terms & conditions

Epicore Biosystems General Terms and Conditions

These General Terms and Conditions (“General Terms“) are by and between the legal entity (“Company”), as further detailed in the applicable Order Form, and Epicore Biosystems, Inc., a Delaware corporation (“Epicore Biosystems”), and sets forth the terms, conditions, rights and restrictions for which Epicore Biosystems is willing to sell or lease, as applicable, devices and modules (“Devices“), sell patches and other accessories (“Accessories”), license Epicore Biosystems’ mobile and/or web-based software platform (collectively referred to as ”Software”), and provide maintenance and technical support services to Company (the Devices, Accessories and Software may be collectively referred to as the ”Solution”). Unless otherwise governed by a signed contract between Company and Epicore Biosystems, only these General Terms will apply to any Order Forms made for the Solution. Epicore Biosystems’ provisioning of the Solution and Services and Company’s use thereof is expressly contingent upon Company’s acceptance of these General Terms, “AS IS”. All additional and conflicting terms and conditions presented with or in any communication, including but not limited to those set forth in any purchase order issued by Company, except with respect to price, quantity, and location are hereby rejected, and shall be deemed null and void.

1- Definitions

Agreement” shall mean these General Terms and any Order Forms.

“Documentation” shall mean any documentation, reference guides, operation manuals and release notes provided with the Solution in printed, electronic, or online form.

“Fees” shall mean the applicable fees due to Epicore Biosystems, as detailed in an Order Form, payable by Company in consideration for Epicore Biosystems providing to Company the Devices, Accessories, Subscription Services, Maintenance & Support, Professional Services, and/or license grants, set forth herein.

“Leased Devices” are Devices leased by Company as set forth in the applicable Order Form.

“M&S Services” shall mean certain maintenance and support services provided to the Company as further set forth in a separate Maintenance and Support Agreement, if applicable.

“Order Form” means Epicore Biosystems’ standard order form executed by Epicore Biosystems and Company for the purchase, lease and/or license of Devices, Accessories, Software, Services, or Company’s standard Purchase Order, provided that it references a valid Epicore price quote and incorporates this Agreement by reference.

“Professional Services” shall mean training, consulting, data analysis or other services provided by Epicore Biosystems’ personnel and/or agents for the benefit of Company’s personnel, agents or representatives with respect to use of the Solution.

“Purchased Devices” are Devices purchased by Company as set forth in the applicable Order Form.

“Services” shall mean collectively the M&S Services, Professional Services and Subscription Services.

“Shipment Date” shall mean the date that Epicore Biosystems ships the Devices to the location designated by the Company.

“Subscription Services” shall mean the ability for Company to, as applicable, (i) use the Devices in conjunction with the Software solely for its internal business purposes in accordance with the Documentation and this Agreement, (ii) receive the Professional Services and M&S Services in accordance with and as further set forth in, this Agreement.

“Subscription Term” shall mean the period of time set forth in the applicable Order Form, during which Company is entitled to the Subscription Services.

“Unrecovered Losses” shall mean any loss, theft, damage, or destruction of Leased Devices (including, without limitation, damage caused by misuse, accident (e.g., accidental physical impact, exposure to liquid or other contaminants, etc.), neglect, abuse, alteration, improper or unauthorized repair or modification, tampering, or use with unsuitable equipment, devices, software, services, other unauthorized third-party item(s)), not covered under the warranty provided in this Agreement and occurring during the period from Customer’s acceptance of delivery of the Leased Devices to Company to Company’s return of such Leased Devices to Epicore Biosystems in accordance with this Agreement

“User(s)” means an employee, service provider, contractor, or other person who is authorized by Company to use the Solution made available through this Agreement.

“User Data” means the data of or related to Users who use the Solution, to the extent that Epicore Biosystems handles such data pursuant to providing the Services under this Agreement and such data is processed, stored or presented within the Software.

2- Shipment & Delivery Terms.

