Standard Terms and Conditions of Sale/Lease

PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR PURCHASE AND/OR LEASE. THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. REFERENCES TO “YOU” OR “YOUR” MEAN THE PURCHASER AND/OR LESSEE (AS APPLICABLE) OF THE GOODS AND/OR SERVICES.

These Standard Terms and Conditions of Sale/Lease (including any policies or attachments referenced herein, these “Standard Terms”) apply to all offers and sales by Javelin Biotech, Inc. (“Company”) of Goods and Services (each as defined below) purchased or leased by you. By executing an Order Form for the Goods or Services, you accept and are bound to the terms and conditions of these Standard Terms.

1. Order Forms. You hereby agree to purchase or lease, and Company agrees to sell, lease, license, and/or perform, as applicable, the Products and Services according to order forms, sales orders, or other documentation into which these Standard Terms are incorporated by reference and signed by you and the Company (each, an “Order Form”, and together with these Standard Terms, this “Agreement”). All Order Forms are subject to and governed exclusively by these Standard Terms. Any terms or conditions in addition to, or inconsistent with, those stated herein are hereby objected to. Company’s acceptance of any Order Form is expressly conditioned upon your assent to all of the terms and conditions in these Standard Terms. For purposes of this Agreement, (i) “Products” means the Company’s organ- or tissue-on-a-chip product purchased by you pursuant to an Order Form; (ii) “Hardware” means all associated equipment, accessories, and hardware purchased and/or leased by you, as applicable, pursuant to an Order Form (and, together with the Products, the “Goods”); (iii) “Software” means the Company’s on-premise software solution licensed to you pursuant to an Order Form; and (iv) “Services” means the installation, maintenance, support, training, or other services you and Company may agree from time to time that Company will perform, as designated on an Order Form or as specified in a separate statement of work signed by you and the Company that expressly references this Agreement (“SOW”). This Agreement may not be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both you and Company.

2. Payment Terms; Interest. Terms of payment are within Company’s sole discretion and will be set forth on the applicable Order Form or SOW. Invoices are due and payable within the time period noted on the applicable Order Form or SOW (or within thirty (30) days, if no such time period is noted), measured from the date of the invoice. Company may invoice parts of an order separately. Company is not responsible for pricing, typographical or other errors in any Order Form and reserves the right to cancel any Order Form arising from such errors. Company reserves the right to charge you a late penalty charge of 1.5% per month applied against undisputed overdue amounts or the maximum rate permitted by law, whichever is less. Every thirty (30) days thereafter you will continue to be charged an additional late penalty charge. Title to the Goods purchased by you, as designated on the applicable Order Form, passes from Company to you only upon payment in full for such Goods.

3. Software End User License Agreement. Your rights to download, install, and use the Software are governed by, and conditioned on your acceptance of, the End User License Agreement (the “EULA”), which is hereby incorporated by reference. For the avoidance of doubt, notwithstanding anything contained herein including the use of the terms “sell”, “sale”, or “sold”, the Software is licensed and not sold to you as set forth in the Order Form and EULA. Subject only to the rights expressly granted to you in the EULA, Company and its licensors retain all proprietary rights and title (including without limitation all intellectual property rights) in and to the Software and any modifications thereof.

4. Leased Hardware. To the extent you elect in an Order Form to lease any Hardware (such leased Hardware, the “Leased Hardware”), and for such time as the Hardware is leased, the following terms will apply to the Leased Hardware:

(a) Lease. Company hereby leases to you, and you hereby lease from Company, subject to the terms and conditions of this Agreement, the Leased Hardware in the quantities set forth in the applicable Order Form. The Leased Hardware will automatically include any replacements, repairs, additions, or accessories thereto furnished by Company and any repairs effected by you. You will pay to Company rent, payable in advance for each month during the Term, as set forth in the applicable Order Form. In addition to the rent set forth in the applicable Order Form, you will pay or reimburse Company for all assessments, charges, fees, fines, and taxes which may be imposed upon the ownership, leasing, renting, sale, possession, transportation, or use of the Leased Hardware during the term of this Agreement, including without limitation any local and state personal property taxes which may be imposed upon the Leased Hardware. Company retains title to the Leased Hardware and no right, title, or interest in the Leased Hardware will pass to you except as expressly set forth in this Agreement. You will keep the Leased Hardware free and clear of all security interests, claims, liens, and encumbrances.

