Terms

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Nodexus Terms & Conditions of Sale

1. AGREEMENT. These are the Standard Terms and Conditions of Sale (“Terms”) under which Nodexus Inc. (“Nodexus”) sells its products and services (each a “Product” and collectively, the “Products”) or licenses or makes available software, whether on-premises, firmware or on a software as a service basis (collectively, “Software”). Nodexus’ sale of Products, or licensing, or making available of Software, to Purchaser is expressly conditioned on Purchaser’s acceptance of these Terms and the provisions of any quote identifying the Products or Software to be purchased, their price, and shipping terms (“Quote”), as such terms may be modified or supplemented by any invoice issued by Nodexus (“Invoice”). These terms together with any Quote and applicable Invoice are collectively referred to as the “Purchase Documents”. “Purchaser” means the person or entity set forth as “Purchaser”, “Buyer”, or the like in a Quote. Any terms on any Purchase Order or other document that conflict with the terms of any Purchase Document are hereby rejected and shall form no part of the agreement of Nodexus and Purchaser. Any Quote shall only be valid for thirty (30) days following the date of such Quote.

2. PURCHASE AND SALE. Nodexus shall sell to Purchaser, and Purchaser shall accept and pay for, all Products or Software ordered by Purchaser through a purchase order submitted to Nodexus in response to a Quote or through an online portal made available by Nodexus (in each case, a “Purchase Order”). Purchaser acknowledges that any Software included in any Product or otherwise made available by Nodexus for use with any Product are licensed to Purchaser under the terms and conditions of the End User License Agreement (“EULA”) provided with the Software and that title to the Software (or any copies thereof) is not transferred to Purchaser. Notwithstanding anything to the contrary in these Terms, Software is licensed or made available and not sold, and any reference to a “purchase” (or any word having a similar meaning) shall be understood as a purchase of a license or a purchase of a right to use Software and any reference to “sale” (or any word having a similar meaning) shall be understood as a sale of a license or a sale of a right to use Software.

3. PRODUCT USE AND RESTRICTIONS.
            3.1 Each Product is for research use only and not for human or animal therapeutic or diagnostic use. Purchaser shall not use any Product for human or animal therapeutic or diagnostic use unless expressly permitted in a signed written notice by Nodexus. 
            3.2 Purchaser shall use each Product only in accordance with any Nodexus user guide, package insert, technical documentation, or written instructions from Nodexus accompanying delivery of the Product (“Documentation”). Products are not submitted for regulatory review or validated for clinical, therapeutic, or diagnostic use, safety and effectiveness, or any other specific use, or application unless expressly stated in writing by Nodexus or labelled as such. Purchaser is solely responsible for complying with all applicable laws, regulations, and governmental policies when using Products. Purchaser is solely responsible for obtaining all necessary approvals, permissions, or licenses from any Third Party as may be required for any use of any Product by Purchaser. “Third Party” means any person or entity other than Nodexus, Purchaser, or any of their affiliates. It is solely Purchaser’s responsibility to make sure each Product is suitable for Purchaser’s intended use.
            3.3 As a material condition to Nodexus providing any of its Products to Purchaser, Purchaser shall not, directly or indirectly, attempt to reverse engineer, disassemble or otherwise perform any compositional, structural, functional, or other analyses directed to learning the methodology, components, formulae, processes, make-up, or production of any Product or any portion thereof or any Software or any portion thereof.
            3.4 Purchaser shall only use Nodexus Consumables (defined below) with Nodexus Instruments (defined below), except for generally available reagents that are not available as Nodexus Consumables and that are not patented. 

4. SHIPMENT. Nodexus will pack the Products for shipment in a commercially reasonable manner. Unless otherwise set forth in the Quote or Invoice, all shipments will be FCA Nodexus’ facility in California, U.S.A.(Incoterms 2020). If Purchaser has not specified a carrier in a Purchase Order, Nodexus may select the carrier but will not be deemed thereby to assume any liability in connection with the shipment nor will the carrier be construed to be an agent of Nodexus. Purchaser shall pay or reimburse Nodexus for all transportation, freight, insurance, loading, packaging and handling charges, taxes, duties, fees, storage, and all other charges applicable to the Products. All shipments are subject to availability, and Nodexus may ship in installments. Nodexus will use commercially reasonable efforts to complete shipments as indicated in the Quote, but Purchaser hereby acknowledges that shipment schedules are approximate and agrees that Nodexus shall not be liable for any damages or penalties for delay in delivery or for failure to give notice of delay for any reason. If Nodexus holds or stores any Product at Purchaser’s request or due to Purchaser’s inability to accept delivery after the scheduled shipment date, Purchaser agrees to reimburse Nodexus’ reasonable storage expenses and assume all risk of loss of the Product. Each Product is deemed accepted upon delivery.

5. PRICE. Purchaser shall pay to Nodexus the price set forth in the applicable Quote. Purchaser shall be responsible for all delivery and handling charges. These charges will be added to Purchaser’s Invoice.

6. TAX. Nodexus’ prices do not include federal, state, municipal excise, value-added, goods and services, sales, use, or other government taxes, tariffs, customs, duties, or fees (“Taxes”). Purchaser is responsible for paying these Taxes. Nodexus may increase Purchaser’s final price to include any Tax that Nodexus pays or is required to pay or collect. If Purchaser seeks to exempt the sale of any Product from any Taxes, Purchaser must obtain all required certifications and provide a copy thereof to Nodexus upon Nodexus’ request.

