General Terms & Conditions

Last Modified: December 2, 2025‍

1. DEFINITIONS

(a) “Aggregate Data” means any data that is derived or aggregated (i) in de-identified form from any Customer Materials; or (ii) from Customer’s and/or its Authorized Users’ use of the Services, including, without limitation, any usage data, failure and error information, insights, or trends with respect to the Services. In no event will Aggregate Data include data that includes any scientific results of Customer’s experiments.

(b) “Authorized User” means an employee or contractor whom Customer has authorized to Use the Platform Services or Software in accordance with this Agreement.

(c) “Customer Data” means all information, data, content, and other materials, in any form or medium, that is stored, uploaded, or made available by Customer or its Authorized Users through the Platform Services or otherwise provided by or on behalf of Customer to Ginkgo in connection with the Services.

(d) “Customer Materials” means all (i) Customer Provided Equipment; (ii) Customer Data; and (iii) Customer Protocols. Customer Materials exclude any Aggregate Data, Ginkgo Protocols and any information, data, data models, content or materials owned or controlled by Ginkgo and made available to Customer or its Authorized Users through or in connection with the Services.

(e) “Customer Protocol” means a Protocol designated a “Customer Protocol” in accordance with the Software and Services Terms.

(f) “Customer Provided Equipment” means the hardware and equipment procured or owned by Customer and specified in the applicable Quote as “Customer Provided Equipment.”

(g) “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, maintenance logs, compatible device and hardware list and other similar materials in hard copy or electronic form (including any revised versions thereof) relating to the Equipment or the Services, which may be updated from time to time.

(h) “Equipment” means Ginkgo Provided Equipment and Customer Provided Equipment.

(i) “Ginkgo Custom Equipment” means the hardware and equipment customized and/or developed by Ginkgo and specified in the applicable Quote as “Ginkgo Custom Equipment.”  

(j) “Ginkgo Protocol” means a Protocol designated a “Ginkgo Protocol” in accordance with the Software and Services Terms.

(k) “Ginkgo Technology” means the Software, Platform Services (including, without limitation, (i) the underlying software for the Platform Services and (ii) Ginkgo Protocols, Documentation and Aggregate Data, any and all algorithms, interfaces, technology, databases, tools, know-how, processes, designs, configurations and methods used to provide or deliver the Services or embodied or used in any Ginkgo Custom Equipment, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing. Ginkgo Technology does not include any technology owned by Customer as of the Effective Date or created by Customer during the Term in the course of Customer’s use of the Platform Services or Software, provided such technology was created independently of Ginkgo and without reference to the Ginkgo Technology or Confidential Information. 

(l) “Ginkgo Provided Equipment” means the Ginkgo Custom Equipment and Ginkgo Third Party Equipment.

(m) “Ginkgo Third Party Equipment” means the third-party hardware, instruments, and equipment sourced by Ginkgo from one or more third parties and specified in the applicable Quote as “Third Party Equipment.”

(n) “Ginkgo Server” means a server provided by Ginkgo and installed at the Customer Site for purposes of operating the Equipment.

(o) “Ginkgo Supported Workflows” means the Workflows to be provided by Ginkgo to Customer as specified in an applicable Quote.

(p) “Intellectual Property Rights” means patent rights (including rights to inventions), copyrights, trade secret rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

(q) “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority, or other entity.

(r) “Platform Services” means Ginkgo’s platform designed to facilitate the management and operation of the Equipment and the design and implementation of Workflows on Customer’s behalf, as may be more particularly described or identified in the applicable Quote.

(s) “Professional  Services” means the professional services to be provided by Ginkgo to Customer as set forth in the relevant Quote, which may consist of the development or provision of Ginkgo Supported Workflows, training services, consulting services and other services, all as set forth on the applicable Quote.

(t) “Protocols” means the protocols written on or through the Platform Services that are designed to implement and run a particular Workflow in connection with the Equipment. For clarity, a Protocol includes the sequence of Recipes to be executed, the relationship between those Recipes in time or dependency, and the  Parameters, but excludes the results of any given Workflow to which the Protocol pertains or the identity of the biological materials used by Customer in connection with that Protocol, except in cases where Customer reveals the identity of the biological materials (e.g., by labeling a plate with the plate’s      contents ).

