Effective July 1, 2025
The Zymeworks legal entity named in the Purchase Order (“Zymeworks”) hereby retains the supplier set forth in the Purchase Order (“Supplier”) to supply the materials, supplies, items or equipment (the “Products”) and/or perform the services (the “Services”), as the case may be, as described in the Purchase Order in accordance with these Purchase Order Terms and Conditions. These Purchase Order Terms and Conditions are incorporated by reference into and form part of the Purchase Order.
In the event of a conflict or inconsistency between any of the provisions of the Purchase Order and any of the provisions of a written agreement between Zymeworks and Supplier (“Agreement”) covering the subject matter of the Purchase Order, the provisions of the Agreement shall govern and supersede any such conflicting or inconsistent provisions of the Purchase Order. In the absence of an Agreement, the Purchase Order constitutes the entire agreement of the parties with regard to the subject matter, and supersedes all previous written or oral representations, agreements and understandings between Zymeworks and Supplier and any different or additional terms and conditions.
Supplier’s acceptance of the Purchase Order may be in writing, email or other manifestation of acceptance such as, but not limited to, Supplier’s initiation of performance, or through Supplier’s provision of any Products or Services covered by the Purchase Order, or through Supplier’s acceptance of any payment made pursuant to the Purchase Order, whichever occurs first. Except to the extent expressly accepted in writing by Zymeworks, Zymeworks hereby affirmatively rejects any different or additional terms and conditions proposed by Supplier or contained in any acknowledgement, invoice or other form of Supplier, notwithstanding Zymeworks’ acceptance or payment for any Products or Services or any similar act of Zymeworks.
1. PRICE; TAXES; INVOICING
a. Price. The price for the Products includes all costs of the Products, and no extra charge of any kind, including charges for boxing, packaging or crating, shall be allowed unless specifically agreed to in advance in writing by Zymeworks. The price for Services shall cover all activities required to perform the Services as contemplated in the Purchase Order.
b. Taxes. The price for Products and Services include any and all taxes except indirect taxes that are goods and services taxes, provincial or state sales taxes, or value added taxes applicable to the price. Supplier is responsible for ensuring that all applicable indirect taxes to be collected by Supplier from Zymeworks are indicated separately on each invoice issued to Zymeworks in accordance with applicable rules so as to allow Zymeworks to reclaim such indirect taxes from the applicable government authority. Zymeworks will not be responsible for any indirect taxes that are not disclosed on invoices issued by Supplier. Supplier is responsible for its own tax liabilities levied on account of all payments it receives under the Purchase Order. If applicable laws require the withholding of taxes, the taxes may be deducted by Zymeworks from the payments made to Supplier and remitted by Zymeworks to the proper taxing authority. If Supplier is exempt or entitled to a reduced withholding as a result of a tax treaty or other regime, Supplier will provide to Zymeworks valid withholding exemption documentation a minimum of thirty (30) days prior to submitting the applicable invoice to Zymeworks. The amount of such deduction and withholding is treated as having been paid by Zymeworks to Supplier, and Supplier is not entitled to receive any additional gross-up or payments as a result of such withholding and deduction.
c. Invoicing. Unless otherwise specified by Zymeworks in writing, Supplier shall invoice Zymeworks for the Products or Services provided under the Purchase Order only after the Products or the Services are received by Zymeworks. Final payment shall not be made until the Products or Services provided meet the requirements specified in the Purchase Order. Unless otherwise specified by Zymeworks on the applicable Purchase Order, payment terms shall be net thirty (30) days after Zymeworks’ receipt of the applicable invoice submitted to Zymeworks. If any portion of an invoice is disputed, then Zymeworks shall pay the undisputed amounts as set forth in the preceding sentence and Zymeworks and Supplier shall use good faith efforts to reconcile the disputed amount as soon as practicable. Zymeworks will not be responsible for the reimbursement of any travel, food, lodging and other out-of-pocket expenses incurred by Supplier unless previously approved in writing by Zymeworks.
