General Terms and Conditions

These Terms and Conditions (these “Terms and Conditions”) govern each sale of Products (as defined below) by Synseer Technologies LLC (“Synseer”) to you (“Buyer”).  Please note that, notwithstanding any provision of these Terms and Conditions to the contrary,  Synseer’s products have not yet been cleared for sale in the US by the FDA and is not available commercially.  Any order or deposit for the same is subject to and conditioned upon such approval being granted.

1. Exclusive Terms and Conditions; Acceptance. The parties intend for these Terms and Conditions, together with the attached Order Form (the “Pre-Order Form,” and collectively with these Terms and Conditions, the “Agreement”), to exclusively govern and control each of the parties’ respective rights and obligations regarding the sale of Products. Buyer’s acceptance of the Pre-Order Form and purchase of Products is strictly limited to the terms and conditions in the Agreement. Without limiting the foregoing, any additional or different terms contained in any purchase order or other request or communication by Buyer pertaining to the sale of Products, or any attempt to modify, supersede, supplement, or otherwise alter the Agreement, will not modify the Agreement nor be binding on the parties. The Agreement becomes binding when Buyer either signs the Order Form or otherwise authorizes Synseer to proceed with providing Products.
2. Sale of Products, Price, and Payment.
   • Synseer shall sell to Buyer, and Buyer shall purchase from Synseer, the products set forth on the Order Form (the “Products”) at the prices set forth on the Order Form (the “Prices”). All Prices are listed in U.S. Dollars. All Prices are exclusive of all sales, use, excise, and similar taxes, and all customs, duties, import taxes, and charges of any kind imposed by any governmental authority on the purchase of the Products.
   • Synseer may, in its sole discretion, offer credit to Buyer, which may be revoked at any time. If credit is offered, payment of the Prices and any other applicable costs shall be due within 30 days of the date of shipment or placement with the carrier, unless otherwise specified in the Order Form.  In cases where credit is not offered, payment in-full will be required before the Products will be released to Buyer.  At Synseer’s discretion, Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Synseer for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees. Further, if payment of the Prices or any part of the Prices is not received within 30 days of the due date, Synseer shall be entitled to require payment in advance of shipment in relation to any Products not previously shipped, and to refuse to make shipment of any unshipped Products without incurring any liability whatsoever to Buyer for non-shipment or any delay in shipment.
   • Orders cannot be cancelled or modified by Buyer once the Pre-Order Form is signed by Buyer. Synseer may cancel any order at any time upon written notice to Buyer. Synseer shall promptly refund to Buyer any deposit or payments given by Buyer in connection with the cancelled order (without interest), which will be Buyer’s only remedy, and Synseer’s sole liability, for Synseer cancelling an order.
   • Synseer will not be required to take back any Products unless otherwise pre-authorized in writing by Synseer, in its sole discretion, and any credit given is subject to reasonable restocking fees. If Synseer agrees to accept the return of Products, Buyer will be responsible for all shipping and handling charges. Synseer will not be obliged to accept any Products that are damaged in any way, and credit will only be given for Products that are in saleable condition, as determined by Synseer.
   • Buyer shall not, and acknowledges that it will have no right, under the Agreement, any other agreement, document, or law, to withhold, offset, recoup, or debit any amounts owed to Synseer against any other amount owed to it by Synseer.
3. Consigned Instruments.  In connection with Buyer’s purchase of Products, Synseer may provide certain instruments to Buyer on a consignment basis (“Consigned Instruments”). Ownership and title to all Consigned Instruments will always remain vested in Synseer, and Buyer will not obtain any ownership interest in the Consigned Instruments. Upon termination of the Agreement, cancellation of an order, or at any other time upon the written request of SYNSEER, Buyer shall immediately return all Consigned Instruments to SYNSEER. Buyer shall be responsible, and shall pay to SYNSEER upon written demand, for all damage to the Consigned Inventory (ordinary wear and tear excepted) and all Consigned Inventory Buyer fails to return to SYNSEER.