7. PAYMENT.
            7.1 Unless otherwise set forth in the Quote, payment terms are net thirty (30) days from the date of the Invoice and in U.S. Dollars. Purchaser will only be charged for Products shipped or Software delivered. Products placed on back order will be charged when shipped. Any claim or counterclaim or set-off by Purchaser shall not permit Purchaser to withhold payment unless otherwise agreed in writing by Nodexus. If Purchaser is late in making any payment, Nodexus may, without affecting any other rights or remedies, suspend production, shipment or deliveries, cancel orders, reject future orders, or charge a late payment fee, from the due date until paid, at the rate of one and a half percent (1.5%) per month (eighteen percent (18%) per year) or such lesser amount as is the maximum rate of interest allowed by law, accruing daily, and capitalizing monthly. Purchaser shall pay any and all reasonable costs, including attorneys’ fees and court costs, incurred by Nodexus in collecting any delinquent balance. 
            7.2 Purchaser hereby grants to Nodexus a purchase money security interest in any Product or Software to secure the purchase or license price of such Product or Software until the purchase or license price is paid in full. Purchaser shall execute and deliver any documents requested by Nodexus to perfect and maintain such security interest.

8. OUT-OF-BOX FAILURE.
            8.1 All Product sales are final. Purchaser may request to return any Product (but not Software) that is damaged or defective upon delivery, but Purchaser must contact Nodexus’ Customer Service within ten (10) business days after the day that Purchaser received the applicable Product to request a return authorization (“Return Authorization”). Nodexus will not accept returns, without a Return Authorization. Each applicable Product must be returned to Nodexus within thirty (30) calendar days of receiving a Return Authorization and must be in its original container with the original labels. Such returned Product shall be shipped DDP Nodexus’ specified location (Incoterms 2020). Upon receipt of any Product that has a Return Authorization, Nodexus will, at its option, repair or replace the Product, subject to Section 9 (Decontamination).
            8.2 Notwithstanding the foregoing in this Section 8, (a) claims for loss or damage of Products which Nodexus determines occurred in transit must be made to the carrier and not to Nodexus, although Nodexus will, at Purchaser’s expense, assist Purchaser with seeking insurance coverage or the like from the applicable carrier or insurer of Purchaser; and (b) damage or defects of Products ordered through a distributor or reseller of Nodexus must be handled with such distributor or reseller.

9. DECONTAMINATION. Prior to Nodexus’ receipt or performance of any service on any Product, Purchaser shall follow any decontamination instructions provided by Nodexus and sign any clearance certification provided by Nodexus that the Product has been appropriately decontaminated and cleaned and is safe for handling by Nodexus personnel. Nodexus is not required to repair or replace any Product if Purchaser has not returned a signed clearance certification.

10. PRIVACY OF CUSTOMER DATA. Nodexus maintains the privacy of its customers’ information in compliance with relevant law.

11. EXPORT CONTROLS AND RELATED REGULATIONS. Products and data that Purchaser receives from Nodexus are subject to United States export control laws and regulations. Purchaser may not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any such Product or data (including products derived from or based on Products or data received from Nodexus) to any destination, entity, or person prohibited by United States laws or regulations. Purchaser represents and warrants that Purchaser is not designated on, or associated with any party designated on, any of the United States government restricted parties lists, including the United States Commerce Department Bureau of Industry and Security (“BIS”) Denied Persons List, Entity List or Unverified List; the United States Treasury Department Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons List; or the United States State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List. Purchaser shall comply with all applicable United States economic sanctions and export control laws and regulations, including the regulations administered by OFAC, the Export Administration Regulations administered by BIS and the International Traffic in Arms Regulations administered by DDTC. Nodexus may terminate the Purchase Documents and discontinue any ongoing supply to or business with Purchaser immediately, without notice, and without liability, upon Nodexus becoming aware that Purchaser, or any party associated with Purchaser, is named on any restricted party list.