2. DELIVERY; CANCELLATION; INSPECTION; ACCEPTANCE
a. Product Delivery. All Products shall be delivered DAP, to Zymeworks’ designated facility (Incoterms 2020). Supplier shall be responsible for packaging, loading and shipping the Products in accordance with any packaging specifications, shipping methods and other related requirements set forth in the Purchase Order or otherwise communicated in writing to Supplier by Zymeworks. Supplier shall be responsible for packaging, loading and shipping the Products in a manner sufficient to prevent damage and loss to the Products during shipment. Shipments must equal quantity ordered, unless otherwise agreed to by Zymeworks in writing. Supplier shall provide a packing list to Zymeworks (which shall be securely attached to the outside of the package) for all shipments referencing the Purchase Order number. Unless otherwise specifically provided for herein, Supplier shall be responsible for freight and delivery to the destination specified on the applicable Order Form. All freight and delivery charges will be borne by Supplier, unless specifically agreed to in advance, in writing by Zymeworks. Provided Zymeworks agrees to accept such freight and delivery charges in advance, the amount allocated for product freight delivery will be separately stated on any related invoice, and all amounts shown will include all packaging, loading and shipping applicable to the Products or Services sold or provided under the Purchase Order or the materials used in connection therewith. Under no circumstances will Supplier include in such charges, or will Zymeworks bear, additional or charges related to the freight and delivery of covered Products and/or Services, including, but not limited to, fuel surcharges, energy surcharges, or seasonal surcharges, whether originated by Supplier or on behalf of any third party. Notwithstanding any provision in the Purchase Order to the contrary, Supplier shall bear all risks of loss and damage to the Products until final acceptance by Zymeworks at Zymeworks’ designated facility. Further, Supplier shall bear the same risks with respect to any Products rejected by Zymeworks or as to which Zymeworks has revoked its acceptance from the time of such rejection or revocation.
b. Safety Data Sheets. Supplier shall provide to Zymeworks all information related to the safety, safe handling, environmental impact, and disposal of the Product including, without limitation, safety data sheets.
c. Cancellation. The delivery of Products and/or Services shall strictly comply with the delivery date or delivery schedule, if any, specified by Zymeworks. If at any time it appears that Supplier will not meet such delivery date or schedule, Supplier shall promptly notify Zymeworks in writing of reasons for, and the estimated duration of, the delay. If requested by Zymeworks, Supplier shall ship delayed Products by means to avoid or minimize delay to the maximum extent possible, any added cost to be borne by Supplier. In addition to its other remedies, Zymeworks reserves the right to cancel all or any part of any Purchase Order for the undelivered Products or unperformed Services if Supplier does not deliver the Products or perform the Services as specified in the Purchase Order.
d. Changes. Supplier acknowledges and agrees that Zymeworks may provide Supplier with a written request for changes to the Services and/or Products, as the case may be, from time to time. Zymeworks and Supplier shall review all such requests to determine the effect, if any, such requested changes may have upon fees payable, delivery schedule, and other terms and conditions of the Purchase Order. After such effects have been assessed, Zymeworks may decide, in its sole discretion, whether to implement such changes. If Zymeworks elects to implement such changes, the parties shall enter into a written agreement signed by both parties that describes such changes, which agreement shall constitute an amendment to the Purchase Order.
