Terms and Conditions

Disclaimer:

Permission to reproduce text, photographs, drawings or graphic images shall be obtained from DIANT Pharma Inc. prior to reproducing. The reading of these terms shall be taken as acceptance of them.

As used herein, DIANT PRODUCT or Products shall mean the equipment, hardware, modules, software, single-use assemblies, system parts, along with any services (including but not limited to maintenance services, contract services, system upgrades) performed by DIANT Pharma Inc.. Equipment and services, as more specifically described on www.diantpharma.com, is made an integral part of this Agreement and is subject to change. 

Note(s)

i) Sales tax may not be included in the quotation above. If sales tax does apply, said amount will be in addition to the quotation.

ii) Associated travel costs and expenses are estimates only. All travel expenses incurred will be passed on to the customer at cost, and promptly reimbursed by customer. For all travel, business-class travel arrangements are required along with a minimum 3-star hotel accommodations (depending on location and ratings). 

iii) This quotation assumes that the host facility is suitable for housing the DIANT® Product as stated in the product specification.

iv) On-site Rates: Current rates are set at $285/hour for maintenance and servicing of DIANT® Products. A daily rate will apply in most cases at $2,280/day, excluding any travel-related expenses, taxes and fees.

v) All consumables and modules on the DIANT PRODUCT that are offered by DIANT Pharma Inc. shall be purchased through DIANT Pharma Inc., unless otherwise agreed upon by both parties in writing and signed by both parties.

In avoidance of doubt, the following items are not included in the price quotation:

· Travel expenses associated with installation, unless explicitly noted.

· Performance qualification costs and expenses.

· Any products or services not explicitly set forth above.

· Design, construction and improvements of host facility building.

· Process utility systems and installation of such systems.

· Integration of DIANT PRODUCT with other facility automation systems, unless explicitly noted.

· Taxes, tariffs, duty, fees, export licenses and/or additional expenses associated with international commerce requirements are not included in the budgetary estimate. Purchaser will be billed based on actual costs incurred.

a. These terms and conditions and all attachments hereto, together with Purchaser’s purchase order (the “Agreement”), are the complete agreement by and between Seller and Purchaser and constitute the full understanding of the Parties with respect to the subject matter hereof. No other document, including Seller's proposals, quotations, and/or acknowledgement forms or confirmations, and no conditions, understandings or agreements purporting to modify or vary the terms of this Agreement shall be binding unless hereafter made in writing and signed by the Parties, provided however that if such a quotation or proposal is expressly incorporated into Purchaser’s purchase order (“Order”), the technical terms or specifications, price and/or quantities of goods set forth therein shall be binding, however all other terms, including without limitation legal terms and conditions, which are in addition to or conflict with this Agreement, are expressly rejected by the Parties and shall be void.

a. The Purchaser shall be responsible for additional costs and changes to the date of delivery, including a reasonable profit to Seller, for:

1. Any material changes made by Purchaser subsequent to the date of this Agreement.

2. Any tax imposed on Seller by a federal, state, municipal or other governing authority, including school district or board, based on or measured by the sale or use of the material, equipment or services covered hereby or by the gross value of the material, equipment or services covered hereby.

3. Any existing tax, excise or governmental charge or any increase in or any additional such tax or charge (other than taxes based upon or measured by Seller's net income or net worth) imposed after Purchaser’s issuance of an Order hereunder for any goods sold hereunder which Seller may be required to pay, shall be paid by Purchaser to Seller in addition to the purchase price for the goods. 

b. Upon finalization of the order/contract, as made clear by proving DIANT Pharma Inc. a Purchase Order, payment on the account of each invoice shall be made in United States currency as outlined in the quotation.

c. Due to the custom nature of the DIANT PRODUCT being fabricated for the Purchaser, in the event the Purchaser cancels the Purchase, Purchaser shall have the right, at its option to (i) receive any in-process work, parts or materials paid for by Purchaser prior to cancellation or (ii) receive a refund for any amounts paid by Purchaser for work, parts, or materials not delivered prior to cancellation less Seller’s reasonable costs incurred in the preparation of Purchaser’s order to the date of cancellation including labor, materials, and overhead.  

d. All payments shall be made to the designated Seller address.

e. In the event of any default by Purchaser in the payment of any fees or charges due, Seller shall have the right to refuse performance and/or delivery of any Products until payments are brought current and Seller may suspend, delay or cancel any credit, delivery or any other performance by Seller

f. Purchaser shall have no right to withhold or reduce any payments or to offset existing and future claims against any payments due for Products sold under the Agreement or under any other agreement that Purchaser may have with Seller or any of its affiliates may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Purchaser or on its behalf.

