Terms and Conditions

These Terms and Conditions (“Terms and Conditions”) apply to products sold by OrganaBio, LLC (“Seller”) to Buyer. By submitting any order to Seller and purchasing Seller’s products (the “Products”), Buyer agrees to be bound by these Terms and Conditions. ANY TERMS, CONDITIONS, COVENANTS, OBLIGATIONS OR OTHER STATEMENTS MADE ORALLY OR CONTAINED IN ANY ORDER FORM OR OTHER DOCUMENT SUBMITTED OR USED BY SELLER OR BUYER WILL NOT AMEND, MODIFY, ALTER OR CHANGE THESE TERMS AND CONDITIONS AND ANY SUCH TERMS SUMBITTED BY BUYER WHICH ARE INCONSISTENT WITH, DIFFERENT FROM AND/OR IN ADDITION TO, THESE TERMS AND CONDITIONS ARE REJECTED AND OBJECTED TO, AND SHALL BE VOID AND OF NO FORCE OR EFFECT.

Seller may accept or reject any Buyer order for Products in its sole discretion. A Buyer order will be deemed accepted by Seller only when Seller provides written confirmation of order acceptance, or a Sales Order, to Buyer.

Pricing and Payment Terms

The price applicable to any order accepted by Seller shall be the price in effect on the date the Buyer orders the Product. Payment is due in full at the time Buyer orders Product. With regard to any order which Seller rejects, Seller will not process payment or will refund payment to the Buyer within fifteen (15) days of Seller’s rejection. If Seller has separately agreed in writing to invoice Buyer for any Product, payment shall be due within thirty (30) days following the date of Seller’s invoice. All claims by Buyer shall be made by written notice to Seller in accordance with these Terms and Conditions, and no offset or deduction from any invoice is permitted. Acceptance by Seller of bank draft, check, or other media of payment is subject to immediate collection of the full face amount thereof.

Seller may, in its sole discretion, require cash or satisfactory security prior to shipments or deliveries hereunder. Buyer agrees to pay all costs and expenses, including attorneys' fees, incurred by Seller in the collection of any sum payable by Buyer to Seller.

If Buyer uses a Credit Card to purchase Products, BUYER AGREES TO NOT CHARGE BACK ITS CARD for ANY reason. If Buyer wishes to return or seek a refund with respect to a Product purchased from Seller using its credit card, Buyer must follow the return/refund policy and procedures set forth under these Terms and Conditions. In the event Buyer breaches this commitment and issues a charge back to its credit card for all or partial amounts paid for the Products, Buyer agrees to an administrative service fee of five hundred ($500.00) dollars, which Buyer agrees to pay in addition to the amount sought to be charged back. Violation of this paragraph by Buyer is a material breach of these Terms and Conditions and in Seller’s sole discretion, Seller may terminate and cancel any order of Products from Buyer currently in process or on delivery and may offset against any payments made by Buyer with respect to such canceled order any and all amounts Buyer may owe to Seller arising from any chargebacks pursuant to this paragraph.

If Buyer breaches any term of the Terms and Conditions or any other contractual obligation in favor of Seller, (a) Seller may choose to defer any or all further shipments or other performance of any other contractual obligation in favor of Buyer until Buyer cures its breach, and (b) Seller may, by delivery of written notice to Buyer describing the breach, immediately terminate any other contractual obligation to Buyer. In the event of a termination, all outstanding payment obligations of, or other amounts owed by, Buyer to Seller shall be due and payable no later than fifteen (15) days after delivery of notice of termination. In addition, in the event that Buyer fails to make any payment when due, Seller shall have the right to offset any and all outstanding payment obligations of, or other amounts owed by, Buyer to Seller against any outstanding payment obligations of, or other amounts owed by, Seller or any of its affiliates to Buyer.

In addition to the purchase price, Buyer shall pay Seller any and all sales and other taxes of every kind imposed by any federal, state, foreign or local government that Seller may be required to pay or collect with respect to the purchase, sale, transportation, storage, delivery or use of the Products, unless Buyer in advance provides Seller with a properly completed tax exemption certificate acceptable to the applicable taxing authority for any tax from which Buyer claims exemption.

For fresh leukapheresis products, a 50% up-front, non-refundable reservation fee may be charged to Buyer at the time that Seller accepts an order from Buyer. This fee is due immediately upon invoice. In addition, leukapheresis scheduling requests that have less than a two (2) week (i.e., 10 business days) lead time may incur a $200 fee for expedited scheduling. Fees will be assessed at the sole discretion of Seller.

