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Purchase Order Terms and Conditions

The following Terms and Conditions govern the purchase order and its attachments, all of which are incorporated by reference (“Order”). No verbal agreements amending the terms of this order are valid unless both the Purchaser and the Supplier duly confirm them in writing.

 

1.0.   Acceptance

This Purchase Order by One Theory Biosciences (“OT Biosciences” or “OTB”) is an offer which shall become a binding contract with the named Supplier (“You”), subject to the express terms and conditions hereof, when accepted by your acknowledgment and/or commencement of performance. If there is a conflict between this document and another, the following order of precedence shall apply (unless otherwise expressly agreed to by both parties in writing):

  1. a Master Purchasing Agreement and/or Quality Agreement between the parties relating to the subject matter of this Order;
  2. any additional terms added to the face of the Purchase Order and initialed by both parties;
  3. the terms provided herein.

OT Biosciences may cancel the order if you have not confirmed acceptance of the order within 3 days of receipt. If the terms of the confirmation vary from the terms of the order, the OT Biosciences is only bound thereby if it agrees to such variation in writing.

This Order is the total understanding between the parties as related to the subject matter herein. Any references to any other terms and conditions, including but not limited to attachment of Supplier’s terms and conditions, over stamping on the acknowledgment, or any terms on an invoice to this Order, shall not alter the terms and conditions of this Order, nor shall they constitute a counteroffer or rejection of the Order, even if expressly and conspicuously stated. OT Biosciences now hereby serves notice on Supplier that it objects to any purported changes that would work to affect or alter its express Purchase Order terms.

 

2.0.  Delivery & Performance.

Delivery time is the essence of this order and must be strictly adhered to. If you fail to deliver any portion of the goods on time, OT Biosciences may treat the order as cancelled at any time and recover any loss or damage from the you. No deviation from delivery or performance schedules in this Order shall be allowed without the written authorization of OT Biosciences. OT Biosciences reserves the right, at OT Biosciences’ sole discretion, to cancel outstanding orders that are not shipped timely or will deviate from the original delivery schedule without any liability.

You must notify OT Biosciences immediately if you expect delivery of goods or performance of services will not occur on time, or not conform to any other requirement of the Order. Under-shipments must be approved.

If your deliveries will fail to meet the schedule in the Order, OT Biosciences may require you to expedite shipments and you will be liable for the difference between the cost of any premium/expedited transportation rates being used and the shipping method specified in this Order. If your performance of services fails to meet the schedule in the Order, OT Biosciences may require you to expedite performance and you will pay for the difference between the cost of expedited performance and the original performance in this Order. Any request for expedited shipping or performance shall not act as a waiver of any other remedies available to OT Biosciences pursuant to this Order or at law.

Over-shipments, regardless of cause, are not accepted, and may be returned or retained, at Supplier’s sole expense. Early delivery or performance shall not result in earlier payment or loss of any early payment discount rates.

 

3.0.   Packing and Shipment.

Except where the Purchase Order includes alternative requirements, you shall be responsible for packaging goods (and clearly and conspicuously marking the goods and packaging) in accordance with applicable law, industry standards and in a manner sufficient to permit efficient handling. You shall properly classify, describe, package, mark and label all goods for shipment in accordance with the Order, OTB or manufacturer specifications and applicable laws or regulations. All goods shall be delivered packed in suitable containers for shipping protection and storage. In case of dangerous goods, the Supplier shall submit details of packing and transportation plan to the OT Biosciences Purchaser for confirmation prior to shipment.

An itemized packing slip must accompany each delivery. You must include the OT Biosciences’ Order number and part number conspicuously on each packing slip and on each container. When the freight terms are collect, OT Biosciences will select the carrier. OT Biosciences’ count will be accepted as conclusive on shipments without a packing slip.

You assume (i) all risks of loss or damages to all goods until the delivery to OT Biosciences as provided in this Order, and (ii) all risks of loss or damages to any goods or parts rejected by OT Biosciences or as to which OT Biosciences has revoked its acceptance from the time of such rejection or revocation.