e. Inspection; Acceptance of Products and Services. All Products or Services delivered or performed shall be subject to final review, inspection and acceptance by Zymeworks, notwithstanding any payment or initial inspections. Acceptance of Products and Services shall occur when the Products or Services delivered under the Purchase Order have been inspected by Zymeworks and determined to meet the requirements specified in the Purchase Order. Zymeworks shall make such inspection within a reasonable period of time (not to exceed thirty (30) days) after the applicable Products have been delivered or Services completed by Supplier. For the avoidance of doubt, there shall be no time restrictions applicable to Zymeworks’ provision of notice of rejection of any Product with respect to any latent defects, which shall include any defects that may not be detected by Zymeworks through standard inspection and testing of a Product sample or that may affect only a portion of Product. If the Products or Services do not meet such requirements, Zymeworks shall give Supplier detailed written notification of the deficiency or non-conformance and a direction to Supplier to promptly (and in any event within thirty (30) days): (i) repair, replace or re-perform the deficient or non-conforming Products or Services; or (ii) cease all Supplier activities related to Products or Services; and/or (iii) refund to Zymeworks all fees paid by Zymeworks hereunder for the deficient or non-conforming Products or Services and those Products or Services that are dependent on such deficient or non-conforming Products or Services. If Zymeworks directs Supplier to repair, replace or re-perform the deficient or non-conforming Products or Services and Supplier fails to complete same within thirty (30) days after Zymeworks’ direction, then Supplier shall refund to Zymeworks all fees paid by Zymeworks hereunder for the deficient or non-conforming Products or Services and those Products or Services that are dependent on such deficient or non-conforming Products or Services. Inspection and acceptance of any Products or Services by Zymeworks shall not affect Supplier’s warranties or Zymeworks’ remedies under the Purchase Order. The foregoing shall not be construed to limit or exclude any other rights or remedies of Zymeworks at law or in equity.
3. CONFIDENTIAL INFORMATION
a. Use/Safeguarding of Confidential Information. “Confidential Information” means any and all information disclosed, directly or indirectly, by Zymeworks to Supplier in connection with the Purchase Order, whether in oral, written, electronic or any other form, and for greater certainty includes Personal Information (as defined below). Supplier will not use Confidential Information for any purpose other than as required to perform its obligations under the Purchase Order. Without limiting the generality of the foregoing, Supplier agrees that it will not use or take advantage of Confidential Information for its own benefit, and will not use any Confidential Information as the basis for the design or creation of any device or means other than for Zymeworks as provided herein. Supplier will not copy or otherwise reproduce Confidential Information, or disclose, disseminate or otherwise communicate, in whole or in part, Confidential Information to any third party, except as provided in the Purchase Order, without the prior written consent of Zymeworks. Supplier further agrees that it will safeguard Confidential Information from disclosure and, at a minimum, use efforts commensurate with those it employs for protecting the confidentiality of its own Confidential Information which it does not desire to disclose or disseminate, but in no event shall it use less than reasonable care. Confidential Information may only be disclosed to officers, employees, or agents of Supplier that have a need to know such information in connection with the Purchase Order, and have agreed in writing to protect such information in accordance with the terms hereof.
b. Exceptions. The following information will not be considered Confidential Information to the extent that Supplier can demonstrate that such information: (i) is or becomes publicly available through no act or omission of Supplier; (ii) was rightfully known to Supplier, without restriction, at the time of disclosure; (iii) is independently developed by Supplier without use of or reference to Confidential Information; or (iv) is obtained by Supplier from a third party who is not bound by a duty of confidentiality with respect to such information. The foregoing exclusions will not apply to Confidential Information that is Personal Information (as defined below). In the event that any Confidential Information is required to be disclosed by the Supplier by applicable law, regulation, stock exchange policy or valid order of a court or other governmental authority, Supplier may only disclose the minimum amount of Confidential Information required to comply therewith, and Supplier will first promptly give written notice to Zymeworks of such request so that Zymeworks will have an opportunity to seek a protective order or other appropriate relief. Supplier will use its commercially reasonable efforts to assist Zymeworks in obtaining the requested relief.
c. Return of Confidential Information. If requested in writing by Zymeworks, Supplier shall cause all Confidential Information to be promptly destroyed or returned to Zymeworks; provided, however, that: (i) Supplier may retain a single secure copy of any of the Confidential Information for archival purposes if required by applicable law; (ii) electronic back-up files that have been created by routine archiving and back-up procedures need not be deleted; and (iii) any such retained copies or back-up files shall remain subject to the confidentiality obligations of this Agreement for the duration of the existence of such copies or files.