Shipping

Once Seller accepts an order from Buyer, Buyer shall have no right to modify or cancel such order without Seller’s written consent and payment to Seller of all costs and expenses Seller incurs if it agrees to such change or cancellation. For the avoidance of doubt, for leukapheresis products, if Buyer modifies or cancels a collection within two (2) weeks (i.e., 10 business days) of the collection date once a donor is scheduled, Buyer will pay Seller 50% of the cost of Product. If Buyer modifies or cancels a collection within three (3) business days of collection, Buyer will pay Seller 100% of the cost of Product.

Once Product is shipped pursuant to an order accepted by Seller, such Product may not be returned to Seller. Special or custom order items may not be canceled or returned, and no refund will be made. Risk of loss and title to all Products shall transfer to Buyer upon Seller’s delivery of the Products to the carrier. All orders are shipped via Seller’s recommended carriers unless an alternative agreement has been arranged with the Buyer. Applicable freight, handling, insurance and export charges will be added to Buyer’s invoice or invoiced separately. If another carrier is specified by Buyer, and Seller agrees in writing to utilize such carrier, a carrier account number may be provided by Buyer. For all Product sales, Buyer shall be responsible for all carrier fees and costs and shall be responsible for making any claims to the carrier for lost or damaged shipments of Products and shall hold Seller harmless from any such claims.

Any specified delivery dates are estimates only and do not represent a promise by Seller to deliver Products at a date certain.

Force Majeure

Failure of Seller or Buyer, as applicable, to fulfill its obligations hereunder when due, other than a failure to pay when due any amounts due the other party hereunder, if caused by (a) fire, storm, flood, strike, lockout, accident, act of war or terrorism, riot, civil commotion, embargo, spread of pandemic disease or similar circumstances, (b) any regulation, law, or restriction of any governmental department, commission, board, bureau, agency, court, or other instrumentality of any supranational organization of sovereign states, country, state, province, territory, commonwealth, municipality, or other political subdivision thereof (a "Governmental Authority"), any seizure or requisition of Products by any Governmental Authority, or any compliance with a demand or request for Products for purposes of national or supranational defense, (c) inability of Seller to obtain any required raw material, energy source, equipment, labor or transportation, at prices and on terms deemed by Seller to be reasonable and practicable, or (d) any other cause or contingency beyond the reasonable control of that party (whether or not of the same kind or nature as the causes or contingencies above enumerated), shall not subject the party failing to perform to any liability to the other during the period such inability to make or take delivery shall exist. Quantities so affected may, at the option of either party, be eliminated from the purchase without liability, but the Terms and Conditions shall remain otherwise unaffected.

In the event of Seller's inability, for any reason, to supply the quantities of Products contemplated by an order from Buyer, Seller may allocate its available supply among Seller and its buyers, on such basis as Seller may deem fair and practical without liability to Buyer for any failure of performance that may result therefrom other than a refund of amounts paid for Products that were not supplied to Buyer.

Warranty

SELLER WARRANTS THAT PRODUCTS SHALL, AT THE TIME OF DELIVERY, CONFORM TO SELLER’S SPECIFICATIONS AS SET FORTH IN THE CERTIFICATE OF ANALYSIS ACCOMPANYING THE PRODUCT. SELLER DOES NOT WARRANT OR REPRESENT THAT THE PRODUCTS ARE OR WILL BE SUITABLE FOR BUYER’S INTENDED USE OR APPLICATION. SELLER WILL REPLACE ANY PRODUCTS, FREE OF CHARGE, THAT DO NOT MEET SELLER’S SPECIFICATIONS, PROVIDED BUYER NOTIFIES SELLER OF ANY SUCH FAILURE TO MEET THE SPECIFICATIONS WITHIN FIVE (5) DAYS OF BUYER’S RECEIPT OF PRODUCTS. THIS WARRANTY IS EXCLUSIVE, AND SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, BY FACT OR LAW, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY PATENT OR INTELLECTUAL PROPERTY RIGHTS. SELLER’S WARRANTY SHALL NOT BE EFFECTIVE IF SELLER HAS DETERMINED, IN ITS SOLE DISCRETION, THAT BUYER HAS MISUSED THE PRODUCTS IN ANY MANNER, HAS FAILED TO USE THE PRODUCTS IN ACCORDANCE WITH INDUSTRY STANDARDS AND PRACTICES, AND/OR HAS FAILED TO USE THE PRODUCTS AS SET FORTH HEREIN OR IF PRODUCTS ARE NOT STORED AND USED AS SPECIFIED IN SELLER’S PROTOCOLS, PROCEDURES AND/OR INSTRUCTIONS FOR USE. IF ALTERNATE CULTURE MEDIA AND/OR METHODOLOGIES ARE USED IN COMBINATION WITH THE PRODUCTS, SELLER’S WARRANTY IS NO LONGER VALID.

