PURCHASE ORDER TERMS AND CONDITIONS

THESE PURCHASE ORDER TERMS AND CONDITIONS ARE INCORPORATED INTO THE PURCHASE ORDER OR OTHER DOCUMENT IN WHICH THEY ARE REFERENCED (“ORDER”) AND TOGETHER CONSTITUTES A CONTRACT BETWEEN THE ENTITY NAMED ON THE FACE OF THE ORDER (“SELLER”) AND ORCHESTRA BIOMED, INC. (WHO SHALL BE CONSIDERED THE “BUYER” UNLESS THE FACE OF THE ORDER SPECIFICALLY DESIGNATES A DIFFERENT SUBSIDIARY OR AFFILIATED ENTITY AS “BUYER”). THE ORDER LISTS OR DESCRIBES THE GOODS (“GOODS”) COVERED BY THIS ORDER. ANY PROVISIONS IN ANY QUOTE, QUOTATION, INVOICE, ACKNOWLEDGMENT FORM OR OTHER DOCUMENT ISSUED BY SELLER WHICH CONTAIN DIFFERENT OR ADDITIONAL TERMS THAN THOSE OF THIS ORDER SHALL NOT BIND BUYER AND ARE HEREBY REJECTED BY BUYER UNLESS EXPRESSLY AGREED TO BY BUYER IN A SEPARATE WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF BUYER. SHIPMENT OF ANY OF THE GOODS SHALL BE CONCLUSIVE EVIDENCE OF SELLER'S ACCEPTANCE OF ALL THE PROVISIONS HEREOF, REGARDLESS OF WHETHER SELLER HAS ACKNOWLEDGED THIS ORDER.

1. Price. This Order shall not be filled at higher prices than specified herein. If price terms are omitted from the Order, subject to Section 2, the price of the Goods shall be the lower of: (a) the price last quoted by Seller; or (b) the last price paid by Buyer to Seller for like goods. Any pass-through costs must be pre-approved by Buyer in writing in order for Seller to receive reimbursement for such costs.
2. Buyer's Requirements and Buyer's Schedule. Seller shall use commercially reasonable efforts to supply to Buyer, at the times requested by Buyer, the quantities of Goods identified in any Buyer Order which Seller accepts in writing. Buyer reserves the right to refuse or return at Seller’s risk and expense shipments made in excess of the quantities set forth in Buyer’s Orders which Seller has accepted in writing.
3. Inspection and Acceptance. Goods shall be subject to final inspection and acceptance at Buyer's facility or that designated in the Order (the “Buyer’s facility”). Payment for Goods ordered hereunder shall not constitute acceptance. No acceptance shall be deemed effective with respect to latent defects (whether or not known by the Seller). The process of inspection shall not be deemed to constitute acceptance of the Goods nor shall it be deemed a waiver of any of Buyer's rights and remedies under applicable law. Failure to inspect the Goods shall not be deemed to constitute: (a) acceptance of any Goods with latent defects; or (b) waiver of any of Buyer's rights or remedies arising by virtue of any defect or nonconformance with the Goods’ specifications. Seller agrees to permit Buyer to have access to the Seller's facilities at all reasonable times and on at least one week advanced written notice for the purpose of inspecting only the Goods set forth in the Order or work in process for production of such Goods.
4. Payment. Unless otherwise specified in the Order, payment shall be net 30 days after the last to occur of (the “Invoice Date”): (a) receipt of the Goods by Buyer at the point of delivery specified in or pursuant to Section 5 hereof, or (b) receipt by Buyer of an accurate invoice from Seller. Any packing, storage, transportation or delivery charges prepaid or payable by Buyer shall be separately stated on Seller's invoice and shall not be subject to any sales, value added or use taxes. Seller shall pay all such charges unless the Order specifies otherwise. To the extent an invoice seeks reimbursement of pass-through costs, a detailed description of the costs thereof, and supporting documentation as may be required to substantiate the costs shall be provided to Buyer.
5. Delivery and Risk of Loss.
   • (a) The terms, choice of carrier and routing of shipment shall be as specified on the face of the Order or as Buyer otherwise directs. If not set forth on the face of the Order or Buyer does not so direct, then Seller shall select the carrier. Buyer may revise shipping instructions as to any unshipped Goods. Shipment shall be EXW Buyer’s facility. Risk of loss and title shall pass to Buyer when the Goods are delivered to Buyer’s facility.
   • (b) Seller shall bear all risk of loss as to properly rejected Goods, except that Buyer shall be responsible for risk of loss as to Goods so rejected if such loss results from Buyer's negligence.