a. Seller shall be responsible for arranging and invoicing Purchaser for applicable Freight, Transportation, Insurance, Customs, Import and Export fees, Demurrage, Shipping, Storage, Handling, or similar charges. If such charges by the terms of the sale are included in the price, any increase in rates becoming effective after the date hereof shall be the responsibility of the Purchaser.

b. Seller agrees to use commercially reasonable efforts to meet the delivery dates acknowledged by it on the condition that Purchaser provides all necessary order and delivery information sufficiently prior to the such delivery date. Seller cannot guarantee delivery on a specific date especially in the case of permitted loads. Time is of the essence for Purchaser, if the delivery schedule is endangered for any reason other than Purchaser's fault, Seller will, at its expense, deliver goods by the most expeditious shipping method, except as otherwise set forth herein.

c. Upon delivery, Purchaser shall have the right of inspection and approval, and shall have a reasonable opportunity to perform acceptance testing on the Products in accordance with the criteria set forth on Schedule 3, attached hereto (“Acceptance Testing”). If the Products (i) fail Acceptance Testing (ii) are otherwise defective, and/or (iii) are not in compliance with the specifications set forth on Schedule 2, attached hereto (the “Specifications”), warranty or any terms and conditions set forth in this Agreement, Purchaser may at its option and in addition to its other remedies, reject and return Products or require replacement Products at Seller’s sole cost and expense. Payment for Products prior to inspection shall not constitute acceptance thereof and shall be made without prejudice to any and all claims that Purchaser may have against Seller. Purchaser’s signature on any shipping/receiving document shall not constitute acceptance of Products or any differing terms or conditions, or acknowledge condition of Products but shall merely acknowledge receipt of a shipment. Acceptance of any part of the shipment of Products shall not bind Purchaser to accept any non-conforming Products simultaneously provided by Seller, nor deprive Purchaser of the right to reject any previous or future non-conforming goods.

d. Purchaser will give Seller written notice of failure to deliver, failure of Acceptance Testing, and/or delivery of otherwise defective Products and Seller shall have thirty (30) days within which to cure. If Seller does not deliver conforming Products within such thirty (30) day period, Purchaser shall be entitled to, at its option, (i) cancel the affected and/or undelivered portions of the Agreement (ii) terminate the entire Agreement, and/or (iii) obtain a refund of any amounts paid for such undelivered and/or non-conforming Products.

e. If Purchaser is unable to take delivery when the DIANT PRODUCT is ready to be shipped or Purchaser fails to take delivery of DIANT PRODUCT and other Products ordered, Purchaser shall be responsible for any costs incurred by Seller related to said inability or failure including but not limited to storage, insurance and additional transportation

f. Seller will deliver the Products “FOB Destination Freight Prepaid”, to Purchaser’s facility designated in the applicable Order. Title to Products and risk of loss passes to Purchaser upon delivery of the Products to, and acceptance of the Products by Purchaser at Purchaser’s facility designated in the applicable Order; provided, however, that title to Products shall not pass to Purchaser until payment therefor has been received by Seller in full. 

Neither Purchaser nor Seller shall be liable for any failure or delay in performance if such failure or delay is caused by Force Majeure as defined below or by law. In case of such a failure as set forth above, the performance of the relevant part(s) of the Agreement will be suspended for the period such failure continues, without either Party being responsible or liable to the other Party for any damage resulting therefrom.

A “Force Majeure Event” shall include any occurrence beyond the reasonable control of a Party, including without limitation: act of nature (e.g., flood, earthquake or storm); war or terrorism; civil commotion or riot; epidemic or pandemic (e.g., COVID-19); destruction of facilities or materials; fire or explosion; labor disturbance or strike; laws, regulations, directives or orders of any government, regulatory or judicial authority; embargo, shortage of raw materials or labor; equipment failure; or failure of public utilities or common carriers. The Party declaring a Force Majeure Event will notify the other Party in writing, explaining the nature thereof, and will also notify the other Party of the cessation of any such event. A Party declaring a Force Majeure Event will use commercially reasonable efforts to remedy, remove, or mitigate such event and the effects thereof. Upon cessation of the Force Majeure Event, performance of any suspended obligation or duty will promptly recommence.