12. LIMITED WARRANTY.
            12.1 Unless a different written warranty is included with applicable Documentation, Nodexus warrants to the original Purchaser as follows with respect to each type of Product:
                      12.1.1 Instrument Warranty. Nodexus warrants to Purchaser that any Product that is an instrument (“Instrument”) will be free from defects in materials and workmanship that materially affect its operation or performance as set forth in its Documentation for twelve (12) months after its date of shipment, unless the applicable Instrument includes Nodexus provided installation, in which case the warranty period begins on the date of installation or thirty (30) days after the date the Instrument was delivered, whichever occurs first.
                      12.1.2 Consumable Warranty. Nodexus warrants to Purchaser that any Product that is a reagent, cartridge, or other consumable intended by Nodexus to be consumed through use of an Instrument (“Consumable”) will conform to the specification set out in the applicable Documentation until the later of (a) three (3) months from the date of shipment from Nodexus or (b) any expiration date or the end of the shelf-life pre-printed on such Consumable by Nodexus, but in either event, no later than twelve (12) months after its date of shipment.
                      12.1.3 Component Warranty. Nodexus warrants to Purchaser that any Product that is an Instrument component (“Component”) will be free of defects in materials and workmanship that materially affect its operation or performance as set forth in its Documentation for ninety (90) days after its date of shipment, unless the Component includes Nodexus provided installation, in which case the warranty period begins on the date of installation or thirty (30) days after the date the Component was delivered, whichever occurs first.
            12.2 The warranties in Section 12.1 will not apply to any Product in the following cases: (a) Nodexus determines that a nonconformance is caused by accident, intentional damage to, abuse or misuse of the Product, improper storage, use of the Product outside of the permitted uses or specifications set forth in the Purchase Documents or the Documentation, use of the Product with any Third Party product or software without Nodexus’ pre-authorization, negligence, misapplication, fire, earthquake, flood, other force majeure event, failure of electrical power, the use of unauthorized parts or reagents, repair, service, modification, or disassembly of the Product without Nodexus’ pre-authorization or not in accordance with Nodexus’ instructions, except as permitted by law; (b) Nodexus determines that a nonconformance is caused during or as a result of shipment or relocation; (c) Nodexus’ serial number has been removed or defaced from the Product; (d) a nonconformance arises from or is based on Nodexus’ compliance with Purchaser’s specifications; (e) cosmetic damage to the outside of a Product, including ordinary wear and tear, cracks, or scratches; (f) maintenance of the Product in a manner that is contrary to specific written instructions provided by Nodexus to Purchaser; (g) usage of any test units, experimental products, prototypes, or units from risk lots (each of which s provided “AS IS”); (h) any damage to a Third Party device alleged to or actually caused by or as a result of use of a Product with such device; (i) any Product that Purchaser has resold or otherwise transferred to a Third Party.
            12.3 Purchaser must notify Nodexus of any claim for breach of warranty during the applicable warranty period. If Nodexus determines that the Product is covered by the warranty, Nodexus’ sole and exclusive liability to Purchaser and Purchaser’s sole and exclusive remedy for warranty claims hereunder will be, at Nodexus’ own expense and option, repair or replacement of the non-conforming Product. Nodexus may, at its option, attempt to repair the product through virtual support or in-person field support, or may instruct Purchaser to ship the Product to Nodexus for repair pursuant to a Return Authorization, subject to Section 9 (Decontamination), with such Product shipped DDP Nodexus’ specified location (Incoterms 2020). Nodexus may, in its discretion, provide Purchaser a temporary replacement for a Product shipped to Nodexus for repair. The warranty period for the repaired or replaced Product will not exceed the warranty period for the defective Product. Nodexus is not obligated to repair or replace any Product not covered under a warranty. For any such service request, Nodexus may charge additional fees.
            12.4 Notwithstanding Section 12.1, none of the warranties (a) set forth in Section 12.1 will apply in respect of any Software and (b) are transferable to any affiliate of Purchaser or any Third Party. Any warranty in respect of Software shall be solely as set forth in the EULA. 
            12.5 THE WARRANTIES IN SECTION 12.1 ARE EXCLUSIVE, AND NODEXUS MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF SUITABILITY, OF NON-INFRINGEMENT, OF RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT, OF CONDITION, OF DESIGN OR OPERATION OF THE PRODUCT, OF THE QUALITY OR CAPACITY OF THE MATERIALS IN THE PRODUCT OR OF THE WORKMANSHIP IN THE PRODUCT, WHETHER ARISING FROM A STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. Any descriptions of the Products or Software and any samples, Product inserts, online Product or Software descriptions and published catalogs, or similar material used in connection with the sale of Products or Software are for the sole purpose of identifying the Products and are not to be construed as an express warranty that the Products will conform to such description. Any technical assistance provided by Nodexus is advisory only.

13. SUPPORT SERVICES. Nodexus may, in its discretion, offer Purchaser support services with respect to any Product or Software, including preventive maintenance, training, application development, or ancillary projects (“Support Services”), pursuant to a written agreement, for which Nodexus may charge additional fees. 

14. THIRD PARTY RESELLERS. The warranties in Section 12.1 and any Support Services will not apply to any Product or Software that Purchaser acquires from a Third Party. Nodexus may, in its discretion, extend warranty coverage or Support Services to such Product or Software pursuant to a written agreement with Purchaser, for which Nodexus may charge additional fees.

15. LIMITATION OF LIABILITY.
            15.1 TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL NODEXUS BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, MULTIPLE OR OTHER INDIRECT DAMAGES OR LOST PROFITS OR REVENUE ARISING OUT OF ANY PURCHASE DOCUMENT, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT NODEXUS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
            15.2 TO THE EXTENT PERMITTED BY LAW, NODEXUS’ AGGREGATE LIABILITY TO PURCHASER FOR ANY LAWSUIT, CLAIM, WARRANTY OR INDEMNITY SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY PURCHASER FOR THE SPECIFIC PRODUCT WHICH GAVE RISE TO THE CLAIM.
            15.3 The limitations set forth in Sections 15.1 and 15.2 shall apply even in the event of the failure of an exclusive remedy.

