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PLEASE READ AND REVIEW THE FOLLOWING TERMS AND CONDITIONS CAREFULLY
The sale by KUROS BIOSCIENCES USA, INC. (“Kuros”) to Buyer of the products described herein is governed exclusively by the terms and conditions of the following documents (collectively referred to herein as the “Agreement”): (a) these Terms and Conditions of Sale (collectively, “Terms and Conditions”); and (b) the quotation or proposal to which these Terms and Conditions are attached (the “Quotation”). The Agreement constitutes the entire agreement between Kuros and Buyer pertaining to the sale of the Products (defined below) by Kuros to Buyer, and any prior understandings, agreements and representations, oral or written, are superseded by the Agreement. Buyer acknowledges that Kuros’ sales representatives and other agents have no authority to make any representation or warranty not included in the Agreement or to modify or waive any provision of the Agreement. In the event of any inconsistency or conflict between these Terms and Conditions and the provisions of the Quotation, these Terms and Conditions shall control, except to the extent expressly set forth in the Quotation and signed by an authorized officer of Kuros. For purposes of the Agreement: “Product(s)” shall mean those products ordered pursuant to one (1) or more Quotations.
2. PURCHASE ORDERS
Buyer may order Products by submitting a written purchase order to Kuros by electronic mail to which Buyer shall attach a copy of a Purchase Order that has been signed by an authorized representative of Buyer. Any terms or conditions in any purchase order, acknowledgment, confirmation, or other document provided by Buyer to Kuros that are different from or in addition to those set forth in the Agreement are expressly rejected by Kuros and shall be of no effect, even if signed and returned.
A. The prices in the Quotation are valid solely during the period set forth in the Quotation. After expiration of such period, Kuros shall have the right to change such prices. Such prices are based upon manufacture of the quantity and type ordered for shipment and end use within the United States only (unless stated otherwise in the Quotation). B. The prices of Products are exclusive of all excise, sales, use, transfer, and other taxes and duties imposed by any federal, state, municipal, or other government authority with respect to the sale, purchase, manufacture, delivery, storage, use, consumption or transportation of Products, all of which taxes and duties are the sole obligation of, and shall be paid by, Buyer. Clerical errors made by Kuros in the Quotation are subject to correction.
4. PAYMENT TERMS
Payments for Products are due 30 days from the date of the applicable invoice from Kuros, except as specifically stated otherwise in the Order confirmation. All payments shall be made in immediately available U.S. Dollars. If payment in full is not received by the due date, interest will accrue on all unpaid amounts at the rate of 1.5% per month or the maximum legal rate, whichever is less, together with all costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements and court costs) incurred by Kuros in collecting such overdue amounts or otherwise enforcing Kuros’ rights hereunder. Any credit terms extended to Buyer may be changed or withdrawn by Kuros at any time upon notice, and Kuros reserves the right to require alternative payment terms, including, without limitation, a letter of credit or full or partial payment in advance. All orders are accepted, and the obligation of Kuros to make deliveries is, subject to Kuros’ right to require Buyer to pay all or any part of the purchase price in advance of delivery or to make shipment C.O.D. If Buyer fails to make advance payment when requested to do so by Kuros or if Buyer is or becomes delinquent in the payment of any sum due Kuros (whether or not arising out of the Agreement) or refuses to accept C.O.D. shipments, then Kuros shall have the right, in addition to any other remedy to which it may be entitled in law or in equity, to cancel Buyer’s purchase order and terminate the Agreement, refuse to make further deliveries, and declare immediately due and payable all unpaid amounts for goods previously delivered to Buyer.
The specifications of Products set forth in sales literature are not guaranteed unless certified in writing by Kuros. Kuros reserves the right to make changes to the specifications of any Product delivered under the Agreement from time to time, at Kuros’ discretion.
