Victory Genomics, Inc. Terms and Conditions

As part of testing at Victory Genomics, inc., Customers must read and affirmatively agree to the following Victory Genomics, Inc. testing Terms and Conditions (the “Agreement”) in order to advance through and complete their order as part of their horse testing and reporting process. Victory Genomics, Inc. Customers agree to abide by this Agreement and further agree that Victory Genomics, Inc. is entitled to rely upon and benefit from this Agreement, as part of the Victory Genomics, Inc. testing process.

This Services Agreement (this “Agreement”) is by and between Victory Genomics, Inc., a Delaware corporation, (“Service Provider”) and customer (“Customer” and together with Service Provider, the “Parties”, and each a “Party”).

WHEREAS, Service Provider has the capability and capacity to provide certain equine genotyping collection and analysis services (the “Services”); and
WHEREAS, Customer desires to retain Service Provider to provide the Services, and Service Provider is willing to perform the Services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Service Provider and Customer agree as follows:

1) Services.

a) Service Provider shall provide the Services on a sample provided by Customer using a collection kit provided by Service Provider. Service Provider may dispose or retain samples in accordance with its applicable retention policy. Samples will not be returned to Customers.
b) Any future features of Services developed by Service Provider that are ordered by, or delivered to, Customer shall be subject to this Agreement, unless explicitly provided otherwise.
c) The form and nature of the Services provided by Service Provider may change from time to time without prior notice to Customer, for reasons including, but not limited to, reflecting research progress and technological evolution and enhancing the quality and accuracy of the Services. As part of this continuing innovation of the Services, Service Provider may permanently or temporarily discontinue providing some or all Services (or features thereof) to Customer without notice and at Services Provider’s sole discretion. Service Provider assumes no responsibility for the use of the Services outside the terms of this Agreement or other applicable terms. Service Provider shall not be liable to Customer or to any third party for any modification, suspension, or discontinuance of the Service.

2) Customer Agreements. Customer hereby agrees as follows:

a) Service Provider, its contractors, successors and assignees are permitted to access and analyze Customer’s sample and may perform genotyping services on the DNA extracted from any sample provided by Customer. Customer has the right and authority to grant such permission.
b) Service Provider may use the genetic information obtained from the sample and any other information provided by Customer for research and to improve the Services. Service Provider may share the genetic information with approved researchers outside of Service Provider, provided that it shall not share any information identifying Customer or that would directly identify the source of the sample.
c) Customer will not acquire any rights in any research or commercial products that may be developed by Service Provider or relating to the Services, notwithstanding, Customer providing samples, having samples processed, accessing samples or providing information about the samples. Customer will not receive compensation for any research or commercial products that include or result from the genetic information or information provided in connection with the sample.
d) Information provided as a result of the Services is not designed to diagnose, prevent, or treat any condition or disease or to ascertain any state of health of any sample subject. The Services are intended for research, informational, and educational purposes only. Customer is solely responsible for ensuring that any diagnosis or possible treatment is provided by licensed veterinarian and is supplemented by clinical testing and information determined appropriate by a veterinarian and other appropriate professionals. Customer shall seek the advice of a veterinarian or other appropriate professionals if Customer has questions or concerns arising from information learned as a result of the Services.
e) Customer is solely responsible for (and that Service Provider has no responsibility to it or to any third party for) any breach of its obligations under this Agreement and for the consequences (including any loss or damage which Service Provider may suffer) related to any such breach. In case of breach of this Agreement, Service Provider has the right to suspend or terminate Customer’s account and refuse any and all current or future use of the Services (or any portion thereof) and Customer will defend and indemnify Service Provider and its affiliates against any liability, costs, or damages relating to a breach of this Agreement.
f) On occasion, Service Provider’s laboratory may not be able to process a sample or the laboratory process may result in errors. The laboratory may not be able to process Customer’s sample if such sample does not contain a sufficient volume of DNA, Customer does not provide enough sample material, or the results from processing do not meet Service Provider’s standards for accuracy, and a small, unknown fraction of the data generated during the laboratory process may be un-interpretable or incorrect (collectively referred to as “Errors”). If a sample results in an Error, Service Provider may request and process a second sample from Customer. If Errors occur on the second sample, Service Provider may require Customer to make additional payment prior to processing additional samples and Customer shall not be entitled to a refund for samples on which Errors occurred.
g) Genetic research is not comprehensive. The research community is rapidly learning more about genetics, and an important mission of Service Provider is to conduct and contribute to this research. Future scientific research may change the interpretation of Customer’s sample. In the future, the scientific community may show previous research to be incomplete or inaccurate.

3) Customer Representations, Warranties and Covenants. Customer represents, warrants and/or covenants as follows:

i) Customer has legal authorization to provide the sample it is submitting to Service Provider. Customer confirms that it has complied with all applicable laws when collecting samples and delivering samples to Service Provider.
ii) Customer is not an insurance company.
iii) Customer shall: (a) provide Service Provider with true, accurate, current, and complete registration information about Customer and samples; and (b) maintain and promptly update the registration information to keep it true, accurate, current, and complete. If Customer provides any registration information that is untrue, inaccurate, not current, or incomplete, or if Service Provider has a reasonable ground to suspect that such information is untrue, inaccurate, not current, or incomplete, Service Provider has the right to suspend or terminate Customer’s account and refuse any and all current or future use of the Service (or any portion thereof).
iv) Customer shall not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, or notices. Customer shall not use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services. Customer shall not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services.
v) In connection with the Services, Customer shall not: (a) upload, post, email, or otherwise transmit any material that is derogatory, defamatory, obscene, or offensive, such as slurs, epithets, or anything that might reasonably be construed as harassment or disparagement based on race, color, national origin, sex, sexual orientation, age, disability, religious or political beliefs, or other statutorily protected status; (b) impersonate any person or entity, including, but not limited to, anyone affiliated with Service Provider, or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity; (c) add Customer’s own headers, forge headers, or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service; (d) “stalk” or otherwise harass another; (e) upload, post, email, or otherwise transmit any content that Customer does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (f) download any file posted by another user of the Service that you know, or reasonably should know, cannot legally be distributed in such manner; (g) upload, post, email or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of Service Provider or any other party; (h) advertise or offer to sell or buy any goods or services for any business purpose, unless such area specifically allows such messages; (i) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas that are designated for such purpose and only to the extent such content is authorized by law; (j) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (k) use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the site, unless explicitly permitted by Service Provider; (l) engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of Service Provider’s website; (m) attempt to or actually override any security component of Service Provider’s web services; (n) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services; (o) violate the terms of this Agreement, any code of conduct or other guidelines which may be applicable for any particular area of the Services or have been communicated to Customer by anyone affiliated with Service Provider; or (p) intentionally or unintentionally violate any applicable local, state, national, or international law, or any regulations having the force of law.
vi) Customer shall create a username and password to access online components of the Service. Customer shall remain responsible for maintaining the confidentiality of its username and password, and is fully responsible for all activities that occur under its account. If Customer allows third parties to access Service Provider’s website through its username and password, Customer will defend and indemnify Service Provider and its affiliates against any liability, costs, or damages, including attorney fees, arising out of claims or suits by such third parties based upon or relating to such access and use. Customer shall (a) immediately notify Service Provider of any unauthorized use of its password or account or any other breach of security, and (b) ensure that it signs out from its account at the end of each session. Service Provider cannot and will not be liable for any loss or damage arising from Customer’s failure to comply with this Section.

4) Fees and Expenses.

i) In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in Service Provider’s fee schedule, as may be updated from time to time in the sole discretion of Service Provider. Fees for Services shall be payable [at the time of execution of this Agreement.
ii) Customer shall reimburse Service Provider for all reasonable expenses incurred in accordance with the Services, immediately via online payment by the Customer of an invoice from Service Provider accompanied by receipts and reasonable supporting documentation.
iii) Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Service Provider’s income, revenues, gross receipts, personnel or real or personal property or other assets.

5) Disclaimer of Warranties.

CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT:
(1) CUSTOMER’S USE OF THE SERVICES ARE AT ITS SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SERVICE PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
(2) SERVICE PROVIDER MAKES NO WARRANTY THAT
(a) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS;
(b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE;
(c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE;
(d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER WILL MEET CUSTOMER’S EXPECTATIONS.
(3) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(4) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM SERVICE PROVIDER OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
(5) CUSTOMER SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT ITSELF OR THOSE FOR WHOM CUSTOMER HAS LEGAL AUTHORITY. SERVICE PROVIDER DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM CUSTOMER’S PARTICIPATION IN THE SERVICES AND, THEREFORE, SERVICE PROVIDER SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM CUSTOMER’S PARTICIPATION IN THE SERVICES.

6) Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property”) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services, (collectively, the “Deliverables”) shall be owned by Service Provider. Customer shall have no rights to the Intellectual Property or Deliverables. Customer acknowledges that the Services may contain information which is designated confidential by Service Provider and that Customer shall not disclose such information without Service Provider’s prior written consent.

7) Confidentiality. From time to time during the Term of this Agreement, Service Provider (as the “Disclosing Party”) may disclose or make available to the Customer (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within five (5) days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
(1) If the Receiving Party is required by applicable law or legal process to disclose any

(2) Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.

8) Limitation of Liability; Indemnification.
WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT SERVICE PROVIDER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICES; (b) ANY ACTION CUSTOMER TAKES BASED ON THE INFORMATION RECEIVED IN, THROUGH OR FROM THE SERVICES, (c) CUSTOMER’S FAILURE TO KEEP ITS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, (d) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (e) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA; (f) THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; or (g) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES.
Customer agrees to defend and hold Service Provider, and its subsidiaries, affiliates, officers, agents, contractors, partners, employees, successors, and assigns harmless from any claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Customer’s use of the Service; Customer’s connection to the Service; Customer’s violation of this Agreement; or Customer’s violation of any rights of another.
If Customer has submitted a sample or otherwise provided genetic information, Customer will defend and hold harmless Service Provider, its employees, contractors, successors, and assigns from any liability arising out of the use or disclosure of any information obtained from genotyping such sample and/or analyzing the genetic information, which results from any third-party add-ons to tools we provide. In addition, if Customer chooses to provide genetic information or Customer provided information to third parties – whether individuals to whom Customer facilitates access, intentionally or inadvertently, or to third parties for diagnostic or other purposes – Customer agree to defend and hold harmless Service Provider, its employees, contractors, successors, and assigns from any and all liability arising from such disclosure or use of the genetic and/or self-reported information.

9) Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

10) Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 11.

11) Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

12) Amendments. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each Party.

13) Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

14) Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Service Provider may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Service Provider’s assets without Customer’s consent.

15) Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.

16) No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

17) Choice of Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Delaware, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.

18) Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than U.S. District Court, Southern District of New York or, if such court does not have subject matter jurisdiction, the courts of the State of New York sitting in the Borough of Manhattan, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in U.S. District Court, Southern District of New York or, if such court does not have subject matter jurisdiction, the courts of the State of New York sitting in the Borough of Manhattan. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.3

19) WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

20) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

21) Force Majeure. The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Customer shall be entitled to give notice in writing to Service Provider to terminate this Agreement.