16. INDEMNIFICATION.
            16.1 Indemnification by Nodexus. Except to the extent arising from Purchaser’s negligence, unlawful or willful misconduct, Purchaser’s failure to obtain any necessary approval, permission, or license, or Purchaser’s use of any Product beyond the requirements, or specifications of any Purchase Document, or the applicable Documentation, Nodexus will defend, indemnify and hold harmless Purchaser and Purchaser’s directors, officers, employees, and agents from and against all Third Party claims, losses, liabilities (including negligence, tort, breaches of statutory duties, and strict liability), damages, judgments, suits and all legal proceedings, and any and all costs and expenses in connection therewith (including reasonable attorneys’ fees) awarded to a Third Party by a court or in a settlement in connection with the above (collectively, “Claims”) arising out of any alleged infringement or misappropriation by the Product, as delivered, of the intellectual property rights of any Third Party, except to the extent that such infringement, or misappropriation arises from (a) Purchaser’s modification of such Product or combination with other technology, (b) use of the Product for any use prohibited by these Terms, (c) use of the Product in any manner not in accordance with its Documentation, including beyond the specific intended use set forth in the Documentation, if any, (d) use of the Product in combination with any Third Party products, materials or services (unless the Product’s Documentation expressly states that such Third Party product, material or service is for use with the Product), (e) Nodexus’ compliance with specifications or instructions for such Product furnished by, or on behalf of, Purchaser, (f) Purchaser’s breach of these Terms, or (g) use of such Product after Purchaser has received notice of such infringement or misappropriation and Nodexus has offered a replacement, modification, or credit therefor (each of (a) through (g), an “Excluded Claim”). If any Product is the subject of a Claim under this Section 16.1 or is likely to be the subject of such a Claim in Nodexus’ reasonable opinion, Nodexus has the option, but not the obligation, to either procure for Purchaser the right to continue using such Product, replace or modify such Product with a non-infringing Product or require the return or disposal of such Product and refund Purchaser with a credit for such Product as depreciated. THE ABOVE INDEMNITY SETS FORTH PURCHASER’S SOLE AND EXCLUSIVE REMEDIES FOR CLAIMS.
            16.2 Indemnification by Purchaser. Except to the extent arising from Nodexus’ negligence, unlawful, or willful misconduct, Purchaser agrees to defend, indemnify, and hold harmless Nodexus and Nodexus’ directors, officers, employees, and agents against all Third Party Claims, related to (a) any Excluded Claim, (b) any negligent, or willful act of Purchaser, or that of its employee or agent, (c) any Product being repaired or altered by persons other than Nodexus (unless expressly authorized in writing by Nodexus), (d) Purchaser’s use of any Product in breach of any applicable law, including any export control law, or (e) injury or death to any person or property damage caused by Purchaser’s use of any Product. At Nodexus’ option, Nodexus will be entitled to retain separate counsel and all reasonable expenses and costs of such counsel shall be paid by Purchaser.
            16.3 Indemnification Procedures. As a condition to the indemnification obligations of a party under this Section 16, the indemnified party shall (a) promptly notify the indemnifying party of any Claim (except that failure to so notify shall not excuse the indemnifying party’s obligations except to the extent that the indemnifying party is prejudiced by such delay), (b) tender sole control of the defense of any claim to the indemnifying party, (c) not settle or compromise any Claim without the consent of the indemnifying party and (d) cooperate in the defense of any Claim at the indemnifying party’s expense.

17. INTELLECTUAL PROPERTY.
            17.1 Except as expressly set forth in the Purchase Documents, no right or license under any of the intellectual property rights of Nodexus or Nodexus’ affiliates is granted expressly, by implication, estoppel, or otherwise.
            17.2 Purchaser hereby grants to Nodexus a non-exclusive, fully paid-up, royalty-free, worldwide, irrevocable, perpetual right, and license, with the right to sublicense, to use and commercialize in any manner any suggestion, idea, comment, or other feedback provided by Purchaser to Nodexus related to any Product or Software.

18. FORCE MAJEURE. Nodexus shall not be liable for any failure to perform or delay in performance under the Purchase Documents when such failure is due to circumstances beyond its control. Circumstances beyond the control of Nodexus include acts of God, governmental action, weather events, fire, earthquakes, disease, epidemic, pandemic, accidents, labor trouble, utility failure, Internet failure, and inability to obtain materials, equipment, or transportation. In the event of delay due to any such cause, time for delivery shall be extended to compensate for any delay resulting from such delay and Purchaser shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay.

19. MISCELLANEOUS.
            19.1 Waiver. Either party’s failure at any time to require strict performance by the other party of any of the provisions hereof shall not waive or diminish such party’s right thereafter to demand strict compliance therewith or with any other provision. Any waiver must be in writing signed by the granting party, and shall be limited to the enumerated defaults.
            19.2 Governing Law; Disputes. The Purchase Documents shall be governed by and interpreted in accordance with the laws of the State of California, U.S.A., without regard to its conflict of laws principles. Any dispute, claim or controversy in connection with a Purchase Document, including any questions regarding its formation, existence, validity, enforceability, performance, interpretation, breach, or termination, shall be resolved in the state or federal courts located in Santa Clara County, California, U.S.A. The parties agree to submit to the exclusive jurisdiction of the courts located in Santa Clara County, California, U.S.A. The United Nations Convention on Contracts for the International Sale of Goods will not apply to any purchase or sale hereunder.
            19.3 Notice. Any consent, approval, demand, or other notice required or permitted to be given hereunder shall be given to the applicable party in writing to the address or email address set forth in the applicable Quote or Invoice (if to Nodexus) or Purchase Order (if to Purchaser).
            19.4 Good Standing and Lawful Execution. Each party represents and warrants to the other party that: (a) it is duly organized and validly existing in good standing under the laws of the jurisdiction of its registration, as applicable, and has full power and authority to enter into and perform its obligations under the Purchase Documents; (b) its execution, delivery, and performance of the Purchase Documents have been duly authorized by all necessary corporate action, and are not inconsistent with its organizational documents; (c) its execution, delivery, and performance of the Purchase Documents do not violate any law, do not and will not contravene any provision, or constitute a default under, any indenture, mortgage, contract or other instrument to which it is bound, and, upon execution and delivery thereof, will constitute a legal, valid, and binding agreement, enforceable in accordance with its terms; and (d) no action, including any permit or consent, in respect of or by any state, federal, or other governmental authority or agency is required for it to execute, deliver, and perform under the Purchase Documents.
            19.5 Entire Agreement; Amendment. The Purchase Documents constitute the entire agreement between the parties with respect to a Product sale, and supersede all previous communications, whether oral or written. The Purchase Documents may not be supplemented or construed by any evidence of custom or course of dealing. The Purchase Documents may only be amended upon mutual agreement of the parties in writing, and shall bind and inure to the benefit of the parties, their permitted successors and assigns. Nodexus may update these Terms from time to time, but any update to these Terms shall only be effective as to any Quote issued after the effective date of such updated Terms.
            19.6 Counterparts. Each of the Purchase Documents may be executed in counterparts, each of which shall be deemed an original, and all together shall constitute a single instrument. Signatures provided by electronic transmission, or facsimile, or digital signatures, shall have the same force and effect as original signatures and shall be binding upon the parties.
            19.7 No Agency. Purchaser and Nodexus are independent parties, and no agency, partnership, joint venture, or employee-employer relationship is created by the Purchase Documents.
            19.8 Severability. In the event that any provision of these Terms is held to be illegal, invalid or unenforceable under any present or future law, rule, or regulation, such provision will be deemed stricken from these Terms but such illegality, invalidity, or unenforceability will not invalidate any of the other provisions of these Terms.
            19.9 Assignment. Purchaser may not assign, including by operation of law, its obligations hereunder without Nodexus’ written consent.
            19.10 Headings; Interpretation. Headings in these Terms are for convenience only and shall not define or limit any of the provisions of these Terms. The words “including,” “include,” “includes,” “such as” and “e.g.” shall be deemed to be followed by the phrase “without limitation” or like expression, whether or not followed by the same. The word “or” shall be interpreted in the inclusive sense (i.e., and/or).