SELLER MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO TECHNICAL ASSISTANCE, ADVICE OR INFORMATION PROVIDED BY SELLER, ITS ACCURACY OR COMPLETENESS OR OF THE RESULTS TO BE OBTAINED. ANY RECOMMENDATIONS MADE BY SELLER CONCERNING THE USE, FORMULATION, APPLICATION OR OPERATION OF THE PRODUCTS SHALL NOT BE CONSTRUED AS REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. ANY SUGGESTIONS BY SELLER REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS OR IMPLIED WARRANTY. NO STATEMENT BY SELLER, ITS EMPLOYEES, OFFICERS, MEMBERS, AGENTS OR REPRESENTATIVES IS INTENDED OR SHOULD BE CONSTRUED AS A RECOMMENDATION TO INFRINGE ANY EXISTING PATENT OR THAT THE PRODUCTS MAY BE USED IN ANY PARTICULAR MANNER. BUYER ACKNOWLEDGES AND AGREES THAT BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE SUITABILITY OF THE PRODUCTS FOR BUYER’S PARTICULAR PURPOSES. WITH REGARD TO ANY PROCESSING OF PRODUCTS, BUYER ASSUMES FULL RESPONSIBILITY FOR QUALITY CONTROL, TESTING AND DETERMINATION OF SUITABILITY OF PRODUCTS FOR ITS INTENDED APPLICATION OR USE.

Product Use

BUYER acknowledges and agrees that (i) Products are labeled “For Preclinical Research Use Only” and are not intended for and shall not be used for any other purposes, including but not limited to, therapeutic, diagnostic or other procedures or drug purposes, or for administration to or direct use in human subjects, in vitro diagnostic purposes, in drugs, medical devices, foods or cosmetics, for humans or animals, or for Commercial Purposes; (ii) BUYER shall not resell Products; (iii) BUYER’s use of the Products is limited solely to preclinical research; and (iv) BUYER has no rights to transfer the Products, components, or materials made using Products, or use Products for Commercial Purposes. Commercial Purposes include 1) use of the Products for any purpose other than for preclinical research; 2) use of the Products or their components to provide a service, information or data; 3) use of the Products or their components for therapeutic or diagnostic purposes; and/or 4) resale of the Products or their components or any derivatives of the Products. BUYER shall not reverse engineer, disassemble or otherwise recreate the Product on its own or in concert with others. BUYER shall not use the Products after the Product expiration date identified on the Product label.

Products may contain materials of animal or human origin. Products should only be handled and used by qualified personnel familiar with the potential hazards and trained in laboratory procedures. The Buyer assumes all risks of use and/or handling of Products.

Buyer acknowledges that the Products have not been tested by Seller for any specific use. Buyer expressly represents and warrants to Seller that Buyer will properly test and use Products and/or materials produced with Products in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable federal, foreign, state and local laws and regulations, now and hereinafter enacted in any country or jurisdiction in which the Buyer uses the Products.

Buyer assumes responsibility to assure that the Products are approved for use under applicable laws, rules and regulations in each country or jurisdiction in which the Buyer intends to use the Products. Buyer has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using the Products. Buyer also assumes the duty to warn Buyer’s employees, those associated with Buyer and any auxiliary personnel of any risks involved in using or handling the Products. Buyer agrees to comply with instructions, if any, furnished by Seller relating to the use of the Products and not misuse the Products in any manner. No Products shall be considered to be foods, drugs, medical devices or cosmetics.

Patent disclaimer

Seller makes no warranty or representation that the use or sale of any Product, whether alone or in combination with other products, will not infringe any patents, trademarks, registered designs, formulas or other proprietary rights of any party and Buyer assumes all risks associated therewith.