Unless otherwise provided in the applicable Order Form, Epicore Biosystems will ship all Devices and Accessories at Company’s expense and risk to the delivery location specified in the Order Form. Unless otherwise provided in the applicable Order Form, all shipments will be made using the carrier designated by Epicore Biosystems at Company’s expense. For Software, delivery will be deemed to have occurred once Epicore Biosystems has made the Software available to Company or Company’s designate agent, representative or User. Unless otherwise stated conspicuously on the face of the applicable Order Form, Epicore Biosystems reserves the right to fulfill Order Forms via multiple shipments.

3- Leased Devices.

3.1- Operation.

For all Leased Devices, Company agrees to the following with regards to the care and use of such Leased Devices:

  • Company will use the Leased Devices in a good and careful manner and will comply with all of Epicore Biosystems’ requirements and recommendations with respect to the Leased Devices (including, but not limited to, the Documentation) and with any applicable law, whether local, state or federal;
  • Company shall not remove, alter, disfigure or cover up any numbering, lettering, or insignia displayed upon the Leased Devices and shall see that the Leased Devices are not subjected to careless, unusual or needlessly rough usage;
  • Company shall ensure that the Leased Devices remain in good repair and operative condition, and shall return the Leased Devices in such condition;
  • Company will use the Leased Devices for the purpose for which it was designed and not for any other purpose;
  • Company will not alter, modify or attach anything to the Leased Devices; and
  • Company will not use any Leased Device in an unsafe manner or otherwise use any Leased Devices in a manner in violation of this Agreement.

3.2- Rights in Leased Devices.

Except: (i) as expressly stated otherwise in this Agreement, or (ii) as the Epicore Biosystems and Company may subsequently agree in a mutually executed writing, at no time during Subscription Term or the period in which Company’s use of the Leased Devices shall title to any Leased Devices pass to Company. Company acknowledges Epicore Biosystems’ title to the Leased Devices and shall use commercially reasonable efforts to protect and defend such title and keep and maintain it free and clear of any and all claims, liens, charges, or encumbrances. Company acknowledges and agrees that it shall not have any right to purchase any of the Leased Devices.

3.3- Sublease. Company shall not sublease any Leased Devices or use thereof.

3.4- Risk of Uncovered Losses and Insurance.

Company assumes, and shall bear the entire risk of, and shall, at Company’s sole expense, be liable for any Uncovered Losses from any cause whatsoever. Company shall bear any costs of shipping associated with the return of any Leased Devices that are reasonably determined by Epicore Biosystems to be Uncovered Losses. At all times during the Subscription Term, Company shall take all reasonable precautions to avoid any losses or damages to the associated Leased Devices and shall maintain reasonable levels of insurance sufficient to cover any losses or damages associated with Leased Devices, including Uncovered Losses, and shall, upon request, deliver to Epicore Biosystems a certificate of insurance evidencing Company’s compliance with this insurance requirement.

4- Software License.

Company assumes, and shall bear the entire risk of, and shall, at Company’s sole expense, be liable for any Uncovered Losses from any cause whatsoever. Company shall bear any costs of shipping associated with the return of any Leased Devices that are reasonably determined by Epicore Biosystems to be Uncovered Losses. At all times during the Subscription Term, Company shall take all reasonable precautions to avoid any losses or damages to the associated Leased Devices and shall maintain reasonable levels of insurance sufficient to cover any losses or damages associated with Leased Devices, including Uncovered Losses, and shall, upon request, deliver to Epicore Biosystems a certificate of insurance evidencing Company’s compliance with this insurance requirement.

4.1- License Grant & Restrictions.

Subject to payment of the applicable Fees set forth in an applicable Order Form, Epicore Biosystems grants Company a limited, non-exclusive, non-transferable, non-sublicensable revocable license to use the Software in conjunctions with the Devices for Company’s own internal business purposes in accordance with the Documentation and this Agreement for the Subscription Term, as applicable.

4.2- Third-party Technology.