 

4.0.  Examination, Inspection & Acceptance of Goods.

You shall inspect (i) all performed services; and (ii) goods prior to shipment; to ensure conformance with all requirements of this Order. You are responsible for inspecting, testing and maintaining all materials, supplies, tools, manufacturing equipment and processes involved in the manufacturing process (collectively, “Manufacturing Items”), and such an inspection system must be satisfactory to OT Biosciences.

OT Biosciences, its Representatives and/or end user(s) may inspect, audit, test, reject or accept goods, deliverables or services during manufacture or performance at any time, with reasonable notice. When inspections/tests are made at your manufacturing facility, shipping facility or place of performance, you shall provide reasonable facilities and assistance for the safety and convenience of OT Biosciences’ inspectors. We agree that our inspections/tests will not unduly interfere with your business. You shall maintain quality control and inspection systems as mutually agreed upon and provide OT Biosciences with quality assurance documentation, manuals or certifications.

All goods, services and deliverables will be subject to (i) final inspection and acceptance by OT Biosciences at destination; and (ii) inspection or rejection by any federal, state or municipal government or agency that OT Biosciences may require or desire. Any OT Biosciences inspection or audit will not relieve you of your responsibility to inspect and audit. OT Biosciences may accept or reject in whole or in part (i) any delivery containing defective or nonconforming goods or service deliverables; or (ii) performance of any nonconforming services.

 

5.0.  Rejected Goods or Services.

OT Biosciences may, at its option, either return defective/nonconforming goods to you for: (i) replacement or correction; or ii) full reimbursement. Alternatively, OT Biosciences may cancel the Order in its entirety.

In either event, OT Biosciences shall be entitled to reimbursement for any incurred expenses relating to the rejected goods including, but not limited to transportation, handling, and packaging. If you fail to promptly replace or correct rejected goods or services to OT Biosciences’ satisfaction, or re-perform services to OT Biosciences’ satisfaction, within a commercially reasonable time, OT Biosciences is entitled to: cancel the order in whole or in part without being subject to any liability for damages; demand a reduction in price; or undertake itself any repair at the expense of the Supplier or re-performance of services or replacement of deliveries or arrange for such to be done; and claim damages in lieu of performance.

Supplier will reimburse OT Biosciences for all losses and expenses (including good corrections, rework, service re-performance and Recalls (as defined below)) and indemnify and hold OT Biosciences harmless from any third-party claims arising out of the defect/nonconformity in the goods or services. Any inspection or acceptance of goods or services under this Order by OT Biosciences shall not operate as a waiver of any rights or obligations under this Order or release you from your warranties, obligations or liabilities under this Order. Payment by OT Biosciences for any goods or services provided under this Order shall not be deemed an acceptance of such goods or services.

 

6.0.   Counterfeit Avoidance (Electronic Component Procurement)

One Theory Biosciences has a zero-tolerance policy for counterfeiting. Suppliers must provide only authentic, unused product. Supporting traceability documentation to an authorized source is required to be submitted to support this authenticity with each shipment and order. Where traceability is not complete, rigorous testing to AS6081 requirements is always required.

Fraudulent/counterfeit parts have no value. Any warranty provision contained in the Supplier’s Terms and Conditions will be declared null and void if it is later determined that fraudulent/counterfeit parts or suspect fraudulent/counterfeit parts were received.

In the event that a Suspect Counterfeit Electronic Part or a confirmed counterfeit Electronic Part is identified, OT Biosciences will quarantine the parts to prevent assembly into deliverable products. These parts shall immediately be collected and tagged for quarantine, evaluation, and disposition. After conclusion of appropriate analysis if the item is confirmed to be a counterfeit Electronic Part or remains a Suspect Counterfeit Electronic Part, then the supplier will be notified for response; relevant facts will be provided to GIDEP; and parts will be held in quarantine. Under no circumstance will such parts be returned to the supplier. OT Biosciences will require a full credit without offset for the amount paid (or cancellation of invoice). Depending on the nature of the facts, OT Biosciences may also contact the manufacturer and the Intellectual Property Section of the Department of Justice.

