined Terms. In addition to terms defined elsewhere in this Agreement, the following terms will have the following meanings:

1.1.1. "Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with TBUSA or Recipient, as applicable. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% or more of the voting equity securities or other equivalent voting interests of the entity.

1.1.2. “Derived” means to author, develop, make, invent, discover, produce, create, synthesize, conceive, reduce to practice, design or result from, to be based upon or to otherwise generate (whether directly or indirectly, or in whole or in part).

1.1.3. “Staff Members” means (a) for TBUSA, employees, independent contractors, subcontractors, and consultants of TBUSA or its Affiliates, and (b) for Recipient, employees, independent contractors, subcontractors, and consultants of Recipient.

1.1.4. “TBUSA Data” (i) means all data (including raw and processed data, databases, and data analysis) provided to Recipient hereunder and owned by TBUSA or its Affiliates prior to the commencement this Agreement; (ii) means all data (including raw and processed data, databases, and data analysis) provided to Recipient hereunder and acquired or Derived by TBUSA, its Affiliates or their respective Staff Members thereafter alone or with third parties, whether outside or within the scope of this Agreement; and (iii) the TBUSA Data Derivatives.

1.1.5. “TBUSA Data Derivatives” means all data (including raw and processed data, databases, and data analysis) collected, Derived or otherwise generated by Recipient or its Staff Members alone or jointly with TBUSA or its Affiliates or their respective Staff Members.

1.1.6. “TBUSA New IP” means all copyrightable material, notes, records, drawings, designs, inventions, code, schematics, data, improvements, developments, discoveries and trade secrets conceived, discovered, developed or reduced to practice by Recipient or its Staff Members alone or jointly with TBUSA or its Affiliates or their respective Staff Members, solely or in collaboration with others, that are based on or relate in any manner to TBUSA Data, TBUSA Data Derivatives, TBUSA Confidential Information or any other TBUSA intellectual property.

2. Term and Termination.

2.1. Term. The term of this Agreement will commence on the Effective Date and will continue until the earlier of (i) Recipient ceases use of the TBUSA Data and returns or destroys the TBUSA Data as provided in Section 2.3 or (ii) TBUSA terminates the Agreement pursuant to Section 2.2 (the “Term”).

2.2. Termination. TBUSA may immediately terminate this Agreement if Recipient is in breach of any term of this Agreement. TBUSA may also terminate this Agreement for any or no reason with thirty (30) days written notice to Recipient.

2.3. Effect of Termination. Termination of this Agreement will immediately terminate the license granted in Section 3.2.1 and any other rights granted in the TBUSA Data. Termination of this Agreement will not affect either Party’s rights or duties under Sections 1 (and any other defined terms), 2.3, 3.1.1, and 4, 6, 7, and 9-14. Upon termination of this Agreement, Recipient shall promptly return any TBUSA Data and other TBUSA Confidential Information to TBUSA or destroy the TBUSA Data and any other TBUSA Confidential Information, if requested by TBUSA, and provide TBUSA with a certificate certifying such destruction if requested by TBUSA. For the avoidance of doubt, upon termination of this Agreement, Recipient has NO right to possess or use the TBUSA Data for any purpose.

3. Intellectual Property

3.1. Ownership.

3.1.1. TBUSA Data. Recipient hereby acknowledges that, except for the rights expressly granted herein and subject to the restrictions herein, TBUSA and its Affiliates and other licensors retain all right, title and interest in and to the TBUSA Data. No title to or ownership of the TBUSA Data is transferred to Recipient. Recipient hereby assigns to TBUSA, without further consideration, all right, title and interest in any TBUSA Data Derivatives and TBUSA New IP. Recipient agrees to perform any and all actions (and will cause all applicable Staff Members to perform any actions) reasonably necessary to secure TBUSA’s rights, including intellectual property rights, in all TBUSA Data Derivatives and TBUSA New IP. To the extent any of Recipient’s (including any Staff Member’s) rights in any TBUSA Data Derivatives or TBUSA New IP, including any moral rights, are not capable of assignment under applicable law, Recipient hereby irrevocably and unconditionally waives all such rights, including all enforcement of such rights, to the maximum extent permitted under applicable law, and shall ensure that its Staff Members shall too. Regularly throughout the Term and upon TBUSA’s request, Recipient shall identify and deliver to TBUSA any TBUSA Data Derivatives and TBUSA New IP via an electronic delivery method agreed upon by the Parties.

