GYROSCOPE THERAPEUTICS PURCHASE ORDER TERMS & CONDITIONS

Unless stated otherwise in the Purchase Order, the Purchase Order is placed subject to these terms and conditions (“T&Cs”). These T&Cs, the Purchase Order, all specifications, and instructions stated herein, shall constitute the complete order (collectively, the “Agreement”).  

1.    PARTIES TO THIS AGREEMENT.

A.   For the purposes of these T&Cs, “Buyer” means either Gyroscope Therapeutics Limited or Gyroscope USA, Inc. as named in the Purchase Order.  References to the “Supplier” means the person or entity from whom the Buyer purchases the goods and/or services, as named in the Purchase Order.

B.   By (i) performing services and/or delivering goods ordered by Buyer pursuant to this Agreement, (ii) issuing an invoice to Buyer for such goods and/or services, or (iii) accepting payment from Buyer for goods and/or services, whichever occurs first, Supplier agrees to be bound by this Agreement.

C.   Any Affiliate of Buyer is entitled to use the goods and/or services (including deliverables thereof) provided under this Agreement. As used herein, “Affiliate(s)” shall mean any person or entity directly or indirectly controlling, controlled by, or under common control with Buyer, and for this purpose, “control”, “controlling” and “controlled by” shall mean the ownership and control of more than fifty percent (50%) of the outstanding voting securities or interest in capital or profits of any person or entity, or the right to direct or control the management or affairs of any person or entity by contract or similar arrangement.

2.    GOVERNING DOCUMENTS/ENTIRE AGREEMENT.  Except as otherwise provided in this Section 2, the Agreement shall constitute the complete understanding between the parties with respect to the subject matter referenced herein, and supersedes and extinguishes all previous agreements, promises, warranties, representations and understandings between the Buyer and Supplier.  Subject to Section 4, this Agreement may not be amended or modified other than in a writing signed by both parties. These T&Cs apply to the Purchase Order to the exclusion of any other terms that the Supplier seeks to impose or incorporate (including terms and conditions included on any invoice submitted by the Supplier). Notwithstanding the foregoing, if a fully executed written agreement (such as a services agreement, purchase agreement or lease agreement) between Buyer and Supplier is in force and effect with respect to the goods and/or services that are the subject of this Agreement, then the terms of such agreement shall govern and these T&CS shall not apply to the Purchase Order.

3.    PRICE AND PAYMENT.  Goods and services shall be invoiced at the price set out in the Purchase Order. The price, unless otherwise expressly stated, includes all taxes and duties of any kind that Supplier is required to pay with respect to the goods and/or services (including any applicable customs duties).  Unless otherwise specified in this Agreement, Supplier shall submit an invoice (including the PO number it relates to) for the price upon the schedule agreed by the parties or, if none is specified, upon the delivery of all goods and/or services.  Buyer shall pay the price within thirty (30) days of its receipt of a valid invoice. Cash discounts will be computed from the date of invoice.  Buyer shall be entitled, at all times, to deduct any amount that is owed by Supplier to Buyer (or any Affiliate) from any outstanding portion of the price owed by Buyer (or any Affiliate of Buyer) to Supplier hereunder.

4.    PURCHASE ORDER CHANGES.  Buyer may amend a Purchase Order before delivery or performance by giving the Supplier prior written notice, provided the parties may discuss, in good faith, changes to the price to reflect such change. Supplier shall notify Buyer in advance of any changes to a product or process that may have an impact on the quality of goods and/or services.  Supplier is not authorized to incorporate such changes until Buyer has provided written approval of such change to the Supplier.

5.    DEFAULT/TERMINATION FOR CAUSE.  Without prejudice to any other remedies available at law or in equity, Buyer may terminate this Agreement with immediate effect for (i) the Supplier’s breach, which is not cured (if such breach is remediable) within thirty (30) days of Buyer giving notice to Supplier of such breach, (ii) in the case of the Supplier’s bankruptcy or insolvency, or (iii) where the Supplier makes an assignment for the benefit of creditors.

6.    TERMINATION FOR CONVENIENCE.  Buyer may cancel any Purchase Order in whole or in part upon the provision of written notice to Supplier. Upon such notice, Supplier will terminate all work on such order and the Buyer shall pay the Supplier (as its sole remedy for such cancellation) for the reasonable non-cancellable costs actually incurred as of the date of such notice by Supplier on such goods or services so ordered, to the extent such cannot be allocated to other work or otherwise mitigated.