The quarantine is released upon determination of authenticity. Electronic Parts that are confirmed to be counterfeit or remain Suspect Counterfeit Electronic Part are retained for potential use as evidence until the issue is resolved with involved parties. Upon resolution, the parts are then destroyed by appropriate methods (i.e.: grinding, shredding, etc.) to ensure they will not re-enter the supply chain.

Supplying counterfeit material will result in an immediate hold on all purchasing from your company or site, and you will be removed as a supplier until a corrective action plan has been approved by your One Theory Purchasing Contact and management. Under no circumstance will suppliers be reinstated sooner than or in less than ninety (90) days, whether or not the corrective action plan has been accepted.

 

7.0.  Product Recalls.

In the event that any good (or any finished good incorporating a good that is the subject of this Oder) is recalled, withdrawn or field corrected, Supplier shall fully cooperate with OT Biosciences in connection with such recall, withdrawal or field correction (collectively, “Recall”). In the event that a Recall of the goods is necessitated by a defect, a failure to conform to the specifications, a violation of applicable laws, a breach of Supplier’s warranties or any other term or condition set forth in this Order or any other reason within the Supplier’s control,

Supplier shall bear all costs and expenses of such Recall, including without limitation, costs of notifying customers, customer refunds for the goods and/or the finished goods that contains Supplier’s defective goods, costs of returning goods, lost profits, and other expenses incurred to meet obligations to third parties incurred in connection with such Recall. Supplier shall abide by all decisions of OT Biosciences to initiate a Recall of goods (or any finished good incorporating a good that is the subject of this Order). Supplier shall not voluntarily initiate any Recall of the goods without OT Biosciences ’s prior written consent.

 

8.0.   (PCN)/ Product Change Notices.

Any changes made to an Order must be agreed to in writing and signed by an authorized representative of OT Biosciences (“Product Change Notice”). Supplier shall immediately notify OT Biosciences if the Product Change Notice will impact Supplier’s cost, time of delivery or time of performance. If so, the parties will equitably adjust costs and schedules, in writing. Ninety (90) days’ notice and OT Biosciences ’s written approval is required prior to any changes in the design, specifications, performance, manufacturing or materials for goods or services supplied by Supplier. Such changes include, but are not limited to relocation of manufacturing site; change in ownership of Supplier; new, additional, modified tooling or other equipment; modified manufacturing processes; material changes; or other design and/or specification modifications. End of Life (EOL) notification shall be submitted at a minimum of 180 days prior written notice.

 

9.0.   Environmental Protection, Duties to Declare

[Applicable for suppliers of Direct material incl. OEM, packaging material & operating supplies (Indirect Material)].

Should you deliver products, which are subject to statutorily-imposed substance restrictions and/ or information requirements (e.g. REACH, RoHS), you shall declare such substances to OT Biosciences no later than the date of first delivery of products. The foregoing shall only apply with respect to laws which are applicable at the registered seat of supplier or OT Biosciences or at the designated place of delivery requested by OT Biosciences.

 

10.0.  Supplier Pricing.

The purchase price set forth in the Purchase Order shall be in US Dollars. The prices governing this order shall for all purposes, remain firm unless otherwise agreed to specifically in writing by OT Biosciences and shall be inclusive of packing and delivery at OT Biosciences’ warehouse or any place specified in the order.

Supplier represents that the price or prices specified in this Order do not exceed Supplier’s current selling prices for the same or substantially similar items whether to the government or to any other OT Biosciences, taking into account the quantity under consideration.

No charges of any kind, including charges for boxing or cartage will be allowed unless specifically agreed to by OT Biosciences in writing. Federal or local taxes and tariffs of any nature billed to OT Biosciences shall be stated as a separate line item on Supplier’s invoices. Supplier shall not bill taxes subject to OT Biosciences tax exemption certificates.