The Devices may contain embedded third-party technology (“Third-party Materials”). Such Third-party Materials are licensed for use solely with the Devices. Third-party Materials are provided subject to the applicable third-party Terms of Use (“ToU”). Company agrees to abide by the ToU and/or to obtain any additional licenses that may be required to use the Third-party Materials.

5- Restrictions.

5.1- Use Restrictions.

Company specifically agrees to limit the use of the Solution, Documentation, and Third-party Materials to those specifically granted in this Agreement for the applicable Subscription Term. Without limiting the foregoing, Company specifically agrees not to (i) attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software or any portion thereof; (ii) modify, port, translate, localize or create derivative works of the Software and/or Third-party Materials; (iii) remove any of Epicore Biosystems’ or its vendors’, suppliers’ or licensors’ copyright notices and proprietary legends; (iv) attempt to circumvent, disable or defeat the limitations in the Solution or use of the Solution in any way that exceeds the Devices’ technical or usage limits; (v) use the Solution, Software and/or Third-party Materials (a) to infringe on the intellectual property rights of any third party or any rights of publicity or privacy; (b) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (c) to propagate any virus, worms, Trojan horses or other programming routine intended to damage any system or data; and/or (d) for the purpose of building, or assisting others to build, a competitive product or service or copying its features, content or user interface; (vi) file copyright or patent applications that include the Solution and/or Third-party Materials or any portion thereof; and/or (vii) use the Third-party Materials within any other applications or products other than with the Solution.

Company agrees to maintain records reasonably required to verify its compliance with this Agreement, including but not limited to Customer’s compliance with the restriction set forth in Section 5.1 “Use Restrictions”.

In all instances, Epicore Biosystems and its third-party licensees, as applicable, retain all rights, title, and interest, including but not limited to all intellectual property rights such as copyright, patent, trademark, service mark, and trade secret, in and to the Devices, Software, Accessories, and Third-party Materials, and all copies thereof including all derivations, modifications, and enhancements thereto. This Agreement does not provide Company with title or ownership of the Leased Devices, Software, and Third-party Materials, but only a right of limited use. Company shall not reverse engineer, reproduce, decompile, recompile, disassemble, merge, modify, adapt or translate the Solution or any component thereof, or create derivative works based on the Solution, nor allow any third party to do the same.

6- Warranties.

6.1- Device Warranty:

Epicore Biosystem warrants, for Company’s benefit alone, that the Devices will be free from defects in materials and workmanship under normal use (the “Device Warranty”) for (a) in the case of Purchased Devices, a period of twelve (12) months commencing upon the Shipment Date, and (b) in the case of Leased Devices, the Subscription Term (collectively, the “Device Warranty Period”); and (ii) the Software will conform materially to the Documentation (the “Software Warranty”) for the Subscription Term (“Software Warranty Period”), as set forth in the applicable Order Form.

6.2- Professional Services Warranty.

Epicore Biosystems warrants that all Professional Services shall be performed in a professional and workmanlike manner, consistent with then-current industry standards (“Professional Services Warranty”). Company’s exclusive remedy for a breach of the Professional Services Warranty shall be, at Epicore Biosystems’ option, either to (i) re-perform such Professional Services and/or training; or (ii) to provide Company a refund for the allegedly defective Professional Services. Such remedy shall only be available if Company notifies Epicore Biosystems, in writing, within ninety (90) calendar days of the completion of such Professional Services.

6.3- Return Merchandise Authorization.

For Devices which become inoperable during the applicable Device Warranty Period and which are covered by the Device Warranty, it is the responsibility of the Company to contact Epicore Biosystems, and to provide sufficient details on the nature of the defect or error. If Epicore Biosystems’ help desk support cannot remedy the defect or error, Epicore Biosystems will issue a Return Merchandise Authorization (“RMA”) to the Company. No Devices may be returned without a validly issued RMA from Epicore Biosystems.

  • If Epicore Biosystems issues a RMA to Company, Company must return all components of the original Device. Failure to provide all components of the Device will result in Epicore returning the defective Device to Company.
  • Upon receiving the defective Device, Epicore Biosystems will determine the cause of the defect. If it is determined that the defect is not covered by the Hardware Warranty, then Company will be charged for the replacement Device.
  • Company is responsible for paying all fees and charges associated with the shipment of such Devices, including but not limited to all duties, taxes, shipping charges, freight cost, insurance, and import/export fee.

