Terms of Sale

BRUKER SPATIAL BIOLOGY, INC.

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TERMS AND CONDITIONS FOR SALES OF PRODUCTS ^

Last Updated: June 18, 2024

  1. GENERAL.
    Orders are accepted by Bruker Spatial Biology, Inc. and Subsidiaries (“Seller”) subject to these terms and conditions. In case of a conflict, inconsistency or addition not expressly accepted in writing by Seller, the terms and conditions of sale provided herein shall be considered as superseding the conflicting, inconsistent or additional terms stated in Buyer’s purchase order, order form, contract or otherwise. The acceptance of an order will supersede all prior communications and constitute a complete and binding contract between the party
    purchasing equipment hereunder (“Buyer”) and Seller, which contract cannot be modified or canceled without the written agreement of both parties.
  2. SHIPMENT.
    Seller shall attempt to comply with, but will not guarantee, shipping date and loading and routing instructions. Seller reserves the right to allow or prorate shipments against all orders whenever, in its judgment, an oversold condition exists as to any particular product manufactured or sold by it. In the event of a default by Buyer, Seller may decline to make further shipments without waiving any of its rights under such order. If, despite such default, Seller elects to continue to make shipment, its action shall not constitute a waiver regarding, or otherwise diminish, Seller’s legal remedies with respect to such default or any future default.
  3. TITLE AND DELIVERY.
    All sales are made EXW factory (Incoterms 2020) and Buyer shall pay all freight, duties, cartage and handling, except for shipments to member countries of the European Union, the United Kingdom, and Canada, which are made DDP (Incoterms 2020) excluding VAT. Title and risk of loss or damage shall pass from Seller to Buyer upon Seller’s putting the material purchased hereunder in good condition into the possession of a common carrier, such carrier acting as Buyer’s agent. All claims for damages must be filed with the carrier.
  4. PRICES.
    Irrespective of any prices quoted by Seller or listed on Buyer’s order, an order is accepted only at the prices shown on Seller’s written quotation (the “Quotation”). Installation of utilities required for equipment is not included in the specified price.
  5. PAYMENT TERMS.
    (a) Invoices are payable at the place set forth in the Quotation or the invoice no later than thirty (30) days after the date of the invoice. Any exchange charges, any charges for nonpar clearance of checks or collection charges (including reasonable attorneys’ fees) will be paid by Buyer. Any amounts not paid when due will bear interest at a rate of 18% per annum or, if lower, the maximum rate permissible by law.

    (b) All orders are subject to credit approval by Seller. The amount of any credit extended by Seller to Buyer may be changed, and such credit may be withdrawn by Seller. With respect to an order on which credit is not extended by Seller or, if extended, is subsequently withdrawn, shipment or delivery shall be made, at Seller’s election, cash with order (in whole or in part), C.O.D., letter of credit or Sight Draft attached to Bill of Lading or other shipping documents, with all costs of collection (plus 18% interest on Sight Drafts not paid at maturity) for the account of Buyer. If, in the judgment of Seller, the financial condition of Buyer does not justify continuation of production or shipment on the terms of payment originally specified, Seller may require full or partial payment in advance. In the event any proceeding is brought by or against Buyer under any bankruptcy or insolvency laws, Seller shall be entitled, in addition to any other remedies at law or in equity, to (i) stop or divert any shipment in transit, (ii) cancel any order then outstanding and/or (iii) receive reimbursement for its cancellation charges.

    (c) Each shipment shall be considered a separate independent transaction, and payment therefor shall be made accordingly. If for any reason Buyer is not prepared to accept delivery of goods, Seller may store the goods at Buyer’s expense and risk in the name of Buyer, and such storage shall constitute shipment and delivery to Buyer.
  6. TAXES.
    Quoted prices do not include federal, state or local excise, sales, use or similar taxes. Accordingly, in addition to the prices specified on the Quotation, the amount of any applicable excise, sales, use and/or similar taxes will appear as separate items on the invoice and will be paid by Buyer unless prior to shipment Seller receives an appropriate tax exemption certificate from Buyer.
  7. CUSTOMER SPECIFIC ACCEPTANCE (“CSA”).
    Except as provided in the Quotation, Seller’s standard commercial factory acceptance test(s) performed at Seller’s factory will comprise acceptance for the equipment sold by Seller. If the Quotation references CSA provisions, then Buyer will accept the purchased equipment in accordance with such CSA provisions. The parties will give priority to achieving CSA and the purchased equipment shall not be used by Buyer for material production, for development of new processes or for any purposes other than achieving CSA, prior to successful completion or waiver of the CSA provisions. Any such use of the equipment prior to successful completion of the CSA provisions shall be deemed to constitute CSA passage. It is the responsibility of the Buyer to ensure that all the required facilities are ready and site preparation is completed for successful commencement of CSA on delivery of the equipment. If CSA has not been commenced within 30 days after delivery and completed within 60 days after delivery (through no fault of Seller), the equipment shall be deemed accepted and as having achieved CSA.
  8. FORCE MAJEURE.
    Seller shall not be liable for failure to perform occasioned by strikes, lockouts, labor difficulties, riots, inability or difficulty in obtaining or procuring supplies, labor or transportation, fires, storms, floods, earthquakes, explosions, accidents, acts of God, interference by civil or military authorities, whether legal or de facto, acts of the public enemy, war, rebellion, insurrection, sabotage, embargoes, orders given priority by any public authority or any other cause beyond the reasonable control of Seller.
  9. PATENTS.
    If a third party claims that the purchased equipment infringes that party’s patent or copyright, Seller will defend Buyer against that claim and will pay all costs, damages and attorneys’ fees that a court finally awards, provided that Buyer: (a) promptly notifies Seller in writing of the claim, and (b) allows Seller to control, and cooperates with Seller in, the defense and any related settlement negotiations. If such a claim is made or appears likely, Seller, at its option, may obtain a license to enable Buyer to continue to use the product, may modify the product or may replace it with one that is functionally equivalent. If Seller determines that none of these alternatives is reasonably available, Buyer will return the product to Seller upon Seller’s written request, in which case Seller will credit Buyer with an amount equal to the price paid for such product less a reasonable amount for depreciation. Seller’s liability is limited to repair, replacement or adjustment as determined by Seller. Seller shall not be liable for any claim based on (i) anything Buyer provides which is incorporated into a product, (ii) Buyer’s modification of a product or use thereof other than in its specified operating environment, or (iii) the combination, operation or use of a product with products provided by other manufacturers or other products not provided by Seller as a system. This is the exclusive warranty and liability of Seller with respect to intellectual property matters and is in lieu of all other warranties and remedies, express or implied. Sale of products or parts thereof does not confer on Buyer any license relating to (a) the structure of any devices to which the products or parts may be applied or (b) a process or machine in connection with which they may be used.
  10. RESCHEDULING. If Buyer has any rescheduling rights, such rights shall be as set forth in Exhibit A.
  11. CANCELLATION.
    If Buyer has any cancellation rights, such rights shall be as set forth in Exhibit A.
  12. ASSIGNMENT.
    Buyer shall not assign this order or any portion thereof without the prior written consent of Seller.
  13. WARRANTY.
    (a) Seller warrants to the Buyer that new equipment will be free of defects in material and workmanship for a period of one year
    commencing on final acceptance or thirty (30) days from shipping, whichever occurs first. This warranty covers the cost of parts and labor (including, where applicable, field service labor and travel required to restore the equipment to normal operation). For CodeSets (panel and custom), reagents (such as nCounter Elements™ TagSets to be used in research applications), and consumables, Seller warrants the CodeSets, reagents, and consumables will conform in all material respects to Seller’s published specifications in the product data sheets supplied by Seller’s to Buyer until the later of (i) ninety (90) days from the date of shipment from Seller, or (ii) the end of the shelf life pre-printed on such products by Seller. For expiration dates that are listed with only a month and a year, the expiry date is the last day of the month indicated (e.g., for a product printed with 2025-01, the expiry date is 31 Jan 2025). CodeSets, reagents, and consumables reasonably determined by Seller after investigation to be defective, independent of user error, shall be replaced by Seller on a 1:1, like-kind basis at no cost to Buyer provided that such defective CodeSets, reagents, and consumables were used by Buyer prior to their expiration date or shelf life date pre-printed on such products.

    (b) Seller warrants to the Buyer that replacement parts will be new or of equal functional quality and warranted for the remaining portion of the original warranty or 90 days, whichever is longer.

    (c) Seller warrants to the Buyer that software will perform in substantial compliance with the written materials accompanying the software. Seller does not warrant uninterrupted or error-free operation.

    (d) Seller’s obligation under these warranties is limited to repairing or replacing at Seller’s option defective non-expendable parts or software. These services will be performed, at Seller’s option, at either Seller’s facility or Buyer’s business location. For repairs performed at Seller’s facility, Buyer must contact Seller in advance for authorization to return equipment and must follow Seller’s shipping instructions. Freight charges and shipments to Seller are Buyer’s responsibility. Seller will return the equipment to Buyer at Seller’s expense. All parts used in making warranty repairs will be new or of equal functional quality.

    (e) The warranty obligation of Seller shall not extend to defects that do not impair service or to provide warranty service beyond normal business hours, Monday through Friday (excluding Seller holidays). No claim will be allowed for any defect unless Seller shall have received notice of the defect within thirty (30) days following its discovery by Buyer. Also, no claim will be allowed for equipment damaged in shipment. Within thirty (30) days of Buyer’s receipt of equipment, Seller must receive notice of any defect which Buyer could have discovered by prompt inspection.

    (f) Expendable items, including, but not limited to, filters, lamps, pilot lights, filaments, fuses, mechanical pump belts, probes, V-belts, wafer transport belts, pump fluids, O-rings and seals ARE SPECIFICALLY EXCLUDED FROM THE FOREGOING WARRANTIES AND ARE NOT WARRANTED.

    (g) All used equipment, including demo equipment, is sold AS IS, WHERE IS, WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED. Regular maintenance is excluded from this warranty.

    (h) Specifically excluded from this warranty is all standalone computer and data storage equipment not manufactured by Seller (such as computers, monitors, printers and printer buffers). Such equipment will carry only the original manufacturer warranty.

    (i) Seller assumes no liability under the above warranties for equipment or system failures resulting from (a) abuse, misuse, modification or mishandling; (b) damage due to forces external to the machine including, but not limited to, acts of God, flooding, power surges, power failures, defective electrical work, transportation, foreign equipment/attachments or Buyer-supplied replacement parts or utilities or services such as gas; (c) improper operation or maintenance; or (d) failure to perform preventive maintenance in accordance with Seller’s recommendations (including keeping an accurate log of preventive maintenance). In addition, this warranty does not apply if any equipment or part has been modified without the written permission of Seller or if any Seller serial number has been removed or defaced.

    (j) No one is authorized to extend or alter these warranties on Seller’s behalf without the written authorization of Seller.

    (k) THE ABOVE WARRANTIES ARE EXPRESSLY IN LIEU OF ANY OTHER EXPRESS OR IMPLIED WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), AND OF ANY OTHER OBLIGATION ON THE PART OF SELLER. SELLER DOES NOT WARRANT THAT ANY EQUIPMENT OR SYSTEM CAN BE USED FOR ANY PARTICULAR PURPOSE OR WITH ANY PARTICULAR PROCESS OTHER THAN THAT COVERED BY THE APPLICABLE PUBLISHED SPECIFICATIONS.
  14. NO CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY.
    Seller shall not be liable for consequential damages, for anticipated or lost profits, incidental, indirect, special or punitive damages, loss
    of time, loss of use, or other losses, even if advised of the possibility of such damages, incurred by Buyer or any third party in connection with the equipment or services provided by Seller. In no event will Seller’s liability in connection with the equipment or services provided by Seller exceed the amounts paid to Seller by Buyer hereunder.
  15. NONSOLICITATION.
    Buyer will not solicit the employment of any employee of Seller who has come into contact with Buyer in connection with the products or services provided to Buyer hereunder.
  16. COMPLIANCE WITH LAWS.
    (a) The performance of each party hereunder is subject to compliance with all applicable laws.

    (b) Buyer understands that exports and re-exports of Seller’s products and any related software, service, technical assistance, training and related technical data, and any media in which any of the foregoing is contained (the “Items”) are subject to U.S. and foreign trade controls, customs, anti-boycott and economic sanctions laws, regulations, rules and orders (the “Export Laws”). In addition to any other remedy it may have, Seller may suspend or cancel the export, delivery, installation, or any maintenance or repair service of any Item if (a) Seller has not received all export-related documentation requested by Seller, including end-user certificates, (b) Seller has not received the governmental approvals that Seller deems to be required, or (c) Seller believes that such activity may violate any Export Laws or Seller’s own compliance policies. Buyer shall only use the Items for non-military, peaceful purposes. Buyer shall not export, re-export or otherwise transfer or provide any Item in contravention of any Export Law or any end-user certificate provided by Buyer, including to an embargoed or otherwise sanctioned country, to anyone listed on any prohibited persons list published by the U.S., the UN, the EU or the OSCE, or for a prohibited end-use (such as research on or development of chemical, biological, or nuclear weapons, unmanned air vehicles or missiles, or nuclear explosive or fuel cycle activities). Buyer must notify Seller before providing any technical data to Seller that is controlled under any Export Law. Seller will not be liable to Buyer for any loss or expense if Buyer fails to comply with any Export Law.