6. Changes/Cancellation.
   • (a) Prior to Seller’s acceptance of a Buyer Order, Buyer may make changes in the delivery schedules and quantities for the Goods ordered hereunder. If any such change causes an increase or decrease in the cost of the Goods for Seller, then Seller shall notify Buyer within ten (10) calendar days of Buyer’s written notice to Seller and an equitable adjustment shall be promptly negotiated and the cost of the Order shall be modified by mutual written agreement of the parties.
   • (b) During the performance of the Order, Seller shall not make any material changes in the design, material, process, procedures or practices affecting the Goods without the prior written consent of Buyer.
   • (c) All Buyer’s Orders which Seller has accepted are binding on the Buyer and may not be cancelled or changed without the written consent of both Buyer and Seller, which they each may exercise in their reasonable discretion.
7. Packing, Marking and Shipping. Seller shall pack, mark and ship all Goods in compliance with the Buyer’s written Specifications (defined in paragraph 10). Unless expressly noted on the face of the Order, no separate or additional charges shall be payable by Buyer for containers, crating, boxing, bundling, dunnage, storage or similar procedures. Any expense incurred by Buyer as a result of improper preservation, packing, packaging, marking or method of shipment shall be reimbursed by Seller. An itemized packing list showing the Order number, part numbers and quantity shipped shall be included with each shipment and each container shall be marked to show the Order number.
8. Prompt Delivery. Timely delivery of conforming Goods in the full quantities specified in the Order is critical to Buyer. Seller agrees to use commercially reasonable efforts, to meet the Buyer’s requested delivery date. Seller will notify Buyer in writing immediately if it appears the delivery schedule may not be met. Such notification shall include the reasons for possible delays, steps being taken to remedy such problems and a proposed new delivery date.
9. Resale. Buyer may resell Goods purchased from Seller and may transfer to the purchaser of such Goods the license to any software included in such Goods.
10. Warranties.
    • (a) Goods. Seller represents and warrants
      • (i) that the Goods will be: (A) in full compliance with the specifications, blueprints, drawings, and documentation which the parties have agreed to in writing (the “Specifications”) (B) free from defects in materials and workmanship, and (C) if Buyer has informed Seller that Buyer intends to use the Goods for a particular purpose then Buyer is relying on the Seller’s skill and judgment to select or furnish Goods suitable for such purpose and the Seller warrants that the Goods it supplies will be fit for such particular purpose(s).
      • (ii) that, upon Buyer’s payment in full for the Goods, Buyer shall have full right, title and interest in and to the Goods, free and clear of all liens and encumbrances and Seller has good, valid and marketable title to the Goods
    • (b) Compliance with Laws. Seller covenants, represents and warrants that it has read, understands, is, has been and will be in compliance, and the Goods (including without limitation the manufacture, delivery and supply thereof) will comply, with all applicable international, federal, state and local laws, rules, regulations, directives, ordinances, orders, or statutes (collectively, the “Laws”), including, but not limited to, the U.S. Foreign Corrupt Practices Act and any applicable anti-bribery Laws of other countries, the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and the sanctions regulations administered by the U.S. Treasury Department Office of Foreign Assets Control (collectively, the “Laws’). Seller represents and warrants that it has not acted, will not act, and has not and will not cause, directly or indirectly, any other party to act, in any manner that would cause Buyer to violate the Laws. In the event of any enforcement action against Seller relating to Seller’s non compliance with the Laws that directly relates to Seller’s performance under this Agreement, Seller will, to the extent permitted by the Laws, provide to Buyer written notice of such enforcement action prior to any publication or disclosure of such enforcement action, and in no event later than ten (10) business days following Seller’s receipt of notice of such enforcement action.
    • (c) The representations and warranties herein contained shall survive acceptance and payment by Buyer.