All claims for moneys due, or to become due, from OT Biosciences shall be subject to deduction by OT Biosciences for any setoff or counter claim, past, present or future, arising out of this, any other of OT Biosciences’ Orders with you or any amount payable by OT Biosciences to you.

 

11.0.  Payment Invoices.

Your invoices and original bills of lading or express receipts shall be mailed no later than the day after each shipment is made and must be dated as of the date of mailing. Individual invoices shall be issued against each Order and must reference a valid OT Biosciences purchase order number. OT Biosciences reserves the right to take advantage of cash discounts in cases where delayed receipt of invoices caused by your failure to comply with invoicing instructions causes delay in orderly processing.

The Supplier shall mention the AL (Export List Number) and ECCN (Export Control Classification Number) in their bills, as applicable to each material/goods supplied by them against the order. This is in line with the US and EU Export Control Laws & Regulations.

 

12.0.   Payment Terms.

Unless otherwise set forth in the Purchase Order, invoices are due and payable net ninety (60) days after receipt of the Goods (including all documents required in the Purchase Order), performance of the Services, and a receipt of a correct undisputed invoice by OT Biosciences.

Final payment shall not be made until the goods or services provided meet the requirements specified in this Order. OT Biosciences may withhold payment of any invoiced amounts that it disputes in good faith and the parties shall work in good faith to resolve any such billing disputes.

 

13.0.   Force Majeure.

Neither party shall be liable for damages as a result of a delay in delivery due to any causes beyond its control and without its fault or negligence, including without limitations, acts of God, the public enemy, or the government, fires, floods, unusually severe weather, epidemics, quarantine restrictions, strikes or freight embargoes. If the failure to perform is caused by the default of a subcontractor, and if such default arises: (i) out of causes beyond the control of both Supplier and such subcontractor; and (ii) without the fault or negligence of either of them, then Supplier shall not be liable for the failure to perform, unless goods and services to be furnished by such subcontractor were obtainable from other sources in sufficient time to permit Supplier to meet the required schedule. Supplier will notify OT Biosciences in writing of such causes within 10 days after Supplier first learns of it. If the condition causing the delay exists for more than 30 days, OT Biosciences may cancel this Order without any liability.

 

14.0.   Confidential Information.

You shall not disclose to anyone the existence of this Order, its contents, that there exists a contractual relationship between the parties, or the fact that Confidential Information (as defined below) has been made available to you. You agree that certain information, including but not limited to devices, drawings, data, designs, gauges, Property, reports, trade secrets and other customer, business, financial, or technical information, supplied by OT Biosciences and relating to this Order is the proprietary property of OT Biosciences (“Confidential Information”). Such Confidential Information shall be held in confidence by Supplier and protected against disclosure to third parties. In addition, you agree not to use, directly or indirectly, any such Confidential Information for any other purpose than performing the obligations of this Order.

The Confidential Information may not be reproduced, used or disclosed to others without OT Biosciences’ prior written consent, and then only if such a party has a need to know to complete the Order and is bound by nondisclosure obligations substantially similar to those herein. You shall not be liable for the disclosure or use of Confidential Information, which is: (i) already in the public domain; (ii) placed in the public domain by a third party after the date of this Order; or (iii) rightfully in the possession of Supplier or disclosed to you on a non-confidential basis by a third party that is lawfully in possession of such Confidential Information. Any information you have or may disclose to OT Biosciences in connection with the Order, unless otherwise identified to be Confidential, shall be deemed non-confidential and non-proprietary and you agree not to assert any claims against OT Biosciences by reason of its use, duplication or disclosure.

At OT Biosciences’ option, you agree to return or destroy all Confidential Information at the completion of this Order, at the termination of any contract regarding this Order, or upon written request of OT Biosciences. At OT Biosciences ’s request, any Confidential Information destroyed pursuant to the preceding sentence shall be certified in writing by an authorized representative of your organization.