Unless otherwise specified in the Order confirmation, Kuros will ship Products to Buyer FCA (Incoterms 2000) Kuros’ shipping point, warehouse, or service center, via a carrier specified by Buyer or, if Buyer does not specify, a carrier chosen by Kuros. Buyer will pay for all shipping charges and shall instruct Kuros to: (i) prepay the carrier and add such charges to Buyer’s invoice or (ii) if Buyer has an account with the carrier, charge such account. The carrier shall be deemed the Buyer’s agent, and any claims or damages in shipment must be filed with the carrier. Buyer will be responsible for deciding whether to purchase loss/damage insurance or not to insure and for paying all insurance costs. Should damage or loss occur during transport, it is between Buyer and carrier to settle, and Kuros shall have no liability or responsibility with respect thereto. Kuros reserves the right to not fill an order in part or in its entirety for any reason whatsoever – by way of example only, in the case of inconsistency of Products with minimum Kuros quality standards, prior sale, failure of supplier, etc. The scheduled shipping or delivery date, if provided to Buyer by Kuros, is Kuros’ best estimate of the time the order will be shipped and Kuros assumes no liability for loss, general damages, or special or consequential damages due to delays. Kuros may make delivery in installments and may render a separate invoice for each installment. Each installment delivery shall be considered a separate independent transaction, and payment therefor shall be made accordingly. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept delivery of that or any other installment.
Subject to the limited warranty below, Buyer shall be deemed to have accepted Products upon delivery.
8. LIMITED WARRANTY
A. Kuros warrants that: the Products sold under the Agreement shall [be free from defects in workmanship and materials for one (1) year after delivery of the Products to Buyer by Kuros. B. The foregoing limited warranties shall be void if (i) any Product is used in breach of these Terms and Conditions or in violation of any operating or handling instructions; or (ii) any Product has been subjected to: physical abuse, misuse, abnormal use, tampering, or unusual physical stress; use by inadequately trained or untrained operators; use after defect or malfunction has been detected; improper storage not in line with instructions on products packaging and/or instructions for use; modification and/or accessorization, acts of God; negligence or accidents. In addition, if Products are used in a process or in production, Kuros makes no warranty with respect to, and shall have no liability for, either process or product. Storage instructions are provided in the Instructions for Use (IFU). C. If Buyer’s investigation and inspection discloses that a Product or component defect developed within the applicable warranty period under normal and proper use in accordance with the Agreement and Kuros’ Instructions For Use, Kuros agrees, at its option, either (i) to correct by replacement with an equivalent product or component, any such defective Product or component, or (ii) to refund the purchase price paid by Buyer for such defective Product or component. No Products shall be returned to Kuros without the prior written authorization of Kuros, including, where required by Kuros, an applicable return authorization number. D. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS SECTION, THE PRODUCTS ARE PROVIDED “AS IS” AND KUROS DISCLAIMS ALL OTHER WARRANTIES RELATING TO THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY.
9. RETURNED GOODS
Products may be returned subject to a restocking charge. Return must occur within 30 days of receipt by Buyer with original packaging. After 30 days, Products are not returnable. Products sent back in substandard packaging or received damaged will be rejected at Kuros’ option. Kuros is not responsible for Buyer’s negligence in packaging, or damage inflicted by a carrier on, any returned Product. Buyer will be billed for the repair or replacement of Products damaged during return.
10. INDEMNIFICATION Buyer shall defend, indemnify and hold harmless Kuros from and against all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) resulting from all claims, demands, actions and other proceedings by any third party arising from (a) the use, operation, handling, storage, transportation, disposition, and containment of any Product, (b) the production, use, handling, storage, transportation, disposition or containment of any product or process resulting from Buyer’s use of any Products, or (c) a breach of the Agreement by Buyer; except, in each case, to the extent due to the gross negligence or willful misconduct of Kuros.