6.4- Warranty Exclusions.

The Device Warranty, Software Warranty and Professional Services Warranty do not apply to any failure of the Software or Device caused by (a) is this Company’s failure to follow Epicore Biosystems’ instructions, procedures, or Documentation; (b) Company’s mishandling, misuse, negligence, neglect, abuse, accidental damage, loss, or improper maintenance, storage, servicing, or operation of the Devices or Software; (c) modifications or repairs not authorized by Epicore Biosystems; (d) use of the Devices in combination with equipment or software not supplied by Epicore Biosystems or authorized in the Documentation; and/or (e) power failures or surges, fire, flood, accident, actions of third parties, or other events outside Epicore Biosystems’ reasonable control. Epicore Biosystems cannot and does not warrant the performance or results that may be obtained by using the Solution and/or Services, nor does Epicore Biosystems warrant that the Solution and/or Services are appropriate for Company’s purposes or error-free.



7- Maintenance & Support Services.

So long as Company has not lapsed in its payment of the Fees due hereunder during the Subscription Term or otherwise breached its obligations under this Agreement, Epicore Biosystems shall provide to the Company M&S Services as outlined in the Order Form. It is the responsibility of Company, and its Users, to obtain and install all upgrades and updates to the Software. Epicore Biosystems reserves the right to withhold all M&S Services if Company (i) has lapsed in payment of any Fees or otherwise breached this Agreement; (ii) failed to update the Software; or (iii) is seeking M&S Services for any Devices which had an initial commercial release date that exceeds three (3) calendar years from with date such M&S Services is being sought.

8- Prices; Payments & Taxes.

8.1- Prices.

The Fees are set forth in the applicable Order Form. Company acknowledges and agrees that all prepaid Fees are non-refundable, and no credits shall be made except as provided for in Section 6, “Warranties”.

8.2- Payment.

All invoices shall be due and payable within thirty (30) calendar days after invoice date. Unless otherwise specified in the applicable Order Form are amounts due are in U.S. Dollars. Epicore Biosystems may impose late charges on overdue payments at a rate equal to the lesser of one and a half (1.5%) percent per month or the highest rate legally permitted by law, calculated from the date payment was due until the date payment is made and all expenses incurred in collection, including reasonable attorneys’ fees.

All Fees are exclusive of, and Company shall be liable for payment of, all local, state and federal sales, use, value-added, withholding, excise, tariffs, or personal property taxes, or other similar taxes or duties that are levied upon and related to the performance of obligations or exercise of rights under this Agreement. In no event will either party be responsible for any taxes levied against the other party’s net income.

9- Confidential Information & Data Rights.

9.1- Confidential Information.

“Confidential Information” shall mean any and all non-public, confidential information in any form that Epicore Biosystems provides to the Company in connection with the Solution, Services or this Agreement and that either: (1) has been marked as confidential; or (2) is of such nature that a reasonable person would consider it confidential under like circumstances. For the avoidance of doubt Confidential Information includes: (a) the Solution and Services, including any information pertaining to such Solution and Services (including any Documentation, concepts, designs, specifications, listings, and other documentation, whether or not embedded on a device or another form of media); (b) confidential or proprietary information of a third party provided to the Company by Epicore Biosystems; and (c) the terms and conditions of the Order Form. Company shall not use or disclose any Confidential Information, except as expressly authorized by this Agreement, and shall protect all such Confidential Information using the same degree of care which Company uses with respect to its own similarly valuable proprietary information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. Company shall take prompt and appropriate action to prevent unauthorized use or disclosure of the Confidential Information. Company agrees to provide Epicore Biosystems prompt notice of any actual or attempted unauthorized use or disclosure of the Confidential Information. Company shall be responsible for a breach of this Section 9.1 by its affiliates, employees, contractors, agents and any third party to whom it discloses Confidential Information in accordance with this Section 9.1.