7.    SHIPMENT. 

A.   Supplier shall deliver the goods and/or services in accordance with this Agreement and any reasonable instructions provided by the Buyer.

B.   Supplier shall: box, crate and package all goods, as necessary taking into account any requirements of the goods and in accordance with good commercial practice and applicable law including all cGMP requirements (as applicable), without charge to Buyer, unless otherwise specified in this Agreement; and (ii) include an itemized packing list with all shipments.

C.   Buyer assumes no responsibility for goods shipped without Buyer’s Purchase Order having been issued.  Unless otherwise indicated in the Purchase Order, all deliveries are Delivered Duty Paid (Incoterms 2020), at the Buyer’s “delivery to” address indicated on the Purchase Order.

D.   Supplier acknowledges that time is of the essence of this Agreement.  The goods and/or services shall be delivered as instructed by the Buyer, or, if no such instructions have been given, as soon as possible after the Purchase Order is raised by the Buyer.  Buyer shall accept deliveries at the delivery location Monday through Friday between 9:00 a.m. and 5:00 p.m.  Failure to deliver the goods and/or services, as applicable, in accordance with this Section 7.D shall be deemed an incurable breach of this Agreement enabling the Buyer to terminate pursuant to Section 5.  Delivery in accordance with this Agreement shall not constitute acceptance by Buyer under this Agreement.

8.    INSPECTION AND ACCEPTANCE.  As soon as practicable after delivery, Buyer shall inspect the goods and/or services delivered. Buyer may reject goods and/or services that do not comply with the requirements and specifications of this Agreement, within ten (10) business days, after which the goods and/or services shall be deemed to have been accepted by Buyer.   In the event Buyer rejects non-conforming goods and/or services under this Section 8, Buyer may, without prejudice to any other rights or remedies, return or destroy the same, at Supplier’s expense, and Supplier shall, at Buyer’s option, (i) promptly deliver replacement conforming goods and/or services, without additional charge to Buyer, or (ii) refund to Buyer the price paid by Buyer to Supplier, and Buyer shall be relieved from any outstanding payment obligations for such Purchase Order.  In case Buyer has requested Supplier to deliver replacement goods and/or services, Buyer may defer payment of invoices or portions thereof relating to pending goods and/or services without liability or loss of discount to Buyer.  In the event of Supplier’s failure to promptly repair or replace such non-confirming goods and/or services upon Buyer’s request, Buyer, after reasonable notice to Supplier, may repair or replace such goods and/or services and charge Supplier for all costs incurred by Buyer in doing so. Title to, and risk of loss of or damage of, goods shall pass from Supplier to Buyer upon Buyer’s acceptance of the goods in accordance with this Section 8.  Notwithstanding the foregoing, Buyer’s inspection and acceptance under this Section 8 shall not relieve Supplier from liability for latent defects or warranty obligations.

9.    WARRANTIES AND OTHER SUPPLIER OBLIGATIONS.

A.    In addition to any other express or implied warranties (none of which are hereby disclaimed), Supplier hereby warrants the following: (i) use or sale by Buyer or its Affiliates of goods or provision of services by Supplier will not infringe or otherwise violate any proprietary rights of any third party; (ii) as of the delivery date, any software provided and any revision(s) thereto will not contain any computer virus or code that could be otherwise hostile, damaging or disabling to Buyer’s existing information systems; (iii) all goods are delivered with marketable title; and (iv) Supplier is free to enter into and fully perform this Agreement and has obtained any and all authority necessary to do so.

B.   In delivering the goods and/or services, Supplier shall: (i) comply with all reasonable instructions of the Buyer; (ii) without prejudice to Section 10, use facilities, personnel, with experience and expertise sufficient in quality and quantity to perform this Agreement; (iii) provide all equipment, tools and such other items as are required to provide the goods and/or services; (iv) perform its obligations under this Agreement with the best care, skill and diligence and in accordance with professional standards generally applicable to its industry and in conformance with the requirements of this Agreement; (v) ensure that all goods and services furnished pursuant to this Agreement use the best quality goods, materials, standards and techniques, are free from defects in design, workmanship and materials, and comply with any specifications; (vi) ensure all goods furnished hereunder shall be of merchantable quality and fit and safe for any purpose which the Buyer expressly or impliedly makes known to the Supplier; (vii) not do or omit to do anything which may cause Buyer to lose any license, authority, consent or permission, which Buyer holds; and (viii) comply with all applicable laws and regulations, applicable to the Supplier and the goods or services provided under this Agreement, including obtaining and at all times maintaining all licenses and consents, which may be required for the provision of the goods or services.