3.2. License; Restrictions on Use.

3.2.1. Subject to the terms and conditions of this Agreement, TBUSA hereby grants to Recipient a limited, non-exclusive, non-transferable, revocable, royalty free, fully paid, non-sublicensable license to use the TBUSA Data as follows:

(i) to view the TBUSA Data for the purpose of confirming that the TBUSA product(s) used to generate the TBUSA Data is/are suitable for your research use;

(ii) to verify research results with the TBUSA Data;

(iii) to use the TBUSA Data for use in internal research; and

(iv) to use the TBUSA Data in a research publication (“Publication”), if and only if, Recipient has first provided a copy of such Publication for TBUSA’s review and TBUSA then provides its prior written consent to Publication. Notwithstanding the foregoing, Recipient may not publish a benchmarking study.

3.2.2. Restrictions on Use. Except for the licenses expressly granted herein, no other rights are granted hereunder to the TBUSA Data. Without limiting the generality of the foregoing, Recipient may not (i) use the TBUSA Data, in whole or in part, for any unlawful purpose; (ii) disclose or convey the TBUSA Data, TBUSA Data Derivatives, or TBUSA New IP to a third party, including in a Publication other than as permitted by this Agreement; (iii) use TBUSA Data, TBUSA Data Derivatives, or TBUSA New IP for training or developing a similar or competing product; (iv) use TBUSA Data to disassemble, decompile or reverse engineer any TBUSA products; or (v) use TBUSA Data to train or develop any machine learning model.

4. Confidentiality.

4.1. Confidential Information. All proprietary, confidential and trade-secret information disclosed or submitted by TBUSA or its Affiliates or their respective Staff Members to Recipient which (a) is designated in writing as confidential information at the time of disclosure or (b) should reasonably be considered confidential given the nature of the information or the circumstances under which it was disclosed is “Confidential Information.” The terms of this Agreement, all TBUSA Data, TBUSA Data Derivatives, and TBUSA New IP, and other specifications, analysis techniques, directions, materials, schematics, formulae, test parameters, measurements and other information and data will also constitute “Confidential Information.” Recipient will maintain in confidence, using no less than reasonable care, all Confidential Information. Recipient will only use the Confidential Information for purpose and scope provided in Section 3.2.1. Recipient will only disclose the Confidential Information to their Staff Members that need to receive it in connection with their performance under this Agreement, and only if such Staff Members are bound by obligations of confidentiality no less onerous than these.

4.2. Exclusions. Confidential Information excludes information that: (a) was known to Recipient prior to its disclosure in connection with this Agreement as evidenced by contemporaneous records; (b) was received by Recipient from a third party rightfully in possession of such information and with no obligation to maintain its confidentiality; (c) becomes part of the public domain without the fault of Recipient or without any breach of this Agreement; or (d) is independently developed or discovered by Recipient without use of or reference to any Confidential Information as evidenced by contemporaneous records.

4.3. Duration. The obligations of confidentiality under this Section will survive and continue during the Term and for the period ending five (5) years after termination of this Agreement; provided, however, that trade secrets shall continue to be subject to these obligations of confidentiality until they become part of the public domain through no fault of Recipient or its Staff Members.

5. Notices. All notices and disclosures (including those pursuant to Section 5) given under this Agreement must be in writing and delivered in person or sent by certified or registered return receipt mail, postage prepaid, or by overnight delivery, or by email followed by one of the foregoing methods of mailing. Recipient shall promptly provide complete and accurate contact information to TBUSA at TBUSA’s request.

6. Publicity. Recipient will not use the name, tradenames or trademarks of TBUSA, TBUSA’s Affiliates, or its Staff Members, in connection with any Publication, without the prior written permission of an authorized representative of TBUSA.