(b) Further Assurances; UCC Filing. You will promptly execute and deliver to Company such further documents and take such further action as Company may request to carry out more effectively the intent and purposes of this Agreement. You hereby authorize Company to file at any time and from time to time in any filing office in any Uniform Commercial Code jurisdiction any Uniform Commercial Code financing statements, continuations and amendments describing the Leased Hardware and to do all other acts reasonably necessary to provide notice to third parties of this Agreement and the lease contained herein and/or Company’s ownership of the Leased Hardware.

(c) Use and Maintenance. You agree (i) to comply with all applicable laws and regulations applicable to this Agreement and the Leased Hardware, (ii) to use and maintain the Leased Hardware in accordance with all due care and in accordance with industry practice and any documentation provided by Company, (iii) not to make any alterations or additions to the Leased Hardware outside of the ordinary course of business, (iv) you will not remove or alter any marking or labeling affixed to the Leased Hardware indicating Company’s interest therein, and (v) to use properly trained personnel in the installation, operation, and maintenance of the Leased Hardware. You agree that any approved alterations to the Leased Hardware will at all times be and remain the property of Company. You, at your sole cost and expense, will maintain the Leased Hardware so as to keep the Leased Hardware in good condition and working order, reasonable wear and tear excepted. Company’s authorized representatives shall have access to your premises during normal business hours for the purpose of inspecting the Leased Hardware upon reasonable notice, at times reasonably convenient to you and not to exceed more than twice per year.

(d) Insurance. You will obtain and maintain during the term of this Agreement, at your own expense, liability insurance against all risks of property damage or loss (including without limitation fire, theft, and destruction) of the Leased Hardware. Such insurance will name Company as an additional insured or loss payee, as the case may be, and you will deliver to Company a Certificate of Insurance consistent with this Section 4(d). You will promptly provide Company with any notice of cancellation or modification of such insurance.

(e) Loss or Damage. From the date the Leased Hardware are received by you or your shipping agent, until Company receives the Leased Hardware, you will bear the entire risk of theft of, damage to, destruction of or loss of the Leased Hardware, or any condemnation or seizure of the Leased Hardware (each individually an “Event of Loss”), including, without limitation, loss or damage occurring during shipment. When any Event of Loss occurs, you will promptly notify Company in writing.

(f) Return of Leased Hardware. Upon the expiration or termination of this Agreement or upon demand of Company, you, at your own risk and expense, will immediately return the Leased Hardware to Company in good repair and working order, at such location as Company will designate (unless you exercises the Purchase Option or the Leased Hardware is already in Company’s possession).

5. Delivery and Shipping. Company will deliver the Goods and perform the Services within a reasonable time after the Effective Date set forth in the Order Form. Company will not be liable for any delay or loss or damage in transit. Company may, in its sole discretion, without liability or penalty, make partial shipments of Goods to you or partial performance of Services for you. Each partial shipment or performance will constitute a separate sale, and you will pay for the units shipped or Services performed whether such shipment or performances of Services is in whole or partial fulfillment of your purchase order.

6. Shipping Charges; Taxes; Title; Risk of Loss. Unless set forth otherwise on the applicable Order Form, shipment of Goods will be made EXW (Ex Works, Incoterms 2020) Company’s facility, at which time, with respect to Goods purchased by you, risk of loss will pass to you. Further, with respect to any Leased Hardware that the parties specify on the applicable Order Form is leased on a “lease-to-own” basis, upon Company’s receipt of your payment in full of all amounts due with respect to such Leased Hardware during the applicable lease term specified on the Order Form, the applicable Leased Hardware will be assigned to you and title and risk of loss of such Leased Hardware will pass to you. Shipping and handling are additional unless otherwise expressly indicated in the applicable quotation. Unless you provide Company with a valid and correct tax exemption certificate applicable to your purchase of Goods or Services and the Goods ship-to and Services performance location, you are responsible for sales and other taxes associated with the order.

7. Warranties; Disclaimer.

(a) Company warrants that (i) the Goods, when delivered to a common carrier for shipment to you, will be free of material defects in workmanship and material and (ii) the Services will be performed in a professional and workmanlike manner and in accordance with applicable laws and regulations. You agree that the Products are designed solely for internal research purposes and for no other purpose, including, without limitation, for human or veterinary diagnostic or treatment purposes. Without limitation, this limited warranty does not apply to any third-party products or components; consumables; defects resulting from Goods that have been damaged or misused by any person or entity after risk of loss passes to you, in the case of purchased Goods; or defects resulting to the Goods or Services from instructions provided by you. You will be liable for costs or expenses incurred by Company related to the foregoing exclusions. Any warranties regarding the Software are set forth in the EULA.