System Warranties

a. Seller warrants that the DIANT PRODUCT will be free from material defects in workmanship and material. For warranty claims, please email support@diantpharma.com.

b. Seller warrants that the DIANT PRODUCT will conform to the Specifications, including explicit performance requirements set forth therein, and will be adequate for the purposes stated herein, for a period of twelve (12) months from the completion of the Site Acceptance Test pursuant to 6.a. above, if: (i) properly operated and maintained; (ii) operating conditions are as specified by DIANT in the Specifications; and (iii) host facility meets requirements and environmental conditions as specified in the Specifications. Seller shall have no obligations if the alleged defect or non-conformance is found to have occurred because of environmental factors outside of those contained in the Specifications, environmental or stress testing other than as set forth in the Specifications, misuse, use other than as set forth in the Specifications, neglect, or accident, or as a result of improper repair, alteration, modification, storage, transportation or improper handling.

c. If any performance deficiency addressed by this warranty is found on the DIANT PRODUCT during the warranty period, Seller will have fourteen (14) days to perform a root cause analysis and propose a resolution to correct the deficiency by repairing, adjusting, modifying, replacing or adding to the Product, by a mutually agreed upon date. If Seller cannot correct a deficiency in performance by the mutually agreed upon date, Purchaser shall be entitled, at its option, to terminate this Agreement and, upon return of the DIANT PRODUCT to Seller, obtain a refund from Seller of the purchase price and any other amounts paid to Seller.

d. This is a warranty of specified system performance and not a maintenance undertaking. Seller’s responsibility shall be governed by the equipment warranty set forth below.

e. Seller shall not be liable for any performance deficiency, which results, in whole or in part, from (i) any alterations of the equipment by the persons other than Seller or its authorized agents; (ii) absence of equipment or accessories required or recommended by Seller or its agents in the Specifications or written communication by Seller to Purchaser but omitted at Purchaser’s direction; (iii)  inadequate host facility conditions as communicated to Purchaser by Seller from time to time; or (iv) combining Seller’s equipment with any equipment or system furnished by others, including Purchaser, except such equipment or system as is set forth in the Specifications.

f. Wherever in this proposal, or documents referenced herein, mention is made of Seller’s “performance” or “design” responsibility, or to furnishing a “turnkey” system, or similar terminology, it is understood to refer to this System warranty.

g. This sets forth Purchaser’s exclusive remedy for defective material or workmanship and such remedy is conditioned upon Purchaser notifying Seller in writing within a reasonable time after discovering of any defect(s). Seller’s liability to Purchaser hereunder, whether based on contract or negligence theories, in no case will be greater than the cost of correcting the defects to the system or in the purchase price of DIANT PRODUCT, whichever shall be less.

h. This warranty is exclusive and in lieu of all other warranties, whether written, oral, implied or statutory (except as to title). There is no warranty of merchantability or of fitness for purpose or any other common law or equitable warranties. This warranty extends solely to Purchaser and not to Purchaser’s customers, agents or representatives and is not transferable or assignable. 

i. Seller's liability for breach of warranty or otherwise is limited to repair or replacement of non- conforming goods of Seller's manufacture. Seller's liability with respect to any item not of Seller's manufacture shall be limited to that of the vendor thereof.

j. Alteration of, or work done, on equipment warranted hereunder without Seller's prior written authorization (which shall not be unreasonably withheld or delayed) shall void all applicable warranties and indemnities.

k. All consumables and modules on the DIANT PRODUCT that are offered by DIANT Pharma Inc. shall be purchased through DIANT Pharma Inc., unless otherwise agreed upon by both parties in writing and signed by both parties.

Software Warranties

l. Seller warrants to Purchaser that the Software will perform materially in accordance with and as described in the provided documentation for a period of twelve (12) months from following the delivery and acceptance of the System on which the Software is installed.

a. SELLER SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF REPUTATION, LOSS OF GOODWILL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SALE OF ANY PRODUCTS OR SERVICES BY SELLER OR THE USE THEREOF WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY – EVEN IF SELLER HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT FOR SELLER’S BREACH OF CONFIDENTIALITY, INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS, THIRD PARTY INDEMNIFICATION OBLIGATIONS, ACTS OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE SELLER’S AGGREGATE AND CUMULATIVE LIABILITY TOWARDS PURCHASER UNDER THIS AGREEMENT SHALL NOT EXCEED FEES PAYABLE BY PURCHASER TO SELLER HEREUNDER. WITH RESPECT TO THIRD PARTY INDEMNIFICATION OBLIGATIONS, THE SELLER'S AGGREGATE AND CUMULATIVE LIABILITY TOWARDS PURCHASER UNDER THIS AGREEMENT SHALL NOT EXCEED $50,000.

