OTI Product Terms and Conditions

1. Definitions

• "Agreement" means these terms and conditions, together with any related quotation, sales confirmation or other ordering document or form provided to Customer by Provider, and Customer's order subject to section 2 below.
• "Confidential Information" means any information that is not generally available to the public, which is provided by a Party to the other Party or which the other Party accesses or discovers in the performance of this Agreement. Confidential Information includes, but is not limited to, information relating to a Party's business or activities, a Party's financial, legal, technical, marketing, sales and business information, in each case, which is (i) marked as confidential at the time of disclosure; or (ii) is unmarked (e.g., disclosed orally or visually) but is identified as confidential at the time of disclosure; or (iii) due to the nature of the information or the circumstances of disclosure, would be understood by a reasonable person to be confidential. Provider's pricing information is Confidential information regardless of whether it is marked as confidential.
• “Customer" means the person or entity purchasing Products hereunder.
• “Party" means the Customer or the Provider and “Parties" means the Customer and the Provider.
• “Provider" means OraSure Technologies, Inc. and/or DNA Genotek Inc. and/or Sherlock Biosciences, Inc., as the case may be, as identified on the applicable quotation or as otherwise specified by Provider.
• “Products" means any goods sold by Provider to Customer hereunder.

2. Effectiveness

Customer orders for Product shall not constitute a binding agreement until accepted by Provider in writing or by electronic confirmation. Provider shall have no obligation to provide a quotation or accept any order. Any terms in any Customer purchase order or other documentation provided by Customer that conflict with or purport to modify or add to the terms of this Agreement are and shall be null and void.

3. Confidentiality

Each Party may share Confidential Information, which must be kept confidential and used only for fulfilling the Agreement. Each Party shall maintain the Confidential Information of the other Party in strict confidence and limit disclosure to its employees, subcontractors, consultants and representatives and those of its affiliates who have a need to know such information to perform its obligations under this Agreement and not for the benefit of any third party. Each Party's obligations to protect the Confidential Information of the other Party will survive for 2 years after the termination or expiry of this Agreement. The foregoing is in addition to, and is not intended to replace or supersede, the terms of any confidentiality or non-disclosure agreement separately entered into between Provider and Customer.

4. Purchase Price, Payment Terms, Tax, Credit and Deposits

Customer shall pay Provider the applicable purchase price set forth in the Agreement (the "Purchase Price"). Unless otherwise indicated, the Purchase Price is exclusive of taxes, levies, duties, governmental charges and expenses, which amounts (not including Provider's income taxes) will be billed to and paid by Customer. Except as otherwise specified in the Agreement, the Purchase Price (and any additional charges) must be paid in full by Customer prior to shipment. Payments must be made by Automated Clearing House (ACH) transfers, Electronic Funds Transfer (EFT) wires, or cheque. Provider may, in its sole discretion, accept payments by credit card provided Customer pays the applicable transaction fee. Provider reserves the right to modify the payment methods it accepts and may impose additional fees, during the term of this Agreement, upon reasonable notice to Customer in writing. If Customer fails to make a payment to Provider when due, all outstanding amounts owing to Provider will become immediately due and payable without notice or demand. All past due amounts owing shall accrue interest from the date due until paid in full at an annual rate equal to the lesser of (i) eighteen (18%) percent per annum or (ii) the highest rate then permitted by law, in each case compounded on a daily basis. At any time, Provider may require reasonable assurances of Customer's creditworthiness. If such assurances are unsatisfactory, Provider may modify payment terms, withdraw or limit Customer's credit, limit or cease providing Product, notwithstanding any contrary provision in the Agreement. Any remedies set out herein shall be in addition to other remedies available to the Provider under this Agreement or by law. Customer may not set-off any amounts due to Provider against any amount due to Customer by Provider. Customer hereby grants Provider a purchase money security interest in the Products until the Provider is fully paid. Customer will assist Provider in taking actions to perfect and protect Provider's security interest. Customer will reimburse Provider for all costs, expenses and fees, including reasonable legal fees and professional collection services fees, in incurs in connection with the collection of any amounts due under this Agreement.