 

15.0.   OT Biosciences’ Property.

Title to and the right of immediate possession of all property furnished by OT Biosciences to you for use hereunder, including but not restricted to tooling, designs, patterns, drawings, packaging, formulas and materials (collectively, “Property”), shall be and remain the property of OT Biosciences during all stages of production. You shall only use Property in the production of goods under this Order.

Property shall not be used in the production, manufacture or design: (i) of any other articles for your own use; (ii) for any other unauthorized OT Biosciences use; or (iii) for manufacture or production of larger quantities than those specified herein; except with the express written consent of OT Biosciences. You shall segregate the Property in your plant and, wherever possible, clearly mark the Property so it is easily identified as OT Biosciences’ Property.

Upon its delivery to you, you shall be fully responsible for the Property until it is returned to OT Biosciences. While Property is in Supplier’s possession, Supplier shall (i) protect, preserve and maintain Property in accordance with sound industrial practices; (ii) keep an inventory of the Property; and (iii) upon OT Biosciences’ request, furnish copies of the inventories. At the completion or termination of this Order, all Property, together with all excess materials, shall be returned to OT Biosciences, or disposed of, at OT Biosciences’ direction. In the event Property is damaged, made unfit for its intended use (except for reasonable wear and tear) or used for an unauthorized purpose, you shall be liable to OT Biosciences for the cost of replacement.

 

16.0.   Trademark & IP Considerations.

Each Party shall retain all right, title and interest it may have with respect to Items acquired or developed before the effective date or independently of this Purchase Order. All Intellectual Property rights inter alia Trade Marks/Brand Names/ Labels or Packing or other rights belonging to OT Biosciences in relation to the processed goods/products shall

remain the property of OTB and at no time during the currency of this order or after the termination thereof, shall you be entitled to claim any rights to or interest in any such Intellectual Property rights or other rights belonging to the OT Biosciences.

OT Biosciences shall be the sole owner of and shall have all right, title and interest in all Work Product, including all related copyright, patent and other intellectual property rights, including without limitation, any derivative works, or inventions or trademarks relating to existing intellectual property. “Work Product” means all Items and any other work product conceived, created, developed, produced, prepared, collected, compiled or generated by Supplier, its Affiliates or Representatives in connection with performing the Services or producing the Goods including but not limited to modifications and improvements thereto. Supplier shall not cause or permit any Work Product to be subject to any lien or

encumbrance.

It is essential that the products are delivered free of any third

party rights. Thus, you are under a duty to verify title and inform OT Biosciences of any possible conflicting industrial and intellectual property rights. Any breach of such duty is subject

to the normal statutory limitation period. You shall indemnify and keep OT Biosciences, its agents, and respective customers indemnified against all losses or damages arising from any infringement of any patent in respect of any goods you’ve processed and supplied against this order. In addition, you agree to fully reimburse all litigation costs, if any, suffered by OT Biosciences as a result of any patent suit, claim, or controversy.

 

17.0.   Supplier Warranty.

You warrant that all goods and services delivered under this Order will:

  1. be authentic and not counterfeit
  2. free from defects in material, design and workmanship (including damage due to unsatisfactory packaging by Supplier);
  3. be strictly in accordance with OT Biosciences’ specifications, performance specifications, drawings, and approved samples;
  4. be suitable for their intended purposes;
  5. consist of only new materials; and
  6. not be adulterated or misbranded within the meaning of any state food and drug laws or the United States Food, Drug and Cosmetic Act.

until the later of eighteen (18) months after the Goods are first placed into service or thirty-six (36) months after delivery, and in the case of Services, eighteen (18) months after the completion of the Services.

You further warrant that all material furnished under this purchase order are free of any liens, encumbrances or claims, (ii) are free of Asbestos, Asbestos containing materials or any

other materials prohibited by Applicable Laws; (iii) bear all markings, labels, warnings, notices or other information required under Applicable Law; and (iv) do not contain any substance prohibited by national or international regulations applicable to the Supplier or OT Biosciences, or at the point of delivery.