4. Delivery.
   • The Products will be shipped on or around the date that the products have received all applicable approvals by the FDA or otherwise.. SYNSEER shall not be liable for any delays, loss, or damage in transit. Freight terms for shipment are F.O.B. shipping point. SYNSEER shall ship the Products to the location set forth on the Order Form or other address mutually agreed upon in writing (the “Delivery Point”) using SYNSEER’S standard methods for packaging and shipping the Products. SYNSEER may, in its sole discretion, without liability or penalty, make partial shipments of the Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Products shipped whether the shipment is in whole or partial fulfilment of all of the Products set forth on the Buyer’s purchase order.
   • If for any reason Buyer fails to accept delivery of or pick up, as the case may be, any of the Products, or if SYNSEER is unable to deliver the Products because Buyer has not provided appropriate instructions, documents, licenses, or authorizations: (i) risk of loss of the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) SYNSEER, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
5. Title and Risk of Loss. Title and risk of loss passes to Buyer upon shipment or placement of the Products to the carrier. As collateral security for the payment of the Prices and all other amounts due under the Agreement, Buyer hereby grants to SYNSEER a lien on and security interest in and to all of Buyer’s right, title, and interest in, to, and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Ohio Uniform Commercial Code.
6. Intellectual Property Rights. Buyer does not and will not acquire ownership or any rights in SYNSEER’S patents, inventions, processes, technical data, brands, trade names, copyrights, or other intellectual property (“SYNSEER’s IP”) regardless of when SYNSEER’s IP is invented, conceived, generated, created, produced, or registered. SYNSEER reserves all rights in SYNSEER’s IP. All intellectual property rights produced from or arising from the Products will, so far as not already vested, become the absolute property of SYNSEER, and Buyer will do all that is reasonably necessary to ensure that such rights vest in SYNSEER by the execution of appropriate instruments or the making of agreements with third parties.
7. Limited Warranty
   • SYNSEER warrants to Buyer that for a period of 12-months from the date of shipment (“Warranty Period”) the Products will not contain any defects in material or workmanship (the “Limited Warranty”). Except for the Limited Warranty, SYNSEER makes no warranty whatsoever, including, without limitation, any warranty of merchantability or fitness for a particular purpose, whether express or implied, by law, course of dealing, course of performance, usage of trade or otherwise.
   • SYNSEER shall not be liable for a breach of the Limited Warranty unless: (i) Buyer gives written notice of the defect, reasonably described, to SYNSEER within 10 days of the time when Buyer discovers or reasonably should have discovered the defect; (ii) SYNSEER is given a reasonable opportunity after receiving the notice to examine the Products, and Buyer (if requested to do so by SYNSEER) returns the Products to SYNSEER’S place of business for examination; (iii) Buyer provides reasonable cooperation and any additional information SYNSEER reasonably requests to ascertain Buyer’s warranty claim; and (iv) SYNSEER verifies Buyer’s claim that the Products are defective.
   • Notwithstanding anything to the contrary, SYNSEER shall not be liable for a breach of the Limited Warranty if: (i) Buyer makes any further use of such Products after giving notice; (ii) the defect arises because Buyer failed to follow SYNSEER’S instructions as to the storage, handling, installation, commissioning, use, and maintenance of the Products; (iii) Buyer alters or repairs the Products without the prior written consent of SYNSEER; or (iv) the defect arises due to (1) accident, abuse, misuse, alteration, or misapplication, (2) improper or insufficient handling, installation, or maintenance, (3) perils such as fire, earthquakes, storms, acts of nature, or any other causes beyond SYNSEER’S control, or (4) the incompatibility of the Products with third party materials or products.
   • Subject to Section 7(b) and Section 7(c), with respect to any defective Products during the Warranty Period, SYNSEER shall, in SYNSEER’S sole discretion, either: (i) repair or replace the defective Products (or the defective part) or (ii) credit or refund the Price paid for the defective Products (less any discounts, credits or rebates provided). The remedies set forth in this Section 7(d) are Buyer’s sole and exclusive remedy and SYNSEER’S entire liability for any breach of the Limited Warranty.