(u) “Recipes” means a series of related commands that can be sent to a logical collection of devices.

(v) “Services” means, collectively, the Platform Services, Support Services, and Professional Services.

(w) “Software” means Ginkgo’s proprietary software that is designed for use with the Platform Services and installed on the Ginkgo Provided Equipment, excluding for clarity any third-party software (including firmware and middleware) installed on Third Party Equipment. 

(x) “Support Services” means the support and troubleshooting services to be provided by Ginkgo pursuant to the Software and Services Terms, as may be further described in an applicable Quote.

(y) “System ” means the overall system (which may include the Ginkgo Server (until a Cloud Migration occurs)) and each item of Equipment and designed to be operated in connection with the Software and Platform Services, as may be further described on the applicable Quote.

(z) “Use” means to use and/or access the Platform Services or Software, as applicable, in accordance with this Agreement and the Documentation.

(aa) “Workflows” means the workflows designed to operate the Equipment in a specific manner and/or to accomplish a specific task or set of tasks.

2. FEES AND PAYMENT.

a) Fees. Customer will pay Ginkgo the fees as described in the relevant Quote in accordance with the terms therein (“Fees”).

b) Payments. Payments due to Ginkgo under this Agreement must be made in the currency of the Quote by wire transfer of immediately available funds to an account designated by Ginkgo or such other payment method mutually agreed by the Parties. Neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law. Customer will reimburse Ginkgo for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. In the event Customer disputes an amount invoiced by Ginkgo, Customer is still obligated to pay all portions of the invoice not subject to a reasonable good faith dispute by Customer. Customer will promptly notify Ginkgo of any such disputed portions and the Parties will meet to resolve the dispute. In the event it is determined that Ginkgo overcharged Customer, then any overpayments will be applied as a credit to the next upcoming bill, or in the event that the Agreement has been terminated, then refunded to Customer.

c) Taxes. Customer is responsible for all sales, use, value added, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Ginkgo hereunder, other than any taxes imposed on Ginkgo’s income.

3. CONFIDENTIAL INFORMATION.

a) Confidential Information. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered confidential given the nature of the information and/or the circumstances of disclosure. Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party.

b) Non-Disclosure; Non-Use. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Ginkgo may use and modify Confidential Information of Customer in de-identified form for purposes of developing and deriving Aggregate Data. Ginkgo may provide to Customer certain Aggregate Data pertaining solely to Customer, and Customer may also request such Aggregate Data, which Ginkgo will provide to Customer to the extent available. To the extent Ginkgo provides to Customer any Aggregate Data, Customer may use, solely for its internal business purposes, such Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, directors, officers, affiliates, representatives, or contractors (“Representatives”) of the Receiving Party who have a bona fide need to know such Confidential Information to perform obligations or exercise rights under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure at Disclosing Party’s expense.

c) Confidentiality Term. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years after the end of the Term; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

d) Residuals. The Parties agree that both Parties shall be free to use Residuals for any purpose and without restriction “Residuals” means knowledge and information of a non-tangible form that is retained in the unaided memory of any Representative of a Party who had access to the other Party’s Confidential Information in the course of activities under this Agreement, and who did not intentionally memorize the Confidential Information. For clarity, the foregoing does not grant or imply a license under a Party’s patents or copyrights.

e) Terms of Agreement. The terms and conditions of this Agreement (but not its existence) constitute Confidential Information of each Party. Notwithstanding the foregoing, either Party may disclose relevant terms and conditions in confidence on an as-needed basis to its advisors, attorneys, actual or bona fide potential acquirers, investors, or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