C.   Supplier’s obligations under this Section 9 shall survive and be unaffected by any inspection, testing, acceptance and use, and shall run to Buyer, Buyer’s Affiliates, and their respective successors, assigns and customers, and to users and consumers of, and others affected by, the goods or services.

10.  INDEMNIFICATION AND OTHER REMEDIES.  

A.   Supplier shall indemnify Buyer, its Affiliates, and all of their respective officers, directors, agents, sublicensees, employees, subcontractors or other representatives from and against any and all loss, liability, cost or expense, and any and all claims by, or liability to, any third party, for loss, damage or injury to persons or property which is based on or in any manner arises out of: (a) any breach by Supplier of this Agreement; (b) any defective or nonconforming goods or services; or (c) any loss, damage, or injury to persons or property arising out of any act or omission by Supplier, its Affiliates, or any of their respective officers, directors, agents, sublicensees, employees or subcontractors in connection with the performance or nonperformance of this Agreement by Supplier; or (d) alleged infringement of any third party intellectual proprietary right arising from the sale or use of any goods or services, in each case including, without limitation, attorneys’ fees, court costs and other expenses associated with or incurred in connection with any such claim or loss.

B.   Buyer may be represented by and actively participate through its own counsel in any such suit or proceedings. 

C.   In case any goods and/or services, or any part or use thereof, is held to constitute an infringement of any intellectual property right, Supplier shall, at Buyer’s option and at Supplier’s own expense, either procure for Buyer the right to continue using such goods and/or services or part thereof, or replace the same with a substantially equal but non-infringing goods and/or services meeting the requirements of this Agreement.  In the event Supplier does not or cannot procure such rights, or replace such goods and/or services, Supplier shall promptly refund to Buyer that portion of the price paid by Buyer to Supplier under this Agreement.

11.  CONFIDENTIAL INFORMATION.  Supplier acknowledges that any and all data, documents, material or information of any type whatsoever, in whatever form or medium, (whether oral or in documentary, electronic format or any other format) disclosed by or on behalf of Buyer to Supplier; or, which is learned, created by, disclosed to or becomes known by Supplier in connection with performance under this Agreement (collectively, “Confidential Information”) shall be considered confidential information of Buyer and Supplier shall keep Confidential Information strictly confidential, unless and to the extent such Confidential Information (i) is or becomes generally available to the public (other than as a result of its disclosure by the Supplier in breach of this Agreement), (ii) was available to the Supplier on a non-confidential basis before disclosure by or on behalf of the Buyer or Buyer’s Affiliate; (iii) was, is or becomes available to the Supplier on a non-confidential basis from a person who is not bound by confidentiality obligations with the Buyer or Buyer’s Affiliates, or otherwise prohibited from disclosing the information to the Supplier; or (iv) otherwise agreed to in writing by Buyer. Supplier shall:  (A)  not disclose such Confidential Information to any third party, except to agents and representatives who need to know in order to perform services or deliver goods under this Agreement and have signed confidentiality agreements with no less restrictive covenants; (B) use Confidential Information only to perform services or provide goods hereunder; (C) not knowingly export or re-export, directly or indirectly, any Confidential Information received hereunder in violation of any applicable laws and  regulations; (D) upon termination or expiration of this Agreement, destroy or return to Buyer, at Buyer’s option, all tangible Confidential Information in its possession and in the possession of any agents and representatives; and (E) protect Confidential Information received from disclosure with at least that degree of care used by Supplier in dealing with its own confidential information and shall take reasonable steps to minimize the risk of an unauthorized disclosure of Confidential Information.