11. LIMITATION OF LIABILITY
KUROS SHALL HAVE NO LIABILITY FOR ANY LOSS, DAMAGE, OR INJURY RESULTING FROM BUYER’S OR THIRD PARTIES’ NEGLIGENCE, LACK OF TRAINING, USE OR MISUSE, OR MISAPPLICATION OF THE PRODUCTS. IN NO EVENT SHALL KUROS BE LIABLE TO BUYER OR ANY THIRD PARTIES FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, CONTINGENT, STATUTORY OR ANY OTHER SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF DATA) ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE MANUFACTURE, USE (OR INABILITY TO USE), SALE, HANDLING, REPAIR, MAINTENANCE OR REPLACEMENT OF ANY PRODUCT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF KUROS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KUROS’S LIABILITY FOR DAMAGES ON ACCOUNT OF A CLAIMED DEFECT IN ANY PRODUCT SHALL IN NO EVENT EXCEED THE PURCHASE PRICE RECEIVED BY KUROS WITH RESPECT TO THE PRODUCT ON WHICH THE CLAIM IS BASED. KUROS SHALL NOT BE LIABLE FOR DAMAGES RELATING TO ANY NON-KUROS INSTRUMENT, EQUIPMENT, OR APPARATUS WITH WHICH ANY PRODUCT IS USED.
12. INTELLECTUAL PROPERTY
A. Buyer acknowledges that: (i) all right, title, and interest in and to all patents, copyrights, trademarks, trade secrets, and all other intellectual property and proprietary rights subsisting in or related to the Products (“Intellectual Property”) belong to Kuros; (ii) no transfer of ownership, title, or any other rights in the Intellectual Property is made by the sale of any Product to Buyer, except for the right to use the Products in compliance with all applicable terms and conditions of the Agreement; and (iii) such right to use the Products explicitly does not include the right to modify, enhance, or improve the Intellectual Property or Products or to transfer Technology or Products to any third party. B. Any and all comments, criticisms, feedback, suggestions, or improvements relating to the Products (including, without limitation, the functions, features and other characteristics of the Products) that Buyer may provide to Kuros, in written or oral form (collectively, “Feedback”), shall be the sole and exclusive property of Kuros and may be used by Kuros for any purpose.
13. SECURITY INTEREST
Kuros reserves a purchase money security interest in each Product and any proceeds thereof to secure the full payment and performance by Buyer of its obligations and liabilities to Kuros with respect thereto. If Buyer defaults, Kuros may repossess such Product without liability to Buyer, and Buyer will make the Product available and otherwise cooperate with Kuros. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage to perfect Kuros’ security interest. Buyer will cooperate fully with Kuros to execute such other documents and to accomplish such filings and/or recordings thereof as Kuros may deem necessary. Buyer, at its expense, shall fully insure Products against all loss or damage until Kuros has been paid in full therefor.]
14. COMPLIANCE WITH APPLICABLE LAWS
Buyer shall use the Products in strict accordance with all applicable local, state, and federal laws, regulations and guidelines, including without limitation all safety precautions accompanying the Products (“Applicable Laws”) [and the handling instructions provided by Kuros]. Buyer shall use prudence and reasonable care in the use, handling, storage, transportation, disposition, and containment of the Products. Kuros shall have no responsibility or liability for the use of any Product in violation of Applicable Laws or the handling instructions.
15. U.S. GOVERNMENT CONTRACTS
If the products to be furnished under this sales order are to be used in the performance of a U.S. Government contract or subcontract, and a U.S. Government contract number shall appear on Buyer’s purchase order, those clauses of the applicable U.S. Government procurement regulation which are required by Federal Statute to be included in U.S. Government subcontracts shall be incorporated herein by reference, including, without limitation, the Fair Labor Standards Act of 1938, as amended.
