Körber Pharma, Inc.

1. AGREEMENT AND EFFECT
2. PAYMENT/SALES TERMS
3. INSTALLATION SERVICES
4. TAXES
5. INSURANCE
6. TRANSPORTATION COSTS
7. BUYER’S RIGHT TO CANCEL
8. DELIVERY
9. INSPECTION
10. DISCLAIMER OF WARRANTIES
11. SALES – USED EQUIPMENT
12. REPAIR
13. SELLER’S REMEDIES
14. BUYER’S REMEDIES
15. LIMITATION AND EXCLUSION OF LIABILITY
16. PATENT INFRINGEMENT
17. INDEMNITY OF SELLER BY BUYER
18. TOOLING
19. COMPLIANCE WITH OCCUPATIONAL SAFETY AND HEALTH ACT
20. NON-DISCRIMINATION IN EMPLOYMENT
21. CHOICE OF LAW, DISPUTE RESOLUTION
22. LIMITATION OF ACTIONS
23. NOTICES
24. FORCE MAJEURE
25. ENTIRE AGREEMENT, MODIFICATION AND WAIVER
26. SEVERABILITY
27. CLAUSE PARAMOUNT
28. CONFIDENTIAL INFORMATION
29. COMPLIANCE NOTICE

Körber Pharma, Inc. ("Seller") and customer ("Buyer") agree that the terms and conditions set forth herein ("Terms") shall apply to the sale and provision of Equipment (“Equipment”) and services covering the installation of the Equipment (“Services”) by Seller to Buyer, as further described in Seller's Proposal to Buyer and/or a purchase order submitted by Buyer and Seller's confirmation thereof.  Upon acceptance of Seller's Proposal by Buyer, the order, the terms of the Proposal and these Terms (collectively, "Agreement") become binding upon Seller and Buyer.  Seller's acceptance of Buyer's offer is expressly conditioned upon Buyer's assent to the Terms.  Seller objects to any terms proposed by Buyer and any such terms shall not be binding upon Seller (including, but not limited to, Buyer's general terms and conditions of purchase), regardless whether or when Buyer has submitted any such terms or purchase order, and these Terms shall prevail over any of Buyer's proposed terms.  Fulfillment of Buyer's order, including shipment by Seller, does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.  No course of delaying or usage of trade or course of performance may be used to supplement or explain these Terms or the obligations and rights of the parties to these Terms. Notwithstanding anything to the contrary contained in the Agreement, Seller may, from time to time change the Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Proposal.

Unless otherwise specified in Seller’s Factory Proposal, Equipment prices are EXW (Incoterms® 2020) Seller’s factory or point of manufacture, regardless of whether the Equipment is to be installed at Buyer’s facility by or under Seller’s supervision. Seller shall set forth the estimated cost of Services, if any, in the Factory Proposal. Unless otherwise stated in the Factory Proposal, the fees agreed for the Services do not include travel, accommodation and subsistence expenses, which Seller shall charge the Buyer its then current rates, available on request. Net amount of invoice is payable in full within thirty (30) days of date of invoice unless otherwise stated in Factory Proposal and all prices are payable in U.S. Dollars. Buyer represents to Seller that Buyer is solvent. In the event Buyer becomes insolvent before delivery, Buyer will notify Seller. Failure to do so shall constitute a reaffirmation of Buyer’s solvency at time of delivery. If, in Seller’s opinion, the financial condition of Buyer at any time does not justify continuance of production or shipment on the terms of payment specified, Seller may require full or partial payment in advance. If any payment is not made on time, Seller, in addition to its other legal rights, shall be entitled to interest on the unpaid balance at 18% per year, or at the maximum rate allowed by law if less, and to all collection costs, including reasonable attorney’s fees. Buyer grants to Seller a first priority purchase money security interest in all Equipment sold on credit and proceeds thereof. Buyer authorizes Seller to sign and file all financial statements necessary to perfect this security interest in Buyer’s name as debtor and Buyer does hereby irrevocably appoint Seller as its attorney-in-fact for this purpose. This security interest shall be released when payment in full is received. 