7. Warranties; Limitation of Liability; Disclaimer; Release.

7.1. Warranties. The Parties warrant that: (a) each Party has the full right, power and authority to perform its obligations under this Agreement and to grant to each other all rights described in this Agreement; and (b) the execution of this Agreement and the performance of its obligations hereunder, do not and will not violate any agreement to which each Party is a party or by which each Party is otherwise bound.

7.2. Recipient Warranty. Recipient represents and warrants that it will not use the TBUSA Data in any way prohibited by law or regulation.

7.3. Limitation of Liability. In no event shall TBUSA, including its Affiliates, Staff Members, and its and their respective directors, officers, representatives and agents, be responsible or liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to TBUSA’s performance under this Agreement for any direct, indirect, special, incidental, punitive, or consequential damages or lost profits or other economic loss or damages. The above limitations on liability apply even though TBUSA, its Affiliates, Staff Members, and its and their respective directors, officers, representatives and agents, as applicable, may have been advised of the possibility of such damage.

7.4. Disclaimer. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT,THE TBUSA DATA IS PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

7.5. Release. TBUSA shall have no, and Recipient hereby releases TBUSA and its Affiliates and Staff Members from, any liability in connection with the use of the TBUSA Data, including without limitation any direct, indirect, incidental, consequential, special or punitive damages or loss of data, even if TBUSA has been advised of the possibility of such damages. Recipient hereby waives any and all claims against TBUSA and its Affiliates and Staff Members relating to Recipient’s use of the TBUSA Data.

7.6. Indemnification. Recipient will indemnify and hold TBUSA and its Affiliates harmless from and against any and all loss, cost, expense, liability or damage, including without limitation, all reasonable attorneys’ fees and court costs, arising from (i) the Recipient’s misuse of TBUSA Data, or (ii) Recipient’s violation of the terms of this Agreement.

8. Assignment. Recipient may not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of TBUSA. TBUSA may assign this Agreement, in whole or in part, (a) by way of a merger or change in control or to a successor in ownership of all or substantially all its business assets to which the Agreement relates, and (b) to one or more of its Affiliates. Any other purported assignment in violation of this Section will be void.

9. Severability. Any provision of this Agreement held unenforceable or illegal by a court of competent jurisdiction will be severable from the remainder of the Agreement, which will continue in full force and effect.

10. Independent Contractor. Nothing in this Agreement creates any relationship between the Parties other than that of independent contractors. Neither Party will hold itself out as an agent, subsidiary, or affiliate of the other Party or have any authority to bind the other Party to any third-party obligations.

11. Headings; Interpretation. In this Agreement, the singular includes the plural and the plural the singular; the terms “including” and “include” means “including but not limited to”; references to “or” mean each item in the list individually or any combination of them, including all of them; and references to a “Section” will mean a section of this Agreement, unless otherwise expressly stated. All Section titles in this Agreement are for reference purposes only and will not control or alter the meaning of this Agreement as set forth in the text.

12. Governing Law. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California without reference to its choice of law rules to the contrary. Recipient irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Santa Clara County California with respect to any disputes or claims arising out of or relating to this Agreement.

13. Equitable Relief. Recipient acknowledges and agrees that any breach by it, its Affiliate or by any of its Staff Members, agents or representatives of the licenses, restrictions on use or confidentiality provisions hereof may cause irreparable harm to TBUSA (or its Affiliates or licensors) and that actual damages may be difficult to ascertain and in any event may be inadequate. Accordingly, in the event of such breach, the TBUSA shall be entitled to temporary and/or permanent injunctive relief against Recipient, its Affiliate(s) or its Staff Members, agents or representatives (in addition to such other legal or equitable remedies as may be available), without the necessity of proving irreparable harm or actual damage.

14. Entire Agreement. This Agreement contains the entire agreement between the Parties, and supersedes any prior or contemporaneous representations or agreements, written or oral regarding the subject matter thereof. No amendments or changes to this Agreement or any Addendum to this Agreement will be effective unless made in writing and signed by authorized representatives of Recipient and TBUSA. All correspondence regarding terms of this Agreement will be sent as specified in Section 5.

[END OF AGREEMENT]