16. MEDICAL DEVICES
Buyer acknowledges that it is familiar with the U.S. Safe Medical Devices Act of 1990 (the “Devices Act”) and the reporting obligations imposed on device users thereunder. In this regard, Buyer agrees to notify Kuros within ten (10) days of the occurrence of any event identified in the Devices Act applicable to the Product imposing a reporting obligation on Buyer and/or Kuros (except for events representing an imminent hazard that require notification to the U.S. Food and Drug Administration (the “FDA”) within seventy-two (72) hours (or such shorter time as required by law), in which case, such notice will be delivered to the FDA and Kuros within said period). Buyer will maintain adequate tracking for the Products to enable Kuros to meet the FDA requirements applicable to the tracking of medical devices.
17. RESTRICTIONS ON USE
Buyer shall use Products solely as described in the Instructions for Use (IFU). (the “Permitted Use”). In no event shall Buyer develop or use, or permit any other entity to develop or use the Products for any competitive purpose or to create any product or service substantially similar to the Products. BUYER SHALL NOT USE ANY PRODUCT(S) FOR ANY PURPOSE OTHER THAN AS EXPRESSLY PERMITTED BY THE FIRST SENTENCE OF THIS SECTION. Buyer shall permit Kuros to audit Buyer’s use of the Products to determine whether such use complies with the Agreement. Kuros may conduct such audits through independent auditors selected by Kuros, at reasonable times and on reasonable notice. Each such audit shall be at Kuros’ sole expense unless the audit reveals use of the Products in breach of any term or condition of the Agreement, in which case Buyer shall reimburse Kuros the full cost of such audit. Buyer agrees to obtain any and all regulatory authorizations needed to use the Products for the Permitted Use and to fulfill all applicable regulatory obligations with respect thereto. Buyer shall not, and shall not attempt or purport to modify, reverse engineer, decompile or disassemble any Product or component thereof.
This Agreement and Buyer’s rights and obligations hereunder may not be assigned by Buyer except with the prior written consent of Kuros.
Kuros shall be entitled to cancel or rescind the Agreement without liability for loss or damage resulting therefrom if any Product covered by the Agreement is purchased for end use outside the United States (unless stated otherwise in the Quotation) or if the performance of its obligations under the Agreement is in any way adversely affected by the occurrence of any contingency beyond Kuros’ control. For example, Kuros shall not be liable for any default in the performance of any obligation contained in, or related to, the Agreement, to the extent that performance is affected by any cause or causes beyond the control of Kuros, including but not limited to acts or forces of nature, any law, rule, regulation of or any act or request of any government authority or agency, failure of any contractor or supplier, manufacturer or distributor product recall, carrier or transporter of goods or item(s) supplied, fire, storm, explosion, accidents, labor dispute, labor or material shortage, and/or delays in transportation.
Nothing in the Agreement shall constitute or create a joint venture, partnership, or any other similar arrangement between the parties. Neither party is authorized to act as agent for the other party. Buyer acknowledges and agrees that one or more of the Products may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations thereunder. This Agreement is made in, governed by, and shall be construed in accordance with the laws of the [State of Delaware] without regard to the conflicts of law principles thereof. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to the Agreement. The parties hereby submit to the non-exclusive jurisdiction of, and venue in, the state and federal courts located in [New Castle County, Delaware] for the purposes of resolving any dispute arising from the Agreement. If any provision of the Agreement, or the application thereof to any person or circumstance, is held invalid, illegal, or unenforceable, the remaining terms and conditions of the Agreement, and/or the application of such provision to other persons or circumstances (as applicable), shall not be affected thereby, and to such end the provisions of the Agreement are agreed to be severable. Unless otherwise expressly set forth herein, the remedies contained herein are cumulative in addition to any other remedies at law or in equity. Waiver by Kuros of any provision of the Agreement or of any breach by Buyer of any provision of the Agreement shall not be deemed a waiver of future compliance with the Agreement, and such provision, as well as all other provisions of the Agreement, shall remain in full force and effect. No waiver by a party of any provision or breach of the Agreement shall be effective unless in writing and signed by such party. The headings of clauses contained in the Agreement are inserted solely for convenience and ease of reference only and shall not constitute any part of the Agreement or have any effect on its interpretation or construction.