5. Shipping Terms, Title and Delivery

• Unless otherwise agreed by the Parties in writing, Products shall be shipped to Customer EXW (Incoterms 2020) Provider's facility or FCA (Incoterms 2020) Provider's facility as specified by Provider.
• In all cases, title and risk of loss shall pass to the Customer at the time of delivery to the shipper at the point of origin.
• If Customer requests, and Provider agrees, Provider may arrange shipping using Provider's account, in which case any corresponding costs and charges shall be Customer's responsibility and shall be added to relevant invoice.
• The cost of any special packing or handling (including any export-related charges where FCA terms are used), required or requested by Customer, shall be Customer's responsibility and shall be added to relevant invoice.
• Customer shall bear all additional costs (including storage costs) and risks resulting from (i) shipment delays or errors it causes, and (ii) delayed Product delivery because of inaccurate, incomplete or misleading information supplied by or on behalf of Customer.

6. Taxes, Freight and Insurance

Provider shall not be liable for loss or damage to Products once shipped, and any claims for damages or loss in transit must be made by Customer to the carrier or other responsible third party. Solely as a convenience to, and at the direction of, Customer, and in Provider's sole discretion, Provider may arrange shipping/freight, insurance, customs, broker, or other services in connection with the shipment of Products, and shall pass those charges through to Customer. Such arrangements by Provider shall in no way affect timing of transfer of title or risk of loss.

7. Claims, Cancellations and Returns

Except as expressly permitted in the Agreement, Provider shall not accept or permit cancellation of orders or the return of Product. Notwithstanding the foregoing, Provider will accept a return of Product and will provide the Customer with a replacement, refund or credit, as determined by Provider, if Provider (i) ships to the Customer Product that was not ordered by the Customer under this Agreement, or (ii) inadvertently or erroneously ships a different quantity of Product than the Customer ordered under this Agreement. The sole remedy for Product which does not meet the limited warranty set forth in Section 9 shall be as set forth in Section 9.

8. Limits on Use of Products; IP; Changes and Discontinuation

• Use – Some Products are not intended for human diagnostic or drug purposes and are for research use only. Customer shall abide by usage restrictions as set out on the Product or its labelling. Customers purchasing prescription use products in accordance with a professional license represent that the license information provided is accurate and within date. Customer is responsible for obtaining all applicable regulatory, legal and other approvals for any use outside of those provided on the labelling. Customer shall indemnify and hold Provider harmless from and against all losses, damages, costs and expenses relating to Customer's non-compliance with this Section and any other use or misuse of the Products by Customer.
• Limitations on Resale or Export. Except as expressly provided in this Agreement and except in connection with Customer's own research or as part of a service offered by Customer to its own end-user customers (in each case only as applicable), Customer shall not lease, rent, license, sub-license, sell, re-sell, distribute, or transfer the Products to any other person or entity, including affiliates, subsidiaries, or parent companies, domestic or foreign, without Provider's prior written consent. Without limiting the foregoing, Customer shall not resell the Product in bulk or via any e-commerce site, including Amazon.com, Ebay or Walmart.com. Customer shall not export the Products without Provider's prior written consent.
• Limited Rights. The purchase of the Products conveys to Customer the non-transferable right for use of the Products, solely by the Customer, in compliance with the applicable intended use statement, limited use statement, or limited label license if included on or with the Products or provided separately to Customer. Any use must also strictly comply with all applicable laws and regulations. No other rights are granted by this Agreement, whether expressly, by implication or by estoppel, or under any other rights owned or licensable by Provider.
• Intellectual Property. Provider retains all right, title and interest in and to, and possession of, all its proprietary technology, including but not limited to, all intellectual property rights associated with the Products or any ideas, concepts, methods, processes, techniques, inventions or works of authorship (including programs, improvements and documentation) developed or created by or on behalf of Provider in connection with the Products. Customer acknowledges, and shall not challenge the validity of, Provider's ownership of all patents, trademarks and other rights related to the Product(s) and that, as between Provider and Customer, all trademarks used by Provider in connection with the Product(s) and any foreign translations thereof are the sole property of Provider. Customer shall not and shall not permit any third party to reverse engineer, disassemble, modify, adapt or create derivative works of the Products, Product contents and/or any accompanying documentation.
• Changed or Discontinued Product(s). Provider may implement Product updates, improvements and/or revisions and may discontinue or cease to make available Products in its sole discretion and without prior notice.