Indemnification

Buyer assumes full liability and responsibility for compliance with any and all Products safety precautions, and with all laws, statutes, ordinances and regulations of any Governmental Authority applicable to the processing, transportation, delivery, unloading, discharge, storage, handling, sale and use of Products. Buyer further agrees to indemnify, protect, defend and hold harmless Seller, its affiliates, and its and their employees, partners, agents, representatives, contractors, members, managers, directors and officers (collectively, “Seller Indemnitees”) from and against all claims, demands, causes of action, damages, losses, liabilities, costs, expenses (including attorneys' fees), penalties, and judgments (each, a "Claim") which the Seller Indemnitees incur or become obligated to pay arising from, related in any way to, associated with, directly or indirectly, (a) the processing, transportation, delivery, unloading, discharge, storage, handling, sale or use of Products; (b) Buyer’s actual or alleged breach of the provisions and representations contained in the Terms and Conditions or violation of law; and/or (c) the actual or alleged negligence, recklessness or misconduct of Buyer. Buyer acknowledges that Seller has no control over Buyer's (or others') use, disposition, subsequent processing, admixing or reaction of Products with other products, chemicals or materials. Buyer assumes the entire liability and responsibility therefor and agrees to protect, defend and hold harmless the Seller Indemnitees from and against all Claims associated therewith.

Limitation of Liability

SELLER SHALL NOT BE LIABLE FOR ANY DAMAGES OR INJURY TO PERSONS OR PROPERTY ARISING FROM THE BUYER’S PURCHASE OR USE OF PRODUCTS.

BUYER SHALL INSPECT PRODUCTS SUPPLIED HEREUNDER IMMEDIATELY AFTER DELIVERY TO DETERMINE THAT THE PRODUCT DELIVERED IS IN THE ORIGINAL, UNDAMAGED PACKAGING AND IS THE TYPE AND QUANTITY ORDERED BY BUYER. BUYER’S FAILURE TO GIVE NOTICE TO SELLER OF ANY CLAIMS RELATED TO DAMAGED PRODUCT PACKAGING, PRODUCT SHORTAGE OR INCORRECT PRODUCT MIX WITHIN 48 HOURS OF RECEIPT OF DELIVERY SHALL CONSTITUTE UNQUALIFIED ACCEPTANCE OF DELIVERY AND A WAIVER BY BUYER OF ALL CLAIMS WITH RESPECT THERETO. BUYER ACKNOWLEDGES AND AGREES THAT SUCH 48 HOUR PERIOD IS REASONABLE AND SUFFICIENT TIME FOR BUYER TO INSPECT THE PRODUCTS FOR DAMAGED PACKAGING, PRODUCT SHORTAGE OR INCORRECT PRODUCT MIX. BUYER'S FAILURE TO GIVE NOTICE TO SELLER OF ANY PRODUCT BUYER CLAIMS FAILS TO CONFORM TO SELLER’S SPECIFICATIONSWITHIN FIVE (5) DAYS AFTER THE DATE OF DELIVERY SHALL CONSTITUTE UNQUALIFIED ACCEPTANCE OF PRODUCTS AND A WAIVER BY BUYER OF ALL CLAIMS WITH RESPECT THERETO. BUYER ACKNOWLEDGES AND AGREES THAT SUCH FIVE (5) DAY PERIOD IS REASONABLE AND SUFFICIENT TIME FOR BUYER TO INSPECT THE PRODUCTS FOR CONFORMITY TO SELLER’S SPECIFICATIONS.

SELLER’S SOLE AND EXCLUSIVE LIABILITY AND BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO PRODUCTS PROVED TO SELLER’S SATISFACTION TO BE DEFECTIVE OR OTHERWISE NOT IN CONFORMITY WITH SELLLER’S SPECIFICATIONS SHALL BE REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN SELLER’S SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH SELLER’S INSTRUCTIONS. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, COST OF CAPITAL, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, ANY LIABILITY OF BUYER TO A THIRD PARTY, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCTS INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR PROPERTY DAMAGE. THE EXCLUSION OF SUCH DAMAGES AND/OR CLAIMS SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY ARISING FROM THE PURCHASE AND/OR THESE TERMS AND CONDITIONS. SELLER’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO CASE EXCEED THE PRICE FOR THE SPECIFIC PRODUCTS THAT GIVE RISE TO THE BUYER’S CLAIM. THESE EXCLUSIONS AND LIMITATIONS ON DAMAGES SHALL APPLY REGARDLESS OF HOW THE LOSS OR DAMAGE MAY BE CAUSED AND AGAINST ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY. ALL CLAIMS MUST BE BROUGHT WITHIN ONE (1) YEAR OF SHIPMENT, REGARDLESS OF THEIR NATURE.

