These Terms and Conditions of Sale (“Terms of Sale”) are entered into by and between you (“you” or “Customer”) and Blue Tech Industries, a Delaware corporation d/b/a BioStem Life Sciences (“BioStem”) and govern your purchase of allograft products (“Products”) offered by BioStem via the website located at www.biostemtechnologies.com (the “BioStem Website”). If you are placing an order on behalf of another individual or an organization or entity, you represent and warrant that (a) you have the legal authority to bind any such individual, organization or entity to these Terms of Sale and the relevant order and (b) the relevant individual, organization or entity is legally responsible for your use of the Products and all activities undertaken under your Account (as defined below).

By placing an order for Product, Customer agrees to purchase and accept Products in accordance with these Terms of Sale, provided that if Customer has executed a separate, written agreement with BioStem governing its purchase of Products, then the terms of such separate agreement shall prevail to the extent applicable.

1. Customer Authorization. Prior to placing any order for Products, Customer must apply for a registered BioStem account (“Account”). By placing an order, Customer represents and warrants that all information provided to BioStem, including, but not limited to, through any application for an Account, is current, complete and accurate, and Customer acknowledges that all such information is governed by BioStem’s Privacy Policy.  Customer consents to all actions BioStem takes with respect to Customer’s information, consistent with BioStem’s Privacy Policy.  Customer is responsible for maintaining the confidentiality of its Account credentials and will notify BioStem immediately of any unauthorized use of its Account. Customer agrees that its Account will be self-directed and that Customer is solely responsible for all activities undertaken under its Account.

2. Ordering Requirements. All orders for Product (a) must be submitted directly to BioStem via https://www.biostemtechnologies.com/order, using BioStem’s then-current form of purchase order; (b) must comply with BioStem’s then-current lead time, payment and delivery requirements; and (c) incorporate these Terms of Sale.  Any provision in a purchase order form that conflicts with or is in addition to the terms of these Terms of Sale shall be ineffective and not binding on BioStem or Customer.  BioStem reserves the right, in its sole discretion, to accept or decline, in whole or in part, any order for Products.

3. Shipment of Product; Title and Risk of Loss.

a. Subject to BioStem’s acceptance of an applicable order, and following BioStem’s receipt of payment in full therefor from Customer, BioStem will initiate just-in-time shipment of the ordered Product directly to the Customer delivery address set forth in the applicable order (the “Delivery Location”) via BioStem’s designated courier.  Customer is responsible for the costs of packaging and shipping Product to the relevant Delivery Location.

b. Product is shipped under cold storage conditions.  Title to and risk of loss with respect to Product shall transfer to Customer upon, and BioStem will not be responsible for any loss or damage to Product that occurs following, the earlier of (i) expiration of the cold storage conditions or (ii) delivery of Product to the Delivery Location (the earlier of (i) and (ii), “Delivery”).

4. Non-Delivery; Defective Product.  Within two (2) business days following Delivery of Product or, in case of non-delivery, scheduled Delivery, Customer will notify (a) BioStem by email at quality@biostemtech.com or (b) if Customer worked with a BioStem sales agent to order the relevant Product, such sales agent, in the event of non-delivery of Product or if any defect is apparent upon visual inspection of the Product. For reports of defective Product, Customer will promptly obtain and furnish to BioStem (or its BioStem sales agent, as applicable) a description of the defect along with a photograph thereof.  Customer will return any defective Product and packaging to BioStem same-day following receipt of instructions and preliminary return authorization from BioStem. If BioStem makes a determination that the relevant Product was (i) not delivered due to BioStem or its designated courier’s fault or (ii) defective at the time of Delivery, BioStem will, at its election, replace or credit Customer for the Product Price of the non-delivered or defective Product.  If BioStem elects to replace such Product, the replacement Product will be drop shipped to the relevant Customer.  BIOSTEM’S SOLE LIABILITY FOR ANY NON-DELIVERED OR DEFECTIVE PRODUCT SHALL BE CREDIT OR REPLACEMENT OF THE APPLICABLE PRODUCT AS SPECIFIED IN THIS SECTION.