    (c) Buyer will comply with all applicable import laws or other restrictions or conditions respecting the import of Items that are now in effect or are hereafter imposed by any government or other applicable jurisdiction. Buyer shall be responsible for obtaining any necessary import permit, license or authorization at its sole cost and expense. Buyer shall immediately notify Seller if an import permit, license or other authorization is required in connection with any such import.
  17. LIMITED SOFTWARE LICENSE.
    Subject to these Terms and Conditions, and to the terms and conditions of any license provided by Seller that is specific to a particular product (which shall govern with respect to such product in the event of conflict with these Terms and Conditions), Seller hereby grants to Buyer a limited, non-exclusive, non-transferable, non-sublicensable license to use any software or firmware provided as part of the product(s), if any, only in accordance with the manuals and written instructions provided by Seller and only as part of the product and not on a stand-alone basis. For avoidance of doubt, the license to the software provided as part of a product is not transferable and Buyer agrees to not sell, rent, lease, loan, transfer or assign or otherwise dispose of any product or component thereof containing any such software to any third party unless Buyer has the written consent of Seller to transfer such product with the software, which may be withheld in Seller’s sole discretion. The products may be distributed with or contain or use certain open source or other third party software that may be covered by the terms of a different license (“Third Party Software”). Third Party Software is subject to and governed by (and licensee agrees to, and will indemnify Seller for noncompliance with) the respective licenses for such Third Party Software. The notices, license terms, and disclaimers applicable to Third Party Software are contained in the user manual supplement for each instrument. Buyer further acknowledges that use of the CosMx™ Spatial Molecular Imager requires connectivity with and use of the AtoMx™ Spatial Informatics Platform for data storage, analysis, and other applications related to the CosMx instrument. Accordingly, Buyer acknowledges its responsibility for maintaining a subscription to the AtoMx Spatial Informatics Platform to be able to use the CosMx instrument following any introductory period in which the AtoMx Spatial Informatics Platform may have been made available without additional charge. The terms and conditions with respect to the Buyer’s access to and use of the AtoMx Spatial Informatics Platform are separately covered at https://nanostring.com/about-us/legal/atomx-saas-agreement.
  18. PRODUCTS MARKETED AND LABELED FOR RESEARCH USE ONLY.
    Except for the nCounter Dx Analysis System or expressly stated below, no products sold under these Terms and Conditions may be used in patient diagnosis or patient management (outside of investigational use studies conducted in compliance with applicable law). Products that are labeled For Research Use Only (“RUO”) do not have the approval or clearance of the U.S. Food and Drug Administration (“FDA”) or other global regulatory approval, clearance, or registration for in vitro diagnostic (“IVD”) use and are not for use in diagnostic procedures. No license is conveyed or implied for Buyer to use, and Buyer agrees not to use products labeled RUO in clinical diagnosis, patient management, or an investigational study involving patient treatment decisions, or in any manner requiring FDA or other global regulatory approval, clearance, or registration relating to IVD use.
  19. LAB DEVELOPED TESTS.
    Subject to the following exception, Buyers are not permitted to use the products for patient diagnosis or patient management, including through a Lab Developed Test (“LDT”). A Buyer that is not a commercial entity formed for profit-making purposes may use the products for an LDT, subject to the provisions in this section. Buyer acknowledges that the products are labeled RUO. It is Buyer’s sole responsibility to determine the suitability of the products for any LDT. Seller is not responsible for validation or suitability of any assay or test developed using the products, even if Seller provides technical support. In the event that Buyer decides to use the products for an LDT, Buyer is solely responsible for (a) any such test, including any patient report it develops and any use of the test for patient care, (b) conducting any such test in compliance with all applicable laws, regulations, and laboratory policies, (c) the verification and validation of any products to be used with such test, and of the test itself, and (d) establishing acceptance criteria for, and final acceptance of, the products for an LDT.
  20. USE RESTRICTIONS.
    Buyer agrees not to (a) resell any Seller-supplied products, or (b) transfer, assign, or distribute any Seller-supplied products, directly or indirectly, to any third party for any purpose or use, except as otherwise approved by Seller in writing. Buyer agrees not to use and agrees not to allow anyone else to use any Seller-supplied consumable more than once, or dilute any Seller-supplied reagent. In addition, Buyer agrees not to, nor will facilitate, enable, or authorize any third party to, engage, directly or indirectly in any of the following activities: (i) separate, extract, or isolate components of the products, as applicable, (ii) subject the products or components thereof to any analysis not expressly authorized by a product’s documentation, or (iii) reverse engineer, disassemble, decompile, remove, redistribute, or repackage any products, including any software or firmware provided as part of the products. Buyer further agrees that the contents of and methods of operation of the products are proprietary to Seller and that the products contain or embody trade secrets of Seller. Buyer understands and agrees that except as expressly set forth in these Terms and Conditions, no right or license to any patent or other intellectual property owned or licensable by Seller is conveyed or implied by these Terms and Conditions or any product. In particular, no right or license is conveyed or implied to use any product provided hereunder in combination with a product not provided, licensed, or specifically recommended by Seller for such use. Buyer shall be solely responsible for all claims, losses, demands, damages, and liabilities arising under or in connection with the design, development, marketing, and sale of a product developed by Buyer which (i) is based on or derived from Seller’s products, or (ii) results from any modification made by Buyer to any of Seller’s products.
  21. TARGET SEQUENCE CONFIDENTIALITY FOR CUSTOM PRODUCTS.
    If Buyer discloses to Seller a confidential set of nucleic acid target sequences (“Target Sequences”) for which Buyer desires Seller to design and manufacture custom CodeSets pursuant to these Terms and Conditions, Seller agrees to not to disclose or use such confidential information disclosed to it by Buyer for any purpose other than designing and manufacturing such products, supplying them to Buyer and/or other parties designated by Buyer, or otherwise performing its obligations to Buyer (and any obligations Seller may have to such other parties), and for other purposes authorized by Buyer. The provisions of this Section shall not apply to any information which (a) is known or used by Seller prior to Buyer’s disclosure to Seller, (b) is disclosed to Seller by a third party under no obligation of confidentiality to Buyer, (c) is or becomes published or generally known to the public through no fault of Seller, or (d) is independently developed without reference to such confidential information disclosed to Seller by Buyer. Notwithstanding the foregoing, Seller shall be permitted to disclose such information in order to comply with applicable laws, a court order, or governmental regulations, provided that Seller has provided Buyer with prior notice of such disclosure, to the extent reasonably practicable. Seller’s obligations under this Section shall terminate three (3) years following the date of disclosure.
  22. GEOMX PROTEIN BARCODING KITS.
    If Buyer is purchasing or otherwise receiving a GeoMx® Digital Spatial Profiler Protein Barcoding Kit, then this section applies. Due to the inherent uncertainties with respect to the compatibility between specific antibodies selected by Buyer and the barcoding conjugation process, Seller does not guarantee that the conjugated antibody resulting from Buyer’s use of a GeoMx Protein Barcoding Kit will be usable for Buyer’s purposes. While the GeoMx Protein Barcoding Kit, when properly utilized by Buyer according to the applicable protocol, will facilitate chemically-linking the intended components of a conjugated molecule, there exists the possibility that the binding/active sites of the protein may be altered or modified, partially or completely, independent of the barcoding process. Activity loss in the protein may be caused, among other reasons, by physically blocking the antigen-binding sites during conjugation or by conformational changes in the complement-determining regions. Seller does not guarantee a final yield nor warrant that the final conjugated product resulting from the use of a GeoMx Protein Barcoding Kit will be biologically active. Seller does not offer warranty replacements for GeoMx Protein Barcoding Kits pursuant to Section 13 except in the case that the consumables within the kit failed to conform in material respects to Seller’s published specifications in the applicable product data sheets within the time period set forth in Section 13.
  23. QUALITY CONTROL RESERVE CODESETS.
    If Buyer purchases from Seller a Quality Control Reserve CodeSet (“QC Reserve”), which is fulfilled using residual raw materials from a previous and identical CodeSet purchased by Buyer, where such residual materials were sequestered for potential troubleshooting activities, then this Section applies. To the extent that any provision in this section is in conflict with any other term or condition in these Terms and Conditions, this section shall supersede such other term(s) and condition(s) with respect to the QC Reserve, but only to the extent necessary to resolve the conflict. QC Reserves are sold to Buyer “as is”. To the extent permitted by applicable law, Seller and its suppliers disclaim all other representations and warranties, express or implied, with respect to QC Reserve CodeSets (including the limited warranty set forth above in Section 13), and all liability obligations to Buyer of any kind. Following the purchase of a QC Reserve CodeSet, Seller will no longer provide technical support for troubleshooting the original CodeSet purchased by Buyer and it will not provide technical support for the QC CodeSet.
  24. PRE-RELEASE PRODUCTS.
    If any product is an alpha, beta, technology access, early access, or other pre-commercial release version (“Pre-release Product”), then this section applies. To the extent that any provision in this section is in conflict with any other term or condition in these Terms and Conditions, this section shall supersede such other term(s) and condition(s) with respect to the Pre-release Product, but only to the extent necessary to resolve the conflict. Buyer acknowledges that the Pre-release Product is a pre-release version, does not represent final product from Seller, and may contain defects, bugs, errors, and other problems that could cause system or other failures, sample loss, and data loss. Consequently, the Pre-release Product is provided to Buyer “as is”, and Seller disclaims all warranties (including the limited warranty set forth above in Section 13) and all liability obligations to Buyer of any kind. Buyer acknowledges that Seller has not promised or guaranteed to Buyer that Pre-release Product will be announced or made available to anyone in the future, that Seller has no express or implied obligation to Buyer to announce or introduce the Pre-release Product and that Seller may elect not to introduce a product similar to or compatible with the Pre-release Product. Accordingly, Buyer acknowledges that any research or development that Buyer performs using the Pre-release Product or any product associated with the Pre-release Product is done entirely at Buyer’s own risk.
  25. GEOMX DSPDA SERVERS.
    Buyer may purchase from Seller a pre-configured GeoMx DSPDA Server (the “DSPDA Server”) for use with the GeoMx Digital Spatial Profiler. The DSPDA Server is sold separately from the GeoMx Digital Spatial Profiler and is not included with the purchase of such instrument if it has not been separately quoted to Buyer. If requested by Buyer, Seller will provide on-site installation of the DSPDA Server and configure the DSPDA Server for Buyer’s GeoMx Digital Spatial Profiler instrument and Buyer’s network. Buyer will provide the following in connection with such installation: (a) sufficient benchtop or desk space for the DSPDA Server enabled with network access, (b) a network connection static or DHCP (with reservation) IPV4 address, subnet, gateway, primary and secondary DNS server, (c) port 443 open bi-directionally from the GeoMx Digital Spatial Profiler instrument to the DSPDA Server, and (d) ethernet cable of appropriate length for DSPDA Server connection to the network. Buyer is to provide its own monitor, keyboard, and mouse for the DSPDA Server.
  26. APPLICABLE LAW AND JURISDICTION.
    The contract created hereby shall be interpreted and construed under the laws of the State of Delaware, without regard to the choice of law provisions thereof and not including the U.N. Convention on Contracts for the International Sale of Goods, if otherwise applicable. The exclusive venue for any disputes arising out of or in connection with such contract shall be in the state and federal courts of the State of Delaware.

EXHIBIT A: ADDITIONAL PROVISIONS

1. Rescheduling:

If one rescheduling is requested, the charges shall be determined as follows and shall be due and payable within ten (10) days of the rescheduling:

Number of Weeks of Rescheduling RequestedRescheduling Charge
Up to 4 WeeksNo Charge
5 to 12 Weeks15% of Purchase Price
13 to 26 Weeks35% of Purchase Price
27+ WeeksOrder Considered Canceled

More than one rescheduling of an order will be considered a cancellation of the order. Sixty-six percent (66%) of the rescheduling charge shall be applied against the purchase price if the order is subsequently shipped or against the cancellation charges if the order is subsequently canceled. On any order that is rescheduled and subsequently canceled, cancellation charges will be based upon the time between the originally scheduled delivery date and the date of notice of cancellation.

2. Cancellation

In the event of attempted cancellation by Buyer of any order, Buyer shall pay Seller a cancellation and re-stocking charge based upon the timing of the attempted cancellation notice as follows:

Days Attempted Cancellation Notice Given Before Confirmed Shipment Date of OrderCancellation Fee Equals the Following Percentage of Purchase Price
More than 150 days35% of Purchase Price
61 to 150 Days50% of Purchase Price
31 to 60 Days75% of Purchase Price
0 to 30 Days100% of Purchase Price

Higher cancellation charges, up to the full value of the order, may apply in the case of special, custom or modified equipment


SERVICE PLAN TERMS AND CONDITIONS ^

Last Updated: June 19 2024

1. General Terms. These Service Plan Terms and Conditions shall govern all orders for purchases from Bruker Spatial Biology, Inc. (“Bruker”) of services and parts under a Bruker service plan (a “Service Plan”) and other services relating to the Covered Equipment (as defined below), including Maintenance Service (as defined below) and training, and set forth the binding legal agreement (the “Agreement”) between Bruker and the customer identified on its order (“Customer”), unless other terms are specifically agreed to by the parties in a written agreement signed by both parties. Bruker’s provision of the services hereunder is expressly conditioned upon Customer’s acceptance of the terms and conditions contained in this Agreement. By placing an order for the Service Plan hereunder, Customer accepts and agrees to be bound by the terms and conditions in this Agreement. If a purchase order or other form containing terms and conditions is used by Customer, Bruker objects to any such terms and conditions. Any additional or different terms or conditions (pre-printed or otherwise) proposed by Customer will not become part of the Agreement.

2. Covered Equipment. “Covered Equipment” under this Agreement shall include the nCounter® FLEX Analysis System, nCounter® Dx Analysis System, nCounter® MAX Analysis System, nCounter® SPRINT Profiler, GeoMx® Digital Spatial Profiler, CosMx™ Spatial Molecular Imager, AtoMx™ Spatial Informatics Platform (SIP), as well as GeoMx DSPDA Server for use with GeoMx instruments, in each case as applicable to Customer. User-serviceable parts not covered under this Agreement include, without limitation, O-rings and grease for the Prep Station, and electrode assemblies. In no event shall Bruker be obligated hereunder to service instruments, attachments, components, accessories, features, or devices other than Covered Equipment. If access to the AtoMx SIP is included as part of the Customer’s Service Plan, then the terms of the AtoMx Software as a Service Agreement (located at https://nanostring.com/about-us/legal/atomx-saas-agreement/) also apply to the Customer’s use of the AtoMx SIP, and such AtoMx SaaS Agreement is incorporated herein by reference, in addition to the applicable terms of this Agreement.