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Nodexus End User License Agreement

1. INTRODUCTION. This End User License Agreement (this “EULA”) is a binding agreement between you (“you”, “your”, or “End User”) and Nodexus Inc. (“Nodexus”, “we”, “us”, or “our”) in connection with your use of any software program or firmware included in any Nodexus product or otherwise made available by Nodexus for use with any product (such software collectively, the “Software” and the applicable product with respect to which any particular Software will be used, the “Product”), pursuant to any separate agreement or purchase order (“Purchase Agreement”) you or the entity you represent may have agreed to with us or any agent, representative, distributor, or reseller of ours (“Reseller”). You agree and acknowledge that your use of any Software and ownership and use of any Product that includes Software, and the Software or Product user documentation we provide from time to time (“Documentation”) is subject to this EULA. By placing an order or paying for the Software or any Product that contains Software, you shall be deemed to have accepted and agreed to this EULA. Any conflicting terms on any Purchase Agreement, purchase order, or other document are hereby rejected, unless expressly agreed in a writing executed by Nodexus on a case-by-case basis. If you do not agree to the terms of this EULA, do not use the Product or access, install or use the Software, and return it immediately, in unused original condition, to the entity from which you purchased the Product or Software, whether Nodexus or our Reseller. If you are accepting the terms of this EULA on behalf of a legal entity, you represent and warrant that you have the authority to bind that legal entity to the terms of this EULA, and, in such event, “you,” “your”, and “End User” will refer to that legal entity. If you do not have such authority, you must not accept this EULA, in which case you may not use the Product or access, install, or use the Software.
IF YOU DO NOT OR CANNOT AGREE TO THE TERMS CONTAINED IN THIS EULA, THEN DO NOT DOWNLOAD, INSTALL, ACCESS, OR USE ANY SOFTWARE (OR, AS APPLICABLE, ANY PRODUCT IN WHICH ANY SOFTWARE IS EMBEDDED).