5. Product Price.  The price payable by Customer for Product ordered pursuant to these Terms of Sale (the “Product Price”) shall be BioStem’s current list price for the relevant Product, as in effect at the time the relevant order is received by BioStem.  Customer is solely responsible for payment of any applicable tax, duty, custom or other fee imposed by any federal, state or local governmental authority on Product purchases (collectively, “Taxes”).  To the extent that Customer seeks reimbursement or other payment for Product from any patient or insurer, Customer may not seek reimbursement or payment for any amounts in excess of the Product Price and Taxes actually paid to BioStem for the relevant Product.

6. Invoicing and Payment of Product Price. By submitting an order for Product to BioStem, Customer authorizes BioStem to automatically charge the Customer’s payment method on file with BioStem immediately upon BioStem’s acceptance of the applicable order, for an amount equal to the aggregate Product Price for all Products set forth in the order plus applicable packaging and shipping costs, Taxes, and similar charges.  If BioStem does not have a payment method on file for Customer, BioStem may contact Customer and will require payment in full prior to accepting or fulfilling any order, which payment must be made in immediately available funds and remitted to BioStem in accordance with BioStem instructions. BioStem shall not be bound by any order for Product unless and until BioStem has accepted such order in accordance with these Terms of Sale and Customer has paid in full all amounts due thereunder.  Customer may not deduct or set off any amounts payable to BioStem under these Terms of Sale. Customer shall be responsible for any and all costs incurred by BioStem, including without limitation reasonable attorneys’ fees and costs, in collecting any sums due from Customer to BioStem.

7. Compliance Matters.

a. Product Classification. Customer acknowledges and agrees that the Products are marketed pursuant to the U.S. Food and Drug Administration’s (“FDA”) criteria for Human Cell, Tissue and Cellular and Tissue-Based Products (“HCT/Ps”) and meet FDA’s criteria for regulation under section 361 of the Public Health Service Act (“PHSA”) and for exemption from FDA pre-market review, clearance, and approval requirements, Customer will not make any representation about any Product, express or implied, that is inconsistent with BioStem’s objective intent that the Product is intended for homologous use only, pursuant to 21 C.F.R. § 1271.10(a)(2) or any successor regulation, and with any applicable FDA guidance interpreting that regulatory provision.

b. Regulation of Sale of Human Tissue. BioStem and Customer agree and understand that the Products are human tissue products.  According to the U.S. National Organ Transplant Act (“NOTA”) (42 U.S.C. § 274e, as amended), human tissue cannot be sold and is not the property of any entity.  The services provided by a tissue establishment and third parties include without limitation recovery, processing, storage, distribution, marketing, and processing of orders for human tissue to a recipient in a form that is suitable for clinical use and that is helpful in restoring the recipient's form or function.  Passing the costs of such services on to recipients is not considered the sale of human tissue as defined under NOTA.  As such, BioStem and Customer agree and understand that references to the sale and/or purchase of Products throughout these Terms of Sale and any related order do not refer to the sale of human tissue, but refer to the payment of processing fees for the Products and the distribution of the Products.