9. Warranties, Limitation of Liability, and Remedies

Provider warrants that Product delivered to Customer hereunder (i) shall be consistent with the Product description and specifications for such Product that Provider may supply to Customer from time to time, as in effect at the time of shipment, and (ii) shall be free from defects in materials and workmanship for such Product's stated shelf life (the "Warranty Period"). THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR OBLIGATIONS, EXPRESS OR IMPLIED. PROVIDER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, ALL PRODUCTS PROVIDED BY PROVIDER AND ITS EMPLOYEES AND AGENTS ARE PROVIDED “AS IS" AND “WHERE IS". THE PROVIDER IS NOT RESPONSIBLE FOR THE RESULTS ACHIEVED BY CUSTOMER USING THE PRODUCT. During the Warranty Period, Provider shall replace or, at Provider's option, refund the Price or credit (against the Price of future purchases of Product) the Price of any Product that does not comply with the warranty set forth in this Section 9. At Provider's request and expense, Customer shall return any Product to be replaced under this Section 9 or for which the Price is to be refunded or credited. THE FOREGOING SHALL CONSTITUTE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING WARRANTIES. Provider's obligation to replace defective Product or refund or credit the Price pursuant to this Section 9 shall not apply to any Product that has been subjected to misuse, mishandling, storage in a manner inconsistent with Product labeling, neglect, modification, or unusual physical or chemical stress after delivery to the shipper.

IN NO EVENT SHALL PROVIDER BE LIABLE UNDER THIS AGREEMENT TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, STATUTORY, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR LIQUIDATED DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, WHETHER BASED UPON WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION ARISING IN CONNECTION WITH THE PRODUCTS OR THIS AGREEMENT, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. PROVIDER’S LIABILITY SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT(S) HAVING GIVEN RISE TO SUCH LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THE AGREEMENT.