2. SOFTWARE LICENSE. You agree that your access to and use of any Software, including (a) the Product application program interfaces; (b) any controller applications; and (c) any operating software in the Product, is subject to the following terms:
            2.1. License Grant.
                      2.1.1. Integrated Software. Subject to the terms of this EULA and the Purchase Agreement, we grant you a worldwide, limited, non-exclusive, non-transferable (except as permitted below), non-sublicensable license to access and use Software included in a Product (“Integrated Software”) solely on the unit of Product on which we provide such Integrated Software.
                      2.1.2. Standalone Software. Subject to the terms of this EULA and the Purchase Agreement, we grant you a worldwide, limited, non-exclusive, non-transferable (except as permitted below), non-sublicensable license to install, access, and use Software intended for installation on a user’s computer (“Standalone Software”) in object code form on one (1) computer, or such other number of computers as is set forth in the Purchase Agreement.
                      2.1.3. SAAS. Subject to the terms of this EULA and the Purchase Agreement, we grant you the right to access and use Software that we make available on a software as a service basis (“SAAS Software”) in object code form, solely in the form made available by us, and for up to one (1) user, or such other number of users as is set forth in the Purchase Agreement, solely for use in connection with the Products.
                      2.1.4. Documentation. Subject to the terms of this EULA and the Purchase Agreement, we grant you the right to make a reasonable number of copies of Documentation that we make available to you solely for your internal use in connection with the Products or Software.
                      2.1.5. Updates. In the event that we make any update or upgrade to any Integrated Software, Standalone Software, SAAS Software or Documentation, such update or upgrade shall be licensed to you pursuant to the terms for the Integrated Software, Standalone Software, SAAS Software, or Documentation that is being updated or upgraded by such update or upgrade.
            2.2. Prohibited Uses. You shall not use any Product or Software for any of the following uses (“Prohibited Uses”):
                      2.2.1. intentional damage to or abuse or misuse of the Product or operation of any Product or Software outside of the intended uses or specifications set forth in the applicable Documentation;
                      2.2.2. use or attempted use of any Product or Software for any illegal or unlawful purpose;
                      2.2.3. alteration, opening, breaking, or disassembly of any Product;
                      2.2.4. abuse, misuse, damage, or neglect of any Product; or
                      2.2.5. modification, customization, service, or repair of any Product or Software without our written pre-authorization, or not in accordance with our instructions, except as permitted by law.
            2.3. Proprietary Rights. The Software and Documentation is proprietary to us and our licensors, and protected by copyright and other intellectual property laws. You may use the Software only as specified in the Documentation. You shall not remove any copyright, proprietary rights or confidentiality notices included with any Software or Documentation. Further, you shall not, directly or indirectly: (a) rent, lease, license, sell, sub-license, assign, or transfer any Software; (b) reverse engineer, disassemble, or otherwise perform any compositional, structural, functional, or other analyses directed to learning the methodology, components, formulae, processes, make-up, or production of any Product or any portion thereof or any Software or any portion thereof; (c) publicly disclose or distribute any Software or Documentation or take any action that would place any Software or Documentation in the public domain; (d) modify or prepare any derivative works of any Software; (e) make copies of any Software; (f) remove, alter, or deface (or attempt any of the foregoing) proprietary notices, labels, or marks in any Software; (g) distribute any copy of any Software to any Third Party or use any Software for the benefit of any Third Party, including by selling any Product in a secondhand market or using any Product for the benefit of any Third Party, except that you may sell any Product in a secondhand market if you have removed the Software from such Product; or (h) circumvent or disable any copy protection mechanism of any Software or any disabling code included in any Software. We reserve all rights not expressly granted herein, and we do not grant any licenses or rights other than those expressly set forth herein, whether by implication, estoppel, or otherwise.
            2.4. Legal Exception. You agree that, to the extent that any applicable law (including national laws implementing 2009/24/EC on the Legal Protection of Computer Programs) grants you the right to reverse engineer any Software to make it interoperable without our consent, before you exercise any such rights, you shall notify us of such desire and, no later than sixty (60) days following receipt of such request, we may decide either to: (a) perform the work to achieve such interoperability and charge our then-standard rates for such work to you; or (b) permit you to reverse engineer parts of such Software only to the extent necessary to achieve such interoperability. Only if and after we, at our sole discretion, partly or completely deny your request, shall you exercise your statutory rights.
            2.5. Account Portal. If you create an account with us in connection with the use of any Product or Software, you are responsible for maintaining the confidentiality of such account and password, for restricting access to the account, and for all activities that occur under such account.
            2.6. Confidentiality. Any information regarding any Software, including performance, characteristics, object code, source code, application programming interfaces, input data format, output data format, menu formats, or other information, as well as any information in our Documentation, other than in each case such information as we choose to make generally available to the public, is our confidential information (“Confidential Information”). You shall not use any Confidential Information except to make use of the Products or Software. Without limiting the foregoing, you shall not use any Confidential Information for the purpose of conceiving, reducing to practice, authoring, creating, developing, or otherwise generating any product, software or service that competes with any Product or Software, or that interfaces with any Product or Software, except to the extent that we expressly permit interfacing in the applicable Documentation. You shall not disclose any Confidential Information, except to such of the employees or contractors of your organization as need to know such information in connection with your use of the Products or Software. You shall use all reasonable measures to protect the security and confidentiality of all Confidential Information, including at least such measures as you use for your information of a similar nature. In the event that this EULA terminates or that you cease to use Products or Software, you shall promptly destroy all Confidential Information.

3. LIMITED WARRANTIES.
            3.1. Product and Integrated Software. Any warranty in respect of the Product is set forth in the Purchase Agreement. Nothing in this EULA conveys any warranties for the Product or any Integrated Software.
            3.2. Standalone Software, SAAS Software. We warrant that, for a period of six (6) months from the date of delivery of the Standalone Software to you or first provision of the SAAS Software to you, the Standalone Software and SAAS Software will perform in all material respects in accordance with the accompanying Documentation, and the media on which the Standalone Software resides (if provided to you by us) will be free from defects in materials and workmanship that materially affects its operation or performance under normal use.
            3.3. Sole Remedy. OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THE LIMITED WARRANTY PROVISION OF SECTION 3.2 SHALL BE, AT OUR OPTION, EITHER (A) RETURN OF THE PRICE PAID FOR THE SOFTWARE OR (B) REPAIR OR REPLACEMENT OF THE PORTIONS OF THE SOFTWARE THAT DO NOT COMPLY WITH OUR LIMITED WARRANTY. THIS LIMITED WARRANTY IS VOID AND WE SHALL HAVE NO LIABILITY AT ALL IF FAILURE OF THE SOFTWARE TO COMPLY WITH OUR LIMITED WARRANTY HAS RESULTED FROM: (W) FAILURE TO USE THE SOFTWARE IN ACCORDANCE WITH OUR THEN-CURRENT DOCUMENTATION OR THIS EULA; (X) ACCIDENT, ABUSE, OR MISAPPLICATION; (Y) PRODUCTS NOT SPECIFIED BY US AS BEING COMPATIBLE WITH THE SOFTWARE; OR (Z) ANY INTERACTIONS OR OTHER EFFECTS RELATING TO OR ARISING OUT OF THE INSTALLATION OF COPIES OF THE SOFTWARE BEYOND THE NUMBER OF COPIES AUTHORIZED BY NODEXUS. THIS LIMITED WARRANTY SHALL ALSO BE VOID AND WE SHALL HAVE NO LIABILITY IF YOU HAVE NOT NOTIFIED US IN WRITING OF THE DEFECT WITHIN THE ABOVE WARRANTY PERIOD.
            3.4. Disclaimer. EXCEPT AS SET FORTH IN SECTION 3.2 OR THE APPLICABLE PURCHASE AGREEMENT, WE AND OUR RESELLERS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES AS TO THE CONDITION, MERCHANTABILITY, NON-INFRINGEMENT, DESIGN, OR OPERATION OF THE PRODUCT AND SOFTWARE, ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OR CAPACITY OF THE MATERIALS IN THE PRODUCT OR WORKMANSHIP IN THE PRODUCT. WE DO NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. WE ARE NOT RESPONSIBLE FOR ANY WARRANTIES MADE BY ANY RESELLER.
            3.5. Support Services; Extended Warranties. We or our Reseller may make available support services or extended warranty coverage for purchase by you pursuant to a separate written agreement. The terms of any such support services or extended warranty coverage are solely as set forth in such agreement.