d. Term of Confidentiality. The obligations of confidentiality and non-use hereunder shall continue for a period of ten (10) years from the date of such termination, except in the case of trade secrets in which case the obligations of confidentiality set forth herein will endure for the period of time that the trade secret retains its status as a trade secret under applicable law.
e. Injunctive Relief. The parties agree that the disclosure or use of Confidential Information in violation of the Purchase Order could cause irreparable harm to Zymeworks for which monetary damages may not be ascertainable or an adequate remedy. Zymeworks will have the right, in addition to its other rights and remedies, to seek injunctive or other equitable relief for any violation of this Section 3, and Supplier waives any requirement for the posting of a bond in connection therewith.
4. DATA PROTECTION
a. General Compliance. “Personal Information” means any information or set of information relating to an individual that identifies that individual or could reasonably be used to identify such individual, or which applicable law otherwise treats as personal information, and shall include, without limitation, mailing address, e-mail address, name, phone number, Social Insurance/Security Numbers, and clinical notes, medical records, or opinions or other evaluations to the extent they could reasonably be used to identify the individual to whom they pertain. Supplier will comply with all applicable laws pertaining to Personal Information to which it is subject in connection with its activities related to the Purchase Order and has taken appropriate physical, technical and organizational precautions to protect all Personal Information in its possession from loss, misuse, unauthorized access, disclosure, alteration and/or destruction.
b. Security Incidents. Supplier shall implement and maintain a program for managing unauthorized access to or loss, misuse, alteration, destruction, damage, use or disclosure of Personal Information in its possession (“Security Incident”). In the event of a Security Incident, Supplier shall (i) immediately notify Zymeworks by email at privacy@zymeworks.com, and (ii) cooperate with and assist Zymeworks and law enforcement agencies, where applicable, to investigate and resolve the Security Incident.
c. Audits. Supplier shall provide Zymeworks with all reasonable and necessary information and cooperation to allow Zymeworks to verify Supplier’s compliance with this Section 4.
5. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS
a. Products and Services. Supplier represents, warrants and covenants, that its performance and all Products and Services provided under the Purchase Order shall: (i) comply with all applicable laws; (ii) be free from defects in design, workmanship and materials; (iii) be of the kind, quantity and quality described in, and conform with, the requirements specified in the Purchase Order; (iv) be fit for the purpose intended (v) perform in the manner specified; (vi) in the case of Services, be performed honestly and in good faith, exercising reasonable skill, care and diligence, in accordance with recognized professional and industry standards, in a timely manner; (vii) be designed and constructed to be safe and without risk to human health; (viii) be free of any claim of misappropriation or infringement by a third party; (ix) if the Products are software, be the most current releases generally available to third parties at the time of delivery, and shall not contain any (1) “back door,” “time bomb,” “drop dead” device or other software routine designed to disable the software automatically with the passage of time or under the positive control of any person or (2) virus, “Trojan horse,” “worm” or other software routines or hardware components designed to permit unauthorized access, to disable, erase or otherwise harm the software, hardware or data, or to perform any other similar actions; (x) be free and clear of all liens, claims and encumbrances by the date delivered to Zymeworks; (xi) maintain in force all appropriate permits and regulatory licenses required, if any, in connection with the supply of the Products and/or provision of the Services; and (xii) comply with all other requirements of the Purchase Order. Supplier shall ensure all personnel who perform Services are appropriately trained and qualified to perform the Services.
b. Debarment. Supplier represents, warrants and covenants that it has not been debarred, is not subject to debarment, and will not use in any capacity, in connection with the provision of Services, any person who has been debarred pursuant to Section 306 of the Federal Food, Drug, and Cosmetic Act (U.S.), as amended, or who is the subject of a conviction described in such section, or who has been debarred pursuant to any equivalent local law or regulation, or who is otherwise disqualified or restricted by any regulatory authority. If Supplier or any of its personnel who is performing Services is debarred or is the subject of a conviction described in Section 306 of the Federal Food, Drug, and Cosmetic Act (U.S.), as amended, or any equivalent local law or regulation, or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to Supplier’s knowledge, is threatened, relating to the debarment or conviction of Supplier or any of its personnel performing the Services, then Supplier will notify Zymeworks in writing immediately. Supplier acknowledges that any such actual, pending or threatened debarment or conviction shall be grounds for immediate termination of the Purchase Order by Zymeworks for cause with no cure period.