You further warrant that all services performed hereunder will be carried out in a diligent, workmanlike and professional manner in accordance with industry standards by fully qualified personnel. You represent and warrant that you comply, and will at all times comply, with all applicable relevant laws and regulations, both domestic and international, including, but not limited to those pertaining specifically to the goods and services ordered hereunder. The warranties of Supplier shall not be deemed to be exclusive, and together with any service warranties and guarantees, if any, shall survive acceptance and payment, and shall run to OT Biosciences, its successors, assigns, customers and the users of the goods or services. You will promptly reimburse OT Biosciences for any loss incurred by OT Biosciences due to any defects in such goods or services and will hold OT Biosciences harmless from any third party claims due to defects in such goods or services.

OT Biosciences’ approval of formulas, designs, or samples furnished by Supplier shall not relieve Supplier of its obligations under this Order (or at law), or waive any applicable express or implied warranties.

In addition to any other obligations set forth in this Order, Supplier shall pass through all assignable third-party manufacturers’ warranties applicable to Goods/Services furnished by Supplier. In the event a third-party warranty is not

assignable, Supplier shall enforce its warranty against a third party at Supplier’s expense upon OT Bioscience’s reasonable

request. Supplier shall immediately notify OT Biosciences in writing of product recalls and/or product safety notices that concern the supplied goods or services.

 

18.0.   Infringement.

Supplier represents and warrants that (i) the Goods/Services do not (a) infringe, violate or misappropriate any intellectual property right(s) of third parties or (b) violate Applicable Laws; (ii) Supplier has all of the rights, permits, licenses and authority necessary to perform its obligations hereunder.

You shall defend, indemnify and hold OT Biosciences  and its  respective employees, contractors, directors, officers, principals (partners, shareholders or holders of an ownership interest, as the case may be), service providers and agents harmless from and against all damages, liabilities, judgments, losses, costs and expenses (including attorneys’ fees and court costs) (collectively, “Losses”) resulting from any claim, suit, demand or cause of action (each a “Claim”) arising from or related to allegations of infringement or violation of any Intellectual Property Right or privacy or proprietary right of any kind whatsoever, arising out of this Order.

In addition to the indemnity above, if any allegation of infringement becomes the subject of a Claim, or in either party’s opinion is likely to become the subject of such a Claim, then you shall, at OT Biosciences’ option, either (i) replace or modify the infringing item to make it non-infringing, while maintaining equivalent functionality and performance; (ii) procure for OT Biosciences  the right to continue using the infringing item; or (iii) refund to OT Biosciences all amounts paid for or in connection with such infringing item and any affected services. Any costs associated with any of the above alternatives shall be borne by Supplier. Supplier waives any rights to be held harmless by OT Biosciences against any claims for infringement.

 

19.0.   Indemnity.

You shall indemnify and hold OT Biosciences harmless from and against all Losses resulting from a Claim arising from or related to: (i) Your breach of any term or condition in this Order; (ii) any alleged failure of any good or service to conform to the warranties in this Order; (iii) Your negligence, willful misconduct or fraud; (iv) the acts or omissions of Supplier in connection with the provision of the services or goods under this Order; (v) Your violation of any applicable law in connection with the manufacture, assembly, design, handling, labeling, packaging, storage or shipment of a good or service; or (vi) a Recall involving the goods or services arising out of or relating to a defect, a failure to conform to the specifications, a violation of applicable laws, a breach of your warranties or any other term or condition of this Order or any other reason within your control.

In furtherance of the foregoing indemnity and not in limitation thereof, you agree that:

(a) OT Biosciences shall be entitled to all incidental damages resulting from a breach by Supplier, including, but not limited to all expenses reasonably incurred in inspection, receipt, transportation, and care and custody of goods rightfully rejected, and any commercially reasonable charges, expenses, or commissions incurred in effecting cover for rejected goods or services, and any other reasonable expense incident to a delay or breach by Supplier.