4. INDEMNIFICATION.
            4.1. Our Indemnity. Except to the extent arising from your negligence, unlawful or willful misconduct, your failure to obtain any necessary approval, permission or license or your use of any Software beyond the requirements or specifications of any Purchase Document or the applicable Documentation, we will defend, indemnify, and hold harmless you and your directors, officers, employees, and agents from and against all Third Party claims, losses, liabilities (including negligence, tort, breaches of statutory duties, and strict liability), damages, judgments, suits, and all legal proceedings, and any and all costs and expenses in connection therewith (including reasonable attorneys’ fees) awarded to a Third Party by a court or in a settlement in connection with the above (collectively, “Claims”) arising out of any alleged infringement or misappropriation by the Software, as delivered, of the U.S. patent rights or any trade secrets or copyrights of any Third Party, except to the extent that such infringement or misappropriation arises from, for such Software, your modification, combination with other technology, use to practice any process or method, or use after you have received notice of such infringement or misappropriation, and we have offered a replacement, modification, or credit therefor. “Third Party” means persons or entities other than you, us, or any of your or our affiliates. If any Software is the subject of a Claim under this Section 4.1 or is likely to be the subject of such a Claim in our reasonable opinion, we have the option, but not the obligation, to either procure for you the right to continue using such Software, replace or modify such Software with non-infringing Software, or require the return or disposal of such Software and refund you (or your Reseller) with a credit for such Software as depreciated. THE ABOVE INDEMNITY SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDIES FOR CLAIMS.
            4.2. Your Indemnity. Except to the extent arising from Nodexus’ negligence, unlawful, or willful misconduct, you shall defend, indemnify, and hold harmless us and our directors, officers, employees, and agents against all Third Party Claims, related to any alleged (a) injury or death to any person or property damage caused by your use of the Software, including any Prohibited Use; (b) use of the Software in breach of any applicable law or regulation; or (c) actual or alleged infringement or misappropriation of the intellectual property rights of any Third Party arising from your modification of the Software or combination with other technology.
            4.3. Indemnification Procedures. As a condition to the indemnification obligations of a party under this Section 4, the indemnified party shall (a) promptly notify the indemnifying party of any Claim (except that failure to so notify shall not excuse the indemnifying party’s obligations except to the extent that the indemnifying party is prejudiced by such delay), (b) tender sole control of the defense of any claim to the indemnifying party, (c) not settle or compromise any Claim without the consent of the indemnifying party and (d) cooperate in the defense of any Claim at the indemnifying party’s expense.

5. LIMITATION OF LIABILITY.
            5.1. SUBJECT TO SECTION 5.3, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, MULTIPLE, PUNITIVE, OR OTHER INDIRECT DAMAGES ARISING OUT OF THE DOCUMENTATION OR THE SOFTWARE.
            5.2. SUBJECT TO SECTION 5.3, OUR TOTAL LIABILITY TO YOU FOR ANY AND ALL LAWSUITS AND CLAIMS ARISING IN CONNECTION WITH THIS EULA, CUMULATIVELY, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU OR THE RESELLER TO US FOR THE SPECIFIC UNIT(S) OF (A) PRODUCT, IF SUCH LAWSUIT OR CLAIM IS ARISES IN CONNECTION WITH INTEGRATED SOFTWARE OR (B) STANDALONE SOFTWARE OR SAAS SOFTWARE, IF SUCH LAWSUIT OR CLAIM IS ARISES IN CONNECTION WITH STANDALONE SOFTWARE OR SAAS SOFTWARE, IN EACH CASE ((A) AND (B)) WHICH GAVE RISE TO SUCH LAWSUIT OR CLAIM.
            5.3. The limitations and exculpations of liability set forth in Sections 5.1 and 5.2 shall not apply to the indemnification obligations set forth in Section 4 or to any breach of Sections 2.2, 2.3, 2.6 or 7 or any use outside of the scope of the licenses and rights granted in Section 2.1, but shall otherwise apply to the maximum extent permitted by law. The limitations set forth in this Section 5 shall apply even in the event of the failure of an exclusive remedy.

