RedShiftBio BioAnalytics, Inc. Terms and Conditions of Purchase and Sale

1. General. These Terms and Conditions of Purchase and Sale (the “Terms”) apply to the purchase by buyer (“Customer”) of goods and/or services(“Products”) from RedShift BioAnalytics, Inc. (“RedShiftBio”). These Terms become effective upon Customer’s signing and returning a copy of a quotation prepared by RedShiftBio, by RedShiftBio’s return of Customer’s own form of purchase order, by Customer’s payment of RedShiftBio’s invoice, by Customer’s acceptance of delivery under a Customer purchase order, or by Customer and RedShiftBio entering into a contract explicitly acknowledging and accepting these Terms. Any attached quotation is an offer to sell and provide Products for the period of validity indicated. If no period of validity is indicated, the quotation is not an offer to sell. Acceptance is conditional on Customer’s consent to the Terms set forth herein, which are in lieu of and replace any terms and conditions set forth on Customer’s specifications, purchase order, or other documents. Any additional or conflicting terms or conditions of Customer shall be wholly inapplicable to any sale made under the quotation and shall not be binding on RedShiftBio. To the extent a quotation is in any way deemed to be an acceptance of any other offer by Customer, such acceptance is expressly conditional upon the consent of the Customer to the terms and conditions contained herein. No U.S. government procurement requirements or regulations shall be binding upon RedShiftBio unless specifically agreed to by RedShiftBio in writing. If the terms of the RedShiftBio quotation and these Terms conflict, then these Terms shall have precedence unless the conflicting term in the quotation expressly indicates that it is intended to have precedence.

2. Terms of Payment. (a) Unless otherwise stated in the applicable quotation or invoice, all RedShiftBio instrument (“Instrument”) payments are due and payable by Customer as a percentage of purchase order amount as follows: 50% deposit upon Customer’s purchase order placement; 40% upon Instrument delivery to Customer, and; 10% upon Customer acceptance. For all other goods, including operating supplies and expendables, and services, payments are net 30 days delivery. Unless otherwise stated in RedShiftBio’s quotation or invoice, for all non-Instrument purchases, payments are due and payable thirty (30) days from the date of invoice or shipment, whichever is earlier. All amounts past due shall incur interest at the rate of 1.5% per month, or the highest rate permitted by law, whichever is less. If all of the goods or services covered by the applicable quotation are not delivered or performed at one time, Customer shall pay by the due date for the quantity of goods delivered or services performed by such date. Each shipment shall be considered an independent transaction. (b) All shipments of goods and performance of services covered by a quotation shall be subject to the Customer’s credit approval by RedShiftBio. As a part of this credit approval, RedShiftBio may, at any time, decline to make any shipments or perform any work, and/or impose such other terms or conditions or security arrangements as RedShiftBio, in its sole discretion, deems appropriate. (c) RedShiftBio reserves a security interest in any products sold to the extent of the invoiced amount. Customer hereby grants to RedShiftBio a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. If Customer defaults under any obligation hereunder, it agrees to make the products available so that RedShiftBio may repossess them without a breach of the peace. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement. On request of Terms and Conditions of Purchase and Sale RedShiftBio, Customer will execute a UCC financing statement to perfect its security interest and Customer appoints RedShiftBio as its attorney, in fact, to file a financing statement in appropriate jurisdictions to perfect such security interest.

3. Prices. Prices for Products shall be those shown on the applicable RedShiftBio quotation, provided, however, that if such prices are based on the purchase of a particular quantity of Products (or over a particular period of time) and Customer fails to purchase said quantity of Products, RedShiftBio shall have the right (in addition to any other remedies that RedShiftBio may have) to collect from Customer the difference between the quotation price paid by Customer for the Products purchased (based on the expected order volume) and a price for such Products commensurate with the quantity actually purchased by Customer.

4. Taxes and Customs Duties. Unless otherwise stated on the applicable quotation, the prices stated herein do not include customs duties or any sales, use, excise, value added, franchise or other similar taxes. Customer shall pay in addition to the prices stated, the amount of any present or future customs duties or any such taxes applicable to the sale of goods or performance of services covered by the applicable quotation, or in lieu thereof, Customer shall supply RedShiftBio with an appropriate tax exemption certificate.