(b) OT Biosciences shall also be entitled to consequential damages resulting from a breach by Supplier for any Loss resulting from general or particular requirements and needs of OT Biosciences of which Supplier is aware at the time of executing this Order, and which reasonably cannot be prevented by cover or otherwise, and damages sustained by OT Biosciences from any injury to person or property proximately resulting from any breach of warranty by Supplier.

 

20.0.   Limitation of Liability.

OT BIOSCIENCES SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, REGARDLESS OF THE BASIS OF THE CLAIM OR WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR NOT.

 

21.0.   Insurance.

You (including your contractors and all subcontractors, if any) shall maintain the following insurance with an insurance company or companies (rated no less than A- by AM Best (or equivalent)) and must be authorized to do business under the laws of the state in which the services are to be done or goods furnished. OT Biosciences may request proof of this insurance at the time of the Purchase order, but our failure to request such documentation does not waive your express obligation to maintain insurance throughout the period of performance. By performing against this contract, you represent that you have and will continue to maintain:

  1. Commercial General Liability insurance (including Products, Contractual and Completed Operations liability for the obligations assumed hereunder) with a minimum limit of $3,000,000 per occurrence covering bodily injury and property damage and including an endorsement for vendor’s liability;
  2. Workers Compensation Insurance covering Supplier’s obligations under applicable laws;
  3. Automobile Liability Insurance, including cross-liability coverage. The applicable limits shall be no less than $2,000,000 per accident;
  4. Professional Liability or Errors and Omissions Insurance. If Supplier is providing advisory or consulting services, including, but not limited to, medical, design, engineering, scientific, financial, software, marketing, computer systems, media, investment, benefits, insurance, human resources or legal, Supplier shall maintain Professional Liability or Errors and Omissions insurance, covering all the activities of Supplier under this Order. The limits shall be no less than $5,000,000 per occurrence and in the aggregate;
  5. Employer’s Liability Insurance, to the extent not prohibited by law or regulation. The limits shall be no less than $1,000,000 each accident, $1,000,000 each disease, and $1,000,000 each employee for disease; and
  6. Technology Errors and Omissions/Cyber and/or Privacy Liability with an aggregate limit of liability not less than $5,000,000. Such insurance shall cover any and all errors, omissions or negligent acts in the delivery of goods, services and/or licensed programs under this Order. Such insurance shall include coverage for claims and losses with respect to privacy and network security risks (such as data breaches, unauthorized access, unauthorized use, identity theft, invasion of privacy, damage/loss/theft of data, all whether in written or electronic form, degradation, downtime, etc.).

Such insurance shall include OT Biosciences as an additional insured for claims brought by third parties arising out of the goods and services provided by Supplier under this Order. Further, if such insurance includes an insured vs. insured exclusion, such exclusion shall not apply to OT Biosciences ’s status as an additional insured.

If the required insurance is written on a claims-made basis, then the policy(ies) shall be maintained for a period of 5 years following the termination or expiration of this Order. Supplier shall provide OT Biosciences with a certificate of insurance evidencing such insurance. The endorsement on each policy shall:

  1. Name One Theory Biosciences and its subsidiaries as additional insured;
  2. Provide that such insurance is primary (with respect to any insurance issued to OT Biosciences or any self-insurance amount) and non-contributory; and
  3. Waive subrogation against OT Biosciences for any claim arising out of this Order. Such waiver of subrogation may be achieved by a “Waiver of Rights of Recovery” endorsement (National Council on Compensation Insurance (“NCCI”) form WC 00 03 13).

Certificates of insurance (COIs) shall be filed with OT Biosciences and shall provide for 30 days prior written notice of cancellation or a material change in insurance coverage. The liability insurance limits shall in no way be construed as a limit on OT Biosciences ‘s right to recover damages of any kind.

