Akadeum Life Sciences, Inc. Terms and Conditions of Product Sales

The following terms and conditions will apply to all sales of products manufactured or distributed, by Akadeum Life Sciences, Inc., a Delaware corporation (“Akadeum”) to a buyer and/or any and all agents of a buyer (collectively, “Buyer”) in whatever manner or form Buyer is identified in a purchaser order, invoice, agreement, contract, or other document evidencing a sale or transfer of products or services by Akadeum (each a “PO”).

1. Acceptance of Order. Any PO submitted by Buyer to Akadeum, whether or not Akadeum’s standard form of agreement is used, will be deemed to be an irrevocable offer by Buyer to purchase the products described in such PO (the “Products”), and Buyer’s offer will not be accepted by Akadeum unless and until an acceptance in writing is sent to Buyer by an authorized representative of Akadeum. Any acceptance by Akadeum of a PO, and all terms and prices contained in such PO, will be subject to these standard terms and conditions, together with any final written proposal provided by Akadeum, which will be deemed incorporated by reference into these terms. Any other additions to or modifications of these standard terms and conditions will not be effective unless expressly accepted by Akadeum and Buyer in writing.
2. Payment Terms. Payment for all sales will be made, without offset or deduction, net thirty (30) days from date of delivery unless a longer term for payment has been agreed upon by Akadeum in writing. At the sole option of Akadeum, interest will accrue and be payable upon Akadeum’s demand on amounts not paid by Buyer when due at the lower of: (1) one and one-half percent (1.50%) per month, or (2) the highest rate of interest then permitted by applicable law. To secure payment of all amounts due Akadeum, Buyer hereby grants Akadeum a security interest in and to all Products, supplies, parts, accessories, tools, equipment, and materials which may be sold and/or furnished by Akadeum to Buyer, and in all proceeds and products of the foregoing.
3. No Returns. All sales are final. No goods may be returned unless expressly stated in a PO.
4. Shipping and Risk of Loss. All Products are sold FCA Akadeum’s place of shipment at the location’s loading dock.
5. Intellectual Property. Any and all intellectual property associated with the goods sold under the PO is the result of the cumulative work of Akadeum and represents years of research and development. Except for the right to use the goods in accordance with the purposes for which they were intended, no other right, license or grant is made or implied to Buyer unless otherwise expressly agreed in writing by the parties. Akadeum and Buyer acknowledge that, except for purchase of the Products, Buyer will not: (i) circumvent, analyze, or reverse engineer any Products, or (ii) modify the Products. Buyer will not apply to register or register (or aid any third party in registering) intellectual property rights (or any confusingly similar marks of Akadeum) or take any action inconsistent with Akadeum’s ownership of intellectual property in any jurisdiction. Akadeum will own all intellectual property rights related to the Products, together with any improvements or modifications thereto, and Buyer will, and does hereby assign, all right, title and interest into such improvements and modifications to such intellectual property rights. Buyer will assist Akadeum or its designee, in every proper way to secure Akadeum’s rights in such modifications and improvements, and any intellectual property rights relating thereto, including the disclosure to Akadeum of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments that Akadeum deems necessary in to apply for and obtain such rights.
6. Cancellations. Akadeum may cancel a PO at any time without penalty or other liability if it reasonably determines that it is unable to meet the requirements of the PO.
7. Delivery/Shipments/Insurance. Packaging requirements will be determined by Akadeum in its sole discretion. All shipments will be directed to the location described in the PO. If Buyer fails to specify a mode of shipment, Akadeum will select the mode which in its estimate provides the lowest reasonable transportation cost. Unless Buyer requests otherwise, Akadeum may choose to insure any shipments with the carrier and pass the costs of such insurance along to Buyer, however, Akadeum is under no obligation to insure any shipments.
8. Specifications. Buyer agrees to provide Akadeum with any and all required specifications relating to goods described in a PO. Akadeum’s obligations hereunder will not commence until Buyer has provided Akadeum with any such required information. If Buyer fails to provide such specifications, then Akadeum may terminate any affected PO by providing written notice to Buyer.
9. Restrictions. Buyer will not cause or permit the modification, distribution, reverse engineering, decompilation, disassembly or other translation of any goods or integrated software sold to it pursuant to any PO. Buyer will not alter, change, or remove from such goods any identification or markings, including, patent or copyright notices and trademarks. Buyer will not move the Products out of the United States of America. Buyer will not sell or lease the Products to any third party without the prior written consent of Akadeum, which will not be unreasonably withheld if the third party agrees in writing to all the terms of this Agreement as if they were Buyer.