3. Consent Requirements.

a. Customer must receive Bruker’s written consent before any instrument, accessory, component, feature, or device is attached to or used in conjunction with the Covered Equipment during the term of this Agreement. Bruker may withdraw this consent at any time if it determines, using its sole discretion, that such attachment or use in conjunction with the Covered Equipment adversely affects Bruker’s ability to perform maintenance service hereunder. Upon receipt of Customer’s request for such written consent, Bruker shall, at its election take one of the following actions: 1) provide written consent for the use or attachment of said instrument, accessory, component, feature, or device, and, if appropriate, make an additional charge therefor, 2) approve the inclusion of said instrument, accessory, component, feature, or device in the Covered Equipment from the date of such consent and, if appropriate, make an additional charge therefor; or 3) decline to provide consent for the use or attachment of said instrument, accessory, component, feature, or device.

b. Customer is not to make or participate in any modification, adjustment, movement, or repair of the Covered Equipment without the prior consent of an authorized Bruker representative. Bruker may withdraw this consent at any time if it determines, using its sole discretion, that such modification, adjustment, movement, or repair adversely affects Bruker’s ability to perform maintenance service hereunder.

4. Maintenance Service. Bruker will provide Customer with Maintenance Service during the term of the Service Plan. “Maintenance Service” shall include: (a) Remedial Maintenance of malfunctioning Covered Equipment that does not perform within Bruker’s published specifications. “Remedial Maintenance” means providing service assistance via telephone, at a Bruker service center, or by an on-site visit by a Bruker technical representative, at Bruker’s sole discretion, to resolve Covered Equipment malfunctions. ; (b) a minimum of one (1) “Preventative Maintenance” which includes use of procedures during which Bruker service engineers will inspect or replace Covered Equipment components; update software if applicable; and clean, lubricate, adjust, and exercise the Covered Equipment in all of its operational modes to ensure continuing optimum performance. This subparagraph (b) does not apply to instruments without an existing Bruker service agreement; (c) installation of such engineering changes or software bug fixes in Covered Equipment as Bruker, in its sole discretion, shall deem appropriate or which are required by regulatory authorities; and (d) except as provided herein, replacement of parts deemed appropriate, in Bruker’s sole discretion, for preventive or remedial maintenance furnished under this Agreement.

5. Covered Location. Except as otherwise provided herein, on-site Maintenance Service shall be furnished under this Agreement only at the site where the Covered Equipment was originally installed by Bruker (“Covered Location”). The place of service for all mail-in maintenance service is the Bruker corporate address.

6. Removal of Covered Equipment. Bruker may temporarily remove from a Covered Location any Covered Equipment or part thereof for repair if Bruker, in its sole discretion, deems such removal appropriate to provide Maintenance Service. Bruker may provide Customer with temporary use of equipment to replace any Covered Equipment removed from a Covered Location on an “as available” basis, if requested to do so by Customer.

7. Provision of Services. Services are provided during normal working hours (Monday through Friday 8:00 AM to 5:00 PM, excluding holidays). Telephone support hours are 8:00 AM to 5:00 PM Pacific Standard Time, excluding U.S. holidays. Planned maintenance (“Planned Maintenance”) will be performed in accordance with Bruker’s Planned Maintenance procedures and checklist for the Covered Equipment being serviced. Bruker may require recertification of Covered Equipment on a time and materials basis as a condition to performing services if the Covered Equipment has not been under warranty or a service plan immediately prior to the time of service.

8. Replacement Parts. The decision to repair or replace any parts of the Covered Equipment will be made by Bruker on the basis of which approach will provide Customer with the best service. Parts and components replaced or otherwise utilized in the repair of the Covered Equipment may be either new or refurbished at the discretion of Bruker. Bruker warrants that Replacement Parts will conform to their specifications for a period of 90 days from the date the Replacement Parts are installed. Replacement Parts do not extend the warranty for the underlying instrument.

9. Scheduling. Bruker will use reasonable efforts under the circumstances to provide services as quickly as possible. The service will be scheduled at a time mutually agreed upon by Bruker and Customer.

10. Bruker Warranty; Disclaimer. Bruker warrants that it will provide its services at least in accordance with generally accepted standards prevailing in the instrument repair industry, or instrument training industry with respect to training services, at the time and place performed. Warranty claims must be made within ninety (90) days after services are performed. BRUKER MAKES NO OTHER WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY WITH RESPECT TO ITS SERVICES, WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED. BRUKER’S SOLE LIABILITY AND RESPONSIBILITY UNDER THIS AGREEMENT FOR BREACH OF WARRANTY IS RE-PERFORMANCE OF THE SERVICES WITHIN A REASONABLE TIME OR RETURN OF THE FEE PAID FOR THE DEFECTIVE SERVICES AT BRUKER’S OPTION. THESE ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY.

11. Plan Coverage.

a. Service Plans do not cover replacement of parts, costs, repairs, or adjustments for defects resulting from or necessitated by acts of nature, damage not caused by Bruker, accident, neglect, carelessness, misuse, including without limitation: operation with incompatible solvents or samples in the system; operation outside of the environmental or use specifications or not in conformance with the instructions for the Covered Equipment system, software, or accessories; improper or inadequate maintenance by the user; installation of software or interfacing, or use in combination with software or products not supplied or authorized by Bruker; or modification, repair, service transfer to another location of the Covered Equipment made by Customer, Customer’s employees, agent, or an unauthorized contractor, or intrusive activity, including without limitation computer viruses, hackers, or other unauthorized interactions with Covered Equipment or software that detrimentally affects normal operations. Service Plans also do not cover repair or replacement of parts that are radioactive or contaminated with biological, toxic, or other dangerous materials or substances.

b. Service Plans do not cover costs, repairs, or adjustments made necessary by connection of the Covered Equipment to electrical services or other utilities not in accordance with the installation requirements for the Covered Equipment or by any interruption or surge in voltage (see Instruction Manual for specifications).

c. Certain Service Plans may be discounted for having the Covered Equipment connected to remote diagnostic tools used for monitoring and/or troubleshooting purposes. If during the Agreement term, Customer opts-out or does not otherwise provide Bruker sufficient access to utilize such remote diagnostic tools, for any reason, then Bruker may, in its sole discretion: (1) Terminate the Agreement in accordance with Section 13, or (2) Invoice the Customer for the applicable pro-rated Service Plan coverage costs for the remaining term of the Agreement.

12. Payment. Payment terms are net 30 days from date of Bruker’s invoice to Customer. Invoices for Service Plans will be sent to Customer at the commencement of the Service Plan coverage period. If payment is not received by the due date, Bruker may assess and Customer agrees to pay a late payment charge at the rate of 1% per month (12% per year) or the maximum legal rate, whichever is less, of the amount due from the due date to the date of payment. If Bruker retains a collection agency and/or attorney to collect unpaid amounts, Bruker may invoice Customer for, and Customer will pay, all costs of collection, including without limitation reasonable attorneys’ fees.

13. Term and Termination of Service Plans.

a. Bruker may accept or reject at its discretion a purchase order for Maintenance Service or a Service Plan. Unless otherwise expressly stated by Bruker in writing or under the terms of the purchased Service Plan, the initial term of a Service Plan and this Agreement is one year, commencing on the date designated by Bruker in its quotation or otherwise specified to Customer. A Service Plan may be terminated by either party upon at least thirty (30) days written notice to the other party. Termination will be effective thirty (30) days after the receipt of such notice, or at a later date if one is so specified in the notice (“Termination Date”). Termination cannot be made effective prior to thirty (30) days after notice is received, provided, however, that Bruker may terminate a Service Plan immediately in the event that the Covered Equipment is transferred to another location. Bruker will cease Service under this Agreement and underlying Service Plan on the Termination Date unless Customer specifies a separate, earlier date in writing (“Cessation Date”). In that event, Bruker will cease providing Service under this Agreement and the underlying Service Plan on such Cessation Date.

b. In the event of termination of a Service Plan under Section 13, if the termination is by Customer, Bruker shall calculate at its sole discretion the total price of service actually performed and expenses actually and reasonably incurred in servicing the Covered Equipment under the underlying Service Plan from its effective date until the Termination Date. Customer’s total payment obligation to Bruker under this Agreement shall equal (1) the amount so calculated or (2) the prorated price of the underlying Service Plan from its effective date until the Termination Date, whichever is greater, plus fifteen percent (15%) of the total fee paid for the underlying Service Plan, not to exceed the total amount paid. Any payments made by Customer to Bruker in excess of this amount shall be credited to Customer’s account within thirty (30) days after the Termination Date toward future purchases of Bruker instruments, consumables, or Service Plans. Any unpaid portion of this amount shall be immediately due upon Customer’s receipt of an invoice from Bruker. If the termination is by Bruker, other than for cause, Bruker will credit Customer with or refund to Customer one hundred percent (100%) of the fee paid by Customer for the underlying Service Plan, provided that if the underlying Service Plan is for a period of more than one year, Bruker will refund to Customer the amount paid by Customer for all periods after the most recent anniversary date of the Service Plan. If a Service Plan is terminated early in connection with the trade in of used Bruker Covered Equipment for new Bruker Covered Equipment, the credit may be applied toward purchase of a Service Plan for the new Covered Equipment. Contact your Bruker service representative for details. No cash refunds will be made on account of the early termination of any Service Plan or other agreement for services.

(c) Notwithstanding the foregoing, termination of a Service Plan under this Section 13 will not terminate Customer’s subscription to the AtoMx SIP that was included under such Service Plan, and such subscription will continue as a then-current standalone AtoMx SIP subscription, at then-current pricing, governed by the terms of the AtoMx Software as a Service Agreement (located online where indicated in section 2 above).

14. Indemnification. Bruker will indemnify and hold Customer harmless from and against any and all claims for injury or death of persons, or damage to tangible property, to the extent caused by the negligent acts or negligent omissions of Bruker personnel while they are on Customer’s premises performing services under a Service Plan, provided Bruker is given prompt notice of any such claim and the opportunity to control the defense and settlement of same.

15. Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL BRUKER BE RESPONSIBLE OR LIABLE, WHETHER IN CONTRACT, TORT, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS, FOR SPECIAL, INDIRECT, INCIDENTAL, MULTIPLE, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR FAILURE TO PERFORM SERVICES OR OTHERWISE, EVEN IF BRUKER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; AND IN NO EVENT SHALL BRUKER BE LIABLE FOR ANY LOSS OR INJURY THAT IS THE RESULT OF COVERED EQUIPMENT OR PRODUCT ERROR OR THE FAILURE OF THE COVERED EQUIPMENT OR OTHER PRODUCT TO PERFORM IN ACCORDANCE WITH ITS SPECIFICATIONS. WITHOUT LIMITING THE FOREGOING, EXCEPT SOLELY FOR ANY PAYMENTS MADE UNDER BRUKER’S INDEMNITY SET FORTH IN SECTION 14, BRUKER’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS SERVICE AGREEMENT AND ANY UNDERLYING SERVICE PLAN, INCLUDING WITHOUT LIMITATION SERVICES RENDERED THEREUNDER, OR BREACH THEREOF OR FAILURE TO PERFORM IN CONTRACT, TORT, WARRANTY, OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO BRUKER FOR THE UNDERLYING SERVICE PLAN.

16. Non-Covered Equipment. Use of any non-Bruker parts or reagents that are reasonably determined by Bruker to have caused instrument failure or malfunction will require remedial repairs of the affected parts to be completed outside a Service Plan at Bruker’s then prevailing rates for billable service.

17. Compliance with Laws. Bruker makes no representation whatsoever that services provided by Bruker satisfy or will satisfy any requirements of any governmental body or other organization, including, but not limited to, any requirement of the United States Food and Drug Administration or the International Organization for Standardization. Customer agrees that it is Customer’s responsibility to ensure that such services are adequate to meet its regulation/certification requirements and that all requirements of any governmental body or other organization, including, but not limited to any requirement of the United States Food and Drug Administration or the International Organization for Standardization are the responsibility of Customer.

18. Assignment. Neither this Agreement nor any Service Plan is assignable or otherwise transferable by customer. Any assignment or transfer or attempt to assign or to transfer by Customer shall be void.

19. Customer Warranty. Bruker may require a completed Certificate of Decontamination, or transfer of Covered Equipment to a suitable safe and secure location reasonably determined by Bruker, as a condition to providing Maintenance Services for Covered Equipment. Customer warrants that any Covered Equipment or component to be serviced will be fully decontaminated of radioactive, biological, toxic or other dangerous materials or substances prior to servicing so that the service technician will not be exposed to any such materials.

20. Relocation. Service Plans do not include Customer training or services related to the relocation of Covered Equipment unless otherwise specifically stated in writing by Bruker in any particular case.

21. Force Majeure. Neither party shall be liable for delays in performance or nonperformance in whole or in part, or for loss, injury, delay, expenses, damages, or other casualty suffered or incurred on account of or due to, any causes that are beyond its reasonable control, such as, without limiting the generality of the foregoing, acts of God, fires, strikes, trade disputes, riots, embargos, earthquakes, storms, acts of the government, power losses or shortages, or inability to obtain parts or supplies, provided that the foregoing shall not apply to any obligation to pay money due.

22. Entire Agreement. These Service Agreement Terms and Conditions, together with Bruker’s quotation regarding the Service Plan(s) or other services subject to these terms and conditions, and Bruker’s description of the services provided under the Service Plan purchased by Customer, represent the entire agreement between the parties with respect to the subject matter herein and supersede and entirely replace (i) any previous agreements between the parties with respect to the subject matter herein and (ii) any pre-printed, standard, or other terms (except for the statement of Services or Service Plan selected and, if accurate, price) set forth in Customer’s purchase order (if accepted by Bruker) or any other document not signed by an authorized representative of Bruker and agreed to by Bruker, which are hereby rejected and shall be void. Except as otherwise provided in these terms, in the event of an inconsistency between these terms and the terms appearing on Bruker’s quotation or other agreement signed by an authorized representative of Bruker, the terms appearing on Bruker’s quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of these terms, and all other provisions of these terms shall remain in full force and effect.