6. LOG DATA. You acknowledge that the Product may capture performance data that we may use to, e.g., address any warranty or support issues, or to improve the performance of the Software or our other products or services, data regarding usage of consumables such as cartridges that we may use to, e.g., understand failure rate, manufacturing yield, mode of operation, or usage frequency, or data in connection with remote access expressly granted to us by you for support purposes.

7. EXPORT CONTROLS AND RELATED REGULATIONS.Software and data that you receive from Nodexus are subject to United States export control laws and regulations. You may not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any such Software or data (including products derived from or based on Software or data received from Nodexus) to any destination, entity, or person prohibited by United States laws or regulations. You represent and warrant that you are not designated on, or associated with any party designated on, any of the United States government restricted parties lists, including the United States Commerce Department Bureau of Industry and Security (“BIS”) Denied Persons List, Entity List or Unverified List; the United States Treasury Department Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons List; or the United States State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List. You shall comply with all applicable United States economic sanctions and export control laws and regulations, including the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC. Nodexus may terminate this EULA and discontinue any ongoing supply to or business with you immediately, without notice and without liability, upon Nodexus becoming aware that you, or any party associated with you, is named on any restricted party list.

8. RESEARCH USE ONLY. The Software is for research use only and not for human or animal therapeutic or diagnostic use. You shall not use any Software for human or animal therapeutic or diagnostic use unless expressly permitted in a signed writing by Nodexus. The Software has not been submitted for regulatory review or validated for clinical, therapeutic, or diagnostic use, safety and effectiveness or any other specific use or application unless expressly stated in writing by Nodexus or labelled as such. You are solely responsible for complying with all applicable laws, regulations, and governmental policies when using any Software. You are solely responsible for obtaining all necessary approvals, permissions, or licenses from any Third Party as may be required for any use of the Software by you. It is solely your responsibility to make sure the Software is suitable for your intended use.

9. OTHER SERVICES. You are solely responsible for procuring any hardware, Internet, or other services required to use any Software.

10. BREACH; TERMINATION. If you breach any provision of this EULA, this EULA (including all of your rights and licenses with respect to the Software and Documentation) shall immediately terminate without further notice from or action by Nodexus. Upon termination or expiration of this EULA, you agree to cease all use of the Software and Documentation and to delete all copies thereof in your possession or control, and we may disable some or all Product functionality. The provisions of Sections 2.2 (Prohibited Uses), 2.3 (Proprietary Rights), 3.3 (Sole Remedy), 3.4 (Disclaimer), 4 (Indemnification), and 5 (Limitation of Liability), 8 (Research Use Only), this Section 10 (Breach; Termination), and Section 11 (Miscellaneous) shall survive any termination or expiration of this EULA pursuant to the terms of such sections.

11. MISCELLANEOUS.
            11.1. Waiver. Either party’s failure at any time to require strict performance by the other party of any of the provisions hereof shall not waive or diminish such party’s right thereafter to demand strict compliance therewith or with any other provision. Any waiver must be in writing signed by the granting party, and shall be limited to the enumerated defaults.
            11.2. Governing Law; Disputes. This EULA shall be governed by and interpreted in accordance with the laws of the State of California, U.S.A., without regard to its conflict of laws principles. Any dispute, claim, or controversy in connection with this EULA, including any questions regarding its formation, existence, validity, enforceability, performance, interpretation, breach, or termination, shall be resolved in the state or federal courts located in Santa Clara County, California, U.S.A. The parties agree to submit to the exclusive jurisdiction of the courts located in Santa Clara County, California, U.S.A. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this EULA.
            11.3. Notice. Any consent, approval, demand, or other notice required or permitted to be given hereunder shall be given to the applicable party in writing to the address or email address set forth in the applicable Purchase Agreement (if directly between the parties) or such other address provided by each party from time to time.
            11.4. Entire Agreement; Amendment. This EULA constitutes the entire agreement between You and Nodexus with respect to the Software and supersedes all previous communications, whether oral or written, excluding the Purchase Agreement. This EULA may not be supplemented or construed by any evidence of custom or course of dealing. This EULA may only be amended upon mutual agreement of the parties in writing, and shall bind and inure to the benefit of the parties, their permitted successors and assigns. Nodexus may update this EULA from time to time, but any update to this EULA shall only be effective as to any quote for the purchase of a Product or license to Software issued after the effective date of such updated EULA.
            11.5. Counterparts. The EULA may be executed in counterparts, each of which shall be deemed an original, and all together shall constitute a single instrument. Signatures provided by electronic transmission or facsimile, or digital signatures, shall have the same force and effect as original signatures and shall be binding upon the parties.
            11.6. No Agency. You and we are independent parties, and no agency, partnership, joint venture, or employee-employer relationship is created by the EULA.
            11.7. Severability. In the event that any provision of this EULA is held to be illegal, invalid, or unenforceable under any present or future law, rule, or regulation, such provision will be deemed stricken from this EULA but such illegality, invalidity or unenforceability will not invalidate any of the other provisions of this EULA.
            11.8. Headings; Interpretation. Headings in this EULA are for convenience only and shall not define or limit any of the provisions of this EULA. The words “including,” “include,” “includes,” “such as,” and “e.g.” shall be deemed to be followed by the phrase “without limitation” or like expression, whether or not followed by the same. The word “or” shall be interpreted in the inclusive sense (i.e., and/or).
            11.9. Delay. We shall not be liable for any loss or damage resulting from any delay in delivery by a Reseller or Reseller’s failure to give notice of delay.

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