IMPORTANT – READ CAREFULLY:  These Cytrence Technologies Inc. Terms and Conditions of Sale and Licensing (this “Agreement”) constitute a legal agreement between you (on behalf of yourself or the entity which you represent – hereinafter referred to as “Customer”) and Cytrence Technologies Inc., a Delaware corporation (“Cytrence”), with respect to the sale of Cytrence products (the “Products”) identified on the applicable written or online, purchase order, order acknowledgement or other document by which Customer placed an order for the Products (the “Purchase Order”).  By placing an order for any Products or accepting any Products, Customer agrees to be bound by the terms of this Agreement.  Cytrence’s agreement to the sale of any Products, is expressly conditioned upon Customer’s agreement to the terms and conditions contained herein.

​

Section 1: Purchase.  The Customer agrees to purchase and/or license, and, upon Cytrence’s acceptance of your Purchase Order, Cytrence agrees to sell and/or license, on the terms set forth below, the Products requested by Customer in such Purchase Order.  Cytrence shall not be required to fulfill any order set forth in your Purchase Order unless and until Cytrence shall have accepted Customer’s Purchase Order in writing.  For purposes hereof, “Acknowledgement” shall mean (i) a Purchase Order which has been accepted by Cytrence without change or (ii) a written acknowledgement of a Purchase Order by Cytrence in which Cytrence has modified the terms of such Purchase Order and Customer has accepted such modification.   Except as otherwise provided herein, unless otherwise agreed by Cytrence, all sales are final and non-cancellable. 

Anything to the contrary notwithstanding, all Products comprising Software (as defined below), shall be licensed and not sold.  Such Software shall be subject to the terms of an End User License Agreement in a form provided to the Customer together with the Software or otherwise made available to Customer by Cytrence (each, a “EULA”).  By using any Software, Customer hereby agrees to be bound by the terms of the applicable EULA.  If Customer does not agree to the terms of the EULA, Customer may uninstall and delete  all copies of such Software from all of Customer’s devices and return the Software to Cytrence for a refund any time prior to the date which is thirty (30) days after the date of Customer’s Purchase Order therefor; provided, however, in the event that such Software is intended for use with any hardware Product, such return is conditioned upon the simultaneous return of such hardware Product in accordance with this Agreement.  For purposes of this Agreement, “Software” means software programs in executable form (excluding source code), including all corrections, updates, modifications and enhancements to such software, and all documentation and information pertaining to software, whether in online, hard-copy or other form, together with any updates, revisions, new versions and supplements thereto, which is made available by Cytrence to Customer, but specifically excluding any open-source software.  Customer shall have no right to obtain and/or use any source-code pursuant to this Agreement except as may be provided in an applicable EULA.

​

Section 2: Prices/Payment.  The prices for the Products shall be as listed on the applicable Acknowledgement.  Cytrence reserves the right to change its prices for Products from time to time.  All prices expressed and all payments made must be in U.S. dollars.  Prices are exclusive of all federal, state, local, municipal, value-added tax (“VAT”) or other excise, sales, use, occupation, or similar taxes now in force or enacted in the future, all of which shall be paid by Customer.  It is the sole responsibility of Customer (in the importing country) to pay all related VAT charges, import fees, duties & taxes on Products purchased or shipped to Customer.  Cytrence may invoice Customer for any such taxes and remit any payments made on such invoice directly to the appropriate taxing authorities.  Unless otherwise agreed to in writing by Cytrence, payment for Products is due in advance of shipment.