23. Amendment; Governing Law. No amendment of these terms or modification thereof shall be binding unless in writing and signed by a duly authorized representative of both Bruker and Customer. A party’s failure to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights hereunder. Headings are included herein for convenience of reference only and shall not constitute a part of these terms for any other purpose. If any provision of these terms shall be held to be invalid or unenforceable for any reason, such provisions shall, to the extent of such invalidity or enforceability, be severed without in any way affecting the remainder of such provision or any other provision thereof, all of which shall continue in full force and effect. Nothing in this Agreement shall be deemed or construed as a license or grant of any intellectual property rights, whether express, implied, by estoppel or otherwise by Bruker, or to limit Bruker’s rights to enforce its patent or other intellectual property rights. No additions or modifications to this Agreement shall be valid unless specifically agreed to in writing by both parties. This Agreement and any underlying Service Plan shall be governed by the laws of the State of Washington, exclusive of its conflict of laws rules.

24. Paragraph Headings. The paragraph headings herein have been inserted for the convenience of Customer and Bruker and shall not be considered in any questions of interpretation or construction of this Agreement.


TERMS AND CONDITIONS FOR SAMPLE PROCESSING AND PROOF OF PRINCIPLE STUDY SERVICES ^

Last Updated: May 7, 2024

General. These Terms and Conditions for Sample Processing and Proof of Principle Study Services constitute the binding legal agreement (the “Agreement”) with respect to the provision by Bruker Spatial Biology, Inc. (“Bruker”) to the purchaser identified on its order (“Customer”) of gene expression analysis services, proof-of-principle study services, and other sample processing services identified in Bruker’s quotation to Customer and any work plan related thereto (the “Services”), unless other terms are specifically agreed to by the parties in a written agreement signed by both parties. Bruker’s provision of the Services is expressly conditioned upon acceptance of the terms and conditions contained in this Agreement. By placing an order for the quoted services, Customer accepts and agrees to be bound by the terms and conditions in this Agreement. If a purchase order or other form containing terms and conditions is used by Customer, Bruker objects to any such terms and conditions. Any additional or different terms or conditions (pre-printed or otherwise) proposed by Customer will not become part of the Agreement.

1. Definitions

1.1 “Customer Information” means, to the extent that each of the following is not Bruker Information, (a) all information, data, and other items supplied by Customer to Bruker (including the Material) and (b) all information developed by Bruker as part of the Services directly derived from the Customer Information.

1.2 “Inventions” means any inventions or discoveries, whether or not patentable, made by employees or agents of Bruker (either solely or jointly with employees or agents of Customer) that arise from the Services.

1.3 “Bruker Information” means all information, data, and other items relating to Bruker’s processes and technology (including tag identification, generation, and construction; assays; and techniques).

1.4 “Services” means the work described in Bruker’s quotation to Customer.

2. Material

2.1 Delivery and Use. Following Bruker’s acceptance of Customer’s order, Customer will promptly deliver, at no cost to Bruker, quantities of genetic material (the “Material”) that are sufficient for Bruker to perform the Services. Customer hereby grants to Bruker the nonexclusive right to use the Material solely to perform the Services. Bruker must only use the Material to perform the Services. Without the advance written consent of Customer, Bruker will not transfer, deliver, or disclose to any third party the Material. Bruker will not use the Material in humans. Bruker will not reverse engineer the Material for any purpose, including to identify structures or properties. Any unused Material will be destroyed upon completion of the Services. If Customer’s order includes the purchase of reagents, CodeSets, or other consumables specifically for use in the performance of the Services (the “Service Reagents”), title and all risks of ownership to such Service Reagents shall pass to Customer upon the delivery of such Service Reagents by Bruker to Bruker’s service laboratory. These Service Reagents will be segregated and will not be used with the orders of any other customers. In the event that Customer has not delivered all of the Materials required for Bruker to perform the Services within ninety (90) days following Bruker’s acceptance of Customer’s order, Bruker may notify Customer and ship to Customer, at Customer’s expense (such shipping costs to be subsequently invoiced by Bruker and paid by Customer), the Service Reagents that were to be used in the performance of the Services. Customer may ship back to Bruker at Customer’s expense the Service Reagents, along with the Materials required for Bruker to perform the Services, at such time as Customer chooses.

2.2 Representation of Customer. Customer represents and warrants that (1) Customer’s delivery of the Material to Bruker complies with all applicable laws, rules, and regulations (“Applicable Laws”); (2) Customer has the full right to deliver the Materials to Bruker for use in connection with the Services; and (3) the Materials can be used as contemplated without any obligations or liability to any third parties. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THESE STANDARD TERMS, CUSTOMER MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO THE MATERIAL. CUSTOMER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE MATERIAL. BRUKER ACKNOWLEDGES THAT THE MATERIAL IS EXPERIMENTAL IN NATURE AND MAY HAVE UNKNOWN HAZARDOUS CHARACTERISTICS. CUSTOMER WILL INFORM BRUKER IN WRITING OF ANY KNOWN HAZARDOUS CHARACTERICS OF THE MATERIAL. BRUKER IS AWARE OF THE FORESEEABLE RISKS OF WORKING WITH THE MATERIAL, AND BRUKER WILL STRICTLY ADHERE TO PROPER LABORATORY PROCEDURES FOR HANDLING CHEMICALS AND BIOLOGICAL SUBSTANCES WITH UNKNOWN HAZARDOUS CHARACTERISTICS.

3. Payment Terms. Buyer will be invoiced following Bruker’s acceptance of Customer’s order. Customer will pay to Bruker the amounts owed for the Services and any Service Reagents within thirty (30) days from receipt of the invoice. Late payments may incur a charge at the rate of one percent (1.0%) per month, or the maximum amount allowed by law, whichever is less.

4. Confidentiality

4.1 Customer Information. Bruker will (a) not use the Customer Information for any purpose except to perform the Services; (b) take reasonable steps to maintain the confidentiality of the Customer Information; (c) not disclose the Customer Information to any third party; and (d) not publish the Customer Information.

4.2 Bruker Information. During and after the term of this Agreement, Customer will (a) not use the Bruker Information for any purpose; (b) take reasonable steps to maintain the confidentiality of the Bruker Information; and (c) not disclose the Bruker Information to any third party.

4.3 Exceptions. Each party’s respective obligations under Sections 4.1 and 4.2 will not apply if, as applicable, the Customer Information or the Bruker Information (a) was publicly known and made generally available in the public domain before the information was disclosed to the receiving party; (b) became publicly known and made generally available, after disclosure by the disclosing party, through no wrongful action or inaction of the receiving party or others who were under confidentiality obligations; (c) was in the receiving party’s possession, without confidentiality restrictions, at the time of disclosure by the disclosing party, as shown by receiving party’s files and records; or (d) was independently developed by the receiving party without use of or reference to, as applicable, the Customer Information or Bruker Information.

5. Reports, Data, and Use of Information. Bruker will keep Customer informed of the progress of the Services. Bruker will deliver a final report of the results upon completion of the Services. Customer will have the unrestricted right to use and disclose for any purpose that Customer deems necessary or advisable in the ordinary course of business all Customer Information contained in reports delivered by Bruker as part of the Services. If the final report, results and related data (“Deliverables”) are provided to Customer electronically (“Customer E-Data”), including through an online portal, Customer acknowledges that, despite reasonable precautions taken by Bruker, it may be possible for third parties to intercept or access Customer E-Data or for the Customer E-Data to be lost or destroyed. Bruker cannot guarantee the security of Customer E-Data and is not responsible for any unauthorized access or loss or destruction of Customer E-Data, except in cases of Bruker’s gross negligence or willful misconduct. Bruker has no obligation to provide ongoing access to the Customer to the Customer E-Data following initial delivery and Bruker may delete or discontinue Customer’s access to such Customer E-Data at any time following initial delivery. It is Customer’s responsibility to store and back-up its results and related data following Bruker’s initial delivery.

6. Ownership. Bruker will own all right, title, and interest, including intellectual property rights, in and to all Bruker Information and all Inventions, excluding Inventions that are Customer Information (“Customer Inventions”), which Inventions will be owned by Customer. Upon receipt of full payment of all amounts owed hereunder, Bruker hereby assigns to Customer all of its right, title, and interest, including intellectual property rights, in and to all Customer Inventions.

7. RUO PAM50, RUO LST CodeSets and Secondary Analyses. If the Services provided by Bruker require (i) use of a CodeSet in connection with this Agreement containing (a) at least 75% of the genes in the PAM50 gene signature (“PAM50 CodeSet”) or (b) 12 or more of the 15 classifier genes in the Lymphoma Subtyping Test gene signature (the “LST CodeSet”), or (ii) secondary analysis services from Bruker using Bruker’s proprietary algorithms to analyze the gene expression data resulting from use of the PAM50 CodeSet or LST CodeSet (“Secondary Analysis”), Customer agrees to use the data and results from such Services only for the research purpose approved by Bruker in writing. In the event that Customer publishes the data or results from such Services, Customer shall provide Bruker with a draft of the proposed publication and/or public presentation (including abstracts, seminars, slides, etc.) for review at least thirty (30) days prior to submission for publication and/or public presentation to provide comments. Customer shall consider such comments and provide a response to Bruker explaining whether such comments have been incorporated into the publication or presentation and if not, provide an explanation. Customer shall inform Bruker of any inventions related to or arising out of its use of the PAM50 CodeSet, LST CodeSet, or Secondary Analysis (“Research Inventions”) within 30 days of any such Research Invention and Bruker shall have an option to negotiate a license to any Research Inventions and associated patent filings on commercially reasonable terms. Bruker reserves the right to require Customer to discontinue use of the PAM50 CodeSets, LST CodeSets, or Secondary Analyses if Customer fails to comply with the foregoing conditions. Bruker’s approval and provision of a PAM50 CodeSet, LST CodeSet, or Secondary Analysis to Customer for an approved research purpose does not obligate Bruker to permit use of a PAM50 CodeSet, LST CodeSet, or Secondary Analysis by Customer (or any third party) for the same or different research purpose

8. Target Sequence Responsibility. Customer shall be fully responsible for the set of nucleic acid target sequences (“Target Sequences”) that Customer desires Bruker to design and manufacture, and Customer agrees to indemnify Bruker and its employees, officers, directors, representatives, contractors, and suppliers and hold each of them harmless from and against any losses, liabilities, demands, damages, costs, and expenses, including without limitation reasonable legal fees and expenses, arising from or relating to the Target Sequences or their use. Customer agrees to cooperate fully with Bruker and its counsel in its defense and preparation for any such action or proceeding.

9. Quality Control Reserve CodeSets. If the Services include the use of a Quality Control Reserve CodeSet (“QC Reserve”), which is fulfilled using residual raw materials from a previous and identical CodeSet used for Customer, where such residual materials were sequestered for potential troubleshooting activities, then this section applies. To the extent that any provision in this section is in conflict with any other term or condition in the Agreement, this section shall supersede such other term(s) and condition(s) with respect to the QC Reserve, but only to the extent necessary to resolve the conflict. To the extent permitted by applicable law, Bruker and its suppliers disclaim all representations and warranties with respect to QC Reserve CodeSets, and all liability obligations to Customer of any kind.

10. Pre-Release Products. If the Services include use of a Bruker product that is a beta, technology access, early access, or other pre-commercial release version (“Pre-release Product”), then this section applies. To the extent that any provision in this section is in conflict with any other term or condition in the Agreement, this section shall supersede such other term(s) and condition(s) with respect to the Pre-release Product, but only to the extent necessary to resolve the conflict. Customer acknowledges that the Pre-release Product is a pre-release version, does not represent final product from Bruker, and may contain defects, bugs, errors and other problems that could cause system or other failures, sample loss and data loss. Consequently, Bruker disclaims all warranties with respect to the Pre-release Product and all liability obligations to Customer of any kind. Customer acknowledges that Bruker has not promised or guaranteed to Customer that Pre-release Product will be announced or made available to anyone in the future, that Bruker has no express or implied obligation to Customer to announce or introduce the Pre-release Product, and that Bruker may elect not to introduce a product similar to or compatible with the Pre-release Product. Accordingly, Customer acknowledges that any research or development that Customer performs based on the Pre-release Product or any product associated with the Pre-release Product is done entirely at Customer’s own risk

11. Compliance with Laws. Bruker will conduct the Services in accordance with all Applicable Laws. Bruker will not employ or otherwise use any person debarred under Section 21 USC 335a to perform the Services.

12. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THESE STANDARD TERMS, BRUKER MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING ITS PERFORMANCE OF THE SERVICES. BRUKER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT BRUKER MAKES NO GUARANTEES REGARDING THE RESULTS OF THE SERVICES OR ANY USE DERIVED FROM SUCH RESULTS.

13. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL BRUKER BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER SUCH PECUNIARY LOSS) ARISING OUT OF OR RELATED TO PROVISION OF THE SERVICES, EVEN IF BRUKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BRUKER’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF PERFORMING THE SERVICES EXCEED THE AMOUNT PAID BY CUSTOMER TO BRUKER.

14. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Washington, and the patent laws of the United States, without reference to provisions of conflicts of laws.

15. Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (1) delivered in person; (2) sent by certified or registered mail with return receipt requested; or (3) sent by overnight air courier with a tracking mechanism, in each case properly posted and fully prepaid to the appropriate address set forth in the Order. Either party may change its address for receiving notices by notice to the other party given in accordance with this section. Notices will be deemed given at the time of actual delivery in person, three business days after deposit in the mail, or one day after delivery to an overnight air courier service.

16. Force Majeure. Neither party will be liable for any failure to perform any of its obligations under the purchase order for the Services (other than the payment of money) that results from acts of God, the elements, fire, flood, component shortages, riot, insurrection, industrial dispute, accident, war, embargoes, legal restrictions, or any other cause beyond the reasonable control of the party.

17. Miscellaneous. This Agreement exclusively governs the provision of the Services by Bruker with respect to the subject matter hereof and the Agreement is the final, complete and exclusive statement of the terms under which the Services will be provided to Customer by Bruker, superseding all prior written and oral agreements, understandings and undertakings. Modifications may be made only in writing, signed by an authorized corporate officer of Bruker. Customer may not assign this Agreement, except that Customer shall have the right to assign and otherwise transfer this Agreement in connection with the sale of all or substantially all of Customer’s business or assets, operation of the law, or otherwise. The waiver of any term or condition or any breach thereof will not affect any other term or condition of this Agreement. Time is not of the essence for Bruker’s obligations herein. In the event that any provision of this Agreement or portion thereof is found to be illegal or unenforceable, the Agreement will be construed without the unenforceable provision or portion thereof.