c. Restricted Party. Supplier represents, warrants, and covenants that Supplier is not designated as a Restricted Party (as defined below), and that none of its owners, directors, or officers are Restricted Parties or are owned or controlled by Restricted Parties. Supplier has not and will not use, in any capacity in connection with the delivery of the Products or the Services performed under the Purchase Order, any person or entity who or that has been designated as a Restricted Party or is owned or controlled by a Restricted Party. Supplier will immediately notify Zymeworks in the event that any of the representations, warranties or covenants in this Section 5(c) change during the term of the Purchase Order. Supplier acknowledges that designation as a Restricted Party shall be grounds for immediate termination of the Purchase Order by Zymeworks for cause with no cure period. “Restricted Party” means any individual or entity placed on lists of restricted, sanctioned or debarred parties maintained by an applicable governmental authority.
d. Conflicts. Acceptance and performance of the Purchase Order by Supplier does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, and does not violate any law or regulation of any court, governmental body or administrative or other agency having authority over Supplier. Supplier is not currently a party to, and during the term of the Purchase Order will not enter into, any agreements, oral or written, that are inconsistent with its obligations under the Purchase Order.
e. Authority. Supplier is validly existing and in good standing under the laws of the jurisdiction of its organization and has the power and authority to enter into the Purchase Order. The Purchase Order constitutes a valid and binding obligation of Supplier, enforceable against it in accordance with its terms. The execution, delivery and performance of the Purchase Order have been duly authorized by all necessary action on the part of Supplier, its officers and directors.
f. No Actions Pending. There is no action, suit or proceeding, at law or in equity, before or by any court or governmental authority, pending or, to the best of Supplier’s knowledge, threatened against Supplier, wherein an unfavorable decision, ruling or filing would materially adversely affect the performance by Supplier of its obligations hereunder or the other transactions contemplated hereby, or which, in any way, would adversely affect the enforceability of the Purchase Order, or any other agreement or instrument entered into by Supplier in connection with the transactions contemplated hereby. In the event Supplier becomes aware of such action, suit or proceeding, Supplier shall immediately notify Zymeworks.
g. Cooperation/Coordination with Third Party Vendors. Supplier acknowledges that Zymeworks may, during the course of the Purchase Order, work with one or more other third party consultants and service providers from time to time in connection with the Purchase Order. Supplier shall reasonably cooperate with all such third parties as Zymeworks may request from time to time.
h. Non-Exclusive. Supplier acknowledges that nothing in the Purchase Order shall be interpreted to prevent Zymeworks from obtaining from any other third party, or providing to itself, any or all such Products or Services or from ceasing to use Supplier to provide such Products or Services.