(b) If any Goods supplied or Services performed by Company to you fails to conform to the quality warranties set forth in Section 7(a) above (“Non-Conforming Goods or Services”), then Company will at its election and its cost either (i) arrange for the prompt repair or replacement and shipment or re-performance of such Non-Conforming Goods or Services or (ii) issue a credit to you for the price paid for any such Non-Conforming Goods or Services. Correction in the manner provided above will constitute your sole remedy for, and complete fulfillment by Company of, all liabilities of Company with respect to the quality of the Goods and Services. Company will not accept return of Goods except in accordance with this Section 7(b) and such reasonable instructions for returning Goods as Company may provide from time to time. The foregoing will only apply if the claim is made by you in writing within fifteen (15) days of its detection of a defect, and only if the defect was not caused by you or any of your employees, customers, or contractors or other third parties.

(c) EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7(A) AND 7(B): (A) THE GOODS AND SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OR SUPPORT OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND NO OTHER REPRESENTATIONS OR CLAIMS OF ANY KIND WILL BE BINDING ON OR OBLIGATE COMPANY; (B) THE GOODS AND SERVICES ARE EXPRESSLY PROVIDED TO YOU “AS IS”; (C) IF ANY TECHNICAL SUPPORT, MAINTENANCE, OR ASSISTANCE IS PROVIDED WITH RESPECT TO THE GOODS AND SERVICES AND THE USE THEREOF, IT IS PROVIDED “AS IS”, WITHOUT WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED; (D) COMPANY DOES NOT WARRANT THAT THE USE OR OPERATION OF THE GOODS AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; AND (E) YOU BEAR ALL RISKS RELATING TO THE USE OF THE GOODS AND SERVICES AND THE QUALITY AND PERFORMANCE OF THE GOODS AND SERVICES AND ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

8. Indemnification. You will defend, indemnify and hold harmless Company and its officers, directors, employees, permitted successors, agents, and representatives from and against any liability, claim, demand, action, suit, fine, penalty, proceeding, loss, damage, or expense (including court costs and reasonable attorneys’ fees) (collectively, “Losses”) related to (a) misuse of the Goods or resulting from injury and/or death of any person or damage to or loss of any property arising out of your negligence or wrongful act, error, or omission, (b) your breach of obligations in Section 4, or (c) otherwise from your transportation, installation, possession, operation, or use of the Leased Hardware. Company will have the right to participate, at its own expense, in the defense or settlement of any such claim. You will not settle or compromise any such claim without Company’s prior written consent.

9. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU WAIVE ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON YOU BY ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE THAT YOU MAY HAVE AGAINST COMPANY. TO THE MAXIMUM EXTENT LEGALLY PERMITTED, WHETHER OR NOT COMPANY WAS AWARE OR ADVISED OF THE POSSIBILITY OF DAMAGES, AND WHETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE: (A) COMPANY’S AGGREGATE LIABILITY (WHETHER BASED ON WARRANTY, CONTRACT, TORT, INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL THEORY) WILL IN NO CIRCUMSTANCES EXCEED THE COST OF THE GOODS AND SERVICES YOU ORDERED THAT IS RELATED TO YOUR DAMAGES; AND (B) IN NO EVENT WILL COMPANY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, OR COST OF COVER, OR DAMAGES RESULTING FROM LOST DATA (WHETHER BASED ON WARRANTY, CONTRACT, TORT, INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL THEORY). SOME STATES, COUNTRIES AND PROVINCES DO NOT ALLOW CERTAIN EXCLUSIONS OR LIMITATIONS OF LIABILITY, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