5. Delivery Schedule. The delivery dates set forth in a quotation are approximate only, and RedShiftBio shall not be liable for, nor shall RedShiftBio be in breach of its obligations to Customer because of any delivery made within a reasonable time of the stated delivery date. RedShiftBio may, upon 30 days’ prior written notice to Customer, change any delivery date, and such date shall become the agreed upon delivery date unless Customer delivers to RedShiftBio its objection to such date in writing within ten (10) days of receipt of RedShiftBio’s notice.

6. Delivery, Risk of Loss and Title. Unless stated otherwise by RedShiftBio, all shipments will be EXW (Ex Works as defined in Incoterms 2010) RedShiftBio's shipping facility, if destination of delivery is outside the United States and F.O.B. (Free on Board) (as defined in U.C.C. Section 2-319) RedShiftBio's shipping facility, if destination of delivery is within the United States. Title to each shipment of the Products sold hereunder and risk of loss thereon shall pass to Customer when RedShiftBio or its agent tenders such shipment to the carrier, but such shipment shall remain subject to RedShiftBio's rights of stoppage in transit and of reclamation. Notwithstanding the foregoing or anything else to the contrary in these Terms, RedShiftBio shall retain all right, title, and interest in and to, and possession of, any tooling of any kind used in the production or testing of Products furnished hereunder.

7. Force Majeure. RedShiftBio shall not be liable for any failure to deliver, or delay in the delivery of, any Products due to any cause beyond its control, including, but not limited to, acts of God, acts of civil or military authority, natural disasters (including but not limited to earthquakes, floods, and epidemics), riots, wars, sabotage, labor disputes, yield problems, governmental actions, or inability to obtain materials, subassemblies, components, energy, manufacturing facilities, or transportation. In the event of any such delay, the date of delivery or performance hereunder shall be extended by a reasonable period of time. In the event that RedShiftBio’s production is curtailed for any reason, RedShiftBio may allocate
its production among its customers at its discretion on a commercially reasonable basis.

8. Acceptance and Warranty. Any Product sold or provided pursuant to these Terms shall be deemed accepted by Customer upon delivery, subject to the warranty provisions set forth in RedShiftBio’s Product Warranty Terms and Conditions (“the Warranty Terms”), which are incorporated into these Terms by reference. To the extent there is any conflict between these Terms and the Warranty Terms, these terms shall prevail.

Products which are indicated on the quotation as “samples”, “demonstration/evaluation units”, “beta units”, and/or “prototypes” are sold AS IS, WITH ALL FAULTS, and with no express or implied warranty of any kind. Any sample or model used pursuant to these Terms is for illustrative purposes only, is not part of the basis of the bargain, and Customer should not construe the use of such sample or model as a warranty that the Products will conform to the sample or model. No affirmation of fact or promise made by RedShiftBio, whether or not in these Terms, shall constitute a warranty that the Products will conform to the affirmation or the promise. Customer acknowledges that all or part of the Products may be manufactured, assembled or otherwise worked on by RedShiftBio’s or its subcontractors' facilities, domestic and foreign. Customer is solely responsible for determining whether the Product is fit for its intended purpose and suitable for Customer’s method of application. Accordingly, RedShiftBio is not responsible for the results or consequences of use, misuse or application of its Product by Customer or any third party.

THE FOREGOING WARRANTY CONSTITUTES REDSHIFT’S EXCLUSIVE LIABILITY, AND THE EXCLUSIVE REMEDY OF THE CUSTOMER, FOR ANY BREACH OF ANY WARRANTY OR OTHER NONCONFORMITY OF THE PRODUCTS COVERED BY THESE TERMS. THIS WARRANTY IS EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE , OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY SHALL BE AS SET FORTH IN THE WARRANTY TERMS.

9. Breach and Termination. In the event that Customer breaches these Terms as set forth below, RedShiftBio may (in addition to any other rights or remedies provided herein or at law or in equity), by written notice to Customer, terminate its provision of the Products and these Terms or otherwise suspend its performance hereunder, without incurring any liability to Customer. Customer shall pay all costs, including reasonable attorney’s fees, incurred by RedShiftBio in any action brought by RedShiftBio to collect payments owing or otherwise enforce its rights.