4. RESERVATION OF RIGHTS; CUSTOMER MATERIALS; DATA; FEEDBACK

a) Reservation of Rights. Subject to the limited rights expressly granted under this Agreement, Ginkgo reserves and, as between the Parties will solely own, the Ginkgo Technology and all rights, title, and interest in and to the Ginkgo Technology. To the extent that any rights in such Ginkgo Technology vest in Customer, such rights are hereby automatically and irrevocably assigned by Customer to Ginkgo. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

b) Ownership of Customer Materials. As between Customer and Ginkgo and except as set forth herein Customer owns and retains all right, title and interest in and to all Customer Materials.

c) Use of Customer Materials. Customer hereby grants Ginkgo a non-exclusive, worldwide, royalty-free right and license to use, reproduce, display, perform and modify the Customer Materials solely for the purpose of providing and improving the Services (including through the generation of Aggregate Data) during the Term.

d) Customer Materials Warranty. Customer represents and warrants that (i) it has obtained and will obtain and continue to have all necessary rights, authority and licenses for the access to and use of the Customer Data (including any personal information provided to Ginkgo) as contemplated by this Agreement; and (ii) Ginkgo’s use of the Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.

e) Feedback. From time-to-time, Customer or its employees, contractors, or Representatives may provide Ginkgo with suggestions, comments, feedback, or feature requests with regard to the Services or Equipment (“Feedback”). Customer hereby grants Ginkgo a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, and fully paid-up license, with the right to sublicense, to use, exploit, and disclose the Feedback for any and all purposes.

f) Data Security. Each Party represents and warrants that as of the Effective Date it has, and will maintain throughout the Term, administrative, technical, and physical safeguards and policies that meet the standards of such Party’s respective industry and are designed to ensure the security and confidentiality of personal information and other sensitive data and information provided by the other Party and in the possession or control of such first Party (“Data”), to protect and safeguard against anticipated threats or hazards to the integrity of, and the unauthorized or accidental destruction, loss, alteration, access, or use of such Data. For clarity, and without limiting the generality of the immediately preceding sentence, the Data of Customer includes any Customer Data. Each Party shall promptly notify the other Party upon confirmation of any unauthorized or accidental destruction, loss, alteration, access, or use of the other Party’s Data. Each Party will comply, throughout the Term, with all applicable laws and regulations regarding confidentiality and security of non-public personal information, as now or hereafter in effect. Customer is responsible for providing any necessary notices and for obtaining any required consents with respect to any personal information provided to Ginkgo.

5. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

a) Mutual Warranties. Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.

b) DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, (A) THE SERVICES, GINKGO PROVIDED EQUIPMENT, AND ANY GINKGO TECHNOLOGY ARE PROVIDED ON AN “AS IS” BASIS, AND GINKGO MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING SUCH SERVICES, GINGKO PROVIDED EQUIPMENT, OR GINKGO TECHNOLOGY, AND (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GINKGO HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, GINKGO HEREBY DISCLAIMS ANY WARRANTY THAT USE OF SERVICES OR GINKGO PROVIDED EQUIPMENT WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.

6. COOPERATION AND INFRASTRUCTURE.

a) Customer will provide Ginkgo with reasonable cooperation, information, access, and assistance as necessary or reasonably requested for Ginkgo to deliver, install, configure, and commission the Equipment and to perform the Services and Ginkgo’s other obligations hereunder in accordance with this Agreement, including without limitation by providing Ginkgo with any specific assistance, cooperation, information, materials, or access identified to be provided by Customer in this Agreement or an applicable Quote. Ginkgo will provide Customer with notice if Ginkgo believes that Customer’s failure to provide cooperation as required herein will delay or otherwise excuse any performance by Ginkgo herein, with such notice to be provided as soon as possible but no later than three (3) Business Days after such Customer failure. Notwithstanding anything to the contrary, Ginkgo will not be liable or responsible for delays, failures or issues that arise in connection with this Agreement to the extent resulting from Customer’s failure to provide cooperation, information, access, and assistance as required by this Section or Customer’s failure to perform any other obligations and meet any other responsibilities pursuant to this Agreement.

b) Customer is responsible for obtaining, maintaining and paying for all hardware, software, network access, power, and all telecommunications and other services, resources, facilities (including without limitation air, cooling, and gas), and equipment needed for Customer to access and use the Services and Equipment (“Infrastructure”) and for ensuring that all such Infrastructure meets the minimum requirements applicable to such Infrastructure as may be identified in Documentation or by Ginkgo from time to time.