Buyer shall: (a) cooperate with Seller in all matters relating to the Services and appoint a Buyer employee to serve as the primary contact with respect to these Terms and who will have the authority to act on behalf of Buyer with respect to matters pertaining to the installation of the Equipment; (b) provide access to Buyer’s premises, and such office accommodations and other facilities as may reasonably be requested by Seller for the purposes of performing Services; (c) respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of Seller’s Factory Proposal and these Terms; (d) provide such materials and other information as Seller may request, in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects; (e) ensure that all Buyer equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant legal or industry standards or requirements; and (f) obtain and maintain all necessary licenses and consents and comply with all applicable Law in relation to the Services. The Terms do not apply to any maintenance, repair and other services beyond the installation of the Equipment. Such services shall be billed separately under alternate terms and conditions.

The amount of any present or future sales, revenue, excise or other taxes applicable to the Equipment shall be paid by Buyer. If Seller is registered to collect such tax it will be added to the invoice, or in lieu thereof the Buyer shall provide the Seller with a tax exempt certificate acceptable to the taxing authorities. 

The contract amount does not include cargo insurance and Seller has no obligation to provide cargo insurance. Buyer, at its expense, shall fully insure the Equipment against all loss or damage until Seller has been paid in full thereof or the Equipment has been returned, for whatever reason, to Seller.

Unless otherwise specified, Buyer shall pay freight charges. 

Buyer shall have the right to cancel this contract at any time prior to delivery. In the event of cancellation, Buyer shall pay Seller for full purchase price of the Equipment and Services performed through the date of cancellation less the actual direct costs for labor and materials to finish the Equipment, if any, that Seller does not incur as a result of such cancellation. Following such payment, neither party shall have any further obligation to the other as a result of this contract. 

Unless otherwise specified, shipment of Equipment will be made EXW point of manufacture (Incoterms® 2020). Shipment will be contracted by Seller on behalf of Buyer with charges for shipment added to Buyer’s invoices unless otherwise specified. Shipments are made at Buyer’s risk. If shipment is specified to be by Buyer’s vehicle, pick-up shall be made by Buyer within three (3) days after Buyer has been notified that the Equipment is ready for pick-up. Seller shall have the right to assess storage charges and to invoice Buyer for the Equipment if Buyer fails to pick-up the Equipment within this period. The Delivery Schedule stated in the Factory Proposal is approximate. Seller shall not be liable in any way due to any delay in performance hereunder or unforeseen circumstances beyond its control, including, without limitation, the matters described in Paragraph 24, below. As used herein, “performance” shall include, without limitation, fabrication, shipment, delivery, assembly, and installation as applicable. 

Buyer has inspected the Equipment or hereby acknowledges that Seller invited, urged and cautioned Buyer to inspect the Equipment and Buyer declined to examine the same. 

THE EQUIPMENT IS PURCHASED BY BUYER "AS IS" AND "WITH ALL FAULTS", AND SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER MATTER WITH RESPECT TO THE EQUIPMENT AND SERVICES. Any affirmation of fact or promises made by Seller shall not be deemed to create an express warranty that the Equipment shall conform to such affirmation or promise. Any descriptions, samples and specifications with respect to the Equipment are not warranted by Seller to be accurate or complete. If a model or sample was shown to Buyer, such model or sample was used merely to illustrate the general type and quality of equipment sold and not to represent that the Equipment would necessarily conform to such model or sample. Any description is for the sole purpose of identifying the Equipment and no affirmation, promise, description, sample or model shall be deemed part of the basis of the bargain. SELLER STRONGLY RECOMMENDS THAT BUYER CONDUCT AN ON-SITE INSPECTION OF THE EQUIPMENT. SELLER SHALL NOT BE RESPONSIBLE FOR THE CONSEQUENCES OF BUYER'S FAILURE TO INSPECT THE EQUIPMENT OR FOR ANY INACCURACIES, INSUFFICIENCIES, OR OMISSIONS IN SUCH DESCRIPTIONS, SAMPLES AND/OR SPECIFICATIONS. The employees or representatives of Seller are not authorized to make any statement or representation as to the quality, character, size, condition, quantity, etc. of the Equipment inconsistent with these Terms. Any such statements made will not be binding on Seller or be grounds for any subsequent claim.