Each of the following acts by Customer shall constitute a breach of Customer’s obligations under these Terms: (a) Customer fails to make payment for any Products when due; (b) Customer fails to accept conforming Products supplied hereunder; (c) the filing of a voluntary or involuntary petition in bankruptcy against Customer, the institution of any proceeding in insolvency or bankruptcy (including reorganization) against Customer, or an assignment for the benefit of creditors of Customer; or (c) any other act or omission by Customer in violation of any material provision of these Terms.

Customer may terminate an order in whole or in part upon written notice of such termination to RedShiftBio prior to the date of shipment of goods or delivery of services by RedShiftBio. Customer shall pay cancellation charges for such termination equal to 25% selling price of any order or partial order so terminated.

The following provisions shall survive any termination of these Terms: 8 (Acceptance and Warranty), 10 (Indemnification), 11 (Limitation of Liability), 13 (Dispute Resolution) and 14 (General).

10. Indemnification. (a) Customer will at all times defend, indemnify and hold harmless RedShiftBio and its officers, directors, shareholders, employees, accountants, attorneys, agents, affiliates, successors and assigns from and against any and all damages, injuries (including death), liabilities, costs and expenses, including reasonable legal fees and expenses arising out of or related to third party claims, actions or demands arising out of or related to any (1) breach of any provision in these Terms by Customer, (2) failure by Customer to comply with industry standards, laws, rules or regulations applicable to use of the Products, and (3) improper or negligent use or unauthorized repair of a Product by Customer. Customer
shall not settle compromise or consent to the entry of any judgment with respect to any pending or threatened claim without RedShiftBio’s consent unless the settlement, compromise or consent provides for and includes an express, unconditional release of all claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, against RedShiftBio.

11. Limitation of Liability. (a) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, REDSHIFTBIO SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER OR ANY THIRD PARTIES FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE,EXEMPLARY, OR OTHER DAMAGES WHETHER IN AN ACTION BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF REDSHIFTBIO IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. REDSHIFTBIO SHALL
NOT BE LIABLE FOR COSTS OF REPROCUREMENT BY CUSTOMER. (b) UNDER NO CIRCUMSTANCES SHALL REDSHIFTBIO’S TOTAL LIABILITY ARISING OUR OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO REDSHIFTBIO HEREUNDER FOR THE PRODUCTS ACTUALLY GIVING RISE TO SUCH LIABILITY (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN SUCH ACTION). THIS LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS TO CUSTOMER FOR CLAIMS OR DAMAGES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER.

12. Export Compliance. RedShiftBio requires compliance with US export law Customer represents and warrants that it is and shall remain in compliance with all applicable export laws. The Products may not be resold, exported, re-exported or otherwise transmitted by Customer without approval by the US Department of Commerce, Bureau of Export Administration and in accordance with the US Export Administration Regulations (EAR). Customer agrees to execute upon request of RedShiftBio an “Export Control Acknowledgement” stating that Customer has been advised by RedShiftBio of the export restrictions contained herein. Customer will defend, indemnify, and hold harmless RedShiftBio from and against any violation of applicable laws, rules or regulations by Customer or any of its agents, officers, directors, or employees in violation of this Section.

13. Dispute Resolution. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between Customer and RedShiftBio or its employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”). Customer and RedShiftBio agree as follows: (a) ANY CLAIMS BROUGHT BY A PARTY MUST BE BROUGHT IN SUCH PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (c) the arbitrator will honor claims of privilege and privacy recognized at law; (d) the arbitration will be confidential, and neither RedShiftBio nor Customer may disclose the existence,
content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (e) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (f) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law. Notwithstanding the foregoing either Party may seek emergency equitable relief before the state or federal courts located in the Commonwealth of Massachusetts in order to maintain the status quo pending arbitration, and
hereby agree to submit to the exclusive personal jurisdiction of the courts located within the Commonwealth of Massachusetts for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.