7. INDEMNIFICATION.

a) Ginkgo Indemnification. Subject to Section 7(b), Ginkgo will indemnify, defend and hold Customer and its affiliates, and their respective successors, officers, directors, employees, agents, and representatives harmless against any claim, cost, loss, liability, damage, suit or proceeding (including expenses incurred in the investigation and defense thereof, including attorneys’ fees) (“Claim”) in connection with any Claim brought by a third party solely to the extent such Claims result from (i) Ginkgo’s gross negligence, willful misconduct or fraud in the performance of the Services; or (ii) material breach by Ginkgo of this Agreement.

b) Exclusions. Ginkgo’s obligations under Section 7(a) will not apply to the extent the underlying third-party Claim arises (in whole or in part) from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct, or fraud; (ii) any Protocols or Workflows written by Customer or any Customer Materials, including, without limitation, the implementation of any specifications or requirements for Workflows or Protocols provided or instructed by Customer; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Platform Services, Equipment, or Software that have been advised or provided by Ginkgo, to the extent use of such enhancements, modifications, or updates to the Platform Services, Equipment, or Software would have avoided the Claim; (iv) modifications to the Platform Services, Equipment, or Software made by anyone other than Ginkgo or at the direction of Customer; or (v) combinations of the Platform Services, Equipment, or Software with software, data or materials not provided by Ginkgo.

c) IP Remedies. If Ginkgo receives a claim that the Platform Services, Ginkgo Custom Equipment, or Software (or any component of the foregoing) infringes any third party’s Intellectual Property Rights, Ginkgo may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the relevant Platform Services, Ginkgo Custom Equipment, Software, or any component or part of the foregoing, to make it non-infringing; or (ii) procure the right for Customer to continue use of the Ginkgo Custom Equipment or Use of the Platform Services or Software. If, after one hundred twenty (120) days, Ginkgo determines in good faith that neither alternative is feasible or commercially practicable, Ginkgo may terminate this Agreement (or the applicable Quote) solely with respect to the affected Service or Equipment, by providing written notice to Customer. In the event of any such termination, Ginkgo will refund Customer a pro rata portion of the Fees that have been paid in advance, if any, for the remainder of the applicable Agreement. The rights and remedies set forth in this Section 7 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Platform Services and Software.

d) Customer Indemnification. Customer will indemnify, defend and hold Ginkgo and its affiliates, and their respective successors, officers, directors, employees, agents, and representatives harmless against Claims brought by a third party solely to the extent such Claims result from (i) an allegation that the Customer Data infringes, misappropriates or otherwise violates any third party’s Intellectual Property Rights or privacy or other rights (ii) the use, provision, transmission, display or storage of Customer Data; (iii) personal injury, property damage or death caused by any Customer Materials; and (iv) use of the Platform Services, Software, or Equipment by Customer or its Authorized Users, in each case of (i) through (iv), to the extent not covered in Section 7(a) above.

e) Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.

8. LIMITATION OF LIABILITY

a) Exclusion of Damages. EXCEPT FOR: (I) DAMAGES AVAILABLE FOR ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) DAMAGES AVAILABLE FOR FRAUD, NEGLIGENCE, OR WILLFUL MISCONDUCT BY EITHER PARTY, (III) DAMAGES AVAILABLE FOR BREACH OF A PARTY’S OBLIGATIONS WITH RESPECT TO THE OTHER PARTY’S CONFIDENTIAL INFORMATION OR (IV) A PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

b) Total Liability. EXCEPT FOR: (I) DAMAGES AVAILABLE FOR ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) DAMAGES AVAILABLE FOR FRAUD, NEGLIGENCE, OR WILLFUL MISCONDUCT BY EITHER PARTY, (III) DAMAGES AVAILABLE FOR BREACH OF A PARTY’S OBLIGATIONS WITH RESPECT TO THE OTHER PARTY’S CONFIDENTIAL INFORMATION, (IV) A PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR (V) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL GINKGO’S TOTAL LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID OR OWED BY CUSTOMER TO GINKGO IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

c) Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN GINKGO AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