​

Section 3: Delivery/Shipment.  Delivery dates listed in an Acknowledgement, if any, are good faith estimates only and do not mean that “time is of the essence.”  Cytrence intends to meet acknowledged delivery dates, but does not represent or warrant that it will, in fact, meet all such dates, as all shipments are made subject to the availability of Products and the availability of shipping and courier services.  All Products under this Agreement shall be delivered to Customer to the delivery address indicated on the applicable Acknowledgement.  Title and risk of loss shall pass to the Customer upon shipment of the Product.  Cytrence will not assume any liability in connection with shipment for any loss or damage caused by delay in shipping the Products nor constitute any carrier as its agent.  While Cytrence may, in its sole and absolute discretion elect to do so on behalf of Customer, Customer shall be responsible for making claims with carriers, insurers, and others for mis-delivery, non-delivery, loss, damage or delay.  Unless otherwise agreed by Cytrence in writing, the Customer shall pay all transportation, duties, and import/export fees, taxes, insurance and similar costs and charges.  Cytrence may, however, invoice Customer for any such charges and remit payments directly to the relevant third party.

​

Section 4: Acceptance; Returns.  All Products shall be deemed to be accepted upon the earliest to occur of: (i) receipt by Cytrence from Customer of written notice that the Products have been accepted by Customer, or (ii) the date which is thirty (30) days after delivery of the Products, unless Customer shall have previously provided to Cytrence a written statement describing the non-conformance of the Products.  A Product may not be rejected unless it contains a material defect which would prevent Product from functioning substantially in accordance with its written specifications.  Only defects affecting the function, performance or fit of a Product may result in rejection for non-conformance.  A determination that a Product fails to comply with its specification may not be based upon any No-Fault Condition (as defined below). Customer may return any unused and undamaged Products (“Conforming Products”) in accordance with the provisions of Section 8 below for a refund during the thirty (30) day period commencing on the date of the applicable Purchase Order for such Products. For all refunds, the original shipping fee will not be refunded.

​

Section 5: Compliance With Laws/Export.  Customer shall not export, directly or indirectly, Products, or other information or materials provided by Cytrence hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval.  It shall be the Customer’s responsibility to comply with the latest applicable export regulations, and the Customer shall defend and indemnify Cytrence from and against any damages, fines, penalties, assessments, liabilities, costs and expenses (including reasonable attorneys’ fees and court costs) arising out of any claim that Products or other information or materials provided by Cytrence hereunder were exported or otherwise shipped or transported in violation of applicable laws and regulations.  The Customer agrees not to export or re-export Cytrence products: (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country to which the United States has embargoed goods; or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nations or the United States Commerce Department’s Table of Denial Orders.  The Customer certifies that it is not located in, under the control of, or a national or resident of any such country or on any such list.  The Customer shall comply with all laws, legislation, rules, regulations, governmental requirements and industry standards with respect to the Products, and the performance by the Customer of its obligations hereunder, existing in any jurisdiction into which the Customer directly or indirectly distributes the Products.  In the event that this Agreement is required to be registered with any governmental authority, the Customer shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.

​

Section 6: Warranty; Support Services.  Unless otherwise provided in an applicable Acknowledgement, the period for which the warranty shall apply (the “Warranty Period”) with respect to Cytrence Products shall commence on the date of the applicable Acknowledgement for such Products and continue for a period of one year.  Anything to the contrary notwithstanding, the Warranty Period for repaired, replaced or corrected Products shall be coterminous to the Warranty provided for the original Products delivered.  During the Warranty Period, Cytrence warrants to Customer only that Products manufactured by Cytrence will be free from defects in material and workmanship and will substantially conform to Cytrence’s specifications for such Products.  With respect to products furnished but not manufactured by Cytrence, Cytrence hereby assigns to Customer, to the extent permitted, the warranties given to Cytrence by its vendors of such items.  If, under normal and proper use, a defect or non‑conformity appears in warranted Products during the applicable Warranty Period and Customer promptly notifies Cytrence in writing during the applicable warranty period of such defect or non‑conformance, and follows Cytrence’s instructions regarding return of such defective or non‑conforming Product, then Cytrence will, at no charge to Customer, either (1) repair, replace or correct the same or (2) if Cytrence determines that it is unable or impractical to repair, replace or correct the Product, provide a refund or credit not to exceed the original purchase price paid by Customer for such Product.  No Product will be accepted for repair or replacement without the written authorization of and in accordance with instructions from Cytrence.  Unless otherwise agreed by Cytrence in writing, removal and reinstallation expenses as well as transportation expenses associated with returning such Product to Cytrence shall be borne by Customer.  If Cytrence determines in good faith that any returned Product is not defective, Customer shall pay Cytrence’s costs of handling, inspecting, testing and transportation.  In repairing or replacing any Product under this warranty, Cytrence may use new, remanufactured, reconditioned, refurbished or functionally equivalent Products.  Returned Products for which a refund, credit or replacement has been given shall become Cytrence’s property.