10. Inspection and Acceptance. Unless Akadeum agrees in writing to the contrary, Buyer will inspect each of the Products delivered pursuant to a PO within three (3) days of delivery. In the event Buyer fails to notify Akadeum of any defect, deficiency, omission, or nonconforming delivery with respect to Products delivered to Buyer within such three (3) day period following delivery, Buyer will be deemed to have unconditionally accepted delivery of each such product. If any Product delivered or required to be delivered by Akadeum to Buyer will be defective, omitted, or otherwise nonconforming, Buyer must deliver a written notice to Akadeum within the three (3) day period following the nonconforming delivery by Akadeum, specifying in said notice the particular defect, deficiency, omission, or nonconformity upon which Buyer is relying to justify rejection of delivery. Buyer hereby agrees that such three (3) day period is a reasonable period of time after delivery within which to reject such Products. Within ten (10) business days following Akadeum’s receipt of Buyer’s written notice of rejection with respect to any Products sold, Akadeum may notify Buyer in writing of Akadeum’s intention to cure any such defective or nonconforming goods, and Akadeum will have a reasonable period of time within which to make a conforming delivery or to otherwise correct or remedy the specific condition upon which Buyer is then relying in rejecting the Products. Any rejection properly made by Buyer will apply only to nonconforming goods, and Buyer is required to complete its purchase of all other Products pursuant to any and all POs, strictly in accordance with the terms and conditions thereof.
11. Safety Disclaimer. All Products are provided for “Research Use Only—Not for use in diagnostic procedures or therapeutic use.” It is Buyer’s sole and exclusive obligation to obtain any safety or regulatory approvals required for Buyer’s intended use of the Products. By accepting delivery and utilizing the goods and services provided pursuant to any PO, Buyer acknowledges and accepts all the safety information provided by Akadeum and accepts Akadeum’s disclaimer of any and all liability for personal injuries associated with the use of such goods and services. Buyer agrees not to hold Akadeum liable for any injuries that occur in the installation, operation, maintenance, use or possession of the goods provided pursuant to a PO. Buyer acknowledges that the goods sold pursuant to a PO may include prototypes and may not have undergone product safety testing. Buyer will instruct all of its employees and other operators of such goods to exercise extreme caution when using such goods and will undertake no efforts at modification of such goods without the prior consent and direction of Akadeum.
12. Indemnification.
    1. Akadeum will indemnify, protect, defend and hold harmless Buyer, it’s officers, employees, stockholders, successors and assigns with respect to any claim, suit, action or judgment of any kind that any Products or services provided to Buyer under a PO infringe any United States patent issued or any copyright or trade secret arising under the laws of any jurisdiction (an “IP Action”); provided that Akadeum will be relieved of the foregoing obligations unless Buyer: (a) gives Akadeum prompt written notice of each such claim; (b) tenders to Akadeum sole control of the defense or settlement of each such IP Action; and (c) cooperates with Akadeum in defending or settling each such IP Action. If Akadeum receives notice of an allegation that any Products or services infringe or misappropriate a third party’s intellectual property rights, or if Buyer’s use of the same is prohibited by permanent injunction of a court of competent jurisdiction as a result of such an infringement or misappropriation, Akadeum may, at its sole option and expense: (a) procure for Buyer the right to continue using such Products and services as provided hereunder; (b) modify such Products and services so that they are no longer infringing; (c) replace the Products or services with other products or services of equal or superior functional capability; or (d) refund all amounts paid by Buyer for such Products or services.
    2. THE RIGHTS GRANTED TO BUYER UNDER SECTION 12(A) WILL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND AKADEUM’S SOLE OBLIGATION FOR ANY ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY RIGHT. AKADEUM WILL HAVE NO LIABILITY, INCLUDING UNDER SECTION 12(A), TO THE EXTENT ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION IS BASED UPON OR ARISES OUT OF: (A) ANY PRODUCT OR SERVICE MODIFIED WITHOUT THE APPROVAL OF AKADEUM; (B) ANY BUYER OR THIRD-PARTY PRODUCT OR SERVICE; (C) USE OF PRODUCTS OR SERVICES IN CONNECTION OR IN COMBINATION WITH EQUIPMENT, DEVICES, PRODUCTS OR SERVICES NOT PROVIDED BY AKADEUM; (D) PRODUCTS OR SERVICES DEVELOPED OR MODIFIED IN COMPLIANCE WITH BUYER’S WRITTEN DESIGN REQUIREMENTS OR SPECIFICATIONS; OR (E) THE USE OF PRODUCTS OR SERVICES OTHER THAN AS PERMITTED UNDER THIS AGREEMENT OR IN A MANNER FOR WHICH THEY WERE NOT INTENDED.