12.  PROPRIETARY RIGHTS.  

A.   License Grant:  To the extent any goods and/or services include the provision of commercial off-the-shelf software from the Supplier to the Buyer, Supplier shall grant the Buyer a perpetual, worldwide, irrevocable, fully paid-up, royalty-free, non-exclusive, non-transferable, sublicensable (through multiple tiers) license to use such software for any purpose.  For clarity, and in accordance with Section 8, all goods delivered under this Agreement shall be the property of the Buyer.

B.   Purchase of Services: Subject to Section 13, all deliverables and patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software (to the extent not licensed to Buyer under Section 13.A), database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world in or arising out of or in connection with, or otherwise conceived or reduced to practice during, the services, including the provision of services that result in the delivery of bespoke goods, (collectively, “Inventions”) shall be the sole property of Buyer or any of its Affiliates, and shall be treated as Confidential Information of Buyer.  Supplier agrees to assign and hereby assigns and conveys to Buyer or any of its Affiliates, at no additional cost to Buyer, Supplier’s entire right, title and interest to Inventions.  Upon completion of performance of this Agreement, Supplier shall disclose to Buyer any Invention and shall deliver to Buyer all information relating to any such Invention.  Supplier shall assist Buyer in all reasonable ways (at Buyer’s expense and request) in protecting the Inventions, including but not limited to applying for patents, copyrights or other intellectual property rights in deliverables and agrees to execute and deliver any such documents as may be required to enable Buyer to secure or register any intellectual property rights in the Inventions. 

13.  SUPPLIER’S RIGHTS IN PRE-EXISTING DATA AND INFORMATION.  Supplier shall retain title to any pre-existing Supplier-developed data, documents, material or information of any nature used in performance of services hereunder.  Supplier hereby grants to Buyer and its Affiliates a perpetual, worldwide, irrevocable, fully paid-up, royalty-free, non-exclusive, non-transferable, sub-licensable (through multiple tiers) license to copy, use, modify (and use such modifications) such data, documents, material or information to the extent required for Buyer or Buyer Affiliate’s to use and exploit the goods or services provided under this Agreement.

14.  INSURANCE.  Supplier shall procure and maintain for the duration of this Agreement at its own expense reasonable insurance coverage to cover the liabilities that may arise under or in connection with under this Agreement.

15.  LIMITATION OF LIABILITY.  IN NO EVENT SHALL BUYER BE LIABLE TO SUPPLIER, SUPPLIER’S AFFILIATES, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFIT ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.  Buyers liability on any claim of any kind for any loss or damage arising out of or in connection with this Agreement or from the performance or breach thereof shall in no case exceed the price payable by Buyer to Supplier under this Agreement. 

16.  PUBLICITY.  Supplier shall not, without the written consent of Buyer in each instance: (A) use the name, trade name or trademark of Buyer or its Affiliates in any advertisement or publication; or (B) represent, directly or indirectly, that any goods and/or service provided by Supplier has been approved or endorsed by Buyer or any of its Affiliates.

17.  REGULATORY REQUIREMENTS.

A.   Supplier represents and certifies that neither it nor any person or entity employed or engaged by Supplier, including without limitation its officers, directors, employees, or agents who provide services in connection with this Agreement (collectively “Personnel”) are currently: (1) excluded, debarred, suspended or otherwise ineligible to participate in federal health care programs as defined in 42 U.S.C. Sec. 1320a-7b or from federal procurement or non-procurement activities as defined in Executive Order 12689 (collectively “Ineligible”); or (2) convicted of a criminal offense that falls within the ambit of 42 U.S.C. Sec 1320a-7(a), but has not yet been excluded, debarred, suspended, or otherwise declared ineligible (“Convicted”).

B.   Supplier represents and certifies that it will not utilize any Ineligible, or Convicted Personnel to provide any services hereunder. 

C.   If Supplier’s Personnel become Ineligible or Convicted during the term of this Agreement, Supplier will within five (5) business days of discovering the Ineligibility, Debarment, or Conviction (i) remove the Ineligible, or Convicted Personnel from responsibility for, or involvement with, the services performed or goods delivered under this Agreement and (ii) notify Buyer. Upon receipt of such notice, or if Buyer becomes aware of any existing or threatened Ineligibility, or Conviction, Buyer shall have the right to terminate this Agreement and reserve all rights.