14. General. (a) The validity, performance, and construction of these terms and all sales hereunder shall be governed by the laws of the Commonwealth of Massachusetts, without regard to any conflicts of law principles that would result in application of laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms (b) Customer may not assign its rights (whether by transfer or operation of law) nor delegate its obligations under these Terms, including to a successor of all or substantially all of its assets, stock or business, without the prior written consent of RedShiftBio and any purported assignment or delegation without such consent shall be of no force or effect. (c) Any waiver by RedShiftBio of any default by Customer of any term hereof shall not be deemed to be a continuing waiver of any other default or any other term. (d) These Terms may not be superseded, modified, or amended except in a writing stating that it is such a modification and signed by an authorized representative of each party. (e) These terms, which include the applicable quotations, the Warranty Terms, the Software License Agreement, and (as applicable) the Services Agreement, and other documents (if any) incorporated by reference on the face here of (but expressly does not include any Customer purchase order contract or any similar document used by Customer) shall constitute (except for any Confidential Disclosure Agreement or Material Transfer Agreement, or RedShiftBio Licensing Agreement)the entire agreement between Customer and RedShiftBio with regard to the Products, and expressly supersedes and replaces any prior or contemporaneous agreements, written or oral, relating to such goods or services. (f) Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of these terms and conditions by RedShiftBio shall be barred unless commenced by Customer within one (1) year from the accrual of such cause or action.

RedShift BioAnalytics, Inc.

Software License Agreement

This Software License Agreement (the “Software License Agreement” or the “Agreement”) sets forth the terms and conditions applicable to the license granted to licensee (“Customer” or “you”) from RedShiftBio Analytics, Inc. (“RedShiftBio”) of proprietary RedShiftBio software incorporated into RedShiftBio goods and services (“Products”) purchased by Customer (the “Software”). This Agreement becomes effective when Customer enters into the Terms and Conditions of Purchase and Sale (the “Terms”) with RedShiftBio for Products incorporating Software (the “Effective Date”), and is incorporated into the Terms by reference. To the extent there is any conflict between this Agreement and the Terms, this Agreementshall prevail. This is a legal agreement between Customer and RedShiftBio. By using the Software including any Upgrades (as defined below), you represent that you have the power and authority to enter into this Agreement. If you are using the Software on behalf of an organization, you represent that you have the right to bind such organization to this Software License Agreement, and the terms “Customer” and “you” will include both you, the individual user, and such organization.

YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE ANY REDSHIFTBIO SOFTWARE CAN BE INSTALLED OR USED. BY CLICKING ON THE “ACCEPT” BUTTON OF THIS AGREEMENT, OR BY INSTALLING OR USING REDSHIFTBIO’S SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU SHOULD EXIT THIS PAGE AND NOT INSTALL OR USE ANY REDSHIFTBIO’S SOFTWARE. BY DOING SO YOU FOREGO ANY IMPLIED OR STATED RIGHTS TO INSTALL OR USE REDSHIFTBIO’S SOFTWARE, AND YOU SHALL RETURN IT TO US FOR A FULL REFUND (IF APPLICABLE).

1. Definitions.
a. The term “Software” includes, but is not limited to, software indicated on a RedShiftBio Quotation and accepted by you on a Purchase Order as licensed to you by RedShiftBio, including software installed on instruments. The Software is comprised of the computer programs, media containing the computer programs and any Upgrades that RedShiftBio may provide to you. You acknowledge and agree that the Software constitutes RedShiftBio’s Confidential Information.
b. “Upgrades" shall mean and include any changes, additions, or corrections made by RedShiftBio to the Software.
c. “Quotation” shall mean a document provided by an authorized representative of RedShiftBio which describes the Software, and RedShiftBio’s Products, that you, the Customer, may purchase, including pricing. All such Quotations shall include and be subject to the terms and conditions contained in this Software License Agreement, as well as the Terms, unless otherwise agreed in writing.
d. “Purchase Order” shall mean a written authorization from you, the Customer, to RedShiftBio for the license of Software and purchase of Products. All such Purchase Orders shall reference a Quotation and be subject to the terms and conditions contained in this Agreement.

2. License and Usage of Software.
Subject to the terms and conditions of this Agreement and upon payment of the applicable license fees, RedShiftBio hereby grants to you a non-exclusive, non-transferable, non-sublicenseable right and license during the Term (as defined below) to use the Software in connection with RedShiftBio’s Products. In this regard, you may install, copy, operate and transmit the Software in whole or in part: (i) for single-seat licenses, only as necessary to use the Software either on a single personal computer or workstation, and (ii) for client/server licenses, in a reasonable manner to ensure that the number of users does not exceed the number of users for which you have paid license fees. The Software is protected by the copyright laws of the United States and international treaties.

