TERMS AND CONDITIONS OF SALE TO END USERS, DISTRIBUTORS AND VENDORS OF AMERICANBIO, INC. 

1. Acceptance of Terms — By purchasing and accepting delivery of products supplied by AmericanBio, Inc. (“Products”), Buyer agrees to be bound by these Terms and Conditions of Sale (the “Terms and Conditions”).  All orders must be accepted in writing by an authorized representative of AmericanBio, Inc. (hereinafter “AmericanBio”) to become effective. Terms or conditions contained in any order form or other document submitted by Buyer which are inconsistent with these Terms and Conditions are rejected, objected to and shall be deemed void and of no force or effect. Buyer’s receipt of Products or the services contemplated hereunder will be deemed Buyer’s acceptance of this Agreement. No change of the terms contained herein shall be binding unless in writing and signed by AmericanBio and Buyer and the failure of AmericanBio to object to any subsequent communication of terms from Buyer shall not constitute a waiver or modification of the terms set forth herein. 

2. Changes — Once submitted, any change(s) to Buyer’s order(s) may be made only with advance written approval of AmericanBio and such changes may require different terms, including a change in the price and/or time of delivery.  Once submitted, Buyer may not cancel any order unless cancellation is expressly approved by AmericanBio in writing, which approval may be contingent on Buyer’s payment of AmericanBio’s costs or other charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on AmericanBio by its suppliers, and any other costs resulting from cancellation.  A verified bill of costs issued by an officer or other authorized representative of AmericanBio shall be conclusive as to the amount of such costs.  AmericanBio reserves the right to cancel any order, in whole or in part, upon Buyer’s breach of these terms and conditions or Buyer’s bankruptcy, insolvency, dissolution, receivership proceedings, or upon the occurrence of any event leading AmericanBio to reasonably question Buyer’s willingness or ability to perform.

3. Delivery, claims — All sales will be delivered Ex Works AmericanBio’s shipping point unless otherwise noted.  If shipping and handling charges are quoted or invoiced, they will include charges in addition to actual freight costs.  Delivery of Products to the carrier at AmericanBio’s shipping point shall constitute delivery to Buyer and Buyer shall bear all risk of loss or damage in transit.  The general method of shipment for each item is listed in AmericanBio’s product directory.  However, AmericanBio reserves the right, in its sole discretion, to determine the exact method of shipment for any particular shipment.  AmericanBio reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries.  Delay in delivery of any installment shall not relieve Buyer of Buyer’s obligations to accept remaining deliveries.  Immediately upon Buyer’s receipt of any Products shipped hereunder, Buyer shall inspect the same and shall notify AmericanBio in writing of any claims for observable shortages, defects or damages and shall hold Products for AmericanBio’s written instructions concerning disposition.  To the extent there are shortages, defects or damages that are latent or not reasonably observable at the time of receipt, Buyer shall notify AmericanBio in writing upon Buyer’s first observation of such shortages, defects or damages. If Buyer fail to so notify AmericanBio within five days after the Products have been received by Buyer of observable shortages, defects or damages or within five days of Buyer’s first observation of latent or not reasonably observable shortages, defects or damages, such Products shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the Buyer.

4. Delays — Any specified delivery dates are estimates only and do not represent a promise by AmericanBio to deliver Products at a date certain.  AmericanBio shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond AmericanBio’s reasonable control, including, without limitation, unsuccessful reactions, act(s) of Buyer, embargo or other governmental act, regulation or request affecting the conduct of AmericanBio’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices. If any such event continues for longer than 180 days, either party may terminate Buyer’s order and Buyer will pay AmericanBio for work performed prior to termination and all reasonable expenses incurred by AmericanBio as a result of termination.  In the event of delays in delivery or performance caused by force majeure or by Buyer, the date of delivery or performance shall be extended by the period of time AmericanBio is actually delayed or as mutually agreed.  If, for reasons other than the foregoing, AmericanBio should default or delay or not deliver Products, Buyer’s sole remedy against AmericanBio is an option to cancel Buyer purchase order, through prior written notice to AmericanBio.

5. Allocation of Products — If AmericanBio is unable for any reason to supply the total demands for Products specified in Buyer’s order, AmericanBio may allocate its viable supply among any or all customers (including AmericanBio’s distributors) on such basis as AmericanBio may deem fair and practical, without liability for any failure of performance which may result therefrom.

6. Payment and Interest — Unless otherwise stated, payment in full shall be made within 30 days of invoice.  AmericanBio reserves the right to require an advanced deposit of up to 100% of the purchase price at the time of order or any time prior to delivery as a condition of performance.  If for any reason AmericanBio, in its sole and unfettered discretion, deems the ultimate collectability of the purchase price to be in doubt, AmericanBio may, without notice to Buyer, delay or postpone the delivery of the Products and may, at its option, change the terms of payment to payment in full or in part in advance, with respect to the entire undelivered balance of Products.  In the event of default by Buyer in the payment of the purchase price or otherwise, AmericanBio, at its option, without prejudice to any other of AmericanBio’s lawful remedies, may defer delivery, cancel Buyer’s order and any other order of Buyer, or sell any undelivered products on hand for the account of Buyer and apply such proceeds as a credit, without set-off or deduction of any kind, against the agreed upon purchase price, and Buyer agrees to pay the balance then due to AmericanBio on demand. Buyer agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by Buyer in any of the terms hereof.  Invoices remaining unpaid after their due date may be subject to an interest charge of 1.5% per month (or the maximum rate allowed by law).  Buyer must pay all costs of collection on unpaid amounts, including (without limitation) attorneys’ fees and related costs.

