Syclone-Replace-1219_FINAL – reduced

1. Agreement. These legal terms and conditions (the “Legal T&Cs”), along with the DryShield 30-Day Free Trial Program Terms and Conditions to which they are appended (the “Trial T&Cs”, and, together with the Legal T&Cs, this “Agreement”) apply to, and are the exclusive binding agreement between Solmetex LLC (“Solmetex”) and the enrollee listed in the Trial T&Cs (“Recipient”) regarding the transfer and use of the DryShield Free Trial Kit provided to Recipient pursuant to the Trial T&Cs (the “Product”). Solmetex hereby rejects all terms and conditions contained in other communications from Recipient that conflict with or are in addition to, this Agreement. The enrollment of Recipient in the free trial of the Product described in the Trial T&Cs (the “Free Trial”) is conditional upon Recipient’s assent to the terms and conditions in this Agreement, and Recipient’s submission of a request to enroll in the Free Trial and execution of the Trial T&Cs shall be deemed Recipient’s assent to the terms of this Agreement.

2. Representations and Warranties. Recipient represents, warrants and covenants that: (a) Recipient is a dentist duly licensed in the jurisdiction in which Recipient practices dentistry, and its employees and agents have the requisite skill and expertise necessary and appropriate to handle, store, transport, dispose, and use the Product, and the Product shall be used only by those employees and agents of Recipient who may do so within the permitted scope of practice of their professional license(s); (b) it follows safe handling, storage, transportation, use, and disposal practices with respect to the Product; (c) it shall comply with all applicable national, state, regional and local laws and regulations in the jurisdictions in which it performs its duties hereunder or conducts any of its dealings with respect to the Product; and (d) it shall not resell, sublicense, lease or otherwise transfer or distribute the Product without the prior written consent of Solmetex.

3. DISCLAIMER OF WARRANTIES. THE PRODUCT IS PROVIDED “AS IS”, AND SOLMETEX EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES WHICH, BUT FOR THIS PROVISION, MIGHT ARISE FROM COURSE OF DEALING, CUSTOM OR TRADE AND INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THE PRODUCT FURNISHED BY SOLMETEX HEREUNDER. THE PRODUCT IS DESIGNED FOR A SPECIFIC APPLICATION AND SHALL NOT BE USED BY RECIPIENT FOR ANY PURPOSE NOT EXPRESSLY SET FORTH IN APPLICABLE PRODUCT DOCUMENTATION.

4. Indemnification. Recipient agrees to indemnify, defend and hold harmless Solmetex from and against any and all third-party losses, damages, suits, claims, expenses (including reasonable attorneys’ fees) and costs resulting from or arising from (a) any intentional, reckless, or negligent act or omission by Recipient; (b) any use by Recipient of the Product other than for its intended purpose, and (c) Recipient’s breach or non-compliance of this Agreement.

5. IP Rights. All copyrights, patents, trademarks, trade secrets, know-how and other intellectual property or proprietary rights pursuant to the laws of any jurisdiction worldwide (“IP Rights”) associated with or relating to the Product shall belong solely and exclusively to Solmetex. Solmetex will retain all IP Rights used to create, embodied in, used in and otherwise relating to the Product and any of its component parts, and Recipient shall not acquire any ownership interest in any of Solmetex’s IP Rights. No license, either express or implied, is granted in any IP Rights of Solmetex. If Recipient acquires any IP Rights in or relating to the Product by operation of law or otherwise, such rights are deemed and are hereby irrevocably assigned to Solmetex without further action. Recipient shall not alter, modify, break-down, disassemble, reverse engineer, permit or participate in a process that is intended or likely to result in reverse engineering, otherwise open, analyze, or inspect with an improper purpose, the Product or any samples, information, or materials provided by Solmetex to Recipient.

6. Confidential Information. Any non-public documentation or data supplied by Solmetex to Recipient are proprietary and confidential to Solmetex. Recipient agrees to use its best efforts to maintain the confidentiality of any proprietary documentation, data, or price quotes (whether marked “confidential” or not) supplied to it and not to disclose or use such documentation, data, or price quotes in any manner inconsistent with the purpose for which it was disclosed.

7. Limitation of Liability. IN NO EVENT SHALL SOLMETEX BE LIABLE UNDER THIS AGREEMENT TO THE RECIPIENT FOR ANY LOST PROFITS (WHETHER DIRECT OR INDIRECT), OR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF TIME, SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER ECONOMIC LOSS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. THE MAXIMUM AGGREGATE AMOUNT OF SOLMETEX’S LIABILITY SHALL NOT EXCEED THE U.S. DOLLAR AMOUNT EQUAL TO THE AMOUNT PAID BY RECIPIENT FOR THE PRODUCT UNDER THIS AGREEMENT.

8. General. Recipient shall not assign this Agreement or any interest therein or any rights thereunder without the prior written consent of Solmetex. Except as otherwise permitted in this Agreement, any notice required or permitted by this Agreement shall be in writing and shall be deemed given if delivered personally or if sent by either party to the other by confirmed overnight delivery or by certified or registered mail, return receipt requested, postage prepaid, addressed to the other party to its address as set forth on the purchase order or at such other address as such party shall designate by notice hereunder. This Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to the principles of conflicts of law of such state. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Recipient hereby agrees that any action arising out of this Agreement will be brought solely in any state or federal court located in Boston, Massachusetts. Recipient hereby submits to the exclusive jurisdiction and venue of any such court. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT. No modifications to this Agreement shall be enforceable except when in writing and signed by both parties, unless otherwise expressly stated herein. Any provision hereof which is prohibited or unenforceable shall, as to such jurisdictions, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity of such provision in any other jurisdiction. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. The terms and conditions contained herein constitute the entire agreement between Recipient and Solmetex with respect to the Product, and supersede all prior or contemporaneous negotiations, understandings and agreements.