c. General. Customer shall at all times strictly comply with, and ensure that the Products are stored, handled, and used in accordance with, all applicable federal, state and local laws and regulations, including, but not limited to, all Healthcare Laws (collectively, “Applicable Laws”). For purposes of these Terms of Sale, “Healthcare Laws” means the federal Stark law, the federal False Claims Act, the federal anti-kickback statute, the Health Insurance Portability and Accountability Act (as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”)), the Federal Food, Drug, and Cosmetic Act (“FDCA”), the (“PHSA”), the federal civil monetary penalties statute, state practice of medicine laws, together with state laws similar to any of the foregoing, any regulations or guidance promulgated under such federal or state laws (including without limitation applicable regulations and guidelines established by the FDA), and any other health regulatory laws applicable to BioStem or Customer. Customer is solely responsible for compliance of its employees, agents, and representatives (collectively, “Representatives”) with all Applicable Laws. Without limiting the foregoing, if applicable: (i) Customer shall establish and maintain a quality management system under which Customer conducts any Quality System Regulation (“QSR”) related activities in compliance with FDA’s requirements; and (ii) Customer shall ensure that it has established and maintained current Good Tissue Practices in compliance with all applicable FDA requirements. Customer acknowledges and agrees that all Products must be recommended and used only on the basis of quality, service, price, and other legitimate clinical attributes, and that Customer is prohibited from providing any payment or any other thing of value to any person or entity as an inducement to use or recommend Products. To the extent applicable, Customer shall protect and safeguard all patient information, including Protected Health Information (as defined in 45 C.F.R. § 160.103) (“PHI”), in accordance with applicable Healthcare Laws.  Nothing in these Terms of Sale shall be interpreted to require either party to take any action that would violate any Applicable Laws.

d. AATB Guidance and IFU. Customer shall at all times strictly comply with, and shall ensure that the Products are stored, handled, and used in accordance with, American Association of Tissue Banks® (“AATB”) Guidance and the IFU. Without limiting the foregoing, Customer shall not utilize the AATB name or trademark unless and until such time as it becomes an AATB-accredited tissue bank. Customer acknowledges that AATB Guidance requires the establishment of a protocol for post-sale data collection with respect to tissue products. Customer will receive a tissue trace card alongside each unit of Product and shall complete and return such tissue trace card to BioStem within two (2) business days following the use, application, or other final disposition of the Product.  

e. Regulatory Cooperation.  Customer will, at its own cost, reasonably cooperate with BioStem with respect to any action, warning, inspection or other notice or communication from any regulatory or governmental authority relating to the Products, including without limitation by promptly providing to BioStem any data or information relating to the purchase, handling, storage or use of the Products that may be useful in preparing any response thereto.  If Customer receives any notice of inspection or is subjected to a regulatory authority inspection relating to the Products, Customer shall keep BioStem informed of any written or verbal observations, or any other actions, by such regulatory authority that could reasonably be expected to impact BioStem.

f. Physician and Patient Notifications; Recalls.  If requested by BioStem or required as a result of a request, directive or order from a governmental or regulatory authority, Customer will assist BioStem in carrying out (i) physician and patient notifications and (ii) Product recalls, market withdrawals or corrections (“Recalls”), in each case with respect to the Products. Customer will comply with BioStem’s written instructions concerning communications with the public and other procedures to be followed in connection with any such notification or Recall and will keep and maintain business records and data sufficient to administer a Recall in accordance with Applicable Laws, and Customer shall make such information available to BioStem upon BioStem’s reasonable request.  For the avoidance of doubt, Customer does not have authority to, and may not, initiate any Recall.

g. Product Complaint, Adverse Reaction and Adverse Reaction Reporting.  Customer shall (i) notify BioStem within 24 hours of learning of any Product complaint or any unintended response or adverse reaction relating or possibly relating to Product by email at quality@biostemtech.com and (ii) promptly provide such assistance and information as BioStem reasonably requests to fulfill its adverse reaction reporting obligations for Product.

h. Suspension.  If BioStem requests that Customer suspend the recommendation, use or application of any Product, Customer shall promptly suspend such recommendation, use or application until BioStem provides written notice that the suspension may be lifted.