​

For a period of one year after the date of an applicable Acknowledgement relating to the licensing of Software by Customer (each, an applicable “Support Period”), Cytrence may develop and provide certain updates (but specifically excluding versions of Software that include new features), bug-fixes and corrections to Software, as Cytrence may identify and implement in its sole discretion from time-to-time (the “Software Updates”), which Software Updates shall be made available to Customer without charge during the applicable Support Period.  The provision of any Software Updates shall be conditioned upon Customer’s compliance with the applicable EULA for the Software.

​

Section 7: Exclusions; Limitation of Liability. Anything to the contrary notwithstanding, Cytrence makes no warranty with respect to defective conditions or non‑conformities resulting from: Customer’s modifications, alterations, misuse, neglect, accident or abuse, improper installation, repair and/or storage, improper packaging for return, lack of maintenance, failure of Customer to apply Cytrence’s previously applicable modifications or corrections, or items not manufactured by Cytrence or purchased by Cytrence pursuant to its procurement specifications. Cytrence makes no warranty with respect to Products which have had their serial numbers removed or altered or Products comprising expendable items (each of the foregoing, a “No-Fault Condition”).

​

Any third-party software, whether or not provided to Customer by Cytrence, shall be licensed by Customer directly from the third-party providers thereof and Cytrence shall have no liability whatsoever to Customer with respect to any such software.

​

THE FOREGOING WARRANTIES ARE EXCLUSIVE & ARE GRANTED IN LIEU OF ALL OTHER EXPRESS & IMPLIED WARRANTIES (WHETHER WRITTEN, ORAL, STATUTORY OR OTHERWISE), INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.  CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND CYTRENCE’S SOLE OBLIGATION HEREUNDER, SHALL BE TO REPAIR, REPLACE, CREDIT OR REFUND AS SET FORTH ABOVE.

​

IN NO EVENT SHALL CYTRENCE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR AFFILIATES, BE LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM CUSTOMER’S USE OF ANY PRODUCT INCLUDING ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF CYTRENCE, OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN ANY EVENT, CYTRENCE’S CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS RELATING TO THE USE OF ANY PRODUCT SHALL NOT EXCEED THE TOTAL AMOUNT OF THE PURCHASE PRICE OR LICENSE FEES PAID TO CYTRENCE FOR SUCH PRODUCT.

​

IN NO EVENT SHALL CYTRENCE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR AFFILIATES, BE LIABLE FOR ANY COSTS OR DAMAGES CAUSED BY REASON OF ANY OCCURRENCE OR CONTINGENCY BEYOND ITS REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO, ACTS OF GOD, EARTHQUAKE, LABOR DISPUTES AND STRIKES, RIOTS, WAR, NOVELTY OF PRODUCT MANUFACTURE AND GOVERNMENTAL REQUIREMENTS.