7. Taxes and other charges — AmericanBio shall not be responsible for the payment of any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between, with the sole exception of any sales taxes invoiced and collected from Buyer by AmericanBio.  All other such charges (if any) must be paid by Buyer separately and in addition to the prices quoted or invoiced.  In the event AmericanBio is required to pay any such tax, fee or charge, Buyer shall reimburse AmericanBio therefore; or, in lieu of such payment, Buyer shall provide AmericanBio at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.

8. Pricing — Any quotation provided by AmericanBio is firm only if Buyer place a corresponding order within the time specified on the quote or, if no time period is mentioned, within 30 days.  If no price has been specified or quoted, the price shall be the one in effect at the time of shipment. Buyer must request shipment of the entire quantity of Products ordered within 6 months from the date of order, otherwise, AmericanBio’s standard prices at time of shipment may apply, at AmericanBio’s option, to future deliveries. Prices exclude all taxes and duties assessed on the sale, delivery, or use of any ordered Products, all of which are the responsibility of the Buyer. Buyer agrees that all pricing and technical information that Seller provides to Buyer, that is not otherwise available to the general public, is confidential and proprietary to theSeller. Buyer agrees to keep such information confidential and not to disclose such information to any other party.

9.  Warranties — AmericanBio warrants that its products shall, at the time of delivery, substantially conform to the description of such products as provided to Buyer by AmericanBio through AmericanBio’s product directory, analytical data or other then-current literature.  THIS WARRANTY IS EXCLUSIVE, AND AMERICANBIO MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY PATENT OR INTELLECTUAL PROPERTY RIGHTS.  AmericanBio’s warranties made in connection with this sale shall not be effective if AmericanBio has determined, in its sole discretion, that Buyer have misused the Products in any manner, have failed to use the Products in accordance with industry standards and practices, or have failed to use the Products in accordance with instructions, if any, furnished by AmericanBio.

Limitation of Liability - AMERICANBIO’S SOLE AND EXCLUSIVE LIABILITY hereunder shall be limited directly to a breach of its performance obligations contained in the agreement AND BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO PRODUCTS PROVED TO AMERICANBIO’S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN AMERICANBIO’S SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH AMERICANBIO’S INSTRUCTIONS. AMERICANBIO SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL) RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF AMERICANBIO 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 PRODUCT INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY AMERICANBIO’S GROSS NEGLIGENCE.  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.  AMERICANBIO’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO CASE EXCEED THE CONTRACT PRICE FOR THE SPECIFIC PRODUCTS THAT GIVE RISE TO THE BREACH.  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, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY.  ALL CLAIMS MUST BE BROUGHT WITHIN ONE (1) YEAR OF SHIPMENT, REGARDLESS OF THEIR NATURE. 

Moreover, AmericanBio shall bear no responsibility nor be liable to the Customer or any third party for damages related to the failure of any reagents to meet the expectations or requirements of any third party after delivery to the Customer if they had been manufactured to the specifications supplied by the Customer and successfully tested by AmericanBio before delivery to the Customer. The risk that any reagent that has been provided by AmericanBio to the customer in accordance with the Customer’s specifications is not suitable for its intended purpose by the Customer lies solely with the Customer.

10.Returns — Products may not be returned for credit except with AmericanBio’s permission, and then only in strict compliance with AmericanBio’s return shipment instructions.  Buyer must obtain advance written authorization from AmericanBio and a written return authorization document in the form then in use by AmericanBio, prior to returning any Products.  Certain items and quantities may not be returned for credit or under any circumstances.  These items include, but are not limited to: diagnostic reagents, refrigerated or frozen products; reagents and standards which have passed their expiration dates; custom products or special orders; products missing labels, parts, or instruction manuals; and books, computer software and equipment removed from their original packaging.  Any returned items may be subject to a 20% processing fee and must be returned within 90 days of purchase.

11.CONFIDENTIAL INFORMATION — The parties agree that nothing in this agreement is intended to supercede or in any way change the obligations of the Parties set forth in any prior Confidential Disclosure & Secrecy Agreements or other Non Disclosure Agreements entered into by the Parties. To the extent not covered by any such agreements, neither Party will use information contained in this Agreement, exchanged in prior negotiations, proprietary to the other Party, reasonably expected to be held in confidence or any tender process for any purpose not contemplated by this Agreement. Each Party must keep this information confidential and must ensure that its employees, agents and subcontractors who need such access in order to perform their duties, also receive this information under obligations of confidentiality and keep this information confidential. During the time period from and after the Commencement Date until the 7th anniversary of the expiration or termination of this agreement, each Party shall keep this information confidential and shall not use it for any purpose other than the performance of such Party’s obligations under this Agreement.

12.Miscellaneous — AmericanBio’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 AmericanBio’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 AmericanBio 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.