8. Customer Obligations.

a. Customer will ensure that (i) all Products are stored solely at registered tissue banks accredited by the American Association of Tissue Banks® (“AATB”) and (ii) all Product is all times stored, handled and used in strict compliance with the BioStem-provided instructions for use (“IFU”), Applicable Laws, and the Standards for Tissue Banking and all other guidance issued by the AATB (collectively, “AATB Guidance”).  Customer shall review the IFU and all other package inserts and labels provided alongside the Product immediately upon receipt of the Product.

b. Customer agrees not to (i) use Products outside of the United States (including its territories and possessions) unless otherwise agreed by BioStem in writing, (ii) use or recommend the Products for any purpose except for individual use or application, (iii) resell or redistribute any Product, (iv) modify, repackage, adulterate, misbrand, alter, or add or remove labels to or from any Product, or otherwise make any changes whatsoever to the Products or to BioStem's packaging, package inserts, Trademarks (as defined below), or labels, or (v) engage in deceptive, misleading or unethical practices that are or might be detrimental to, or disparage or otherwise injure the reputation and good standing of, BioStem, BioStem’s products (including without limitation the Products), or BioStem’s affiliates, employees, agents, or representatives.

c. Customer will provide prompt written notice to BioStem if Customer becomes aware of any entity or person offering, selling or purchasing diverted Products.

9. Promotional Information; Communications.

a. Subject to these Terms of Sale, Customer may provide patients and healthcare providers within its organization with educational information concerning the Products, but only to the extent such educational information (i) is consistent with the Product labeling and documentation, including without limitation the IFU, as provided by BioStem or (ii) has been provided by BioStem for dissemination to such patients and healthcare providers. Customer expressly agrees that it shall not provide, and is prohibited from providing, any medical advice, training or instruction to patients or healthcare providers, or to any third party, regarding the Products, except to the extent that Customer (x) is a healthcare provider that is fully qualified, licensed and registered under Applicable Laws to provide medical advice regarding the use of allograft products (including without limitation the Products) to the relevant patient, healthcare provider or other third party (each, a “Qualified Clinician”) and (y) provides any such advice, training and instruction in its independent capacity as a Qualified Clinician.

b. Customer shall ensure that all communications to patients, healthcare providers, and other third parties are true, accurate, complete, and consistent with all Product labeling and documentation provided by BioStem.

10. Customer Warranties. Customer represents and warrants that (a) neither it nor any of its Representatives has received any notice or communication from the FDA or other federal, state, or local regulatory or law enforcement agency requiring, recommending, or threatening to initiate any action pertaining to the activities contemplated under these Terms of Sale and (b) Customer has obtained, and will maintain until such time as all Product ordered under these Terms of Sale has been used, applied or otherwise finally disposed of, all governmental approvals, licenses or permits required for the purchase, handling, storage, use and application of the Products at its own cost, and, without limiting the foregoing, shall comply with all federal, state and local laws, regulations and rulings having jurisdiction over Customer’s business, including without limitation Healthcare Laws, with respect to its activities concerning the Products.

11. Information Disclaimer.  All information made available via the BioStem Website, including without limitation any product, service, business or medical information, is solely for informational purposes and may not be used for purposes of diagnosing or treating a health problem or disease, or prescribing any medication.  Any statements made about Products have not been evaluated by the FDA and the results reported, if any, may not necessarily occur in all individuals. BioStem makes no representation and assumes no responsibility for the accuracy of information contained on or available through the BioStem Website, and such information is subject to change without notice.

12. Disclaimer of Product Warranty.  

a. Customer acknowledges and agrees that the literature packaged with the Product contains all warranties, representations, and disclosures concerning the Product and its use (the warranties contained therein, collectively, the “Customer Warranty”).  Customer has no authority, express or implied, to make any warranties, representations, or disclosures, nor to authorize any of its Representatives to make any warranties, representations, or disclosures, beyond those provided by BioStem within the Product packaging. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PRODUCT IS NOT SUBJECT TO APPROVAL BY THE FDA OR OTHER REGULATORY AUTHORITIES. BIOSTEM’S SOLE LIABILITY FOR BREACH OF ANY WARRANTY RELATING TO THE PRODUCT SHALL BE, AT BIOSTEM’S SOLE DISCRETION, CREDIT FOR, REPAIR OR REPLACEMENT OF THE NONCONFORMING PRODUCT.