9.2- User Data.

During the Subscription Term, Company may have access to certain aggregated User Data (the “Aggregate Data”). Company agrees that the following terms apply with respect to its use of the Aggregate Data and any User Data (collectively, “Data”):

  • Company may only use the Data in compliance with all applicable laws and regulations, and Company is solely responsible for determining if its use is compliant with such laws and regulations;
  • Company is solely responsible for ensuring access to, and use of, Data is limited in accordance with applicable laws and regulations;
  • Company shall not, in any respect whatsoever, cause Epicore Biosystems to be in breach of any of its obligations under any applicable laws or regulations with respect to Company’s use of Data;
  • Company shall not share, disclose or resell the Data in any form (whether or not individually identifiable) to any third party;
  • Company shall not seek to access any Data other than as expressly authorized under this Agreement;
  • Company shall maintain appropriate technical and organizational measures to protect Data downloaded or exported from the Software against unauthorized or unlawful processing of the Data and against accidental loss or destruction of, or damage to, the Data; and
  • Company shall not re-identify any Aggregate Data or make any attempt to link any such data to any User without prior written consent.

9.3- Collected Data Rights.

In furtherance of Epicore Biosystems fulfilling its obligations under this Agreement, Epicore Biosystems may collect or receive certain data or information regarding Company’s use of the Solution and Services (“Collected Data”). Notwithstanding anything to the contrary in this Agreement, Company hereby grants and agrees to grant Epicore Biosystems a global, royalty-free, sub-licensable, non-exclusive license to use the Collected Data in order to: (i) provide the Solution and Services to the Company and its Users; (ii) develop, improve, modify and optimize the Solution and Services; and (iii) fulfil Epicore Biosystems’ obligations under this Agreement. Company represents and warrants that it has sufficient rights to the Collected Data for Epicore Biosystems to perform its obligations under this Agreement, and that such access to and use of the Collected Data will not infringe or violate any agreement, confidentiality obligations, privacy rights, or intellectual property rights of any third party.

9.4- Feedback.

If Company provides to Epicore Biosystems any suggestions, enhancement requests, recommendations, or other feedback related to the Solution, Services, or Documentation (collectively, “Feedback”), Epicore Biosystems shall have, and Company hereby assigns and agrees to assign to Epicore Biosystems, all right, title and interest, including all intellectual property rights, in and to the Feedback. Epicore Biosystems shall have the unrestricted royalty-free right to use and incorporate into any of its products and services (including the Solution, Services and Documentation) any and all Feedback. Furthermore, the Company acknowledges and agrees that nothing herein shall limit Epicore Biosystems’ rights to use its general knowledge, skills and experience, and any ideas, concepts, know-how and techniques, related to or derived from the performance of its obligations under this Agreement for any purpose.

10- Term & Termination.

10.1- Term.

this Agreement takes effect upon the earlier of (i) the parties execution of the Order Form, (ii) the Shipment Date, or (iii) Company’s accessing or otherwise using the Software (the “Effective Date”), and remain effective through the Subscription Term set forth in the applicable Order Form, unless earlier terminated as provided in this Agreement. The Renewal Period shall be set forth in the Order Form.

10.2- Termination.

During Subscription Term either party may terminate these General Terms and/or any Order Form if the other party commits a material breach of these General Terms or any Order Form and fails to remedy such breach within ten (10) calendar days of receipt of a written notice of such material breach from the non-breaching party. In the event of a termination of these General Terms, any Order Form then in force shall terminate. Upon any termination of this Agreement, (i) all licenses granted hereunder shall immediately terminate, (ii) Company shall immediately stop using the Software, and (iii) Company will return all Leased Devices and Confidential Information. Upon any termination for breach by Epicore Biosystems, Epicore Biosystems will refund Company any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. Upon any termination for breach by Company, Company will pay any unpaid Fees covering the remainder of the Subscription Term after the effective date of termination. In no event will any termination or expiration of this Agreement relieve Company of the obligation to pay any Fees due and payable to Epicore Biosystems for the period prior to the effective date of termination.