6. INDEMNIFICATION
a. To the fullest extent permitted by applicable law, Supplier hereby agrees to defend, indemnify, and hold harmless Zymeworks, its affiliates (and their respective directors, officers, employees, agents, successors and assigns) (each, an “Indemnified Party”) from and against any and all claims, liabilities of every kind, including liability based on contributory, vicarious, or any other doctrine of secondary liability, or character, (collectively, “Losses”) arising out of or relating to any and all claims, liabilities, liens, demands, obligations, actions, proceedings, suits, causes of action of every kind (regardless of whether or not such Losses are caused in part by a party indemnified hereunder) arising out of or related to: demands, damages, judgments, awards, settlements, expenses, or losses, including costs of litigation and reasonable attorneys’ fees, arising, directly or indirectly, from: (i) the acts or omissions of Supplier or its personnel in connection with the provision of the Services or Products under the Purchase Order; (ii) any individual’s (including any Supplier personnel’s) prospective, then-current or former employment by Supplier, including (A) any claim arising under occupational health and safety, worker’s compensation, or other applicable law, (B) any claim based on or arising out of any theory that Zymeworks is an employer or joint employer of any Supplier personnel, (C) any claim arising out of any termination or separation from Supplier; and (D) any claim arising out of Supplier’s failure to pay any of its personnel; (iii) a breach by Supplier of the representations, warranties, covenants, and any other provisions set forth in the Purchase Order; (iv) any claim charging that Supplier’s provision or Zymeworks’ purchase or use of the Products or Services provided under the Purchase Order constitutes misappropriation or infringement of any Intellectual Property Rights (as defined below) or breach of a confidential relationship; (v) injury to or death of any person or damage to any property resulting from and/or caused by Supplier or its personnel in connection with the Supplier’s performance or non-performances of Supplier’s obligations under the Purchase Order; (vi) Supplier’s failure to require any consultant or subcontractor to be insured as set forth under the terms of the Purchase Order; or (vii) the negligence or willful misconduct of Supplier or its personnel. If the Products or Services, or the use of such Products or Services, are held to constitute an infringement or misappropriation and their sale or use is enjoined, Supplier shall, at Supplier’s expense and option, either procure for Zymeworks the right to continue to use such Products or Services, or replace the same with equivalent non-infringing Products or Services, or modify the same so they become equivalent non-infringing Products or Services; except that if the foregoing is not commercially practicable or upon request by Zymeworks, Supplier shall refund to Zymeworks all fees paid by Zymeworks under the Purchase Order for such Products or Services and those Products or Services that are dependent thereon.
b. Supplier shall keep the Indemnified Party fully informed concerning the status of any litigation, negotiations or settlements of any claim, demand or action for which the Indemnified Party seeks indemnification hereunder. The Indemnified Party shall be entitled, at its own expense, to participate in any such litigation, negotiations and settlements with counsel of its own choosing. Supplier shall not have the right to settle any claim without the prior written consent of the Indemnified Party. This Section 6 shall not be construed to limit or exclude any other claims or remedies at law or in equity that an Indemnified Party may assert.
7. INSURANCE
a. Coverage. Supplier will at its cost maintain insurance in amounts customary for companies operating in the Supplier’s industry, but in no event less than that which would be required to cover its obligations under the Purchase Order including, without limitation, coverage in the following minimum amounts: (i) Comprehensive General Liability Insurance: $2 million aggregate; $1 million per occurrence, including $1 million personal injury; (ii) Workers’ Compensation: as required by statute; and (iii) Errors and Omissions: $5 million aggregate. Supplier will name Zymeworks, and/or its affiliates as necessary, as an additional insured under such policies, and upon request will provide Zymeworks with a certificate evidencing the above insurance coverage.
b. No Limitation. Supplier’s liability pursuant to this Agreement will not be limited to the insurance coverage as set forth above.
8. LIMITATION OF LIABILITIES
Notwithstanding the form (e.g., contract, tort or otherwise) in which any legal or equitable action may be brought, under no circumstances shall Zymeworks or its affiliates be liable for consequential, indirect, special, punitive, or incidental damages or lost profits, whether foreseeable or unforeseeable, based on claims of Supplier or any other party arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, failure of any remedy to achieve its essential purpose, or otherwise.
Notwithstanding the form (e.g., contract, tort or otherwise) in which any legal or equitable action may be brought, in no event shall Zymeworks or its affiliates be liable for any damages or losses that exceed, in the aggregate, the amount of fees paid and payable by Zymeworks for the Products or Services that gave rise to such damages or losses for each respective breach or series of related breaches. This Section 8 shall not apply only when and to the extent applicable Law specifically requires liability despite the foregoing disclaimer, exclusion and limitation.