3. Ownership of the Software.
The Software is licensed to you, not sold. Subject to the rights granted above, RedShiftBio and the licensors of any third-party software included within the Software retain all right, title and interest in and to the Software. You acknowledge that the Software is licensed in object code for use solely in conjunction with RedShiftBio’s Products. Use of the Software in conjunction with non-RedShiftBio products is not licensed hereunder and is prohibited.

4. General Usage Restrictions.
a. You may not use the Software for any purpose beyond the scope of the license granted in this Agreement.
b. Without limiting the generality of the foregoing, you will not: (i) authorize or permit use of the Software by persons not authorized to do so; (ii) market or distribute the Software; (iii) assign, sublicense, sell, lease or otherwise transfer, convey or pledge as security or otherwise encumber, your rights under the license granted in Section 2 above; (iv) use the Software in any time-sharing, subscription, rental or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party; (v) modify the Software; (vi) combine or integrate the Software with hardware, software or technology not provided to you by RedShiftBio; (vii) decompile, disassemble, reverse engineer (unless required by law for interoperability) or otherwise attempt to obtain or perceive the source code from which any component of the Software is compiled or interpreted, and you hereby acknowledge that nothing in this Agreement shall be construed to grant you any right to obtain or use such source code; (viii) disclose the results of any benchmark tests run on the Software (whether or not the results were obtained with assistance from RedShiftBio) to any party; or (ix) make copies of the Software other than a reasonable number of copies solely for archival purposes, provided that you reproduce and include RedShiftBio’s and any third party licensor’s copyright notices on any backup, disaster recovery or archival copies of the Software and on copies of any user documentation. It is understood and agreed that you may temporarily move, install and operate the Software at a different computer or workstation in the event of computer or workstation malfunction.
c. The Software is not permitted to be used by individuals other than properly qualified personnel.
d. The Software is not permitted to be used in in vitro diagnostic ("IVD") procedures unless expressly agreed to by the parties in writing, but as general laboratory software intended for research use only.

5. Warranties; Disclaimers.
a. Representations and Warranties. Each party to this Agreement hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation.
b. RedShiftBio Limited Warranty. RedShiftBio’s Software warranty shall be as provided in RedShiftBio’s Limited Warranty Terms and Conditions (the “Warranty Terms”), which are incorporated herein by reference. The Warranty Terms are available upon request and on the RedShiftBio website.

6. Indemnification.
a. Indemnification by Customer. Customer will defend, indemnify and hold harmless RedShiftBio and its officers, directors, shareholders, employees, accountants, attorneys, agents, affiliates, successors and assigns from and against any and all damages, injuries (including death), liabilities, costs and expenses, including reasonable legal fees and expenses arising out of or related to third party claims, actions or demands arising out of or related to any breach of any provision in this Agreement by Customer.

7. Limitation of Liability. IN NO EVENT SHALL REDSHIFTBIO BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUTLIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF REDSHIFTBIO HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF REDSHIFTBIO TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION ARISING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES, IF ANY, THEN PAID OR PAYABLE TO REDSHIFTBIO BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVED INEFFECTIVE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER.

8. Term and Termination.
a. Term. This Agreement shall come into effect on the Effective Date and remain in effect for as long as you are not in violation of any material provision contained in this Agreement, in which case it shall be automatically terminated (the "Term").
b. Rights to Terminate.
i. Each party has the right to terminate this Agreement, by giving written notice of termination to the other party: (a) immediately, upon the termination or expiration of the Terms, or (b) if the other party materially breaches this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching party within fifteen (15) days after receiving written notice of the breach from the non-breaching party; provided, however, in the event of a breach by you, at the discretion of RedShiftBio, this Agreement may be immediately terminated within a notice and cure period. In such event, RedShiftBio shall have the following rights: (x) the right of termination as set forth above; (y) the right to obtain an injunction to enjoin your continued or repeated breaches; and (z) the right to all damages incurred by RedShiftBio as a result of the breach, including reasonable attorney's fees and costs. A substantial deviation of RedShiftBio’s hardware from the specifications in the corresponding documentation will not be considered a breach that allows you to terminate this Agreement.
ii. You may terminate this Agreement at any time by giving written notice of termination to RedShiftBio; provided, upon your termination of this Agreement, your right to use any Products you have purchased which incorporate the Software shall immediately terminate.
c. Consequences of Termination. When this Agreement expires or is terminated: i. You must (a) immediately cease all use of the Software, including as incorporated into Products; (b) promptly return to RedShiftBio all copies of the Software in your possession or control and (c) certify in writing to RedShiftBio that you have complied with Sections (a) and (b). ii. You will remain obligated to pay any amounts you owe to RedShiftBio at that time. The following provisions shall remain in effect following any termination or expiration of this Agreement: 1, 3, 4, 5, 6, 7, 8(c), 11, and 12.