10.3- Return and Recovery of Leased Devices Upon Termination.

Within ten (10) business days of termination or expiration of the Term, Company shall return (at Company’s expense with respect to costs associated with such return (including shipping)) the Leased Devices, including all associated unused Accessories, to Epicore Biosystems in complete form, and in the same operating order, repair, condition and appearance as existed on the date of delivery of such Leased Devices, reasonable wear and tear excepted. Company’s outright failure to return the Leased Devices will be considered a material breach of this Agreement. Upon return of the Leased Devices by Company, Epicore Biosystems shall have thirty (60) days (from the date of receipt of return delivery) to inspect the returned Leased Devices to ensure they are in the condition required under this paragraph. In the event Epicore Biosystems reasonably determines upon inspection that the Leased Devices are not in the condition required under this paragraph, Company shall be liable for and shall pay to Epicore Biosystems an amount equal to the undiscounted commercial rate for the Devices (the “Device Price”) as of the effective date of termination. In addition, Company shall be responsible for payment of Fees associated with the rental fees for Leased Devices until the earlier of: (i) shipment of the Leased Devices to the Epicore Biosystems, or (ii) receipt, by Epicore Biosystems, of each applicable Leased Device’s Device Price. The Company shall be liable for payment equal to the equivalent monthly portion of the Fees for each month the Company is delayed in returning Leased Devices. Nothing in this Section shall be construed to limit any other remedies that may be available to Epicore Biosystems as a result of Company’s breach of its obligations under this Agreement.



TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL EPICORE BIOSYSTEMS OR ITS AFFILIATES OR LICENSEES BE LIABLE TO COMPANY, ITS AFFILIATES OR ANY THIRD PARTY FOR ANY for any use, interruption, delay or inability to use the Devices, Software or Services, lost revenues or profits, delays, interruption or loss of services, business or goodwill, loss or corruption of data, loss resulting from system or system service failure, malfunction or shutdown, failure to accurately transfer, read or transmit information, failure to update or provide correct information, system incompatibility or provision of incorrect compatibility information or breaches in system security, for any consequential, incidental, indirect, exemplary, special or punitive damages, whether arising out of or in connection with THIS AGREEMENT, breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not EPICORE BIOSYSTEMS was advised of the possibility of such damages. IN NO EVENT WILL EPICORE BIOSYSTEMS’ OR ITS AFFILIATES’ OR LICENSEES’ COLLECTIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF ALL FEES ACTUALLY PAID TO EPICORE BIOSYSTEMS FOR THE RELEVANT DEVICES OR SERVICES WITHIN THE PRIOR TWELVE (12) MONTHS FROM WHICH SUCH CLAIM ARISES. NOTWITHSTANDING THE FOREGOING NOTHING STATED HEREIN SHALL BE CONSTRUED AS TO LIMIT OR HINDER THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 12 “INDEMNIFICATION”.



12- Indemnification.

Company hereby agrees to indemnify, defend, and hold harmless Epicore Biosystems, its Affiliates and its and their directors, officers, managers, employees, representatives, agents, successors and assigns from and against any and all actions, demands, allegations, claims, liability, investigations, suits, loss or expense, including, without limitation, reasonable attorneys’ fees and cost of litigation (“Claims”), arising out of or related to: (i) Company’s and any User’s use or misuse of the Solution or Services; (ii) Company’s breach of this Agreement; (iii) Company’s violation of any applicable, law, rule or regulation; (iv) Company’s or any Users violation of any third-party right, including without limitation any right of privacy or intellectual property rights; and (v) Company’s or any User’s gross negligence, fraud or willful misconduct.

13- Compliance; Export Controls.