Confidentiality

"Confidential Information" means any information or data in oral, electronic or written form which Buyer knows or has reason to know is proprietary or confidential and which is disclosed by Seller in connection with the sale of Products or which Buyer may have access to in connection with the purchase and sale of Products hereunder. Confidential Information shall be deemed to include (but is not limited to) Product pricing and any documentation provided in support of Product. All Seller Confidential Information disclosed in the course of the performance of these Terms and Conditions shall remain confidential and proprietary until such time as such information is no longer deemed by Seller to be confidential or proprietary. Buyer agrees to hold Seller’s Confidential Information confidential and to do so in a manner at least as protective as it holds its own Confidential Information but to use no less than a reasonable degree of care. Buyer agrees not to use any Seller Confidential Information for any purpose other than the business purposes contemplated hereunder. Upon the written request of Seller, Buyer will either return or certify the destruction of any Seller Confidential Information. In the event the Buyer receives a subpoena, court order or other governmental request to disclose Seller’s Confidential Information, before disclosing such information, Buyer shall promptly provide written notice of such request to Seller to afford Seller a reasonable opportunity to take such action as Seller deems appropriate to attempt to prevent or limit the disclosure of its Confidential Information and the Buyer shall cooperate in any such efforts the Seller undertakes.

Choice of Law, Venue; Waiver of Jury Trial; Attorneys’ Fees

These Terms and Conditions, its interpretation, and all questions concerning the execution, validity, capacity of the parties and the performance of these Terms and Conditions, including, without limitation, the purchase and sale of Products hereunder, shall be governed solely by the laws of the State of Florida, without regard to any choice of law principles that might direct application of the laws of any other jurisdiction. The parties agree that any and all actions arising out of, based upon or relating to these Terms and Conditions, the transaction(s) contemplated hereby or the parties’ relationship may be brought solely in the Circuit or County Court located in Miami-Dade County, Florida or, if federal jurisdiction is appropriate, the United States District Court for the Southern District of Florida (Miami Division). The parties expressly and irrevocably: (i) consent to the exclusive jurisdiction of such Florida courts; (ii) agree that these Terms and Conditions is entered into in the State of Florida and any breach of these Terms and Conditions shall be deemed a breach of a contract in the State of Florida pursuant to Florida Statutes Section 48.193(1)(a) or any similar statute or amendment enacted by the Florida legislature; (iii) agree that they are subject to personal jurisdiction in such Florida courts, and that they have the requisite contacts with the State of Florida such that the exercise of personal jurisdiction complies with Florida’s long arm statute and the requirements of due process; (iv) agree that venue is appropriate in such courts; (v) waive any defense or objection based on a lack of personal jurisdiction; (vi) waive any argument that such courts are an improper venue or an inconvenient forum; and (vii) agree that in the event any action arising out of, based on or relating in any way to these Terms and Conditions or the parties’ relationship is instituted in any court other than the state or federal courts located in Miami-Dade County, Florida, that they will not object to, but rather will affirmatively consent to, other party’s efforts to have such action dismissed or, if appropriate, transferred to the appropriate state or federal court located in Miami-Dade County, Florida. THE PARTIES WAIVE ANY RIGHT TO JURY TRIAL IN ANY ACTION ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS, THE TRANSACTION(S) CONTEMPLATED HEREBY OR THE PARTIES’ RELATIONSHIP. In any action arising out of or relating to these Terms and Conditions or the parties’ relationship, the prevailing party shall be entitled to an award of the costs and attorneys’ fees such party incurs at the pre-trial, trial and appellate levels, in any proceeding to determine the prevailing party’s entitlement to and amount of such costs and attorneys’ fees and in any efforts to collect on such award of costs and attorneys’ fees.

Miscellaneous

Seller's failure to strictly enforce any particular term or condition contained herein or to exercise any right with respect to Buyer’s order shall not constitute a waiver of Seller's right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity. Any waiver of a default by Buyer shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter. If any of these terms shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The section headings herein are for convenience only; they form no part of the Terms and Conditions and shall not affect their interpretation. These Terms and Conditions shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns. These Terms and Conditions may only be amended, modified or changed in writing signed by Seller.