18.  TAXES.  

A.   The price is exclusive of any sales, use, value added, goods and services, other transfer or excise and similar taxes which are required by law to be shown as a separate item on the relevant invoice (“Transfer Taxes”). Buyer shall, on receipt of a valid invoice from Supplier, pay to Supplier at the same time as payment is due for the supply of the goods and/or services such additional amounts in respect of Transfer Taxes as are chargeable on the supply of the good and/or services. Supplier and Buyer shall cooperate to the fullest extent allowable by applicable law to minimize any Transfer Taxes on payments to be made by Buyer to Supplier. 

B.   Any invoice submitted to Buyer by any Supplier resident, domiciled, incorporated, organized or located outside the United States (hereinafter, “Non-US Supplier”) shall separately state amounts payable for services performed inside the United States and outside the United States.  If any Non-US Supplier provides any services in the United States, Buyer shall be authorized to withhold applicable United States withholding tax from any payment therefor to such Non-US Supplier, and such amounts withheld and deducted, and remitted to the relevant United States taxing authority, shall be treated as paid to such Non-US Supplier in accordance with this Agreement. The Supplier and the Buyer shall cooperate to the fullest extent permitted by applicable law to minimize such withholding taxes, including, but not limited to, the relevant Non-US Supplier providing the applicable Internal Revenue Service certificate on Form W-8 (or any successor form), a properly executed, true, correct and complete, to the Buyer, and Buyer shall withhold in accordance with such certificate.

19.  GENERAL.

A.   Assignment.  Supplier shall not delegate, transfer or assign its obligations, rights or interest under this Agreement without the prior written consent of Buyer.  Buyer may assign or transfer its rights and obligations under this Agreement without the prior written consent of Supplier.  This Agreement shall inure to the benefit of, and shall be binding upon, each of the parties’ respective successors and permitted assigns. Buyer may perform some or all of its obligations under this Agreement through its Affiliate(s) or may exercise some or all of its rights under this Agreement through its Affiliates.

B.   Buyer’s Property.  Materials and equipment furnished by or on behalf of Buyer for use by Supplier in connection with this Agreement shall (i) remain the property of Buyer, (ii) be used only in performance of this Agreement by Supplier, (iii) be maintained by Supplier in good condition and in safe custody, at Supplier’s risk, and (iv) shall be insured by Supplier against loss, theft or damage while in Supplier’s custody, care and control.  Upon completion of this Agreement, Supplier shall return to Buyer or dispose of such remaining materials and equipment at Buyer’s direction.

C.   Choice of Law/Choice of Forum.  This Agreement, and any contractual or non-contractual claims arising out of or in connection with it, shall be governed by and construed in accordance with the laws of the country or state identified in the table below based on the location of the Buyer, without regard to its conflict of laws rules or principles.  The parties submit to the exclusive jurisdiction of courts identified in the table below. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. 

If the Buyer is:	Governing law / Jurisdiction
Gyroscope Therapeutics Limited	Laws of England & Wales / jurisdiction of the courts of England and Wales
Gyroscope USA, Inc.	Laws of the State of New York / jurisdiction of the state and federal courts in the State of New York

 

D.   Rights of Third Parties.  No one other than a party to this agreement and their permitted assignees, or in the case of Buyer, Buyer’s Affiliates, shall have any right to enforce any of its terms.

E.   Waiver.  The remedies reserved herein shall be cumulative and shall be in addition to all other remedies provided in law or equity.  Any waiver by either party of a breach of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any other breach of such provision or of any breach of any other provision of this Agreement.  Any waiver must be in writing.  Failure by either party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. 

F.    Independent Contractor.  Supplier is an independent contractor, free of control or supervision by Buyer as to the means or manner of performing such work.

G.   Subcontracting.  Supplier must obtain Buyer’s written approval prior to using subcontractors to perform work under this Agreement.

H.   Force Majeure.  Neither party is liable for delays in performing any of the terms of this Agreement caused by the effects of fire, strike, war, terrorism, government restriction or prohibition, or other causes reasonably beyond its control and without its fault, but the party failing to perform shall use all reasonable efforts to resume performance of this Agreement as soon as feasible.

I.     Survival.  The obligations hereunder which by their terms might apply after the completion or termination of this Agreement (including, without limitation, Sections 1, 2, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, and 20) shall survive such completion or termination.

J.    Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.  If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.  Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.