Terms and Conditions

PRIMACY OF SELLER’S TERMS AND CONDITIONS

Any order, including written purchase orders, electronic orders, or any other writings or communications submitted to Bay State Biosciences (“Seller”) by any buyer of Seller’s goods (“Buyer”) that is received and accepted by Seller, and any verbal or written quotations from Seller to Buyer which are accepted by Buyer, shall be construed as an acceptance of Seller’s offer to sell its goods in accordance with the terms and conditions of sale set forth herein. This document contains all of the terms and conditions of the agreement between Seller and Buyer of the goods sold to Buyer, to the exclusion of any terms and conditions incorporated in Buyer’s order or other documents of Buyer. Seller’s acceptance of Buyer’s order is expressly conditioned on Buyer’s acceptance of the terms and conditions contained herein. Buyer, upon placing an order, is presumed to have accepted all of the terms and conditions without modification. No alternation, waiver, modification of or addition to the terms or conditions shall be binding on Seller unless specifically agreed to in writing by a person authorized by Seller to accept such different or inconsistent terms or conditions.

WAIVER

No waiver, whether express or implied, by Seller of any of the terms or conditions hereof shall be deemed a continuing waiver or trade custom between the parties but shall apply solely to the instance to which the waiver is directed.

ACCEPTANCE BY SELLER

All orders received by Seller are subject to revision and possible rejection by Seller after its receipt of the same at its home office, notwithstanding the fact that the same may have been signed by Seller’s field personnel. An order shall become a firm purchase agreement upon the earlier of the Seller’s written acceptance of such order or the Seller’s delivery of the goods specified in such order.

PRICE

Unless otherwise agreed to by Seller, (a) all prices, quotations, shipments and deliveries by Seller are FOB Shipping Point, (b) all prices, including related extras and deductions, are subject to change without notice and the price to be paid by Buyer will be in accordance with Seller’s price in effect in the day of Seller’s acceptance, (c) prices do not include freight, handling, customs or other charges related to the shipment of the goods; and (d) prices do not include any sales, use, excise, value-added or other tax, all of which present or future tax obligations are the responsibility of, and must be paid by, the Buyer.

DELIVERY, TITLE AND RISK OF LOSS

Unless otherwise specified, Seller’s obligation is to deliver the goods to a carrier at the Seller’s shipping point. Seller reserves the right to produce and ship all or any part of the goods specified in any order from any of its plants or facilities or those of its suppliers. Seller will use all reasonable efforts to comply with Buyer’s requests as to method of transportation, but Seller reserves the right to use an alternate method of transportation, whether or not at a higher cost to Buyer, if the method specified by Buyer is deemed by Seller to be unavailable or otherwise unsatisfactory. Title and risk of loss passes to the Buyer at the moment of Seller’s delivery of the goods to the carrier at the shipping point. Although Seller may assist Buyer in connection with pursuing any claim for damages, Seller shall not thereby assume any obligations for such damage or continue to assist Buyer in the presentation of its claim to any carrier.

CLAIMS

Buyer must inspect or test all goods upon actual receipt. Buyer waives any right to assert any claim against Seller arising from any defects, damages or shortages which would have been observable upon reasonable inspection or testing at the time of delivery, unless Seller is advised of such defects, damages or shortages within seven (7) days after receipt of the defective goods by Buyer, a period which the parties agree is reasonable for this purpose. All other claims under the Seller’s warranty must be made within thirty (30) days of the discovery of the defect. Buyer must obtain shipping instructions from Seller prior to returning the goods to Seller for repair or replacement. Unless otherwise agreed, returned goods must be shipped freight prepaid or they will not be accepted by Seller.

PAYMENT

Payment for each order shall be made within thirty (30) days from date of invoice. If complete payment is not made when due, the unpaid balance shall bear interest at the rate of 1½% per month until paid. Buyer shall be responsible for all cost of collection, including reasonable attorney’s fees and court costs. Additionally, Seller may suspend, without liability to Buyer, further performance under any open Buyer orders until such time that Buyer has paid all past due amounts.