 

22.0.   Termination.

OT Biosciences may suspend or terminate this Purchase Order at any time for its convenience upon 30 days’ written notice to Supplier. In addition to its other rights hereunder, OT Biosciences reserves the right to cancel this Order, in whole or in part with no notice for:

  1. Supplier’s breach of any of the provisions of this Order, laws, industry/ethical standards;
  2. Supplier’s bankruptcy or insolvency; or
  3. Force Majeure.

OT Biosciences reserves the right to cancel this order or any portion thereof if supplies do not conform to the specifications and/or if deliveries are not made as stipulated. OT Biosciences’ decision as to whether the supplies conform to the specifications and, or deliveries are made as stipulated, shall be final and binding on the Supplier.

Upon notice of termination or cancellation to Supplier, you and your subcontractors will stop work immediately and protect all of OT Biosciences ’s property or property in which OT Biosciences has acquired an interest. In the event of a termination for default, any exercise of OT Biosciences’ rights contained herein shall not constitute a limit or waiver of any rights or claims OT Biosciences might otherwise have at law, including but not limited to damages, loss of anticipated profits and recovery of reasonable attorney’s fees. If the termination is for OT Biosciences’ convenience, OT Biosciences shall reimburse you for all work completed up to the time of termination.

Bankruptcy or Insolvency: OT Biosciences shall be able to terminate for bankruptcy in the event of (i) any suspension of payment or the institution of any proceedings by or against Supplier, voluntary or involuntary, in bankruptcy or insolvency, or under any provisions of any insolvency or reorganization statute; (ii) the appointment of a receiver or trustee or an assignee for the benefit of creditors; or (iii) a determination that Supplier has become unable to pay debts as they become due. If so terminated, OT Biosciences is entitled to cancel this Order with no further liability.

 

23.0.  Recordkeeping.

You agree to maintain all records, books and any other documents evidencing goods supplied and services rendered pursuant to this Order for 5 years from the date of this Order. Prior to the destruction of any such documents, Supplier shall provide 30 days prior written notice to OT Biosciences for instructions on destruction or return of such documents to OT Biosciences.

 

24.0.   Assignments & Subcontracting.

Subcontracting/assigning to third parties shall not take place

either in whole or in part without the prior written consent of OT Biosciences, which OTB may grant or deny as per its discretion and violation of same shall entitle OTB to cancel this order in whole or in part and claim damages.

No rights or obligations under this Order, including payment or assignment of moneys due, may be subcontracted, assigned or transferred, in whole or in part, without: (i) prior written approval by OT Biosciences; and (ii) the assignee’s or subcontractor’s agreement to be bound by this Order.

 

25.0.   Communications and Change Orders.

(A) All written communications shall (i) be directed to the addresses set forth in the Purchase Order, (ii) refer to the

Purchase Order number and (iii) be delivered in accordance with this Purchase Order.

(B) If Customer requires modifications to the Goods/Services, the Parties shall negotiate an equitable adjustment in the

form of a change order or amendment. Supplier shall not make any changes without Customer’s prior written consent.

 

26.0.   Severability, Waivers & Remedies.

The invalidity in whole or in part of any condition of this Order shall not impact the validity of other conditions. The remedies herein shall be cumulative and additional to any other remedies in law or in equity. No waiver of any provision of this Order shall constitute a continuing waiver of such provision or a waiver of such provision in other instances.

 

27.0.   Forum & Venue.

Unless otherwise required by law, this Order shall be construed in accordance with the laws of the state of Texas without application of its conflict of laws provisions. The exclusive venue for any dispute shall be the federal or state courts of Texas. The parties agree that the United Nations Convention for the International Sale of Goods shall not apply.

 

28.0.   Entire Agreement.

This Order represents the entire agreement and understanding between the parties with respect to the subject matter herein. Any terms and conditions in addition to or in conflict with the terms and conditions of this Order, such as the order acknowledgment or other documentation of Supplier, including any on-line or click-through agreements are null and void. Shipment of any goods or the performance of any services by Supplier shall be deemed to constitute Supplier’s assent to this provision.