Buyer understands that the Equipment has been used by persons other than Seller and that it may be dangerous if improperly used. Seller will not be responsible for any loss or injury resulting from defects or alleged defects in the Equipment sold or from the subsequent use of the items. [Buyer is warned and acknowledges that it may bear or contain hazardous chemicals or other hazardous materials which may be or may become, by chemical reaction or otherwise, directly or indirectly hazardous to life, to health, or to property (by reason of toxicity, flammability, explosiveness or for other similar or different reasons during use, handling, cleaning, reconditioning, disposal or at any other time after the Equipment leaves the possession and control of Seller). Buyer does hereby discharge Seller from any and all liability directly or indirectly resulting from the presence of the aforesaid chemicals or materials, including and not limited to any and all liability directly or indirectly resulting from the failure of Seller to give more specific warning with respect to individual articles or substances or from the inadequacy of any warning.

Seller is not obligated to do any repair work or modifications upon the Equipment prior to sale or delivery, and Seller shall not be liable for any alleged damages caused by or resulting from any repairs or modifications. SELLER GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, WORKMANSHIP OR ANY OTHER MATTER WITH RESPECT TO ANY SUCH REPAIRS OR MODIFICATIONS.

In the event Buyer fails to perform its obligations or provide Seller with adequate assurances of due performance, Seller at its option, may cancel the contract and recover from Buyer its damages, including its expenses, and the difference between the contract price and the lesser of the Seller’s cost or the market price at the point of delivery or Seller may dispose of the Equipment publicly or privately for Buyer’s account and apply the net proceeds, after deducting expenses or disposition, against the purchase price. The Buyer shall remain liable for any deficiency. Seller shall also have the right at any time and without notice, to set off any liability or obligation of Buyer to Seller against any liability or obligation of Seller to Buyer. Seller’s expenses shall include reasonable attorney’s fees and other costs of enforcing its rights. Seller’s rights contained herein are not exclusive. 

Except as otherwise provided herein and expressly provided in Paragraph 7, failure of the Seller to perform its obligations before delivery shall entitle Buyer to cancel the contract and obtain a refund of all amounts previously paid. 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES AGREE THAT SELLER’S LIABILITY SHALL BE LIMITED AND EXCLUDED AS FOLLOWS: (A) IN NO EVENT WILL SELLER BE LIABLE FOR ANY PUNITIVE, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES SUCH AS BUT NOT LIMITED TO LOSS OF PROFIT, LOSS OF ANTICIPATED SAVINGS OR LOSS OF ANY ECONOMICAL ADVANTAGE, ARISING OUT OF THESE TERMS OR ANY EQUIPMENT OR SERVICES PROVIDED THEREUNDER, WHETHER OR NOT BUYER HAS BEEN ADVISED OF THAT POSSIBILITY; (B) THE SELLER'S MAXIMUM LIABILITY, REGARDLESS OF LEGAL THEORY AND FOR ALL CLAIMS IN AGGREGATE ARISING OUT OF OR IN CONNECTION TO THESE TERMS OR ANY EQUIPMENT OR SERVICES PROVIDED THEREUNDER, SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO 50% OF THE CONTRACT PRICE PAID TO THE SELLER FOR THE EQUIPMENT OR SERVICES GIVING RISE TO THE CLAIM. THE REMEDIES AVAILABLE TO THE BUYER AS SET FORTH HEREIN ARE EXCLUSIVE REMEDIES, AND ALL OTHER REMEDIES ARE HEREBY EXPRESSLY WAIVED BY THE BUYER.