9. TERM AND TERMINATION
a. Term. The Purchase Order shall commence upon Supplier’s acceptance of the Purchase Order and shall continue through Zymeworks’ acceptance of such Services or Products, as may be further specified in the Purchase Order.
b. Termination. In addition to Zymeworks’ termination rights set forth elsewhere herein, Zymeworks may terminate the Purchase Order, in whole or in part, in its sole discretion: (i) upon fifteen (15) days prior written notice to Supplier for any reason; (ii) immediately upon written notice to Supplier if Supplier breaches the Purchase Order; (iii) if reasonable grounds for insecurity arise with respect to Supplier’s performance and Supplier fails to furnish adequate assurances within five (5) days after written demand by Zymeworks for such assurance; or (iv) immediately upon written notice to Supplier if Supplier becomes insolvent or otherwise makes an assignment for the benefit of creditors, commits an act of bankruptcy or files or has filed against it a petition in bankruptcy or reorganization proceedings. During any notice period, Supplier shall cease to provide the cancelled Services or Products, as the case may be, to Zymeworks as soon as commercially practicable after receiving such notice.
c. Effect of Termination/Expiration. Upon termination or expiration of the Purchase Order: (i) Zymeworks shall be entitled to the ownership, possession, use and license of any and all Works (as defined below) in process under the Purchase Order to which it is entitled pursuant to Section 10 below; and (ii) Supplier shall invoice Zymeworks for all outstanding fees and expenses incurred for Services satisfactorily performed and/or Products delivered under the Purchase Order through and including the date of any such termination or expiration.
d. Survival. The provisions of Sections 1(b), 1(c), 3 – 11 and any other provisions which are expressly or by implication intended to continue in force after such termination or expiration shall survive the termination of the Purchase Order.
10. INTELLECTUAL PROPERTY
For all work products and deliverables created under the Purchase Order through the performance of the Services, Supplier and Supplier’s personnel hereby assign and transfer to Zymeworks all rights to possession of, and all right, title, and interest, including all patent, copyright, trademark, trade secret and other proprietary and intellectual property rights (“Intellectual Property Rights”) in and to such work products and deliverables created under the Purchase Order, in whatever form or medium captured, and in and to all physical and electronic materials, papers, and documents (including drawings), hereinafter referred to as “Works,” and copies, abstracts, and summaries thereof, which are developed or conceived or which may come into their possession in any manner by reason of the provision of Services under the Purchase Order. Supplier shall promptly disclose to Zymeworks any Works known to Supplier or Supplier’s personnel, and all such Works shall be deemed to be “works made for hire” exclusively for Zymeworks, with Zymeworks having sole ownership of such Works and the sole right to obtain and to hold in its own name any Intellectual Property Rights therein and thereto. Supplier hereby agrees to give Zymeworks or any person designated by Zymeworks at Zymeworks’ expense, all reasonable assistance required to perfect the rights hereinabove defined. Supplier represents, warrants and covenants that it has caused or will cause all Supplier’s personnel to enter into an enforceable agreement with Supplier prior to their performance of any Services, which agreement includes appropriate confidentiality, assignment of work product and invention provisions to effectuate the provisions of the Purchase Order. Notwithstanding the foregoing provisions, Zymeworks’ ownership rights do not apply or extend to any of the following (collectively, the “Supplier Property”): (i) any methodologies, methods of analysis, ideas, concepts, know-how, models, tools, techniques, skills, knowledge and experience or other materials or property owned or licensed by Supplier before the provision of the Services under the Purchase Order; (ii) any improvements or other modifications to any of the foregoing that Supplier creates during the performance of the Services under the Purchase Order without the use of any of Zymeworks’ Confidential Information or Intellectual Property Rights; or (iii) any of the Intellectual Property Rights in or to any of the items described in the preceding clauses (i) and (ii). All right, title, and interest in and to the Supplier Property is and shall remain in Supplier, and Supplier shall not be restricted in any way with respect to the Supplier Property. However, to the contrary, to the extent that any Supplier Property is incorporated into or embodied in any of the Works, or covers or controls any of the Works, or is necessary in order to fully and freely use any of the Works, Supplier hereby grants to Zymeworks and its affiliates a perpetual, irrevocable, worldwide, royalty-free, non-exclusive license, with the right to grant sublicenses, to (A) use such Supplier Property solely as part of or in connection with such Works or any derivative work based upon such Works, and (B) to modify such Supplier Property, solely to the extent such modification is necessary in connection with the creation of a derivative work based upon such Works.