    • (d) Recall. If a problem that potentially affects the safety, efficacy or reliability of the Goods is identified by either Seller or Buyer, the problem and all known facts shall be brought to the attention of both companies’ Quality Assurance management as soon as possible, but within twenty-four (24) hours of the identification of the problem. In the event a field action is contemplated, Buyer and Seller shall work together to determine whether a field action should take place; however, the final decision to implement a field action shall be made by Buyer. Buyer shall be responsible for implementing any field action, including informing customers and defining the logistics of the field action. Seller shall cooperate fully in the implementation of any field action. In the event any governmental agency having jurisdiction shall request or order or if Buyer shall determine, in the exercise of its reasonable business judgment after consultation with Seller, to undertake with respect to any Goods any recall, corrective action or market action (collectively, a “Recall Event”), and the cause or basis of such Recall Event is attributable an act or omission of the Seller (e.g., the Goods’ failure to conform to the Specifications), then Seller shall be liable, and shall reimburse Buyer for the reasonable costs (including attorneys’ fees) which Buyer incurs as a result of such Recall Event including the cost of any Good which is affected thereby. If Seller is not responsible for the costs of the Recall Event pursuant to the immediately preceding sentence, Buyer shall be responsible for all costs and expenses related to such Recall Event and Buyer shall reimburse Seller for the reasonable costs (including attorneys’ fees) which Seller incurs as a result of such Recall Event
11. Indemnification. Seller shall defend, indemnify and hold harmless Buyer, its affiliates, and its and their officers, employees and agents as well as Buyer’ sub-distributors (the “Buyer Indemnitees”) from and against any claims, expenses, losses, judgments, actions, lawsuits, liabilities and damages (including attorneys’ fees incurred at the trial and appellate levels and in any proceeding to determine the right to and amount of such attorneys’ fees) (collectively, “Losses”) which any Buyer Indemnitee may incur as a result of any third party claim, complaint, cause of action or proceeding (collectively, “Claims”) asserted against any Buyer Indemnitee to the extent such claims arise out of the actual or alleged: a) negligence or willful misconduct of Seller; b) failure of the Goods to conform to the Specifications in effect at the time such Goods were manufactured; c) defect in the design of the Goods if the Goods were manufactured to Seller’s design; d) infringement of the Goods upon any intellectual property rights of any third party, if the design and specifications for the Goods are owned by the Seller or e)breach by Seller of any of its obligations, representations or warranties set forth herein. Buyer shall defend, indemnify, and hold harmless Seller, its affiliates, and its and their officers, employees, and agents (the “Seller Indemnitees”) from and against any Losses which any Seller Indemnitee may incur as a result of any third party Claims asserted against any Seller Indemnitees to the extent such claims arise out of the actual or alleged (1) defect in the design of Buyer Goods (if Buyer provided the design of such Goods), (2) infringement of the Goods upon any intellectual property rights of any third party if the design and specifications for the Goods are owned by the Buyer, (3) the negligence or willful misconduct of the Buyer; or (4) breach by Buyer of any of its obligations, representations or warranties set forth in this Agreement. The party seeking indemnification hereunder shall promptly provide the other party written notice of the Claim and the indemnifying party shall assume the defense thereof with the indemnified party’s reasonable cooperation.
12. Assignment; Subcontractors. Neither this Order nor any interest therein, except the right to receive payment from Buyer, may be assigned by Seller without the prior written consent of Buyer except in the event of a sale of all or substantially all of Seller’s business. No assignment of the right to receive payment shall be binding on Buyer unless and until Buyer receives an executed copy of the assignment and each invoice to be paid to the assignee is clearly marked to show such assignment. This Order shall bind and inure to the benefit of Buyer's assigns and successors, including, without limitation, any entity with which or into which Buyer shall merge or consolidate. Seller shall not use any subcontractors to provide the Goods unless pre-approved in writing by Buyer. Seller shall ensure that all subcontractors comply with the Order and Seller shall be responsible and liable for all of the acts and omissions of its subcontractors including without limitation any failure by a subcontractor to comply with the Order.
13. Waiver and Modification. The waiver of any term, condition or provision of this Order by a party shall not be construed as a waiver of any other such term, condition or provision, nor shall such waiver be deemed a waiver of a subsequent breach of the same term, condition or provision. In order to be binding upon a party, any modification of this Order must be in writing and signed by the parties’ authorized representatives.
14. Governing Law; Disputes. This Order is deemed made in the State of Delaware and shall in all respects be interpreted, enforced and governed by the laws of the State of Delaware without reference to any conflict of laws principles which might direct the application of the law of any other jurisdiction. Any action arising out of or relating to this Order or the Parties’ relationship shall only be initiated in the state courts located in Delaware, or if jurisdiction is appropriate, the United States District Court for the District of Delaware. The Parties acknowledge that they are subject to the jurisdiction of such Delaware courts and waive any objection that such Delaware are inconvenient forums or lack jurisdiction over the Parties. The Parties waive any right to trial by jury in any action arising out of or relating to this Order or the Parties’ relationship.
15. Intellectual Property.
    • (a) Seller agrees to grant, and hereby grants, to Buyer, a non-exclusive, royalty-free, fully paid up, irrevocable, license, with the right to sublicense, to use, modify, to make or have made, prepare and own derivative works from, to use, modify, reproduce, release, perform, display or disclose all Goods that constitute technical data, computer software and computer software documentation or any other similar Goods, that is required to be developed or delivered under this Agreement.