CANCELLATIONS

Buyer may cancel an order prior to receipt only upon prior written notice by Buyer to Seller and upon payment to Seller of reasonable and proper cancellation charges which will, in accordance with good accounting practices, satisfy all costs incurred by Seller, together with its proportionate profit of such costs.

WARRANTY

Seller warrants to Buyer that its goods are free from defects in materials and workmanship for thirty (30) days following delivery to Buyer (the “Warranty Period”). No claims under this warranty will be valid unless Buyer notifies Seller in writing within thirty (30) days of its discovery of the defect, but in any event prior to the expiration of the Warranty Period. This warranty does not cover abuse, improper use, handling, storage, or alterations by Buyer or any third party. THE FOREGOING WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER FURTHER DISCLAIMS ANY WARRANTY OR GUARANTY AS TO THE RESULTS BUYER OBTAINS, OR EXPECTS TO OBTAIN, FROM BUYER’S USE OF THE GOODS. Seller will replace or refund to Buyer the purchase price of any goods which are covered by this warranty and which are found by Seller to be defective. Seller may provide a substitute goods of equal or higher value to resolve a warranty claim. No such substitution or replacement will extend the Warranty Period. When a warranty claim arises, Buyer must contact Seller to arrange return shipment to Seller, with freight prepaid by Buyer. The risk of loss or damage to any goods returned to Seller will be with Buyer. THE REMEDY OF REPAIR OR REPLACEMENT PROVIDED FOR HEREIN IS BUYER’S EXCLUSIVE REMEDY IN THE EVENT OF AN ALLEGED BREACH OF THIS WARRANTY. IN ADDITION, SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OR FOR ANY LOSS, INCLUDING LOSS OF LIFE, DAMAGE, INCLUDING DAMAGE TO PERSONAL PROPERTY OR THE PROPERTY OF OTHERS, OR ANY OTHER EXPENSE ARISING FROM THE SALE OR USE OF GOODS OR FROM ANY OTHER CAUSE WHATSOEVER, WHETHER BASED ON WARRANTY (EXPRESSED OR IMPLIED) OR OTHERWISE BASED ON CONTRACT, OR ON TORT, OR REGARDLESS OF ANY ADVICE OR REPRESENTATIONS THAT MAY HAVE BEEN RENDERED BY SELLER OR ITS AGENTS OR REPRESENTATIVES CONCERNING THE SALE OR USE OF THE GOODS.

LIMITATION OF LIABILITY. SELLER WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR LABOR COSTS ARISING FROM THE SALE OR USE OF THE GOODS, FROM THE GOODS BEING INCORPORATED INTO OR BECOMING A COMPONENT OF ANOTHER GODDS, FROM ANY BREACH OF THIS AGREEMENT OR FROM ANY OTHER CAUSE WHATSOEVER, WHETHER BASED ON WARRANTY (EXPRESSED OR IMPLIED) OR OTHERWISE BASED ON CONTRACT, OR ON TORT OR OTHER THEORY OF LIABILITY, AND REGARDLESS OF ANY ADVICE OR REPRESENTATIONS THAT MAY HAVE BEEN RENDERED BY SELLER OR SELLER’S AGENTS OR REPRESENTATIVES CONCERNING THE SALE USE OF THE GOODS. SELLER’S MAXIMUM LIABILITY FOR DIRECT DAMAGES ARISING FROM THE SALE OR USE OF GOODS TO SHALL BE LIMITED TO THE PURCHASE PRICE OF THE GOOD(S) CAUSING SUCH LIABILITY.

INDEMNIFICATION OF SELLER

To the maximum extent allowed by law, Buyer must defend and indemnify Seller and its employees and agents against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorney’s fees) that Seller may incur and be obligated to pay as a result of (a) Buyer’s negligence, use, ownership, maintenance, transfer, transportation, or disposal of any goods sold to Buyer, (b) any infringement or alleged infringement of the industrial or intellectual property rights of others arising from any goods made to Buyer’s non-standard specifications, (c) Buyer’s violation or alleged violation of any federal, state, local or local laws or regulations, including, without limitation, the laws and regulations governing product safety, labeling, packaging and labor practices, or (d) Buyer’s breach of these terms and conditions.