TERMS AND CONDITIONS FOR PROTEIN BARCODING SERVICES ^

Last Updated: May 7, 2024

These Terms and Conditions for Protein Barcoding Services (these “Terms and Conditions”), together with the terms contained in Bruker’s Protein Barcoding Service Requirements Form provided to the customer in connection herewith (the “Requirements Form”) and Bruker’s quotation to Customer regarding the Services (as herein defined), constitute a binding legal agreement (collectively, the “Agreement”) with respect to the provision by Bruker Spatial Biology, Inc. (“Bruker”) to the customer identified on the Requirements Form (“Customer”) of the protein barcoding services specified on Bruker’s quotation and the Requirements Form (the “Services”). Bruker’s provision of the Services is expressly conditioned upon Customer’s acceptance of the terms and conditions contained in the Agreement. If a purchase order or other form containing terms and conditions is used by Customer, Bruker objects to any such terms and conditions. Any additional or different terms or conditions proposed by Customer will not become part of the Agreement. By placing an order for the Services, Customer accepts and agrees to be bound by the terms and conditions in the Agreement.

1. Performance of the Services. Bruker shall perform the Services as an independent contractor, using methods, materials, equipment, and/or related intellectual property owned or controlled by Bruker (collectively “Bruker Technology”) to provide Customer with materials and data relating to the materials produced by Bruker as a direct result of the Services, including, but not limited to, barcoded antibodies (also referred to as “labeled” or “conjugated” antibodies, collectively, the “Deliverables”). Bruker will make a good faith effort to start and complete all Services on time, and will notify Customer if substantial delays are likely. Bruker will comply with all laws and regulations generally applicable to the Services. Unless otherwise expressly agreed to in writing by Bruker, the Deliverables are not produced in accordance with United States Food and Drug Administration good manufacturing practices or good laboratory practices or in accordance with any other similar laws or regulations in other jurisdictions. Bruker may delegate performance of the the Services, or a portion thereof, to an affiliate or authorized subcontractor, provided that all Services will be performed in accordance with the Agreement

2. Customer Materials. The Deliverables may incorporate materials and information supplied by Customer to Bruker, including, but not limited to, Customer’s antibodies (“Customer Materials”). Customer will provide Bruker with Customer Materials in compliance with applicable laws and regulations and in sufficient amounts, as well as relevant safety information and other characteristics of Customer Materials needed by Bruker to perform the Services, including without limitation any certification or documentation of Customer Materials reasonably requested by Bruker. Customer represents and warrants that it has all rights, power, and authority necessary to permit Bruker to barcode, label, conjugate and otherwise modify the antibodies or other Customer Materials it provides to Bruker. The Customer Materials and Deliverables, shall be subject to the confidentiality and non-use requirements of Section 7. Upon completion of the Services, Bruker will maintain records regarding the Services for a period of no less than one (1) year. Bruker will use the Customer Materials solely to the perform the Services and as otherwise contemplated in this Agreement and the Requirements Form, and will not modify nor reverse engineer Customer Materials except as agreed therein. Unless otherwise agreed in writing by Bruker prior to the commencement of the Services, any Customer Materials not consumed in the Services will be destroyed following completion of the Services. Bruker will not transfer Customer Materials, in whole or in part, to any third party, other than a subcontractor in connection with the Services, without Customer’s prior written approval.

3. Use Limitations. Except as otherwise expressly agreed to in writing by the parties, Customer agrees to use Deliverables only for Customer’s lawful internal research purposes and not in humans. The research use limitation, however, shall not preclude Customer’s use of the Deliverables (i) for its lawful research and development of commercial products or services, provided that such product or service does not require the practice or use of Bruker Technology, or (ii) for the regulatory approval and commercialization of such products or services. Without limiting the foregoing, Customer shall not directly or indirectly furnish materials or information provided hereunder to any entity, or destination, or for any use, except in full accordance with all applicable laws and regulations, including without limitation export control and trade sanctions laws and regulations of the United States.

4. Payments. Customer shall pay Bruker for the Services within 30 days after the date of the respective invoice(s), which shall be sent to Customer upon completion of the Services (or portion thereof). Late payments may incur a charge at the rate of one percent per month, or the maximum allowed by law, whichever is less. If Customer defaults on any payment when due, Bruker, at its option and without prejudice to its other lawful remedies, may delay performance, defer delivery, charge interest on undisputed amounts owed, and/or terminate the Agreement.

5. Ownership, Intellectual Property. As between the parties, except as otherwise expressly agreed to in writing by the parties, Customer shall be the exclusive owner of the Deliverables, the Customer Materials, and any derivatives or modifications of the Customer Materials that are generated by Bruker as a direct result of the Services (collectively, “Customer IP”). Bruker shall own all right, title and interested in and to any inventions and/or discoveries related to Bruker Technology that arise in the performance of the Services, whether or not copyrightable or patentable, excluding the Deliverables, Customer Materials, any derivatives or modifications of the Customer Materials by Bruker as a direct result of the Services (the “Bruker Inventions”). For avoidance of doubt, Customer IP shall not include Bruker Technology or any improvements or modifications thereof, whether developed before or during the performance of the Services. Customer shall not, by virtue of the Services performed hereunder, obtain any license or other rights in any Bruker Technology to (a) use Deliverables other than as set forth in Section 3, (b) independently recreate the Deliverables or any materials that are proprietary to Bruker, even if used to perform the Services; and/or (c) sell or otherwise use the Deliverables for commercial purposes whether or not commercialized for research use; unless expressly agreed to in a separate written contract between the parties

6. Non-Exclusivity. Unless expressly agreed in writing, all Services is provided on a non-exclusive basis, and Bruker reserves all rights for itself and its affiliates to provide third parties with deliverables that are identical or similar to Deliverables, provided that Bruker shall not use any Customer Materials or information received from Customer to perform Services for any third party. Notwithstanding anything else in the Agreement, where Bruker performs the Services without reliance on Customer Materials or confidential information received from Customer, Bruker reserves all rights to commercialize such Services as a catalog product.

7. Confidentiality. Bruker shall treat all Customer Materials as proprietary and confidential to Customer, and will not disclose the Customer Materials to any person except its employees, consultants, and subcontractors as necessary for purposes of providing the Services, and then only subject to confidentiality provisions that include the requirements specified herein. If Bruker discloses any information or materials comprising Bruker Technology to Customer, Customer shall treat such information and materials as proprietary and confidential to Bruker. Each party shall protect the proprietary and confidential information or materials of the other party by using the same degree of care as such party uses to protect its own materials and information, but in any event no less than a reasonable degree of care. Notwithstanding any other provisions herein, however, each recipient party shall have no obligation to the other party for any information or material that is (a) already known to the recipient party; (b) publicly known other than by a wrongful act of the recipient party; (c) received from a third party lawfully entitled to disclose it; (d) disclosed pursuant to an enforceable order of a court or administrative agency or required to be disclosed by law or regulation; and/or (e) is independently developed by or for the recipient party.

8. Limited Warranty. Bruker’s sole warranty for the performance of the Services is that the Services will be performed in accordance with the Agreement, with all applicable laws and regulations, and with generally accepted industry standards applicable to the Services. If Customer believes that Bruker, in breach of its limited warranty, has made a material error in the Services that renders the results of such Services invalid, Customer must notify Bruker of such error in writing, within one month after receipt of the final Deliverable for such Services and, as Customer’s sole remedy for such error, Bruker shall either, at Bruker’s election, (i) repeat the particular Services at Bruker’s expense, provided that Customer provides Bruker with any additional Customer Materials required to repeat the particular Services, or (ii) refund to Customer the fees actually paid for the particular Services giving rise to the breach of warranty. For avoidance of doubt, given the nature of the Services and the Customer Materials, Bruker has no liability to Customer under any circumstances for the loss or cost of any Customer Materials that are damaged or destroyed in the course of Services, even where Bruker has breached its limited warranty in this section. Bruker shall not be liable hereunder, under any legal theory, for any indirect, special, or consequential damages or for loss of profits or loss of business, even if Bruker had notice of the possibility thereof. The warranty set forth in this section is in lieu of any and all other warranties relating to the Services, express or implied, including, without limitation, any implied warranties of satisfactory quality, merchantability or fitness for a particular purpose. Bruker’s liability to Customer for breach of any provision of the Agreement (other than breach of the warranty in this section for which liability is limited to re-performance or refund as specified herein) shall be limited to damages in an amount not to exceed the fee to be paid for the Services.

9. Requirements of Customer Materials. If the Customer Materials do not meet the standards and requirements noted in the Requirements Forms, there is a high likelihood that Bruker will be unable to process Customer’s order. Also, because optimal antibody barcoding must be determined empirically, Bruker cannot guarantee that a single conjugation will produce the best product for Customer’s needs. While Bruker can chemically link the intended components of a conjugated molecule, there exists the possibility that the binding/active sites of the protein can be altered or modified, partially or completely, independent of the barcoding process. Sometimes this activity loss is caused by physically blocking the antigen binding sites during conjugation or by conformational changes in the complement-determining regions. Bruker cannot guarantee the final yield(s) or that the final product(s) will be biologically active. Bruker does not refund payments or repeat the Services for Services in conformance with the warranty in Section 8.

10. Shipping. All shipments of Deliverables are made EXW (Incoterms 2010) Bruker’s manufacturing facility, except for shipments to member countries of the European Union, which are made DDP (Incoterms 2010) excluding VAT. Title to the Deliverables and risk of loss shall pass to Customer on delivery to the carrier.

11. Changes, Termination. Changes to the Services must be agreed by both parties in writing, and may require changes in the fees or timelines. Bruker may terminate the Agreement if (a) Customer breaches any material provision of the Agreement and fails to remedy the breach to the satisfaction of Bruker within 15 days after written notice thereof; (b) Bruker is unable to obtain third party materials or technology specified in the Requirements Form, for reasons beyond Bruker’s reasonable control; (c) Bruker reasonably determines that safety or feasibility reasons prevent or are likely to prevent the performance of the Services, or (d) Customer is or is deemed by law to be unable to pay its debts or perform its obligations under the Agreement. Due to the nature of the Services, Customer is not permitted to terminate the Services or this Agreement after Bruker has accepted the order for such Services.

12. Miscellaneous. This Agreement may not be assigned without the consent of the other party, except that each party may assign the Agreement to an affiliate or to any other party to whom it transfers the business and assets related to this Agreement, provided that such assignee assumes all the rights and obligations of its assignor. The Agreement shall be governed by the laws of the state of Washington, exclusive of its conflict of laws rules. The Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If any part of the Agreement is found to be legally unenforceable, the remaining clauses of the Agreement shall be unimpaired, and the parties shall in good faith negotiate an enforceable provision that most closely achieves the objectives of the unenforceable provision. Except for payment obligations, neither party shall be responsible for failure to perform its obligations due to natural disasters or other force majeure causes beyond its reasonable control. No waiver by either party of any breach hereof shall constitute a waiver of any other breach thereof. This Agreement constitutes the entire agreement between Customer and Bruker with respect to the subject matter hereof and Customer’s order, and is the final, complete, and exclusive statement of the terms of the parties’ agreement, superseding all other agreements, communications, and understandings with respect to the subject matter hereof. The waiver of any provision or any breach of a provision of the Agreement shall not affect any other provision herein. The paragraph headings herein have been inserted for the convenience of Customer and Bruker and shall not be considered in any questions of interpretation or construction of this Agreement.


TERMS AND CONDITIONS FOR DATA ANALYSIS SERVICES ^

Last updated: May 7, 2024

These Terms and Conditions for Data Analysis Services (“Terms and Conditions”), together with the terms contained in the work plan describing the applicable data analysis services in connection herewith (the “Work Plan”), and Bruker’s Sales Quote to Customer referencing such services, constitute a binding legal agreement (collectively, the “Agreement”) with respect to the provision by Bruker Spatial Biology, Inc. (“Bruker”) to the customer identified in the Sales Quote (“Customer”) of the Services (as defined below). Bruker’s provision of the Services is expressly conditioned upon Customer’s acceptance of the terms and conditions contained in the Agreement. If a purchase order or other form containing terms and conditions is used by Customer, Bruker objects to any such terms and conditions. Any additional or different terms or conditions proposed by Customer will not become part of the Agreement. By placing an order for the Services, Customer accepts and agrees to be bound by the terms and conditions in this Agreement. Bruker and Customer are sometimes referred to herein each individually as a “Party” and collectively as the “Parties.”

1. Definitions

Whenever used in this Agreement with initial letters capitalized, the following terms shall have the following specified meanings:

1.1 “Results” means any and all reports, documents, data, specifications, designs, drawings, inventions, processes, information, notes, results and other items provided to Customer by Bruker as part of the Services under this Agreement, but specifically excludes the Tools.

1.2 “Tools” means any tools, methods, templates, systems, utilities, diagnostics, plans, flowcharts, software (whether in source code or object code form), subroutines, algorithms or other technology or materials (including third-party products) that are used by Bruker in connection with the provision of the Services, but excluding information, data, and materials supplied by Customer to Bruker in connection with the Services

2. Peformance of Services

2.1 Services and Deliverables. Subject to the terms of this Agreement, Bruker will perform for Customer the services (the “Services”) and provide the Results and any other deliverables as set forth in the Sales Quote and the Work Plan (collectively, the “Deliverables”). If any report to be included as part of the Deliverables is to be made available to Customer via online download, such report may only be available for download from Bruker for six months from initial availability. Any such report may be deleted by Bruker and may no longer be available in any format after three years.