b. The limitations and exclusions set forth above in this Section 8 shall apply only to the extent permitted by applicable mandatory law.

a. Subject to the limitations on liability set forth herein, Seller shall hold harmless and indemnify Purchaser, its agents and employees, from any and all third party claims, suits, losses and expenses, including attorneys’ fees, provided that any such claim, suit, loss or expense is attributable to bodily injury, sickness, disease or death, or injury to property (excluding loss of use thereof), which is caused by (a) intentional misconduct or gross negligence of Seller, its agents, employees, sub-contractors or suppliers; or (b) a material defect in the design, material or workmanship of the DIANT PRODUCT.

b. Purchaser shall hold harmless and indemnify Seller, its agents and employees, from any and all third party claims, suits, losses and expenses, including attorney’s fees, provided that any such claim, suit, loss or expense is attributable to bodily injury, sickness, disease or death, or injury to property (excluding loss of use thereof), which is caused by (a) modifications to the system or any portion thereof not approved by Seller in writing or made in accordance with the Specifications by Purchaser, its agents, employees, servants, contractors or assigns; or (b) the negligent or improper use or operation of the system or any portion thereof by Purchaser, its officers, agents, employees, servants, contractors or assigns.

a. Seller shall: (i) indemnify, defend, and hold harmless the Purchaser and its parents, affiliates and subsidiaries and their respective employees, directors, officers and agents, (together the “Indemnified Parties”),  from and against any legal proceeding, claim, demand, suit or action brought by a third party against the Indemnified Parties arising out of a claim that any Product as furnished by Seller under an Agreement infringes the claimant’s patent, copyright, trademark, or trade secret rights; and (ii) hold Indemnified Parties harmless against all losses, damages, liabilities, fines, penalties, costs and expenses (including reasonable attorney’s fees and court costs)arising out of such third party claim.

b. Seller shall have no obligation or liability to the Indemnified Parties under clause a. above (1) if Seller is not: (i) given the sole right to control and direct the investigation, preparation, defense and settlement of such claim, including the selection of counsel; and (iii) given full reasonable assistance and cooperation by the Indemnified Parties in such investigation, preparation, settlement and defense; or (2) if the claimed infringement is caused by (i) Indemnified Parties’ modification of the Product not authorized by Seller or not in line with the Product documentation to the extent that such modification causes the Product to be infringing; or (ii) combination of the Product with software or hardware not supplied by Seller or approved for use with the Product in writing by Seller to the extent that such combination causes the Product to be infringing. Notwithstanding, the Indemnified Parties shall have the right, at its option and expense, to participate in the defense of any claim through a counsel of its own choosing.

c. If any Product is, or in Seller’s opinion is likely to become, the subject of a claim of infringement as referred to under clause a. above, Seller shall have the right, at its  option , to: (i) procure for Indemnified Parties the right to continue to use or sell the Product; (ii) provide replacement Product, or (iii) modify the Product in such a way as to make the modified Product non-infringing; or (iv) terminate any Agreement to the extent related to such Product and refund to Purchaser any amounts paid.

d. Subject to the exclusions and limitations set forth in Section 10 of these Terms and Conditions, the foregoing states Seller’s entire liability and obligation to Indemnified Parties and Indemnified Party’s sole remedy with respect to any actual or alleged infringement of any intellectual property rights or any other proprietary rights of any kind.

Without prejudice to any rights or remedies Seller may have hereunder or at law, Seller may, by written notice to Purchaser, terminate with immediate effect this Agreement or any part thereof or stop or suspend performance without any liability whatsoever, if:

a. Purchaser enters into any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Purchaser, whether filed or instituted by Purchaser, voluntary or involuntary, a trustee or receiver is appointed over Purchaser, or any assignment is made for the benefit of creditors of Purchaser.

b. Any waiver by Seller of any of Purchaser’s obligations or payments due hereunder shall not constitute a waiver of any other obligations or payment.

a. “Background Technology” means any technical information, know-how, ideas, concepts, processes, procedures, designs, software, schematics, works of authorship, inventions, discoveries, and any and all intellectual property rights, whether now or hereafter perfected, pertaining thereto created, conceived, or developed by a Party or on behalf of a Party prior to this Agreement or other than in the performance of this Agreement.

b. Both Parties shall retain all rights, title and interests in and to any Background Technology of such Party.