b. EXCEPT FOR THE CUSTOMER WARRANTY, BIOSTEM DOES NOT PROVIDE ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER  WITH RESPECT TO THE PRODUCTS, THE USE THEREOF, THESE TERMS OF SALE OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND BIOSTEM EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; WARRANTIES OF SAFETY, ACCURACY, OR NON-INFRINGEMENT; AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.  WITHOUT LIMITING THE FOREGOING, BIOSTEM DOES NOT WARRANT THAT ANY PRODUCT WOULD BE OR COULD BE CLEARED, APPROVED OR LICENSED FOR ANY USE, CLINICAL OR OTHERWISE, OR THAT ANY PRODUCT IS COMPLIANT WITH ANY LAWS OR REGULATORY REQUIREMENTS THAT WOULD APPLY IN THE EVENT THE PRODUCT IS REGULATED BY THE FDA OR OTHER REGULATORY AUTHORITY.

13. Indemnification.  Customer shall indemnify, defend and hold harmless BioStem, and its officers, directors, employees, affiliates, independent contractors and agents (the “BioStem Indemnitees”) from and against all claims damages, losses, costs and expenses arising out of any claims, proceedings, or investigations, including without limitation claims, proceedings or investigations by administrative or governmental agencies and amounts paid in settlement of claims, proceedings, or investigations, and agrees to bear all costs and expenses, including without limitation reasonable attorneys’ fees and costs incurred in connection with the defense or settlement of any such claim, proceeding or investigation (collectively, “Claims”) arising out of or resulting from: (a) any representation, warranty or other claim or communication made by Customer or any of its Representatives with respect to the Products (specifically including (i) any misstatement regarding the intended or appropriate use of any Product, the effectiveness of any Product, or the regulatory approval status of any Product, and (ii) any medical treatment, advice, training or instruction provided by Customer or any person that obtains access to the Product via Customer to any patient, healthcare provider, or other third party regarding the Products); (b) the storage, handling, use or application of Products (or any Product not supplied by BioStem) by Customer or any of its Representatives, or any other person or entity that obtains access to the Product via Customer; (c) Customer or any of its Representatives’ breach of these Terms of Sale; or (d) the negligence, gross negligence, or willful misconduct of Customer or any of its Representatives.

14. LIMITATION OF LIABILITY.  BIOSTEM’S LIABILITY WITH RESPECT TO THE PRODUCTS OR THEIR USE (INCLUDING WITHOUT LIMITATION LIABILITY UNDER THESE TERMS OF SALE OR ANY OTHER CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, OR FOR ANY CONSEQUENTIAL DAMAGES OR LOST PROFITS) INCLUDING WITHOUT LIMITATION ANY USE IN VIOLATION OF THE APPLICABLE IFU OR APPLICABLE LAWS AND REGULATIONS, IS LIMITED EXCLUSIVELY TO THE REMEDY PROVIDED IN SECTION 12, AND NO OTHER RIGHT OR REMEDY WILL BE AVAILABLE TO ANY PERSON OR ENTITY WITH RESPECT THERETO. WITHOUT LIMITING THE FOREGOING, (A) IN NO EVENT WILL BIOSTEM BE LIABLE TO ANY PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS, DAMAGE TO PERSON OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER, EVEN IF BIOSTEM HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. NO PERSON OR ENTITY IS AUTHORIZED TO EXTEND OR IN ANY WAY VARY BIOSTEM’S OBLIGATIONS UNDER THIS AGREEMENT OR IN CONNECTION HEREWITH AND (B) IN NO EVENT WILL BIOSTEM AND ITS AFFILIATES, EMPLOYEES, AGENTS AND REPRESENTATIVES’ COLLECTIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREUNDER EXCEED THE AGGREGATE AMOUNTS PAID BY CUSTOMER TO BIOSTEM IN RELATION TO THE RELEVANT PRODUCT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING DATE OF THE APPLICABLE CLAIM. CUSTOMER ACKNOWLEDGES THAT THE ALLOCATION OF RISKS AND BENEFITS UNDER THIS AGREEMENT IS BASED ON, AND THE PRICES PAYABLE FOR PRODUCT UNDER THIS AGREEMENT WOULD BE HIGHER IN THE ABSENCE OF, THE LIMITATIONS DESCRIBED ABOVE.