Buyer agrees that it will notify Seller within one (1) week after receiving notice of a third-party claim that the Equipment infringes such third party’s United States patent rights(a “Claim”). If Seller is so notified and suit is brought against Buyer in the United States for such Claim, the Seller will defend or settle, at its own expense, any such action and shall pay all costs, attorney fees, damages and judgments finally awarded against Buyer, provided that Seller shall have sole control of the defense of any such action and all negotiations of settlement or compromise.  Buyer agrees that it will fully cooperate with the Seller in its defense of such Claim. In the event that Buyer is enjoined from using the Equipment, or any portion thereof, or if Buyer believes that the Equipment, or any portion thereof, is likely to become the subject of a claim of patent infringement, Buyer will, at its option and its expense: (i) obtain a license that would permit Buyer to continue using the Equipment under this Agreement, (ii) replace or modify the allegedly infringing components of Equipment so that it becomes non-infringing and/or (iii) terminate this Agreement and refund any prepaid, unused fees as of the date of termination.  Notwithstanding the foregoing, Seller shall have no liability for any Claims or allegations of infringement based on: (a) Buyer’s use of any Equipment after notice that Buyer should cease use of such Equipment due to a Claim; (b) any modification of the Equipment by Buyer or at Buyer’s direction; or (iii) any combination of the Equipment with any equipment or software not provided by Seller. THE FOREGOING SHALL CONSTITUTE BUYER’S SOLE AND EXCLUSIVE REMEDY RELATING TO ANY CLAIM BASED UPON OR RELATED TO ANY ALLEGED INFRINGEMENT CLAIMS. SELLER ASSUMES NO OBLIGATION OR LIABILITY IN CONNECTION WITH SUITS CLAIMING THAT ANY PROCESS WHICH EMPLOYS OR PRODUCT WHICH IS MANUFACTURED, ASSEMBLED OR PRODUCED USING THE EQUIPMENT IS AN INFRINGEMENT. SELLER ASSUMES NO OBLIGATION WHERE THE EQUIPMENT INVOLVED HAS BEEN MADE TO THE SPECIFICATIONS OF THE BUYER, RATHER THAN CONCEIVED AND DESIGNED BY SELLER. This Paragraph 16 states the entire obligation and liability of Seller in connection with claims of patent infringement.

Buyer shall indemnify and hold Seller harmless with respect to all liability, loss or damage Seller may suffer as a result of all claims, judgments, statutory or regulatory compliance, demands, fines penalties, costs or expenses asserted against Seller by Buyer and Buyer’s employees and agents and by all third parties as a result of or arising out of the production, use, consumption., storage, handling, modification, sale or resale of the Equipment after delivery to Buyer and of any goods or services which are produced using the Equipment. This indemnity shall apply whether such liability is caused by or arises out of the negligence of Seller or its officers, directors, agents, employees or otherwise. Buyer shall defend Seller against any and all claims brought or actions filed against Seller with respect to the subject of the indemnity contained herein and Buyer shall further indemnify Seller with respect to all costs incurred by Seller in defending against any such claims or actions, including attorney’s fees and costs, employee down time, witness fees and all other expenses of litigation. 

Any equipment which Seller constructs or requires for use in the production of materials for Buyer shall be and remain Seller’s property and in Seller’s sole possession or control. Any charges made by Seller therefore shall be only for the use of such equipment. Seller will use commercially reasonable efforts to handle and store carefully while in its possession any materials or equipment owned or furnished by Buyer, but Seller shall not be liable for damage or loss thereof. 

Seller does not warrant the Equipment meets any requirements of the Occupational Safety and Health Act. Where possible, Seller will modify the Equipment at Buyer’s specific written request at prices then in effect. 

In connection with the performance of work under this contract, the Seller will not discriminate against any employee or applicant for employment because of race, sex, religion, age, national origin, marital status, disability or veteran status. The Seller will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, sex, religion, age, national origin, marital status, disability or veteran status. Such action shall include, but not be limited to the following: employment, upgrading demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Seller agrees to post in conspicuous places available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provision of this non-discrimination clause. The Equal Employment Opportunity Clause in Section 202 of Executive Order #11246 as amended, relative to equal employment opportunity and implementing rules and regulation of the Office of Federal Contract Compliance are incorporated herein. 