​

Section 8: Returned Material.  Customers who wish to return defective Products or to return Conforming Products within the thirty (30) day return period described in Section 4 above, may be issued a Return Material Authorization (an “RMA”) number.  Covered Products are tracked by serial number, if applicable.  Customer is responsible for shipping any such returned Products, prepaid, to Cytrence’s facility in accordance with Cytrence’s instructions.  Original packaging must be utilized to prevent damage.  If applicable, repaired material shall be shipped by Cytrence, prepaid to Customer, in accordance with Section 3.  Upon receipt of a returned Product, Cytrence shall inspect and test it.  With respect to returns of allegedly defective Products, if Cytrence, in its reasonable judgment, determines that the Product is actually defective, Cytrence shall, repair, replace or grant a credit for such Product.  At Cytrence’s option, it may choose to replace the covered Product with an equivalent (new or refurbished) Product.  With respect to returns of Conforming Products, if Cytrence in its reasonable judgment, confirms that such Product is complete (including without limitation all hardware and Software components), unopened, unused and undamaged, Cytrence will refund the purchase price paid for such Conforming Product promptly upon receipt of such Conforming Product. For all refunds, the original shipping fee will not be refunded.

​

Section 9: General.  The validity, construction and interpretation of this Agreement and the rights and duties of the parties hereto shall be governed by the laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Massachusetts or any other jurisdiction) that would cause the applica­tion of the laws of any jurisdiction other than the Commonwealth of Massachusetts.

​

Customer specifically and irrevocably consents to the personal and subject matter jurisdiction and venue of the federal and state courts of the Commonwealth of Massachusetts and such courts shall have exclusive jurisdiction with respect to all matters concerning this Agreement or the enforcement of any of the foregoing.

Customer and Cytrence hereby waive their right to trial by jury to the fullest extent permitted by law in connection with all claims arising out of or related to this Agreement, the Products covered hereby or the performance of any party hereunder.  This Agreement gives Customer specific legal rights.  Customer may also have other rights which vary from jurisdiction to jurisdiction.

​

This Agreement and any other agreements referred to herein are the complete and exclusive statement of the Agreement between the parties and supersede all prior agreements and communications with respect to the subject matter.  Cytrence makes no representations to Customer except as expressly set forth herein.  The terms of this Agreement shall apply and govern the parties’ dealings notwithstanding any proposed variations or additions which may be contained in any customer purchase order or other communications submitted by Customer.

​

This Agreement may be modified, supplemented or amended only by a writing signed by an authorized representative of Cytrence.  Cytrence’s waiver of any breach by Customer of any terms of this Agreement must also be in writing and any waiver by Cytrence or failure by Cytrence to enforce any of the terms and conditions of this Agreement at any time, shall not affect, limit or waive Cytrence’s right thereafter to enforce and compel strict compliance with every term and condition thereof.

​

Customer certifies that the Products acquired hereunder are, unless otherwise agreed by Cytrence, intended for Customer’s own use in the ordinary course of business and not for the purpose of resale.  Customer may not assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Cytrence.

​

Customer shall reimburse Cytrence for reasonable attorneys’ fees and other costs associated with Customer’s breach of this Agreement, including without limitation the collection of any amounts due from Customer under this Agreement.

​

Section headings are for descriptive purposes only and shall not control or alter the meaning of this Agreement. If any provisions of this Agreement shall for any reason be held illegal or unenforceable, such provisions shall be deemed separable from the remaining provisions of this Agreement and shall in no way affect or impair the validity or enforceability of the remaining provisions from this agreement. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership or employment relationship between Cytrence and Customer.  This contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

​

All rights and remedies of either party shall be cumulative and may be exercised singularly or concurrently.  The failure of either party, in any one or more instances, to enforce any of the terms of this Agreement shall not be construed as a waiver of future enforcement of that or any other term.

​

In the event either party is unable, in its reasonable judgment to perform in accordance with this Agreement, due in whole or in part to any cause beyond the party’s control, including without limitation, acts of god, acts of the enemy, events of war, embargo, strike or lockout dispute with workers, accidental delay in transportation, shortage of fuel, excessive demand for products over available supply, inability to obtain material, unusually severe weather conditions, fires, floods, earthquakes, and unreasonably dangerous situations, the affected party shall promptly notify the other party in writing and the date of performance shall be extended for a period equal to the period of such delay.

​