15. Intellectual Property.  As between the parties, BioStem retains all right, title and interest in and to all intellectual property relating to the Products and any improvements thereto, including without limitation any Samples provided by BioStem, and all trademarks, trade names, service marks and logos (“Trademarks”) and other trade secrets and intellectual property owned or used by BioStem or any of its affiliates.

16. Medicaid Best Price. To the extent applicable to the transactions contemplated under these Terms of Sale, in the event that the price for any Product, net of any discounts, rebates or other price concessions provided by BioStem for such Product under any arrangement with Customer, would result in the setting of a Medicaid Best Price for the purpose of the Medicaid Drug Rebate Program (42 U.S.C. § 1396r-8) that increases BioStem’s statutorily-mandated rebates under the Medicaid Drug Rebate Program or otherwise would cause BioStem to be required under Applicable Law to offer similar price concessions to a third party, as determined in BioStem’s sole discretion, such price offered hereunder shall be automatically (and, to the extent necessary to avoid triggering such an obligation, retroactively) adjusted to a level that would not result in triggering such an obligation, and Customer shall provide any necessary refunds to BioStem.  Determinations of Medicaid Best Price for purposes of this provision shall be made solely by BioStem. Customer agrees that it shall fully and accurately report any discount, rebate or price concession offered to Customer hereunder to the extent required under Applicable Laws.

17. Entire Agreement.  These Terms of Sale, together with any order placed by Customer and accepted by BioStem, constitute the entire agreement of the parties with respect to its subject matter, and supersedes all previous written or oral representations, agreements and understandings between Customer and BioStem with respect to the subject matter hereof.

18. Records and Audit.  Customer shall maintain complete and accurate books and records relating to these Terms of Sale, including without limitation records relating to purchases made hereunder and the use and application of the Products purchased hereunder in accordance with Applicable Laws and AATB Guidance.  During the Term and for ten (10) years thereafter, or for such longer period as is required under Applicable Laws or AATB Guidance, on reasonable prior written notice, BioStem may, at its own expense, inspect and audit Customer’s books, records, and other documents for purposes of satisfying BioStem’s obligations under Applicable Laws and AATB Guidance relating to the Products. Customer will cooperate with BioStem in the conduct of any audit performed pursuant to this Section 18.

19. Publicity.  Except as otherwise expressly provided in these Terms of Sale, Customer may not use BioStem’s name in any advertising or other form of publicity without the prior written permission of BioStem whose name is to be used.

20. Modification.  Except as expressly set forth in these Terms of Sale, no extension, modification or supplement to these Terms of Sale will be effective unless made in writing and signed by a duly authorized representative of each party.

21. Notices.  All notices must be written and sent to:

a. If to BioStem:
2836 Center Port Circle
Pompano Beach, Fl. 33064

b. If to Customer, such address as is set forth in the relevant order; provided that each of BioStem and Customer may update their addresses by written notice to the other party in accordance with this Section

21.  All notices must be given: (w) by personal delivery; (x) by confirmed facsimile or electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the originals graphic and pictorial appearance of a document; (y) by prepaid certified or registered mail, return receipt requested; or (z) by prepaid recognized next business day delivery service.  Notices will be effective upon receipt during normal business hours of the recipient, or if received after such normal business hours upon the following business day.  

22. Force Majeure.  BioStem shall not be liable for any failure to carry out the terms of these Terms of Sale or fulfill any order where such failure is the result of (a) the COVID-19 pandemic or any governmental action taken in response thereto or (b) an event that is not within the reasonable control of BioStem, including without limitation an injunction; an order or action by a governmental authority; a supply shortage, a fire; an accident, a labor disturbance; a strike; a riot; a civil commotion; an act of God; a pandemic or epidemic; or a delay or error by a shipping company or common carrier.  