10. General Provisions

• Force Majeure. Provider will use its reasonable efforts to fill orders, but Provider will not be liable for nonperformance or delays caused by a shortage of raw materials, manufacturing problems, delivery or labor problems, acts of regulatory agencies, discontinuation of a product line, war, acts of God, pandemics or other causes beyond its control. Customer agrees that in such event Provider, at its sole option and discretion, may allocate Products among its customers without liability.
• Informal Dispute Resolution. The Provider and Customer will attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or relating to this Agreement or the Products. Either the Provider or Customer may initiate negotiations by providing written notice to the other party, setting forth the subject of the dispute and the relief requested. The Party receiving such notice will respond in writing within five (5) business days with a statement of its position on and recommended solution to the dispute. If the dispute is not resolved by this exchange of correspondence or the Party receiving such notice fails to timely respond, then either Party may seek redress of the dispute as set forth in clause (c) below.
• Arbitration. Any dispute in connection with this Agreement that cannot be settled by good faith negotiation or mediation shall be settled by final and binding arbitration conducted in English in accordance with the rules of the American Arbitration Association and the arbitration shall take place in the State of Delaware, U.S.A. The arbitration shall be heard and determined by a single arbitrator. The award shall be made and shall be payable in U.S. dollars. The award shall include interest from the date of any breach or other violation of this Agreement. The arbitrator shall also fix an appropriate rate of interest from the date of the breach or other violation to the date when the award is paid in full. If the amount in controversy exceeds $10,000, the arbitrator's decision shall include a statement specifying in reasonable detail the basis for and computation of the award, if any. A party substantially prevailing in the arbitration shall also be entitled to recover such amount for its costs and attorney fees incurred in connection with the arbitration, as shall be determined by the arbitrator. Judgment upon the arbitration award may be entered in any court having jurisdiction. Nothing herein shall prevent either party from resorting to a court of competent jurisdiction solely to seek injunctive relief. The parties agree that the award of the arbitral tribunal will be the sole and exclusive remedy between them regarding any and all claims and counterclaims presented to the tribunal.
• Governing Law. The rights of the parties under this Agreement shall be governed by the laws of the State of Delaware, U.S.A., excluding choice of law rules.
• Entire Agreement. This Agreement contains the entire and final agreement between the parties. No modification of any of its provisions, or any future representation, promise, or addition, shall be binding upon the parties unless made in writing and signed by both parties. A waiver of any obligation Customer has under this Agreement shall be effective only if in writing signed by Provider. Any waiver shall not affect Provider’s right to require strict compliance with this Agreement in the future.
• General. Neither Party may assign this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Provider may assign this Agreement to the successor to its business (or the business line to which this Agreement relates) whether by merger or asset sale. These Product Terms are not construed against the Party preparing them but shall be construed as if all Parties jointly prepared these Product Terms and any uncertainty or ambiguity will not be interpreted against any one Party. This Agreement shall not be construed to create or imply a partnership or joint venture relationship between the Parties. Neither Party has the authority to bind or contract any obligation in the name of or on account of the other Party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other Party, or otherwise act on behalf of the other. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision is fully severable and the terms and conditions herein will be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein will remain in full force and effect and will not be affected by such illegal, invalid or unenforceable provisions or by their severance from these Product Terms.
• Compliance with laws. All discounts, if any, provided under this Agreement are intended to comply with the federal Anti-Kickback Statute, 42 U.S.C. §1320a-7b(b). To the extent required by 42 C.F.R. §1001.952(h) (the Anti-Kickback Statute discount safe harbor regulations) or other applicable laws and regulations, Customer must fully and accurately reflect in cost reports or other submissions to federal healthcare programs all discounts provided under this Agreement and, upon request by the Secretary of the U.S. Department of Health and Human Services or a state agency, must make available information provided to Customer by Provider concerning the discounts.
• Termination. Provider shall have the right to immediately terminate this Agreement upon notice to Customer if Customer is in arrears in payment of any amounts due hereunder. In the event that either party materially breaches this Agreement, the other party may terminate this Agreement by providing thirty (30) days’ advance written notice to the party in breach, provided that the party in breach does not cure the breach within such thirty (30) day notice period. If either party becomes the subject of insolvency or bankruptcy proceedings, ceases doing business, makes an assignment of assets for the benefit of creditors, dissolves, or has a trustee appointed for all or a substantial portion of its assets, the other party may terminate this Agreement immediately upon written notice.
• Survival. Following the termination of this Agreement, any provision set forth herein which, by its very nature, is intended to survive any expiration or termination hereof, shall so survive, including without limitation, the provisions respecting confidentiality, indemnification, limitation of liability, accrued payment obligations, and governing law.
• Notices. Any notices hereunder shall be given in writing, and shall be deemed given (i) when personally delivered; (ii) if sent by recognized courier service, on the second business day after deposit with such courier, properly addressed and fee prepaid or billed to sender; (iii) if sent by U.S. or Canadian certified mail, return receipt requested, on the fourth business day after deposit in the U.S. or Canadian mail, properly addressed and postage prepaid. The parties shall provide each other with contact information for notices and may also elect (in writing) to receive notices by email.