    3. Except as provided in Section 12(a), Buyer assumes all liability of any nature whatsoever arising out of the use or possession of all goods and services provided under a PO and agrees to indemnify, protect, defend and hold harmless Akadeum, it’s officers, employees, stockholders, successors and assigns with respect to any claim, suit, action or judgment of any kind arising out of the installation, operation, maintenance, use or possession of the goods or services provided pursuant to any PO and any expenses related thereto including attorneys’ fees and costs.

13. WARRANTIES; DISCLAIMER. Akadeum warrants that Products produced by Akadeum will, for a period of one (1) year from Akadeum delivery of such unit, be free from defects in materials and workmanship and will conform to its written specifications provided by Akadeum. This warranty does not cover defects or failure caused by improper handling, storage, maintenance, or by any modification, abuse or abnormal use of such goods after delivery by Akadeum. For any Products produced or manufactured by a third party and distributed by Akadeum, Akadeum will, as permitted by the third party, pass through any applicable warranties directly to Buyer as may be provided in a PO and Akadeum will have no further obligations to Buyer with respect to such Products. THE FOREGOING LIMITED WARRANTIES WITH RESPECT TO PRODUCTS ARE EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES OF QUALITY OR PERFORMANCE, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS OF SAID EQUIPMENT AND PRODUCTS FOR ANY PARTICULAR PURPOSE. AKADEUM HEREBY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS OR IMPLIED, REGARDING THE SUITABILITY OF ANY PRODUCTS SUPPLIED BY AKADEUM WITH RESPECT TO INSTALLATION IN ANY PARTICULAR SYSTEM OR WITH RESPECT TO ANY OTHER CLAIM. AKADEUM MAKES NO OTHER WARRANTY OF ANY KIND WITH RESPECT TO ANY SERVICES PERFORMED BY AKADEUM OR ITS AGENTS. Akadeum does not authorize any person or entity (including, without limitation, Akadeum agents and employees) to make any representations (verbal or written) contrary to the terms of this limited warranty or its exclusions. Such terms of this limited warranty and its exclusions can only be effectively modified in writing and only by an authorized officer of Akadeum.
14. WARRANTY CLAIMS. If any goods warranted by Akadeum are defective, then Buyer’s exclusive remedy against Akadeum, and Akadeum’s sole obligation, for any and all claims whether for breach of warranty, breach of contract, tort (including negligence and strict liability) or otherwise will be limited to, at Akadeum’s option, replacing the defective good or refunding the purchase price of such defective good. Such replacement or refund is the sole remedy with respect to defective goods. Refunds may be applied against Buyer’s open balances at Akadeum’s sole discretion. In no event will Akadeum have any liability for damages in an amount exceeding the purchase price of the related defective goods nor will Akadeum have any liability for incidental or consequential damages. The foregoing remedies (replacement or refund) are Buyer’s sole and exclusive remedies with respect to all warranty claims on defective goods (including any express warranties and under any implied warranties not negated by these Terms and Conditions). Warranty claims must be made within the warranty period or are forever waived. The provisions of this Section limiting remedies to replacement or refund and limiting liability and excluding consequential or incidental damages are independent provisions and any determination that any such limitation of remedies fails of its essential purpose or any other determination that any of the aforementioned provisions are unenforceable, will not be construed to make any other provision of these Terms and Conditions unenforceable.