    • (b) As used herein, “Seller Owned Developments” means intellectual property, including know-how that: (i) was developed or created by Seller prior to providing Goods to Buyer or an affiliated entity of Buyer hereunder or any other agreement between Seller, on the one hand, and Buyer or an affiliated entity of Buyer on the other; or (ii) (A) is developed by Seller in the course of providing the Goods; (B) does not arise from, is not based on or does not relate to Seller’s use of Buyer’s Confidential Information or any all dies, tools, patterns, fixtures, materials, data, information or other items provided by or on behalf of Buyer or an affiliated entity of Buyer; (C) reasonably could be used by Seller without revealing or disclosing any Buyer’s Confidential Information; and (D) can be used for purposes not exclusively related to the Buyer’s Confidential Information, including but not limited to, standard operating procedures, software and development, manufacturing, analytical or laboratory processes or methodologies useful to Seller in providing services to third parties. For the sake of clarity, Seller may use Seller Owned Developments to manufacture for third parties goods which may compete with the Goods, provided that Seller does not use any of Buyer’s Confidential Information and Seller does not use any of Buyer’s intellectual property.
    • (c) To the extent that the Goods are Seller Owned Developments or Seller Owned Developments are incorporated into Goods or Seller Owned Developments are necessary to use Goods, Seller shall deliver such Seller Owned Developments to Buyer (or Buyer’s designee) at no additional charge and Seller hereby grants to Buyer a non-exclusive, royalty-free, worldwide, irrevocable license for Buyer and its affiliated entities to use such Goods and Seller Owned Developments in connection with the Goods. Buyer shall have the right to sublicense to affiliated entities of Buyer and subcontractors and sublicensees of Buyer or affiliated entities of Buyer in connection with the use of the Goods the use of such Seller Owned Developments solely to the extent they are incorporated into the Goods.
16. Remedies. If the Buyer determines any Goods do not conform to the Specifications, Buyer shall promptly notify Seller in writing and provide Seller with the opportunity to inspect such allegedly non-conforming Goods. If the Seller agrees that the Goods do not conform to the Specifications, Seller shall, at its option and expense, repair or replace the Goods such that they conform to the Specifications.
17. Termination. These terms shall be effective on the date of the Order and, unless terminated earlier in accordance with the terms and conditions herein, shall expire upon Sellers' completion of its obligations under the Order and Buyer's payment to Seller of all invoiced and undisputed amounts. Buyer may terminate any Order before the Seller accepts same or if Seller breaches any of the terms hereof.
18. General. Neither party shall, without the other’s prior written consent, make any news release or public announcement concerning this Order or the Goods which directly or indirectly identifies the other party. If any of the terms or provisions provided herein (or any portion of any term or provision) are declared invalid or unenforceable by any court or other body, the remaining terms and provisions hereof shall be deemed valid and enforceable to the extent possible. In the event of any conflict between the terms of this Order and any other agreement or contract between the Parties, the terms of this Order shall control. Seller is an independent contractor, and nothing contained herein will be construed to create a partnership or joint venture among Buyer and Seller or to make either Buyer or Seller an agent of the other party hereto for any purpose.
19. Insurance. Each party will maintain at its own cost at all times during the term of this Agreement policies of insurance including, without limitation: (a) errors and omissions insurance covering services of the type performed by such party under this Agreement and including coverage for contractual liabilities; and (b) commercial general liability insurance, including, without limitation, product liability, covering claims for damages because of bodily injury (including, without limitation, death), personal injury and property damage arising out of such Party’s acts or omissions and including coverage for contractual liabilities. Such coverage will be in such amounts and cover such risks as are reasonable and prudent, and with policy limits consistent with or exceeding industry standards. The parties’ obligation to maintain insurance and the coverage limits of such insurance shall not serve to limit the parties’ recall or indemnification obligations hereunder.
20. EVENTS BEYOND CONTROL. Neither party shall be liable for any failure to fulfill any term or condition of this Order (other than the obligation to pay) if fulfillment has been delayed, hindered or prevented by event of force majeure beyond its reasonable control, including, but not limited to, acts of nature or the elements, spread of pandemic disease, war, acts of terrorism, compliance with requirements of any governmental port or international authority, government orders (each a “Force Majeure Event”). Such non-performance will be excused for three (3) months or as long as such event shall be continuing (whichever occurs sooner), provided that the non-performing party gives prompt written notice to the other party of the Force Majeure Event. Such non-performing party shall exercise all reasonable efforts to eliminate the Force Majeure Event and to resume performance of its affected obligations as soon as practicable.
21. Notice. All notices issued or served under this Agreement shall be in writing, and shall be deemed given when sent by email to the email address of the party set forth herein or such other email address as each last gave written notice of to the other. Email notices shall be confirmed by registered mail, but failure to do so shall not render any notice invalid. Notices may also be sent by registered mail or by leaving the same at respective addresses of the Parties. Notices sent by registered mail alone shall be deemed to have been delivered on the seventh day after posting, excluding Saturdays, Sundays and public holidays in the United States. Notices may be sent to the Parties at the addresses identified on the first page of this Order or to such address as each last gave written notice of to the other.