23. Third-Party Beneficiaries.  Except as otherwise expressly set forth herein, none of the provisions of these Terms of Sale shall be for the benefit of or enforceable by any third party, including without limitation any creditor of either party.  No such third party shall obtain any right under any provision of these Terms of Sale or shall by reasons of any such provision make any claim in respect of any debt, liability or obligation (or otherwise) against either party.

24. Assignment.  Customer may not assign these Terms of Sale, in whole or in part (and Customer may not appoint or delegate to any third party any of its rights or obligations under these Terms of Sale) except with the prior written consent of BioStem.  Any assignment that occurs in violation of the foregoing sentence shall be null and void.  BioStem may assign these Terms of Sale, in whole or in part, upon written notice to Customer.  

25. Severability: Reformation.  Each provision in these Terms of Sale is independent and severable from the others, and no provision will be rendered unenforceable as a result of any other provision(s) being held to be invalid or unenforceable in whole or in part.  If any provision of these Terms of Sale is determined by a court of competent jurisdiction to be invalid or unenforceable, that provision will be appropriately limited and reformed to the maximum extent permitted by Applicable Law.

26. Governing Law.  Subject to Section 27 below, these Terms of Sale will be construed and interpreted and its performance governed, in each case, by the laws of the State of Florida, without giving effect to its doctrine of conflict of laws or the laws of any other jurisdiction; provided, that matters of intellectual property law will be determined in accordance with United States federal law.

27. Dispute Resolution. In the event that the parties, working in good faith, are unable to resolve any dispute, controversy, or claim arising out of or relating to this contract or the breach, termination, or invalidity thereof (each, a “Dispute”) within thirty (30) days from service of written notice of such Dispute by either party to the other party, or at such earlier time as is mutually agreed by the parties, such Dispute shall then be decided by a confidential, binding, non-appealable arbitration in Broward County, Florida administered by the American Arbitration Association (the “AAA”) under the Commercial Arbitration Rules then in effect (the “Rules”) of the AAA. The arbitration will be conducted in English.  Such arbitration shall be before a single arbitrator who shall be jointly selected by Customer and BioStem.  If the parties cannot agree upon an arbitrator within thirty days following the initiation of arbitration then the appointment of the arbitrator shall be made by the AAA in accordance with the Rules, except as they may be modified by the mutual written agreement of the parties.  The award of any arbitration shall be final, conclusive and binding on the parties, and judgment on the award may be entered in any court of competent jurisdiction.  The arbitrator shall be limited, in granting any relief, to comply with the provisions of these Terms of Sale, including without limitation with respect to the award of damages or the limitations on them.  During the arbitration, either party may seek interim measures of protection concerning any subject matter of the dispute subject to arbitration, including but not limited to interim injunctive relief, in a court of competent jurisdiction located in the Broward County, Florida. Any issue concerning the extent to which any dispute is subject to arbitration, or concerning the application, interpretation, or enforceability of this paragraph, including without limitation any contention that all or part of this paragraph is invalid or unenforceable, shall be governed by the Federal Arbitration Act and is exclusively delegated to, and shall be resolved by, the arbitrator.

28. Waiver.  No waiver of any term, provision or condition of these Terms of Sale (whether by conduct or otherwise) in any one or more instances will be deemed to be or construed as a further or continuing waiver of any such term, provision or condition of these Terms of Sale.

29. Counterparts and Signatures.  These Terms of Sale may be executed in multiple counterparts, each of which will be deemed an original, and all of which together will be deemed to be one and the same instrument.  Signatures to these Terms of Sale transmitted by facsimile transmission, or electronic mail in .pdf form, or by any other electronic means intended to preserve the originals graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signatures, and shall be deemed original signatures by both parties.

30. Headings.  These Terms of Sale contains headings only for convenience and the headings do not constitute or form a part of these Terms of Sale, and should not be used in the construction of these Terms of Sale.

LAST UPDATED SEPTEMBER 11, 2020

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