9. Export Control.
a. The Software is subject to export controls under the U.S. Export Administration Regulations.
Therefore, the Software may not be exported or re-exported to entities within, or residents or citizens of, embargoed countries or countries subject to applicable trade sanctions, nor to prohibited or denied persons or entities without proper government licenses. Information about such restrictions can be found at the following websites:
http://www.treas.gov/ofac/ and www.bis.doc.gov/complianceandenforcement/Liststocheck.htm.
Countries embargoed by the U.S. include Cuba, Iran, North Korea, Sudan and Syria. You are responsible for any violation of the U.S. export control laws related to the Software. By accepting this Agreement, you confirm that you are not a resident or citizen of any country currently embargoed by the U.S. and that you are not otherwise prohibited from receiving the Software.
b. If you are a branch of the United States government, you shall have "restricted rights" to use, duplicate, or disclose the Software as set forth in subdivision (c)(1)(ii) of Rights in Technical Data and Computer Software Federal Acquisition Regulations in Technical Data and Computer Software Federal Acquisition Regulations Supplement (DFARS) 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227_19.

10. Audit Rights.
You shall maintain accurate records as to your use of the Software as authorized by this Agreement. During the Term hereof, RedShiftBio, or persons designated by RedShiftBio, will, at any time, be entitled to inspect such records and your computers, in order to verify that the Software is being used by you in accordance with the terms of this Agreement, provided that RedShiftBio may conduct no more than one (1) audit in any twelve (12) month period, unless such audit reveals noncompliance with the terms of this Agreement. Any such audit will be performed at RedShiftBio’s expense during normal business hours, provided that you shall promptly reimburse RedShiftBio for the cost of such audit if such audit reveals that your use of the Software is not as authorized by this Agreement.

11. Dispute Resolution
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between Customer and RedShiftBio or its employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”). Customer and RedShiftBio agree as follows: (a) ANY CLAIMS BROUGHT BY A PARTY MUST BE BROUGHT IN SUCH PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (c) the arbitrator will honor claims of privilege and privacy recognized at law; (d) the arbitration will be confidential, and neither RedShiftBio nor Customer may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (e) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (f) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law. Notwithstanding the foregoing either Party may seek emergency equitable relief before the state or federal courts located in the Commonwealth of Massachusetts in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within the Commonwealth of Massachusetts for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.

12. General
(a) The validity, performance, and construction of this Software License Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to any conflicts of law principles that would result in application of laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Software License Agreement. (b) Customer may not assign its rights (whether by transfer or operation of law) nor delegate its obligations under this Software License Agreement, including to a successor of all or substantially all of its assets, stock or business, without the prior written consent of RedShiftBio and any purported assignment or delegation without such consent shall be of no force or effect. (c) Any waiver by RedShiftBio of any default by Customer of any term hereof shall not be deemed to be a continuing waiver of any other default or any other term. (d) This Agreement may not be superseded, modified, or amended except in a writing stating that it is such a modification and signed by an authorized representative of each party. (e) This Software License Agreement, which includes the applicable Quotation(s), the Terms, the Warranty Terms, and (as applicable) the Services Agreement, and other documents mutually agreed upon in writing by the parties related to the Products (if any) incorporated by reference on the face hereof (but expressly do not include any Customer purchase order contract or any similar document used by Customer) shall constitute the entire agreement between Customer and RedShiftBio with regard to the Products, and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to such goods or services. (f) Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of these terms and conditions by RedShiftBio shall be barred unless commenced by Customer within one (1) year from the accrual of such cause or action.

RedShiftBio™

RedShiftBio™ is an innovative provider of analytical instrumentation for the research, development and manufacturing of protein therapeutic drugs.

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RedShift BioAnalytics Inc.

131 Middlesex Turnpike
Burlington, MA 01803

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