2.2 Coordination. The Parties shall reasonably cooperate and coordinate as required for Bruker’s performance of the Services. Without limitation of the foregoing, Customer shall promptly provide Bruker access to the Customer-furnished information and items as reasonably required for Bruker’s performance of the Services and Bruker’s other obligations in accordance with this Agreement
2.3 Schedule. Bruker shall use commercially reasonable efforts to perform the Services in accordance with any schedule set forth in the Agreement. Bruker shall not be liable for, or be considered to be in breach or default on account of, any delay or failure to perform any Services due to any cause or condition beyond its reasonable control (including, but not limited to, any fire, storm, flood, wind and acts of God or the elements; breakdown of or damage to any equipment, facilities or other property; unavailability of materials, supplies, equipment, transportation, services and other necessary items; and any act or omission of Customer).
2.4 Changes. Any change in the Services shall be subject to the mutual agreement of the Parties. Either Party may, from time to time, propose changes in the Services to be performed under this Agreement (including, but not limited to, additions to the Services, the deletion of Services, changes in the schedule, order or priority of particular Services and changes in the Customer-furnished items). If any agreed-upon change in the Services causes an increase or decrease in the time required for the performance of any Services or in Bruker’s costs to perform any Services, then the schedules for performance of such Services and the compensation payable to Bruker shall be equitably adjusted.
2.5 Review of Results. Customer shall promptly review all Results and other Deliverables furnished to Customer in connection with the Services and promptly notify Bruker in writing of any defect, deficiency, error or nonconformity known to or discovered by Customer, and in any case within 30 days of receipt of such Results and other Deliverables

3. Compensation

3.1 Fees. Customer shall pay Bruker for the Services in accordance with the rates, charges, reimbursable expenses and other amounts specified in the applicable Sales Quote, together with any applicable sales, use, excise or other taxes.
3.2 Payment. Bruker shall issue invoices for amounts payable under the preceding paragraph from time to time. Customer shall pay such amounts within thirty days after receipt of Bruker’s invoice. Any amount not paid when due shall be subject to finance charges equal to one and one percent per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Bruker may accept any check or payment in any amount without prejudice to Bruker’s right to recover the balance of the amount due or to pursue any other right or remedy. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere shall be construed as an accord or satisfaction. All amounts payable under this Agreement are denominated in United States dollars, and, unless otherwise agreed by Bruker in writing, Customer shall pay all such amounts in lawful money of the United States.

4. Limited Warranty and Remedy

4.1 Warranty. Bruker warrants that the Services and the Results and any other Deliverables shall comply in all material respects with the specifications and other requirements set forth in the applicable Work Plan. The Services will be performed in a diligent, professional, and workmanlike manner in accordance with generally accepted industry practices and in conformance with all applicable federal and state laws, rules, regulations and guidelines. Bruker shall correct any Services, Results, and other Deliverables that do not comply with the foregoing warranty; provided, that Customer notifies Bruker of such noncompliance within thirty (30) days after delivery of such Results and other Deliverables.
4.2 Exclusivity. The warranty and remedy set forth in paragraph 4.1 are exclusive. Except as set forth in paragraph 4.1, Bruker makes no representation or warranty, express or implied, with regard to any Services, Results, Deliverables, or other items provided under this Agreement (including, without limitation, any implied warranty of merchantability or fitness for a particular purpose, any implied warranty of non-infringement, or any implied warranty arising out of course of performance, course of dealing or usage of trade).
4.3 No Consequential Damages. Bruker shall not be liable for any indirect, incidental, special or consequential damages arising out of or relating to this Agreement or the Services provided hereunder. Customer shall be solely responsible for its use of the Results and Deliverables provided under this Agreement, including all claims, losses, demands, damages and liabilities arising in connection with such use, except to the extent any such claims, losses, demands, damages, and liabilities are directly resulting from the gross negligence or willful misconduct of Bruker. Bruker’s total liability (whether in contract, tort or otherwise) with regard to the Services, Results, Deliverables, and any other items provided under this Agreement shall not exceed the total compensation paid by Customer to Bruker under the Agreement.

5. Proprietary Rights and Confidential Information

5.1 Ownership of Results and Tools. Customer owns all right, title, and interest in and to the Results. Bruker owns all right, title, and interest in and to the Tools, provided, however, that to the extent any Tools are incorporated into, or necessary for Customer’s reasonable use of, any Results or Deliverables, Bruker hereby grants to Customer a paid-up, non-exclusive, perpetual, irrevocable, worldwide license to use such Tools solely as necessary for Customer to use the Results or Deliverables, provided that any such Tools shall not be used on a standalone basis, separate from applicable Results or Deliverables. Customer grants to Bruker a license to use the Results solely for Bruker’s internal research and development purposes, provided that such Results will be maintained in confidence by Bruker and not disclosed publicly or to any third party without the Customer’s consent. In the event that Bruker develops any software as part of the Services (whether in source code or object code form), Bruker shall own all right, title, and interest in and to such software. If any such software developed by Bruker as part of the services is specifically designated as a Deliverable to be provided to Customer (a “Custom Software Application”), then, unless a different arrangement concerning such Custom Software Application is agreed to by the Parties in writing, Customer shall own all right, title, and interest in and to such Customer Software Application, provided that Customer grants to Bruker a paid-up, non-exclusive, perpetual, irrevocable, worldwide license to use such Custom Software Application for any lawful purpose. Except for rights explicitly granted in this Agreement, ownership of inventions and/or discoveries developed in connection with this Agreement shall follow inventorship under U.S. patent law and nothing in this Agreement shall be construed as conferring on either Party any intellectual property rights owned by a Party, or otherwise altering either Party’s rights in intellectual property existing prior to this Agreement or developed independent of this Agreement. 
5.2 Confidential Information. In the course of this Agreement, either Party may disclose certain confidential information that is maintained in confidence by or on behalf of a disclosing Party (“Confidential Information”) to the other Party. In such event, unless otherwise specifically authorized by the disclosing Party, the receiving Party shall (a) use such Confidential Information solely for the purposes for which it is provided by the other Party, (b) not disclose such Confidential Information to any third party and (c) otherwise protect such Confidential Information from unauthorized use and disclosure to the same extent that it protects its own confidential information of a similar nature. This paragraph shall not apply to any information that (a) is or was acquired by a receiving Party from a third party and is not subject to an obligation restricting such receiving Party’s use or disclosure thereof; (b) is independently developed by a receiving Party without reliance upon or use of the Confidential Information from the disclosing Party; or (c) is or has become generally publicly available through no fault or action of the receiving Party. Further, this paragraph shall not apply to any disclosure of Confidential Information that is required by applicable law, legal process or governmental authority or that is made with the consent of the disclosing Party.

6.    Termination

6.1 Notice of Material Breach or Default. If either Party commits a material breach or default in the performance of any of its obligations under this Agreement with respect to any Services (such party, a “Defaulting Party”), then the other Party may give the Defaulting Party written notice of the breach or default (including, but not necessarily limited to, a description of the Services with respect to which the breach or default has occurred, a statement of the facts relating to the breach or default, the provisions of this Agreement that are in breach or default, and the action required to cure the breach or default) and the terminating Party’s intent to terminate the Agreement pursuant to this paragraph if the breach or default is not cured within fifteen (15) days after the Defaulting Party’s receipt of such notice (or such later date as may be specified in such notice).
6.2 Notice of Termination. If the Defaulting Party fails to cure any material breach or default specified in any notice under paragraph 6.1 within fifteen (15) days after receipt of such notice (or such later date as may be specified in such notice), then the terminating Party may terminate the Agreement by giving the Defaulting Party written notice of such termination.
6.3 Effect of Termination. If this Agreement is terminated pursuant to and in accordance with this Section 6, then, unless otherwise specifically provided for in the Agreement, the following shall apply: (a) the Parties shall cooperate to effect an orderly, efficient, effective and expeditious termination of the Parties’ respective activities under the terminated Agreement; (b) Bruker shall return to Customer any and all Customer-furnished items delivered by Customer to Bruker under the terminated Agreement; (c) Bruker shall have no obligation to perform any Services under the terminated Agreement after the effective date of the termination; (d) Customer shall pay to Bruker any fees, reimbursable expenses, compensation or other amounts payable for the Services performed under the terminated Agreement prior to the effective date of the termination; (e) any and all liabilities accrued prior to the effective date of the termination shall survive; and (f) the Parties’ respective rights and obligations under Sections 3, 4, 5 and 7 of these Terms and Conditions with respect to any Services covered by the terminated Agreement shall survive.

    7.    Miscellaneous

7.1 Bruker shall be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement. This Agreement shall not be interpreted or construed as (a) creating or evidencing any association, joint venture, partnership or franchise between the Parties, (b) imposing any partnership or franchisor obligation or liability on either Party or (c) prohibiting or restricting Bruker’s performance of any services for any third Party. Neither Party shall assign any of its rights under this Agreement, directly, by operation of law, or otherwise, without the prior written consent of the other Party, except in connection with the merger or sale of all or substantially all of its applicable assets or business. Subject to the foregoing restriction, this Agreement shall be fully binding upon, inure to the benefit of, and be enforceable by the Parties and their respective successors and assigns. Any failure by either Party to insist upon or enforce strict performance by the other Party of any of the provisions of this Agreement, or to exercise any right or remedy under this Agreement, shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same shall be and remain in full force and effect. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the local laws of the State of Washington without reference to its choice of law rules to the contrary. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements, between Bruker and Customer with respect to the Services.


TERMS AND CONDITIONS FOR GEOMX DIGITAL SPATIAL PROFILING TECHNOLOGY ACCESS PROGRAM SERVICES ^

Last Updated: May 7, 2024

These Terms and Conditions for the GeoMx® Digital Spatial Profiling Technology Access Program, together with the sales quote (“Sales Quote”) provided by Bruker Spatial Biology, Inc. (“Bruker”) to customer identified on such Sales Quote (“Customer”) and the work plan (the “Work Plan”) set forth in Section 11 below, constitute a binding legal agreement (collectively, the “Agreement”) with respect to the provision by Bruker to the Customer of the services described herein, in the Sales Quote, and in Work Plan (the “Services”). If a purchase order or other form containing terms and conditions is used by Customer, Bruker objects to any such terms and conditions. By placing an order for the Services, Customer accepts and agrees to be bound by the terms and conditions in this Agreement. The parties hereto are sometimes referred to herein each individually as a “Party” and collectively as the “Parties.” The Parties agree as follows:

  1. Scope of agreement: Each Party shall perform its activities hereunder in accordance with the goals, objectives, and tasks described in the Work Plan, in a good scientific manner, and in compliance with all applicable laws, rules and regulations. Bruker shall provide to Customer any required deliverables in accordance with the Work Plan (the “Deliverables”). As this work is part of a technology access program designed in part for Bruker to solicit feedback from its customers, Customer agrees to provide to Bruker information and feedback relating to the Services and Deliverables on such intervals as are mutually agreeable to the Parties during the term of the Agreement.
  2. Materials: In connection with this Agreement, Customer will deliver to Bruker a quantity of materials (the “Materials”) as described in the Work Plan. Without Customer’s prior written consent, the Materials may not be used by Bruker for any purpose other than as specifically described in the Work Plan. Both Parties acknowledge that the Materials and any information related thereto are deemed to be confidential and proprietary, and Bruker shall not (i) disclose such information to any third party whatsoever nor (ii) attempt to reverse engineer, deconstruct, synthesize or in any way determine the structure or composition of the Materials, or sell, transfer, disclose or otherwise provide access to the Materials. Bruker will use the Materials in compliance with all applicable laws and regulations. Customer represents and warrants that it has all rights and has obtained all consents required under applicable laws to provide the Materials to Bruker. Following completion of the Services, Bruker will return to Customer or otherwise dispose of any remaining Materials, as mutually determined in good faith by the Parties. All Materials are provided on an “as-is” basis without any warranty or guarantee whatsoever. All Materials shall be coded and de-identified by Customer prior to transfer to Bruker in accordance with privacy standards under applicable laws and regulations. Customer agrees that the Materials will not contain any personally identifiable information. The transfer of the Materials hereunder grants no rights to Bruker other than those specifically set forth herein.
  3. Technology Access Program: The Parties agree and acknowledge that Bruker is performing Services as part of a technology access program that Bruker is offering for the benefit of its customers and for information and feedback purposes. Customer acknowledges that Bruker has not promised or guaranteed to Customer that these Services will continue to be made available to anyone in the future and that Bruker has no express or implied obligation to Customer to offer any related services.
  4. Confidentiality: It is anticipated that information that is maintained in confidence by or on behalf of a Party (“Confidential Information”) will be disclosed, in writing, orally, or by inspection of tangible objects, by one Party (a “Disclosing Party”) to the other Party (a “Receiving Party”) in the course of performing activities contemplated by this Agreement. The Receiving Party shall hold the Confidential Information of the Disclosing Party in confidence and neither disclose the same to third parties for a period of five (5) years from the termination or expiration of this Agreement, nor use the Confidential Information for any purpose other than to perform the activities contemplated by this Agreement. The Receiving Party will limit its employees to whom the Confidential Information is disclosed to those who reasonably require it in order to conduct the Work Plan and who are bound by obligations of non-use and nondisclosure consistent with the terms of this Agreement. Confidential Information will not include any information that (i) is now, or hereafter becomes, generally available to one or more others not under an obligation of confidence to the Disclosing Party through no action or inaction of the Receiving Party; (ii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s files and records; (iii) is obtained by the Receiving Party from a third party without a breach of the third party’s obligations of confidentiality; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession. Upon the Disclosing Party’s request, the Receiving Party will promptly destroy or deliver to the Disclosing Party all Confidential Information; provided, however, that the Receiving Party may retain one copy only of the Confidential Information in a secure location with appropriately restricted access solely to monitor compliance with this Agreement. As this is a technology access program, Bruker requires the following right to review publications relating to this Work Plan. In the case of a public disclosure by Customer of results and data derived from the Work Plan, Customer will provide Bruker with a draft of the proposed disclosure for review at least thirty (30) days prior to submission for publication and/or public presentation to identify any inadvertent disclosure of Bruker’s Confidential Information, which Bruker may require to be removed from the publication, or to identify patentable subject matter. If necessary to permit the preparation and filing of a patent application, the submission shall be delayed up to an additional sixty (60) days.
  5. Deliverables:  Ownership of inventions and/or discoveries developed in connection with this Agreement shall follow inventorship under U.S. patent law, provided that Customer shall have all right, title, and interest in and to the Deliverables provided to it in accordance with the Work Plan, and provided further that Customer grants to Bruker a right and license to use (including with its contractors under obligations of confidentiality) the de-identified data generated hereunder and Materials solely for the purpose of Bruker’s internal research and development purposes. Each Party shall retain all rights in and to all of its intellectual property owned by a Party prior to, or independent of, the Work Plan (“Background IP”). Except for rights explicitly granted in this Agreement, nothing in this Agreement shall be construed as conferring on either Party a license or option to license any technology, patents, or other intellectual property rights owned by the other Party, or otherwise altering either Party’s rights in any patents or Background IP. If any Deliverables and related data are provided to Customer electronically (“Customer E-Data”), including through an online portal, Customer acknowledges that, despite reasonable precautions taken by Bruker, it may be possible for third parties to intercept or access Customer E-Data or for the Customer E-Data to be lost or destroyed. Bruker cannot guarantee the security of Customer E-Data and is not responsible for any unauthorized access or loss or destruction of Customer E-Data, except in cases of Bruker’s gross negligence or willful misconduct. While Bruker may arrange for online access to Customer E-Data following the initial delivery of the Deliverables, Bruker has no obligation to provide ongoing access to the Customer to the Customer E-Data following initial delivery and Bruker may delete or discontinue Customer’s access to such Customer E-Data at any time following initial delivery, with notice to Customer. It is Customer’s responsibility to store and back-up its Deliverables following Bruker’s initial delivery.
  6. Budget: Amounts payable by Customer to Bruker under this Agreement are as stated in the Sales Quote, such amounts to be invoiced in connection with each Deliverable provided hereunder, subject to the following provision. In the event Customer has not provided to Bruker the tissue samples required for the Services within ninety days of Bruker’s acceptance of Customer’s purchase order, Bruker will invoice Customer promptly thereafter. The foregoing provision is to ensure timely receipt of the samples in order to accommodate laboratory scheduling demands. Customer will pay Bruker within thirty (30) days of receipt of invoice. All amounts paid hereunder are nonrefundable.
  7. Warranty: For a period of six (6) months after Customer’s receipt of the Deliverables, in the event that Bruker has made an error in its performance of the Services that renders the Deliverables invalid, as Customer’s sole remedy for such error, Bruker shall repeat the Services without additional charge to Customer.
  8. DISCLAIMER OF WARRANTIES: EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE MATERIALS, SERVICES, OR DELIVERABLES HEREUNDER INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, VALIDITY OF ANY INTELLECTUAL PROPERTY RIGHTS OR CLAIMS, WHETHER ISSUED OR PENDING, AND THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE.
  9. LIMITATION OF LIABILITY: NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, OR ANY OF ITS TRUSTEES, DIRECTORS, OFFICERS, MEDICAL OR PROFESSIONAL STAFF, EMPLOYEES, RESEARCHERS, AGENTS, OR AFFILIATES BE LIABLE TO THE OTHER PARTY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE RIGHTS GRANTED HEREUNDER, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, REGARDLESS OF WHETHER SUCH PARTY SHALL BE OR HAVE BEEN ADVISED, SHALL HAVE REASON TO KNOW OR IN FACT SHALL KNOW OF THE POSSIBILITY OF THE FOREGOING. IN ADDITION, EXCEPT TO THE EXTENT CAUSED BY A PARTY’S WILLFUL MISCONDUCT OR AS REQUIRED BY APPLICABLE LAW, EACH PARTY’S LIABILITY TO THE OTHER PARTY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO BRUKER HEREUNDER.
  10. Miscellaneous:  This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior agreements between the Parties with respect to such subject matter. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware without reference to its choice of law rules. Neither Party may assign in whole or in part this Agreement without the advance written consent of the other Party, except that either Party may assign this Agreement in its entirety to its successor-in-interest in connection with a merger, consolidation, or other corporate reorganization, or the sale of all or substantially all of its assets. Neither Party shall use the name or logo of the other Party in any advertising or promotional literature without the written permission of the other, provided, however, that each Party is permitted to publicly disclose the existence of this Agreement in a release, or in presentations to investors, generally describing the nature of the Agreement (which may include use of the other Party’s name or logo in the context of such disclosure). If one or more of the provisions in this Agreement are deemed unenforceable by law, then such provision shall be deemed stricken from this Agreement and the remaining provisions shall continue in full force and effect.
  11. Work Plan
    1. Assay Name: GeoMx Digital Spatial Profiling Assay
    2. Material to be Provided by Customer: Customer will provide to Bruker the number of formalin-fixed, paraffin-embedded tissue sections (5 µm thickness) stated in the Sales Quote, at such time and according to such specifications to be mutually agreed upon in good faith by Bruker and Customer. Customer must ensure that tissue samples and related documentation and packaging are de-identified from patients and do not contain personally identifiable information of any patient. Customer will provide the tissue samples to Bruker within 45 days of Bruker’s acceptance of Customer’s purchase order.
    3. Work Performed by Bruker: Bruker will perform the GeoMx Digital Spatial Profiling assay services, using the agreed upon protein and/or RNA panel targets and controls, along with applicable reagents supplied by Bruker, on the number of formalin-fixed, paraffin-embedded tissue samples defined in the Sales Quote, such samples to be provided by Customer, with the number of regions of interest per sample defined in the Sales Quote. Bruker and Customer will discuss in good faith and define the selection process for the regions of interest and protein and/or RNA panel.
    4. Deliverables Provided by Bruker: An assay report (or multiple reports, should Bruker choose to provide the data and results for some of the samples before all of the samples have been analyzed), including raw data and processed results, will be provided by Bruker to Customer. Customer agrees that it shall only use the assay results for its research purposes and not for any patient care or clinical use.

TERMS AND CONDITIONS FOR COSMX™ SPATIAL MOLECULAR IMAGER TECHNOLOGY ACCESS PROGRAM AND USER ACCESS PROGRAM SERVICES ^

Last Updated: May 7, 2024

These Terms and Conditions for CosMx Spatial Molecular Imager Technology Access Program (“Technology Access Program”) and User Access Program (“User Access Program”) Services, together with the sales quote (“Sales Quote”) provided by Bruker Spatial Biology, Inc. (“Bruker”) to customer identified on such Sales Quote (“Customer”) and the work plan (the “Work Plan”) set forth in Section 12 below, constitute a binding legal agreement (collectively, the “Agreement”) with respect to the provision by Bruker to the Customer of the services described herein, in the Sales Quote, and in Work Plan (the “Services”). If a purchase order or other form containing terms and conditions is used by Customer, Bruker objects to any such terms and conditions. By placing an order for the Services, Customer accepts and agrees to be bound by the terms and conditions in this Agreement. The parties hereto are sometimes referred to herein each individually as a “Party” and collectively as the “Parties.” The Parties agree as follows:

  1. SCOPE OF AGREEMENT: Each Party shall perform its activities hereunder in accordance with the goals, objectives, and tasks described in the Work Plan, whether for Technology Access Program Services (which shall include any Test Drive services) or User Access Program Services, in a good scientific manner, and in compliance with all applicable laws, rules and regulations. Bruker shall provide to Customer any required deliverables in accordance with the Work Plan (the “Deliverables”). Work that is performed as part of Technology Access Program is designed in part for Bruker to solicit feedback from its customers, Customer agrees to provide to Bruker information and feedback relating to the Services and Deliverables on such intervals as are mutually agreeable to the Parties during the term of the Agreement.
  2. MATERIALS: In connection with this Agreement, Customer will deliver to Bruker a quantity of materials (the “Materials”) as described in the Work Plan, at Customer’s expense, unless otherwise agreed by the Parties. Without Customer’s prior written consent, the Materials may not be used by Bruker for any purpose other than as specifically described in the Work Plan. Both Parties acknowledge that the Materials and any information related thereto are deemed to be confidential and proprietary, and Bruker shall not (i) disclose such information to any third party whatsoever nor (ii) attempt to reverse engineer, deconstruct, synthesize or in any way determine the structure or composition of the Materials, or sell, transfer, disclose or otherwise provide access to the Materials. Bruker will use the Materials in compliance with all applicable laws and regulations. Customer represents and warrants that it has all rights and has obtained all consents required under applicable laws to provide the Materials to Bruker. Unless otherwise agreed to by the Parties in writing, Customer agrees that the Materials will not be returned to Customer following the Services, unless otherwise agreed by the Parties. All Materials are provided on an “as-is” basis without any warranty or guarantee whatsoever. All Materials shall be coded and de-identified by Customer prior to transfer to Bruker in accordance with privacy standards under applicable laws and regulations. Customer agrees that the Materials will not contain any personally identifiable information. The transfer of the Materials hereunder grants no rights to Bruker other than those specifically set forth herein. For User Access Program Services, in addition to Materials, the Customer will also be required to purchase any consumables from Bruker and deliver or arrange for their delivery to Bruker facilities.
  3. TECHNOLOGY ACCESS PROGRAM AND USER ACCESS PROGRAM: The Parties agree and acknowledge that Bruker is performing the Services as part of a Technology Access Program for information and feedback purposes or a User Access Program that Bruker is offering for the benefit of certain customers in its sole discretion. Customer acknowledges that Bruker has not promised or guaranteed to Customer that these Services will continue to be made available to anyone in the future and that Bruker has no express or implied obligation to Customer to offer any related services. Accordingly, Customer acknowledges that any research or development that Customer performs using the results of the Services or the Deliverables hereunder is done at Customer’s own risk.
  4. CONFIDENTIALITY: It is anticipated that information that is maintained in confidence by or on behalf of a Party (“Confidential Information”) will be disclosed, in writing, orally, or by inspection of tangible objects, by one Party (a “Disclosing Party”) to the other Party (a “Receiving Party”) in the course of performing activities contemplated by this Agreement. The Receiving Party shall hold the Confidential Information of the Disclosing Party in confidence and neither disclose the same to third parties for a period of five (5) years from the termination or expiration of this Agreement, nor use the Confidential Information for any purpose other than to perform the activities contemplated by this Agreement. The Receiving Party will limit its employees to whom the Confidential Information is disclosed to those who reasonably require it in order to conduct the Work Plan and who are bound by obligations of non-use and nondisclosure consistent with the terms of this Agreement. Confidential Information will not include any information that (i) is now, or hereafter becomes, generally available to one or more others not under an obligation of confidence to the Disclosing Party through no action or inaction of the Receiving Party; (ii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s files and records; (iii) is obtained by the Receiving Party from a third party without a breach of the third party’s obligations of confidentiality; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession. Upon the Disclosing Party’s request, the Receiving Party will promptly destroy or deliver to the Disclosing Party all Confidential Information; provided, however, that the Receiving Party may retain one copy only of the Confidential Information in a secure location with appropriately restricted access solely to monitor compliance with this Agreement. For Technology Access Program Services, Bruker requires the following right to review publications relating to this Work Plan. In the case of a public disclosure by Customer of results and data derived from the Work Plan, Customer will provide Bruker with a draft of the proposed disclosure for review at least thirty (30) days prior to submission for publication and/or public presentation to identify any inadvertent disclosure of Bruker’s Confidential Information, which Bruker may require to be removed from the publication, or to identify patentable subject matter. If necessary to permit the preparation and filing of a patent application, the submission shall be delayed up to an additional sixty (60) days.
  5. DELIVERABLES: Ownership of inventions and/or discoveries developed in connection with this Agreement shall follow inventorship under U.S. patent law, provided that Customer shall have all right, title, and interest in and to the Deliverables provided to it in accordance with the Work Plan, and provided further that Customer grants to Bruker a right and license to use (including with its contractors under obligations of confidentiality) the de-identified data generated hereunder and Materials solely for the purpose of Bruker’s internal development of its CosMx Spatial Molecular Imager instrument. Each Party shall retain all rights in and to all of its intellectual property owned by a Party prior to, or independent of, the Work Plan (“Background IP”). Except for rights explicitly granted in this Agreement, nothing in this Agreement shall be construed as conferring on either Party a license or option to license any technology, patents, or other intellectual property rights owned by the other Party, or otherwise altering either Party’s rights in any patents or Background IP. If any Deliverables and related data are provided to Customer electronically (“Customer E-Data”), including through an online portal, Customer acknowledges that, despite reasonable precautions taken by Bruker, it may be possible for third parties to intercept or access Customer E-Data or for the Customer E-Data to be lost or destroyed. Bruker cannot guarantee the security of Customer E-Data and is not responsible for any unauthorized access or loss or destruction of Customer E-Data, except in cases of Bruker’s gross negligence or willful misconduct. Except as otherwise agreed to by the Parties in writing, Bruker has no obligation to provide ongoing access to the Customer to the Customer E-Data following initial delivery and Bruker may delete or discontinue Customer’s access to such Customer E-Data at any time following initial delivery, with notice to Customer. It is Customer’s responsibility to store and back-up its Deliverables following Bruker’s initial delivery. If Customer has a separate license to access and utilize the AtoMx™ Spatial Informatics Platform (SIP), Bruker may agree to transfer Customer E-Data to Customer’s AtoMx SIP environment upon request.
  6. BUDGET: Amounts payable by Customer to Bruker under this Agreement are as stated in the Sales Quote. For Technology Access Program Services, such amounts will be invoiced in connection with each Deliverable provided that in the event Customer has not provided to Bruker the tissue samples required for the Services within ninety days of Bruker’s acceptance of Customer’s purchase order, Bruker will invoice Customer promptly thereafter. The foregoing provision is to ensure timely receipt of the samples in order to accommodate laboratory scheduling demands. .For User Access Program Services, such amounts will be invoiced at the time the consumables ship for such User Access Program project as provided in the applicable purchase order. Customer will pay Bruker within thirty (30) days of receipt of invoice. All amounts paid hereunder are nonrefundable.
  7. LIMITED SOFTWARE LICENSE: Subject to these Terms and Conditions, and to the terms and conditions of any license provided by Bruker that is specific to any Work Plan (which shall govern with respect to such Work Plan in the event of conflict with these Terms and Conditions), Bruker hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use any software provided by Bruker as part of the Services and/or Deliverables (“Software“), if any, only in accordance with the manuals and written instructions provided by Bruker and only as part of the Services and/or Deliverables and not on a stand-alone basis. For avoidance of doubt, the license to the Software is not transferable and Customer as the end user agrees to not sell, rent, lease, loan, transfer or assign or otherwise dispose of any Software or component thereof to any third party unless. The Software may be distributed with or contain or use certain open source or other third party software that may be covered by the terms of a different license (“Third Party Software”). Third Party Software is subject to and governed by (and licensee agrees to, and will indemnify Bruker for noncompliance with) the respective licenses for such Third Party Software. The notices, license terms, and disclaimers applicable to Third Party Software are available upon request by Customer. For the further avoidance of doubt, the foregoing license applies solely to software that may be provided by Bruker to execute the Work Plan and deliver the Deliverables, and is distinct from the license governing Customer’s access to and use of the AtoMx SIP, which is excluded from this Section 7 and must be separately purchased by Customer from Bruker.
  8. WARRANTY: For a period of ninety (90) days after Customer’s receipt of the Deliverables, in the event that Bruker has made an error in its performance of the Services that renders the Deliverables invalid, as Customer’s sole remedy for such error, Bruker shall repeat the Services without additional charge to Customer.
  9. DISCLAIMER OF WARRANTIES: EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE MATERIALS, SERVICES, OR DELIVERABLES HEREUNDER INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, VALIDITY OF ANY INTELLECTUAL PROPERTY RIGHTS OR CLAIMS, WHETHER ISSUED OR PENDING, AND THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE.
  10. LIMITATION OF LIABILITY: NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, OR ANY OF ITS TRUSTEES, DIRECTORS, OFFICERS, MEDICAL OR PROFESSIONAL STAFF, EMPLOYEES, RESEARCHERS, AGENTS, OR AFFILIATES BE LIABLE TO THE OTHER PARTY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE RIGHTS GRANTED HEREUNDER, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, REGARDLESS OF WHETHER SUCH PARTY SHALL BE OR HAVE BEEN ADVISED, SHALL HAVE REASON TO KNOW OR IN FACT SHALL KNOW OF THE POSSIBILITY OF THE FOREGOING. IN ADDITION, EXCEPT TO THE EXTENT CAUSED BY A PARTY’S WILLFUL MISCONDUCT OR AS REQUIRED BY APPLICABLE LAW, EACH PARTY’S LIABILITY TO THE OTHER PARTY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO BRUKER HEREUNDER.
  11. MISCELLANEOUS: This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior agreements between the Parties with respect to such subject matter. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware without reference to its choice of law rules. Neither Party may assign in whole or in part this Agreement without the advance written consent of the other Party, except that either Party may assign this Agreement in its entirety to its successor-in-interest in connection with a merger, consolidation, or other corporate reorganization, or the sale of all or substantially all of its assets. Neither Party shall use the name or logo of the other Party in any advertising or promotional literature without the written permission of the other, provided, however, that each Party is permitted to publicly disclose the existence of this Agreement in a release, or in presentations to investors, generally describing the nature of the Agreement (which may include use of the other Party’s name or logo in the context of such disclosure). If one or more of the provisions in this Agreement are deemed unenforceable by law, then such provision shall be deemed stricken from this Agreement and the remaining provisions shall continue in full force and effect.
  12. WORK PLAN
    1. Assay Name: CosMx Spatial Molecular Imager Assay
    2. Material to be Provided by Customer: Customer will provide to Bruker the number of tissue sections (5 µm thickness) stated in the Sales Quote, at such time and according to such specifications to be mutually agreed upon in good faith by Bruker and Customer. Customer must ensure that tissue samples and related documentation and packaging are de-identified from patients and do not contain personally identifiable information of any patient. Customer will provide the tissue samples to Bruker as such timeframe as will be mutually agreed to in good faith by the parties. For User Access Program Services, in addition to Materials, the Customer will also be required to purchase any consumables from Bruker and deliver or arrange for their delivery to Bruker facilities.
    3. Work Performed by Bruker: Bruker will perform the CosMx Spatial Molecular Imager assay services, using the agreed upon protein and/or RNA panel targets and controls, along with applicable reagents supplied by Bruker, on the number of tissue samples defined in the Sales Quote, such samples to be provided by Customer, with the number of fields of view per sample defined in the Sales Quote for Technology Access Program projects, or applicable project intake form for User Access Program projects. Bruker and Customer will discuss in good faith and define the selection process for the regions of interest and protein and/or RNA panel.
    4. Deliverables Provided by Bruker: For Technology Access Program projects, an assay report (or multiple reports, should Bruker choose to provide the data and results for some of the samples before all of the samples have been analyzed), including raw data and processed results, will be provided by Bruker to Customer. For User Access Program projects, project data and results will be provided directly to Customer to perform its own analysis by the methods described in Section 5, unless otherwise agreed by the Parties. Customer agrees that it shall only use the assay results, and any Software that may be provided to access such results, for its research purposes and not for any patient care or clinical use.