11. MISCELLANEOUS
a. Publicity. Supplier may not use in its publicity or marketing literature Zymeworks’ name, or any information which may reasonably be seen to imply that Supplier has entered into an agreement with or has a relationship with Zymeworks without obtaining Zymeworks’ prior written approval.
b. Governing Law; Venue. The Purchase Order will be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein without regard to their conflicts of law provisions. The parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the Province of British Columbia for any legal proceedings arising out of the Purchase Order.
c. Relationship of the Parties. Supplier and Zymeworks are independent contractors, and no agency, partnership, joint venture or employment relationship is intended or created hereby. Except as may be specified in writing, neither party will have the power to obligate or bind the other party. Personnel supplied by Supplier will work exclusively for Supplier and will not for any purpose be considered employees or agents of Zymeworks.
d. Assignment; Subcontracting. The Purchase Order or any right or obligation arising therefrom shall not be assigned or transferred by Supplier in the absence of Zymeworks’ prior written consent thereto and any purported assignment or transfer absent such consent shall be automatically deemed null and void. Supplier shall not delegate or subcontract any of its obligations or responsibilities under the Purchase Order to any third party (including to an affiliate of Supplier) without Zymeworks’ prior written permission. No delegation or subcontracting by Supplier hereunder shall relieve Supplier of any of its obligations or responsibilities under the Purchase Order and Supplier shall remain responsible for obligations, services and functions performed by its subcontractors to the same extent as if they were performed by Supplier.
e. Force Majeure. No party shall be liable for any failure to perform or any delays in performance, and no party shall be deemed to be in breach or default of its obligations set forth in the Purchase Order, if, to the extent and for so long as, such failure or delay is due to any causes that are beyond its reasonable control and not to its acts or omissions, including, without limitation, such causes as acts of God, natural disasters, flood, severe storm, earthquake, civil disturbance, lockout, riot, order of any court or administrative body, embargo, acts of government, war (whether or not declared), acts of terrorism, or other similar causes (“Force Majeure Event”). For clarity, raw material price increases, unavailability of raw materials, and labor disputes shall not be deemed a Force Majeure Event. In the event of a Force Majeure Event, the party prevented from or delayed in performing shall promptly give notice to the other party and shall use commercially reasonable efforts to avoid or minimize the delay. The party affected by the other party’s delay may elect to: (i) suspend performance and extend the time for performance for the duration of the Force Majeure Event, or (ii) cancel all or any part of the unperformed part of the Purchase Order.
f. Severability. If and solely to the extent that any court or tribunal of competent jurisdiction holds any provision of the Purchase Order to be unenforceable in a final non-appealable order, such unenforceable provision shall be stricken and the remainder of the Purchase Order shall not be affected thereby. In such event, the parties shall in good faith attempt to replace any unenforceable provision of the Purchase Order with a provision that is enforceable and that comes as close as possible to expressing the intention of the original provision.
g. Waiver; Partial Invalidity. The failure of Zymeworks to insist in any instance upon strict performance by Supplier of any provision of the Purchase Order shall not be construed as a continuing waiver of such item, or waiver of any other provision of the Purchase Order. If any provision of the Purchase Order shall be held illegal or unenforceable by any governmental authority having jurisdiction over the Purchase Order, the validity of the remaining portions shall not be affected thereby.
h. Headings. Headings are included herein for convenience of reference only, and shall not constitute a part of the Purchase Order or change the meaning of the Purchase Order.
[End of Purchase Order Terms and Conditions]