15. DAMAGES AND LIMITATION OF LIABILITY. IN NO EVENT WILL AKADEUM BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM, CONNECTED WITH OR RELATING TO THE PROVISION OF ANY GOODS OR SERVICES TO BUYER UNDER ANY PO, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF BUYER GOODWILL, ATTORNEYS’ FEES, DAMAGE TO BUSINESS OR BUSINESS RELATIONS, LOSS OF USE OF EQUIPMENT, COST OF CAPITAL, CLAIMS BY CLIENTS OR CUSTOMERS OF EITHER PARTY, OR DAMAGES FOR ECONOMIC LOSSES OR PROPERTY DAMAGE ARISING FROM, CONNECTED WITH OR RELATING TO THE OTHER PARTY’S ACTS OR OMISSIONS, WHETHER UNDER NEGLIGENCE, STRICT LIABILITY, ENTERPRISE LIABILITY OR OTHER PRODUCT LIABILITY THEORIES. AKADEUM’S TOTAL LIABILITY WILL NOT EXCEED THE AMOUNT PAID TO AKADEUM PURSUANT TO A PO. BUYER’S TOTAL LIABILITY WILL NOT EXCEED THE AMOUNT OWED TO AKADEUM UNDER THIS AGREEMENT. ANY ACTION ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PRODUCTS OR SERVICES FURNISHED BY AKADEUM MUST BE BROUGHT BY EITHER PARTY WITHIN ONE (1) YEAR FROM THE DATE THE CAUSE OF ACTION ACCRUES, OR THE APPLICABLE STATUTORY PERIOD, WHICHEVER IS SHORTER.
16. Force Majeure. Akadeum will not be deemed to be in default or otherwise responsible for delays or failures in performance resulting from acts of God, acts of war or civil disturbance, epidemics, pandemics, governmental action or inaction, governmental shutdown, executive order, fires, earthquakes, unavailability of labor, materials, power or communication, or other causes beyond IC’s reasonable control.
17. Choice of Law. All POs accepted by Akadeum will be deemed entered into within the State of Michigan and the validity, performance and construction of such PO and these standard terms and conditions will be governed by the laws of said state, without regard to principles of conflicts of law. In the event suit is filed by Akadeum against Buyer, Buyer consents to subject matter and personal jurisdiction and venue in the state and federal courts in the State of Michigan. Buyer further agrees that in the event Buyer wishes to initiate litigation against Akadeum for any reason, then absent Akadeum’s written consent to the contrary, Buyer agrees that any such lawsuit(s) will only be brought against Akadeum in the appropriate state or federal court in the state of Michigan.
18. Waiver. Any failure of Akadeum to enforce any of the provisions, rights or remedies of any PO or these standard terms and conditions, to exercise any election or option provided therein or herein, or to require at any time performance of any of the provisions thereof or hereof, will in no way be construed to be a waiver of such provisions, rights or remedies, nor in any way construed to affect the validity or enforceability of such PO or these standard terms and conditions, or any part thereof or hereof, or the right thereafter to enforce each and every such provisions, right or remedy.
19. Insolvency. Akadeum may immediately cancel all or part of any PO between Akadeum and Buyer, without any liability to Akadeum, in the event of any of the following: (a) insolvency of Buyer; (b) Buyer’s filing of a voluntary petition in bankruptcy; (c) the filing of an involuntary petition to have Buyer declared bankrupt provided it is not vacated within ninety (90) days from the filing date; (d) the appointment of a receiver or trustee for Buyer provided such appointment is not vacated within ninety (90) days from the appointment date; or (e) the execution by Buyer of an assignment for the benefit of creditors.
20. Amendment. No amendment or modification of these terms and conditions or any PO will be of any force and effect unless in writing and signed by Buyer and Akadeum, and no amendment or modification will be effected by an acknowledgment or acceptance by Akadeum of a purchase order from Buyer containing any different terms and conditions. In the event such new terms and conditions are inconsistent with these terms and conditions, these terms and conditions will govern any such inconsistencies.
21. Severability. Whenever possible, each provision of these terms and conditions and of any PO will be interpreted in such a way as to be effective and valid under applicable law. If a provision is prohibited by or invalid under applicable law, it will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions.
22. Assignment These standard terms and conditions, and any related PO, will inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns; provided, however, that Buyer will not transfer, sell, assign, pledge or encumber any of its rights, interests, or obligations hereunder or thereunder without the prior written consent of Akadeum.
23. Notices. All notices, requests, consents, claims, demands, waivers, and other communications (other than routine communications having no legal effect) will be in writing and will be deemed to have been given (i) when delivered by hand (with written confirmation of receipt) or proof of service; (ii) when received by the addressee if sent by a nationally recognized overnight courier; or (iii) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses as listed on PO.
24. Relationship of the Parties. The relationship between Akadeum and Buyer is that of independent contractors. Nothing stated in these standard terms and conditions will be construed as creating the relationship of employer and employee, franchisor and franchisee, principal and agent, partnership, or joint venture between the parties. No party, nor any of its employees or agents, will have any express or implied right or authority to assume or create any obligations on behalf of any other.