c. Seller shall own all right, title interest and in and to any and all its solely developed Intellectual Property which relates to the DIANT 

d. To the extent that software (the “DIANT Software”) and/or documentation is included or embedded in or delivered with the DIANT PRODUCT or other equipment provided, the sale of such product shall not constitute the transfer of ownership rights or title in such software and/or documentation to Purchaser, but subject to the provisions set forth herein, shall only grant a non-exclusive, non-transferable, perpetual , limited license to Purchaser to use such software and/or documentation in conjunction with and as embedded in or delivered with the Products as supplied by Seller, solely as set forth in the Specifications, for the term set forth in the quotation to which these Terms and Conditions are attached. All rights in the software and/or documentation embedded in or delivered with a Product not expressly granted herein to Purchaser are reserved to Seller. Purchaser may not use the DIANT PRODUCT with any software other than the DIANT Software.

e. Purchaser shall not: (a) modify, adapt, alter, translate, reverse engineer, or create derivative works from any of the DIANT PRODUCT or any software residing in, or provided by Seller in conjunction with, any of the DIANT PRODUCT or other Products, including the DIANT Software; (b) assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available such software; (c) merge or incorporate such software with or into any other software; or (d) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code for such software without written authorization from Seller except as explicitly allowed under applicable law. Purchaser shall reproduce, without any amendments or changes thereto, any proprietary rights legends of Seller and/or its affiliates or its third-party suppliers in any software or documentation provided by Seller. License terms of third parties may apply.

f. With respect to DIANT PHARMA INC. Products and system designs other than the software described in the preceding two (2) paragraphs, nothing in these Terms shall be deemed or construed as 1) a license or grant of any intellectual property rights, whether express, implied, by estoppel or otherwise;

2) to limit Seller’s rights to enforce its patents or other intellectual property rights, including, without limitation, as to use any Product beyond that granted under any patent or other intellectual property label license or statement applicable to the Product; 3) as granting Purchaser any right to be supplied with any Product or component thereof beyond those ordered by Purchaser and supplied by Seller in accordance with these Terms; or 4) as a license or grant of any right to buy, to manufacture or to have manufactured any Product.

g. Purchaser shall have the right to use the DIANT PRODUCT without additional licensing, permission or fees to provide services and

materials for its customers.

Purchaser shall not use, analyze, disassemble or reverse engineer the DIANT PRODUCT or any materials furnished herein to determine any characteristic, construction method or materials or structure thereof, or to develop a competing product or service, unless specifically agreed to by DIANT PHARMA INC. in writing. Purchaser shall not file any patent applications which include any Confidential Information of DIANT PHARMA INC., unless otherwise agreed to by DIANT PHARMA INC. in writing. DIANT PHARMA INC.’s method of constructing the DIANT PRODUCT as well as their design are DIANT PHARMA INC. Confidential Information and include any documents, drawings, sketches, designs of the DIANT PRODUCT, specifications, materials or samples supplied hereunder. All of the above shall remain the property of DIANT PHARMA INC. and no rights or licenses are granted to Purchaser in the same, whether patented or not, except the limited right to use the Confidential Information as set forth herein. Any use of Confidential Information for any reason outside of the Purpose shall be considered a breach of this Agreement and subject to the remedies set forth herein.

In addition to any other non-disclosure obligations set forth in a separate confidentiality agreement between the Parties (if any), the Parties acknowledge that all technical, commercial and financial data disclosed by a Party (the "Disclosing Party") to another Party (the "Receiving Party"), including, without limitation, all software (whether or not embedded in a Product), hardware, documentation, plans, drawings, specifications, methods of construction, processes, and customizations, is the confidential information of the Disclosing Party. The Receiving Party shall not reproduce, modify, analyze, decompile or reverse engineer (or allow any third party to do the same) any Confidential Information of the Disclosing Party for any purpose other than as agreed by the parties and in conformance with the purchase transaction contemplated herein. The Parties shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transaction contemplated herein. This obligation shall not apply to any information which a Party can demonstrate (i) is publicly known or readily ascertainable by proper means, (ii) was known to the Party before disclosure to the other Party,(iii) is rightfully obtained by a Party from a third party without a duty of confidentiality, (iv) is independently developed by or for a Party without reference to or reliance upon the other Party’s Confidential Information, or (v) is disclosed by the Disclosing Party to a third party without a duty of confidentiality on the third party. Any disclosure of Confidential Information made by a Party in response to a valid order by a court or other governmental body or that is otherwise required by law (but only to the extent of such order or requirement) will not be deemed to be a violation of a Party’s obligations under this Agreement if the Party follows the instructions of this paragraph 14. Under such circumstances, the Party agrees that it will (to the extent permitted by applicable law) use reasonable commercial efforts to provide the other Party with immediate notice of any disclosure to be made pursuant to such order or requirement and cooperate, at the expense of and with the efforts of the other Party, to obtain a protective order or other assurance of confidential treatment of the Confidential Information to be disclosed pursuant to such order or requirement. If, in the absence of a protective order, a Party is compelled as a matter of law to disclose the Confidential Information, such Party will disclose, without liability, only that part of the Confidential Information as is required by law to be disclosed and prior to such disclosure will, to the extent permitted by applicable law, advise and consult with the other Party as to such disclosure. The confidentiality obligations of the parties under this Agreement shall continue in force and shall not terminate until five (5) years from the date of last signature above.