8. Product Recall. In the event of a product recall, SYNSEER shall promptly notify Buyer and provide detailed instructions on the actions to be taken. Buyer shall cooperate fully with SYNSEER in executing the recall process.
9. Limitation of Liability.
   • TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL SYNSEER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, THE PRODUCTS OR IN CONNECTION WITH ANY BREACH UNDER THE AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SYNSEER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
   • TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL SYNSEER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE PRODUCTS OR THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO SYNSEER FOR THE PRODUCTS GIVING RISE TO THE LIABILITY.
   • Without limiting the generality of the foregoing, Buyer assumes all risk and liability for the results obtained by the use of the Products, whether in terms of operating costs, general effectiveness, success, or failure, and regardless of any oral or written statements made by SYNSEER, by way of technical advice or otherwise, related to the use of the Products.
   • Any cause of action brought by Buyer arising from the sale, use, or performance of the Products must be commenced within one year after the cause of action accrues.
10. Termination. In addition to any remedies that may be provided in the Agreement, SYNSEER may terminate all purchase orders, including those previously accepted by SYNSEER, with immediate effect and without incurring any liability to Buyer, if Buyer: (i) fails to pay any amount when due under the Agreement; (ii) has not otherwise performed or complied with any of the terms of the Agreement; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. SYNSEER may also terminate all purchase orders, including those previously accepted by SYNSEER, in its sole discretion for any reason or no reason at all. If SYNSEER terminates a purchase order under the foregoing sentence SYNSEER shall promptly refund to Buyer any deposit or payments given by Buyer for Products which have not been delivered to Buyer in connection with the terminated order (without interest), which will be Buyer’s only remedy, and SYNSEER’s sole liability, for SYNSEER cancel terminating a purchase order.
11. Confidential Information. All non-public, confidential or proprietary information of SYNSEER, including, but not limited to, the terms and provisions of the Agreement, including, without limitation, all Prices, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not identified as “confidential,” is confidential, and may be used by Buyer solely for the use of performing under the Agreement and may not be disclosed or copied unless authorized by SYNSEER in writing. Upon SYNSEER’S request, Buyer shall promptly return all documents and other materials received from SYNSEER. SYNSEER shall be entitled to injunctive relief for any violation of this Section. This Section shall 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.
12. Choice of Law and Forum. The Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio, without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of  laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising out of or related to the Products or the Agreement, or the matters contemplated under the Agreement, shall be instituted exclusively in the federal or state courts located in Cleveland, Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens. Neither the Uniform Law on International Sale of Goods, Uniform Law on Formation of Contracts for International Sale of Goods nor the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto) shall apply to the sale of Products or the Agreement.
13. Buyer shall not assign or transfer any of its rights or obligations under the Agreement without the prior written consent of SYNSEER. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations under the Agreement.
14. Entire Agreement; Amendments. The Agreement constitutes the entire agreement between the parties and supersedes all other communications, oral, and written, between the parties relating to the subject matter of the Agreement. These Terms and Conditions may be amended, modified, or supplemented only by an agreement in writing signed by the parties.
15. Third Party Beneficiaries. Except as provided for in Section 13, no provision of these Terms and Conditions is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the parties and their respective successors and permitted assigns.
16. If any term or provision of these Terms and Conditions are invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
17. Force Majeure. Any delay or failure of SYNSEER to perform its obligations under the Agreement will be excused if the delay or failure was caused by an event or events beyond SYNSEER’S control (which events may include, without limitation, natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities).
18. No waiver by either party of any of the provisions of these Terms and Conditions shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by either party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver.
19. All notices, requests, consents, claims, demands, waivers, and other communications under these Terms and Conditions shall be in writing and shall be deemed to have been given: (a) when delivered by hand; (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) 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 set forth on the Order Form (or to such other address that may be designated by a party from time to time in writing).
20. Waiver of Jury Trial. Each party acknowledges and agrees that any controversy that may arise under the Agreement are likely to involve complicated and difficult issues and, therefore, each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the transactions contemplated by the Agreement.