TERMS AND CONDITIONS FOR THE GEOMX CUSTOM NETWORK SOLUTION ^

Last Updated: May 7, 2024

These Terms and Conditions for the GeoMx® Customer Network Solution shall govern the purchase from Bruker Spatial Biology, Inc. (“Bruker”) by the customer identified on its order (“Customer”) of the GeoMx Customer Network Solution and related services (the “GCNS”), and shall constitute a binding legal agreement (the “Agreement”) between Bruker and Customer, unless other terms are specifically agreed to by the parties in a written agreement signed by both parties. Bruker’s provision of the GCNS hereunder is expressly conditioned upon Customer’s acceptance of the terms and conditions contained in this Agreement. By placing an order for the GCNS hereunder, Customer accepts and agrees to be bound by the terms and conditions in this Agreement. If a purchase order or other form containing terms and conditions is used by Customer, Bruker objects to any such terms and conditions.

  1. Features and Services Provided. In consideration of the GCNS fee paid by the Customer, the GCNS provides Customer with a custom software version to be installed on Customer’s GeoMx Digital Spatial Profiler (“DSP”) system that enables for the Customer administrative access for the Customer on its DSP system, domain joining capabilities from the DSP system, the ability to create custom IT group policies, and the ability to install third party software on the DSP system. In addition, GCNS includes the following:
    • Review by a GeoMx product support system administrator of proposed software and system patches and updates to be installed by the Customer in order to assess GeoMx system functionality with the proposed changes.
    • Onsite support by a Bruker field engineer to create a backup image of the GeoMx computer drive and data and/or ensure archiving of data prior to installing updated software.
    • Onsite installation by a Bruker field engineer of the GCNS custom software.
    • Information from the GeoMx product support system administrator regarding any known conflicts or issues with proposed software or system patches and updates.
    • Remote and on-site support by Bruker to troubleshoot issues with the GeoMx system, or to roll-back software versions using the backup image in the event of catastrophic failure caused by customer configurations, patches, and software installations.
  2. GCNS Lead Time. Customer must provide the following to Bruker one (1) month prior to the applicable software or patch installations for functionality testing, as applicable:
    • The name and version of the applicable software and copy of executables to be installed.
    • The applicable security patches with KB number.
    • The ADMX export group policy file(s).
  3. Timing of GCNS Services. On-site GCNS services are provided during normal working hours (Monday through Friday 8:00 AM to 5:00 PM local time, excluding holidays). Telephone support hours are 8:00 AM to 5:00 PM Pacific Standard Time, excluding U.S. holidays.
  4. Access to GeoMx System Software Code. Customer agrees that it will not attempt to access, copy, or transfer the GeoMx system software code, which Customer agrees is Bruker’s proprietary and confidential information. If Customer inadvertently accesses the software code or reasonably requires access to it, it will promptly notify Bruker. In the event of its access to the GeoMx system software code, Customer agrees it will not use the code in any way other than as authorized in writing by Bruker. Customer agrees it will not copy any of the GeoMx system software code and Customer will not share the software code with any third party. Customer will be liable to Bruker for any damages, costs, and expenses that Bruker incurs arising from Customer’s use or sharing of the GeoMx system software code.
  5. Assumption of Risks. The impacts of any of Customer’s software installations, custom configurations, and on the GeoMx System are unknown. In addition, it is possible that the security configuration currently existing on Customer’s system may attempt to prevent the proposed changes and may require technical steps to override this prevention. Any configurations and installations by Customer on the GeoMx system may not have been tested and the software and patches to be installed may interfere with the functionality and performance of the instrument. If Customer encounters a problem with the performance of the GeoMx System, it may not be possible to determine if the issue is inherent to the system or is related to Customer’s installations and changes. Accordingly, Customer assumes the risks stated herein and agrees to the following. Customer acknowledges and agrees that any software installations on the GeoMx System, as well as security patches, the addition of the system to Customer’s active directory, and other configurations and changes made to Customer’s GeoMx system, may materially interfere with the functionality and performance of the system, may lead to loss of data, and may cause the loss of entire system functionality. Bruker will provide service and support if these issues arise as part of the fee paid pursuant to this Agreement, but Bruker cannot assure Customer that it will be able to completely restore lost functionality due to these issues, nor that it can recover any lost data. Customer acknowledges that such service or support may require Bruker to perform a clean installation of the original GeoMx system software, erasing all previous software and data from the instrument.
  6. Bruker Warranty. Bruker warrants that it will provide its services under this Agreement using commercially reasonable efforts and in accordance with generally accepted standards prevailing in its industry. Warranty claims must be made within ninety (90) days after any applicable services are performed. BRUKER MAKES NO OTHER WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY WITH RESPECT TO ITS SERVICES, WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED. BRUKER’S SOLE LIABILITY AND RESPONSIBILITY UNDER THIS AGREEMENT FOR BREACH OF WARRANTY IS RE-PERFORMANCE OF THE SERVICES WITHIN A REASONABLE TIME OR RETURN OF THE FEE PAID FOR THE DEFECTIVE SERVICES, AT BRUKER’S OPTION. THESE ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY.
  7. Term and Termination.
    a. Term. Unless otherwise agreed to by the parties in writing, the term of the GCNS is one (1) year from the earlier of (1) the date specified on the sales quote or (2) the date that Customer’s DSP instrument is enabled with administrative access as part of the GNCS. The GCNS may be extended through an additional purchase order from Customer in response to a sales quote from Bruker or by other mutual written agreement of the parties.
    b. Termination for Breach or Default. If either party commits a breach or default in the performance of any of its obligations under this Agreement with respect to the GCNS (such party, a “Defaulting Party”), then the other party may give the Defaulting Party written notice of the breach or default and the terminating party’s intent to terminate the Agreement pursuant to this paragraph if the breach or default is not cured within thirty (30) days after the Defaulting Party’s receipt of such notice (or such later date as may be specified in such notice). If the Defaulting Party fails to cure any breach or default specified in any notice under this paragraph within thirty (30) days after receipt of such notice (or such later date as may be specified in such notice), then the terminating party may terminate the Agreement by giving the Defaulting Party written notice of such termination.
    c. Effect of Termination. If this Agreement is terminated in accordance with this section, then, unless otherwise specifically provided for in the Agreement, the following shall apply: (a) the parties shall cooperate to effect an orderly, efficient, effective and expeditious termination of the parties’ respective activities under the terminated Agreement; (b) Bruker shall have no obligation to perform any further services under the terminated Agreement after the effective date of the termination; (c) Customer shall pay to Bruker any outstanding amounts owed under the Agreement; and (d) solely in the case of Bruker’s breach of the Agreement, Bruker shall refund to Customer any amounts prepaid by Customer for the portion of the term of the Agreement to extend beyond the effective date of termination. Obligations accruing prior to termination or provisions that by their terms or nature survive expiration or termination shall survive expiration or termination of this Agreement until fulfilled or by their terms naturally expire.
  8. Payment. Customer will be invoiced following Bruker’s acceptance of Customer’s order. Customer will pay to Bruker the amounts owed hereunder in accordance with the sales quote within 30 days from receipt of the invoice. Late payments may incur a charge at the rate of one percent per month, or the maximum amount allowed by law, whichever is less.
  9. Limitation of Liability. To the fullest extent allowed by law, in no event shall either party be responsible or liable, whether in contract, tort, warranty, or under any statute or on any other basis, for special, indirect, incidental, multiple, punitive, or consequential damages arising out of or in connection with this Agreement. Without limiting the foregoing, Bruker’s total cumulative liability in connection with this Agreement, will not exceed two times the amount of fees paid to Bruker by Customer in connection with this Agreement.
  10. Assignment. This Agreement is not assignable or otherwise transferable by customer. Any assignment or transfer or attempt to assign or to transfer by Customer shall be void.
  11. Force Majeure.
  12. Neither party shall be liable for delays in performance or nonperformance in whole or in part, or for loss, injury, delay, expenses, damages, or other casualty suffered or incurred on account of or due to, any causes that are beyond its reasonable control, such as, without limiting the generality of the foregoing, acts of God, fires, strikes, pandemics, trade disputes, riots, embargos, earthquakes, storms, acts of the government, power losses or shortages, or inability to obtain parts or supplies, provided that the foregoing shall not apply to any obligation to pay money due.
  13. Miscellaneous. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements, between Bruker and Customer with respect to the subject matter hereunder, including the GCNS. No amendment of these terms or modification thereof shall be binding unless in writing and signed by a duly authorized representative of both Bruker and Customer. This Agreement shall be governed by the laws of the State of Delaware, exclusive of its conflict of laws rules. A party’s failure to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights hereunder. Headings are included herein for convenience of reference only and shall not constitute a part of these terms for any other purpose. If any provision of these terms shall be held to be invalid or unenforceable for any reason, such provisions shall, to the extent of such invalidity or enforceability, be severed without in any way affecting the remainder of such provision or any other provision thereof, all of which shall continue in full force and effect.

SUPPLEMENTAL TERMS AND CONDITIONS BELOW FOR THE GEOMX® DIGITAL SPATIAL PROFILING PROTEIN PANEL CONSUMABLES AND CUSTOM PROTEIN CONSUMABLES ^

This product is provided under an intellectual property license from Life Technologies Corporation. The transfer of this product is conditioned on the buyer using the purchased product solely in research conducted by the buyer and the buyer must not (1) use this product or its components for (a) diagnostic, therapeutic or prophylactic purposes; or (b) manufacturing or quality assurance or quality control, and/or (2) sell or transfer this product or its components for resale, whether or not resold for use in research. For information on purchasing a license to this product for purposes other than as described above, contact Life Technologies Corporation, 5781 Van Allen Way, Carlsbad, CA 92008 USA or outlicensing@thermofisher.com.