Company shall comply fully with all applicable laws, rules, and regulations including those of the United States and any and all other jurisdictions globally, which apply to Company’s business activities in connection with this Agreement. Company acknowledges that the Devices and/or Services may be subject to United States Government export control laws. Company shall comply with all applicable export control laws, obtain all applicable export licenses, and will not export or re-export any part of the Solution and/or Services to any country in violation of such restrictions or any country that may be subject to an embargo by the United States Government.

14- Relationship with Third Parties.

The relationship between the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct or control the day-to-day activities of the other; (ii) constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking or franchise; (iii) allow Company to create or assume any obligation on behalf of Epicore Biosystems for any purpose whatsoever; or (iv) allow any User or other person or entity not a party to this Agreement to be considered a third-party beneficiary of this Agreement.

15- General Provisions.

15.1- Entire Agreement & Integration.

These General Terms and all attachments, addendums, exhibits, schedules, and applicable Order Forms, which are incorporated by reference herein, or which reference these General Term and are signed by authorized represent of the parties hereto shall constitute the entire agreement between the parties on the subject matter hereof and supersede all prior discussions, agreements and understandings of every kind and nature between the parties. No modification of this Agreement shall be effective unless in writing and signed by both parties.

15.2- Severability & Survival.

The illegality or unenforceability of any provision of this Agreement shall not affect the validity and enforceability of any legal and enforceable provisions hereof. Should any provision of this Agreement be deemed unenforceable by a court of competent jurisdiction then such clause shall be re-construed to provide the maximum protection afforded by law in accordance with the intent of the applicable provision. Any provision contained herein, which by its nature should survive the termination of this Agreement shall survive, including, but not limited to, the Sections titled “Intellectual Property & Protection”, “Confidential Information & Data Rights”, “Limitation of Liability”, “Indemnification”, “Compliance; Export Controls”, and “General Provisions”.

15.3- Assignment.

Neither party may assign any rights or delegate any obligations hereunder, whether by operation of law or otherwise, except with the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, Epicore Biosystems may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Epicore Biosystems’ assets or voting securities. This Agreement binds the parties, their respective participating subsidiaries, affiliates, successors, and permitted assigns.

15.4- Applicable Law & Disputes.

This Agreement and all resulting claims and/or counterclaims shall be governed, construed, enforced, and performed in accordance with the laws of the State of Delaware, U.S.A., without reference and/or regard to its conflicts of laws principles or the United Nations Convention on the International Sale of Goods. The parties agree that any such dispute arising out of or in connection or associated with this this Agreement, any Order Form, the Solution or any Services and shall be brought exclusively in the state and federal courts located in Suffolk County, Massachusetts and each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement.

15.5- Force Majeure.

Epicore Biosystems will not be liable for any loss, damage, or delay arising out of its failure (or that of its subcontractors) to perform hereunder due to causes beyond its reasonable control, including without limitation, acts of God, Company’s acts or omissions, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, acts of terrorism, delays in transportation, or transportation embargoes. In the event of such delay, Epicore Biosystems’ performance date(s), if any, will be extended for such length of time as may be reasonably necessary to compensate for the delay.

15.6- Waiver.

Each party agrees that the failure of the other party at any time to require performance by such party of any of the provisions herein shall not operate as a waiver of the rights of such party to request strict performance of the same or like provisions, or any other provisions hereof, at a later time.

15.7- Notices.

All notices under this Agreement shall be in English and shall be in writing and sent to the other party either by (i) overnight delivery through a reputable third-party courier; or (ii) electronic mail (email) sent “read receipt” and “delivery receipt”. With respect to Epicore Biosystems’ receipt of electronic notice set forth in (ii) above, such notice shall only be deemed received once Company receives a confirmation of “read receipt” and “delivery receipt”. Notices to Company shall be sent to the address and email set forth in the applicable Order Form or to such other address/email as may be specified in writing by Company to Epicore Biosystems. Notices to Epicore Biosystems shall be sent to the below address and email or to such other address/email as may be specified in writing by Epicore Biosystems to Company:

Epicore Biosystems, Inc.,

Attn: Legal

810 Memorial Drive, Suite 100 Cambridge, MA

Email: support@epicorebiosystems.com

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