EXCUSABLE DELAYS

Seller shall not be liable for delays or failure in or default in delivery arising out of, or resulting from, causes beyond its control or negligence. Such causes include, but are not limited to, acts of God, acts of Buyer or of the government, or of a public enemy, fire, flood, epidemic, quarantine restrictions, strikes, freight embargoes, unusually severe weather, or default of suppliers due to any such causes.

ASSIGNMENT

Buyer shall not assign any order or any interest therein without the written consent of Seller. Any such actual or attempted assignment without Seller’s prior written consent shall entitle Seller to cancel the order upon written notice to the Buyer.

VALIDITY OF SEPARATE CLAUSES

If any provisions of this agreement shall be held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall not be affected or impaired thereby.

LIMITATION OF ACTIONS

Any cause of action arising from these Terms and Conditions or any sale of goods by Seller to Buyer must be commenced within two years after the cause of action accrues.

GOVERNING LAW

The interpretation, construction and validity of the agreement shall be governed by the laws of the Commonwealth of Massachusetts.

JURISDICTION AND VENUE

Buyer irrevocably submits and agrees to the jurisdiction of the state courts of the Commonwealth of Massachusetts and the federal courts, where appropriate, within the Commonwealth of Massachusetts, in any action, suit or proceeding related to, or in connection with, the sale of any goods by Seller to Buyer, and to the extent permitted by applicable law, Buyer waives and agrees not to assert as a defense in any such action, suit or proceeding any claim (a) that Buyer is not personally subject to the jurisdiction of the state courts of the Commonwealth of Massachusetts and/or the federal courts, where appropriate, within the Commonwealth of Massachusetts, (b) that the venue of the action, suit or proceeding is improper, (c) that the action, suit or proceeding is brought in an inconvenient forum, or (d) that the subject matter of the Sales Agreement may not be enforced in or by the state courts of the Commonwealth of Massachusetts and/or the federal courts, where appropriate, within the Commonwealth of Massachusetts.

PROVISIONS FOR INTERNATIONAL TRANSACTIONS

The following provisions apply to sales to customers located outside the United States:

The 1980 United Nations Conventions on Contracts for the International Sale of Goods shall not apply.

Except as otherwise specified, terms of delivery are Ex-Works (within the meaning of INCOTERMS 1990) and all custom fees, import duties, cargo insurance, taxes and other charges imposed on or relating to the purchase or sale of the goods shall be paid by Buyer in addition to the stated price.

Except as otherwise specified, payment shall be made by issuance to Seller of an irrevocable letter of credit which (i) is issued and confirmed by a U.S. bank acceptable to Seller; (ii) is governed by the Uniform Customs and Practice for Documentary Credits (ICC Publication No. 500 effective January 1, 1994) and otherwise acceptable in form and substance to Seller; and (iii) provides for payment to Seller of the full amount of the purchase price plus pre-paid freight in U.S. dollars upon presentation by Seller of sight drafts, Seller’s invoice and such other documents as shall be required by the letter of credit. All banking and other charges for such letter of credit shall be for the account of Buyer.

Prices include Seller’s standard commercial export packaging, which may vary depending on whether shipment is made by air, land or sea. Buyer will bear any additional expenses required to satisfy Buyer’s specifications. Packages will be marked in accordance with Buyer’s instructions, if any. Seller shall furnish packing lists and such other information as may be necessary to enable Buyer’s agent to prepare documents required for export shipment. Buyer shall supply Seller with all necessary information and assistance for the most expeditious clearance of such shipment through customs.

All shipments hereunder are subject to compliance with U.S. Export Administration Act, as amended, regulations thereunder and all other U.S. laws and regulations concerning exports. Buyer agrees to comply with all such laws and regulations concerning the use, disposition, re-export and sale of the goods hereunder.

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