This contract shall be deemed to have been entered into in the City of Wilmington and County of New Castle, Delaware. All issues and questions concerning the construction, validity, enforcement and interpretation of these Terms shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of law principles thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms or any disputes arising out of or relating to these Terms. In the event that any dispute arises in connection with this contract, including without limitation, the validity and interpretation of the scope of this Paragraph 21, the exclusive remedy shall be to submit such dispute to binding arbitration in accordance with the rules of the American Arbitration Association. Such arbitration shall be conducted in English before a panel of three (3) arbitrators, one selected by each party and the third selected by the first two. The decision of the arbitrators shall be binding and conclusive upon the parties, and shall not be subject to appeal or review by any court. 

Any action against the Seller arising out of this order or by reason of any sale hereunder, or by reason of any federal or state statutory provision relating thereto shall be commenced within one (1) year from the date such cause of action arises, otherwise any such actions shall be barred notwithstanding any statutory period of limitations to the contrary.

Any notice required or permitted to be given hereunder shall be (a) in writing; (b) effective on the first business day following the date of receipt; and (c) delivered by one of the following means: (i) by personal delivery; (ii) by prepaid, overnight package delivery or courier service; (iii) by the United States Postal Service, first class, certified mail, return receipt requested, postage prepaid; (iv) by facsimile with return confirmation; or (v) by email with return email received by the sender. All notices given under these Terms shall be addressed to the parties at the address set forth in the Proposal or such other address that may be designated by the receiving party in writing.

Seller shall have no liability for any delay in nor failure of performance caused by circumstances beyond Seller’s reasonable control, including, without limitation, acts of God, fire, flood, war, epidemic or other public health threat, government action, accident, labor trouble or shortage, or inability to obtain materials, equipment, fuel, power or transportation; and in any such event, Seller shall have the right in its sole discretion to allocate its resources and production schedule among all pending contracts affected by such event without liability to Buyer. 

These Terms and Conditions and the terms of the written Factory Proposal constitute the entire contract of sale and purchase of the Equipment and Services and Seller shall not be liable for, or bound in any manner by any representations, guarantees, commitments, purchase order terms and conditions, course of dealings or usage of trade, except as specifically provided herein. No modification of this contract, no waiver of any provision or right to demand performance hereunder, and no waiver of the requirements of this sentence shall be of any force or effect unless in writing and signed by the authorized agent of the party claimed to be bound thereby and no such modification or waiver shall result from the acknowledgment or acceptance of Buyer’s purchase order or other forms containing conditions different from those herein. A waiver of any right, obligation or default shall not be construed as a waiver of any subsequent right, obligation or default. 

Should any of the provisions of these terms and conditions, or portions thereof, be found to be invalid by any court or competent jurisdiction, the remainder of these terms and conditions shall nonetheless remain in full force and effect.  Buyer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Paragraph 26 is null and void. No assignment or delegation relieves Buyer of any of its obligations under the Agreement. Seller may at any time assign, transfer, or subcontract any or all of its rights or obligations under the Agreement without Buyer’s prior written consent.

In the event of any conflict between the terms of this contract and the terms of Buyer’s purchase order or a letter of credit, the terms and conditions contained herein shall prevail despite such conflict, notwithstanding any provision to the contrary, regarding additional terms in acceptance or confirmation contained in the Uniform Commercial Code as adopted by any State. 

All non-public, confidential, or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Paragraph 28. This non disclosure obligation does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

The Seller advises that Seller’s employees are instructed to strictly comply with all applicable statutory regulations and the Values and Principles of Körber AG. In particular, Seller’s employees are not allowed to offer, promise or grant inappropriate favors, benefits and/or donations. Buyer may find further details in Seller’s code of conduct at www.koerber.com. 
                
Rev. May 2021