Purchaser may assign its rights and obligations under this Agreement to any parent, Affiliate, subsidiary or joint venture of Purchaser or its parent company or by corporate re-structure or re-organization. Both Parties have the right to assign their rights and obligations under this Agreement without prior written consent of the other Party in the event of a merger, acquisition or consolidation with another legal entity. Except as provided above in this Section 15, Seller shall not assign or transfer any right or obligation under this Agreement without the prior written consent of the Purchaser, which may be granted or denied in Purchaser’s sole discretion.

All offers, confirmations and Agreements shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of laws principles. Purchaser and Seller shall first attempt to settle any disputes arising out of or in connection with any Agreement by consultation and negotiation. All disputes which cannot be resolved amicably shall be submitted to the exclusive jurisdiction of the federal or state courts sitting the State of Delaware. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any offer, confirmation or Agreement. Nothing in this Section 18 shall be construed or interpreted as a limitation on either Seller’s or Purchaser’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.

a. In the event that any provision(s) of this Agreement shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof. In the event that any provision of this Agreement shall finally be determined to be unlawful or unenforceable, such provision shall be deemed severed from this Agreement, but every other provision shall remain in full force and effect, and in substitution for any such provision held unlawful or unenforceable, there shall be substituted a provision of similar import reflecting the original intent of the clause to the extent permissible under applicable law.

b. The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from this Agreement shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising there from preclude any other or future exercise thereof or the exercise of any other right or remedy arising from this Agreement or from any related document or by law.

c. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed original, and both together shall constitute one and the same instrument.

d. Proper Construction. The language of all parts of this Agreement shall in all cases be deemed to be the language chosen by the parties to express their mutual interest and shall be construed as a whole according to its fair meaning, and not strictly for or against any of the parties. Moreover, the paragraph headings used in this Agreement are intended solely for convenience of reference and shall not in any manner amplify, limit, modify or otherwise be used in the interpretation of any of the provisions hereof.

e. Interpretations. In this Agreement, unless a clear contrary intention appears, (a) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision, (b) reference to any Section, means such Section hereof, (c) the word “including” (and with correlative meaning “include”) means including, without limiting the generality of any description preceding such term, and (d) “and” and “or” are each used both conjunctively and disjunctively.

f. Merger. This Agreement embodies the entire agreement between the parties regarding the subject matters addressed herein and supersedes all prior agreements, quotations and other communications, if any, between the parties regarding such matters. In executing this Agreement, Purchaser is not relying on any promises or statements not contained in this Agreement. Issuance of Purchaser's Purchase Order in response to this Quotation shall be deemed to accept these Terms and Conditions, to the exclusion of any terms which may be printed on the Purchaser's Purchase Order form or otherwise are included in or accompany Purchaser’s Purchase Order other than quantities of each item or option. The failure of Seller to object to any provision in conflict with these Conditions, however such provision may be communicated to Seller, shall not be construed as a waiver by Seller of the provisions hereof nor of the acceptance of such provision. These Terms and Conditions may only be changed in writing executed by authorized representatives of Purchaser and Seller. In the event of a conflict in the terms and conditions of the documents forming the Contract, the following priority shall apply: (1) these Terms and Conditions; (2) the Specifications; (3) the DIANT PHARMA INC. Quotation (not including the Conditions); and (4) Buyer's Purchase  Order, if any.

g. The purchaser may use the DIANT PRODUCT, and more specifically, DIANT equipment, for all intended research and development purposes if the system is operated within the specifications of the system. Any use outside of the specifications requires permission from DIANT PHARMA INC.