9. TERMINATION.

a) Termination. Either Party may terminate a Quote or the entire Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured (i) for sixty (60) days in the case of non-monetary breaches and (ii) ten (10) days in the case of monetary breaches, after the non-breaching Party provides the breaching Party with written notice of such breach.

b) Survival.  Sections 2(a)-(c), 3, 4(a)-(e), 5(a)(ii) & (b), 7(a)-(b), 7(d)-(e), 8, 9(b)-(c), 11 of these General Terms and Conditions ; Section 4(c)-(d) of the Equipment Term); and, Sections 5,  6 (last sentence) and 8 (last sentence) of the Software and Services Terms will survive any termination or expiration of a Quote or the entire  Agreement.

c) Effect of Termination. Upon expiration or termination of this Agreement: (i) all rights and licenses granted to Customer with respect to the Platform Services and Software will immediately terminate; and (ii) Customer will return or destroy, at Ginkgo’s sole option, all Ginkgo Confidential Information in its possession or control, and at Ginkgo’s request, certify in writing to Ginkgo that the Ginkgo Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination or entitle Customer to any refund. For five (5) years following the termination date, Ginkgo’s right of first refusal under Section 4(e) of the Equipment Terms will continue to apply.‍

10. PUBLICITY; TRADEMARKS.

a) The Parties agree that following the execution of this Agreement, either Party may (orally or in writing) publicly disclose, issue press releases, or make other public statements, including communications with the media, concerning the existence of this Agreement, the names of each respective Party, and the general subject matter hereof, without the prior written approval of the other Party; provided that after the execution of this Agreement, the Parties will discuss a public announcement regarding this Agreement, and each Party agrees that it will not make any public announcements until any such mutually agreed first public announcement is made. The Parties agree that nothing in this Section 10 permits a Party to publicly disclose the terms and conditions of this Agreement or any Confidential Information. In addition, Customer hereby grants Ginkgo a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks, and associated logos (the “Customer Marks”) during the Term in connection with (i) the provision of the Services; and (ii) Ginkgo’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Ginkgo and in case studies. All goodwill and improved reputation generated by Ginkgo’s use of the Customer Marks inures to the exclusive benefit of Customer. Ginkgo will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.‍

11. MISCELLANEOUS.

a) Entire Agreement. This Agreement, including any Quotes (and change orders thereto), is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications, and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.

b) Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth on the signature page of this Agreement or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 11(b). Such notices will be deemed given: (i) when delivered personally or sent by email (with no bounce back message received); (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.

c) Waiver. A Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Except as expressly stated herein, no waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.

d) Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable, that provision will be enforced to the maximum extent permitted by law, and in such a way that the objectives contemplated by the Parties when entering into this Agreement may be most realized, and the remaining provisions of this Agreement will remain in full force and effect.

e) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Suffolk County, Massachusetts and the Parties irrevocably consent to the personal jurisdiction and venue therein.     

f) Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Without prior notice or approval, either Party may assign or transfer this Agreement to an affiliate or to a third party that succeeds to all or substantially all of its business or assets relating to the subject matter of this Agreement, whether by sale, merger, share purchase, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.

g) Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 3 or, in the case of Customer, Section 5 of the Software and Services Terms, may cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party may have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

h) Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials, equipment or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.

i ) Export Regulation. Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Services, Software, any Customer Materials, any Equipment, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.

j) U.S. Government End Users. The Services, Software and Documentation created by Ginkgo were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the software or its documentation.

k) Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture, or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.

l) No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and permitted assigns.

m) Counterparts. This Agreement, including any Quotes, may be executed in counterparts by the parties, including PDF and other electronic copies. Each counterpart will be deemed an original and together will constitute the same instrument.