10. Confidentiality. If the parties have entered into a written non-disclosure agreement, the terms of such agreement will govern the exchange of information under this Agreement. If the parties have not entered into a written non-disclosure agreement, then you agree to hold in strictest confidence, and will not use or disclose (directly or indirectly) to any third party, any Confidential Information (as defined below) of Company, other than to your employees, consultants, and contractors who have a “need to know” or are required to access such Confidential Information in connection with the exercise of your rights and performance of your obligations under this Agreement, provided that any and all such employees, consultants, and contractors are bound by written agreements to hold and maintain such Confidential Information in accordance with the terms and conditions of this Agreement. “Confidential Information” means all non-public information that Company designates as being confidential, or which, under the circumstances of disclosure ought to be treated as confidential and includes, without limitation, the terms and conditions of this Agreement, Company order forms or quotations, information relating to released or unreleased Company products, goods or services and information received from others that Company is obligated to treat as confidential. “Confidential Information” will not include information that (a) is generally and freely publicly available through no fault of yours, (b) you otherwise lawfully obtained from third parties without restriction, or (c) is independently developed you with no knowledge of or access to such information. If you are required by any law, rule, or regulation to disclose any Confidential Information, by subpoena, judicial or administrative order or otherwise, you will notify Company of such requirement and will permit Company to intervene in any relevant proceedings to protect its interests in such Confidential Information and provide full cooperation and assistance to Company in seeking such protection. You acknowledge that any unauthorized use of Confidential Information will cause irreparable harm and injury to Company for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, you further agree that Company will be entitled to injunctive relief in the event you access or use the Confidential Information in violation of this Agreement, without necessity of posting a bond or proving actual damages.

11. Feedback. You may from time to time provide suggestions, comments or other feedback (“Feedback”) with respect to the Goods, Software, and Services and other products, goods, services, or materials of Company. You agrees that all Feedback is and will be given entirely voluntarily. Feedback, even if designated as confidential by you, will not, absent a separate written agreement, create any confidentiality obligation for or upon Company. Company will have sole discretion to determine whether or not to proceed with the Feedback and the full and unrestricted right to use or incorporate Feedback into any of its products, goods, services, or materials.

12. Compliance with Law; Export Control. You will comply with all applicable laws, regulations, and ordinances and maintain in effect all the licenses, permissions, authorizations, consents, and permits that you need to carry out your obligations under this Agreement. You will comply with all export and import laws of all countries involved in the sale of the Goods and Services under this Agreement. You assume all responsibility for shipments of Goods or performance of any Services requiring any government import clearance. Company may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Goods or Services.

13. Governing Law. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules of conflict of laws. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of the United States of America located in the Commonwealth of Massachusetts (the “Massachusetts Courts”) for any litigation among the parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Massachusetts Courts and agrees not to plead or claim in any Massachusetts Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts.

14. Term; Termination.

(a) The term of this Agreement (the “Term”) is set forth on the applicable Order Form. Company may, from time to time, amend these Standard Terms, and will post such amended Standard Terms on Company’s website at www.javelinbiotech.com/salestermsandconditions, noting the date of the last such amendment. Upon the commencement of any Renewal Term (as defined in the Order Form), this Agreement will renew on the then-current version of these Standard Terms.

(b) If either party materially breaches this Agreement and such breach is not remedied within thirty (30) days after receipt by the breaching party of notice thereof, the non-breaching party may immediately terminate this Agreement.

(c) In the event of any expiration or termination of this Agreement, you will promptly return all Leased Hardware to Company in good repair and working order, in accordance with reasonable shipping or delivery instructions as communicated by Company, and all licenses for you to use the Software will immediately terminate. Sections 7(c) and 8 through 15 (inclusive) will survive any termination or expiration of this Agreement.

15. Miscellaneous. Company will have no liability under this Agreement for Company’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any event beyond Company’s control. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the remainder will continue in effect, to the extent consistent with the intent of the parties as of the effective date of this Agreement. Nothing in this Agreement will be construed to place the parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. Neither party will represent to the contrary, either expressly, implicitly or otherwise. You may not assign or transfer this Agreement in whole or in part, without the prior written consent of Company, except that you may assign this Agreement in whole in connection with the sale of all or substantially all of your assets or business, provided that the assignee expressly assumes, in a writing delivered to Company, all of the terms and conditions of this Agreement. Company may freely assign or transfer this Agreement. Any attempted assignment, delegation or transfer by you in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns. All notices under this Agreement will be in writing and will reference this Agreement. Notices will be deemed given: (a) when delivered personally; (b) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (c) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth on the Order Form or such other addresses designated pursuant to this Section 15. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. To the extent of any conflict or inconsistency between the provisions in these Standard Terms and any Order Form, the terms of these Standard Terms will govern, provided that the term or condition of the applicable Order Form will govern if and only if such Order Form expressly states that it is the intention of the parties to amend these Standard Terms and the specific section herein to be amended is referenced in such Order Form. This Agreement may not be modified or waived, in whole or part, except in writing and signed by an officer or duly authorized representative of both parties.