Capsulab™ 

Customer Terms and Conditions

Version: April 2, 2025

These Capsulab Customer Terms and Conditions (the "Terms") apply to, and govern, the Order (defined below). These Terms are hereby incorporated by reference into, and made a part of, such Order. These Terms and the Order are collectively referred to as this "Agreement". To the extent of any conflict or inconsistency between a provision in these Terms and a provision in the Order, the Order shall prevail.

The Agreement constitutes a binding agreement between Capsulab Ltd. (or the other Capsulab entity specified in the Order, if applicable) ("Capsulab") and the customer specified in the Order ("Customer"). An individual entering into this Agreement on behalf of the Customer, represents that he/she has the right, authority and capacity to act on behalf of the Customer and to bind the Customer to this Agreement. Capsulab and Customer may be collectively referred to herein as the "Parties", and each individually as a "Party".

1. DEFINITIONS AND INTERPRETATION

This Agreement contains a range of capitalized terms defined in this Section and elsewhere. The Section and sub-Section headings in this Agreement are for convenience of reading only and shall not be used or relied upon for interpretive purposes.

"Affiliate" means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.

"Ampules" means Capsulab's proprietary ampules to be supplied to Customer, as specified in the Order.

"Capsules" means Capsulab's proprietary capsules to be supplied to Customer, as specified in the Order.

"Consumables" means, as the case may be, Ampules, Capsules, and/or other consumable materials (such as jars) supplied under the Order.

"Documentation" means Capsulab's user manuals, data sheets and similar materials that accompany the Machine, Ampules, Capsules, or Application Software (as applicable). Unless the context requires otherwise, references herein to the "Machine", "Ampules", "Capsules", and "Application Software" shall be deemed to include their respective Documentation.

"Embedded Software" means the software (such as software code written for processing units/CPUs to execute functionality) and firmware (such as gate-level software code written for FPGAs) components embedded within the Machine. Unless the context requires otherwise, references herein to the "Machine" shall be deemed to include the Embedded Software.

"Intellectual Property Rights" means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, improvements, works of authorship, technical information, data, technology, know-how, show-how, designs, drawings, formulas, methods, processes, databases, computer software and programs (including without limitation object code, source code, and non-literal aspects), algorithms, architecture, and other similar intellectual property or technology, in any form and embodied in any media (collectively, "Intellectual Property"), and includes without limitation patents, copyright and similar authorship rights, personal rights (such as Moral Rights, rights of privacy, and publicity rights), location (and similar geography-based) rights, mask work rights, trade secret and similar confidentiality rights, design rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and (b) all goodwill associated with the foregoing rights.

"Laws" means any federal, state and local laws, statutes, ordinances, rules and regulations of any jurisdiction.

"Machine" means Capsulab's proprietary substance mixing and production machine, such as Diya™ or Mini™ (and associated Embedded Software) to be supplied to Customer, as specified in the Order. For the avoidance of doubt, "Machine" excludes Application Software, Consumables, and Peripheral Hardware.

"Order" means the signed ordering document (such as a Quote, Order Form, Sales Order, Proposal, or Order) to which these Terms are attached, hyperlinked, or otherwise incorporated by reference. For the avoidance of doubt, the Order includes any Statement of Work attached to it.

"Peripheral Hardware" means hardware products or other tangible component(s) that may accompany the Machine, such as cables, batteries, and tablet devices.

"Application Software" means any user software product, service, or tool (whether distributed for installation, whether distributed and pre-installed on a tablet device, or whether provided via the cloud such as an online dashboard) to be supplied to Customer, as specified in the Order. For the avoidance of doubt, "Application Software" excludes Embedded Software.

"Support Services" means any Machine-related and/or Application Software-related technical support and maintenance services specified in the Order.

"Professional Services" means Machine-, Consumable-, and/or Application Software-related installation, configuration, deployment, integration, customization, training, or similar professional services not covered by Support Services.

"Services" means, as the case may be, Support Services and/or Professional Services.

2. MACHINES, CONSUMABLES, AND PERIPHERAL HARDWARE

1. Use of Machine and Consumables. Customer shall use the Machine and Consumable solely in accordance with their respective Documentation. Without derogating from the generality of the foregoing, Customer shall not integrate the Machine with any other system.

2. Delivery Dates. Capsulab shall use commercially reasonable efforts to meet any applicable Machine, Peripheral Hardware, and Consumable delivery date(s) specified in the Order; it being acknowledged, however, that any lead times or delivery or shipment dates (requested and/or quoted) are estimates only. Customer acknowledges that delivery of Machines, Peripheral Hardware, and Consumables may be made in installments.

3. Shipment Postponement by Capsulab. By giving Customer at least thirty (30) days' prior written notice, Capsulab shall be entitled to postpone a shipment date for up to a maximum period of thirtry (30) days.

4. Shipment Postponement by Customer. By giving Capsulab at least sixty (60) days' prior written notice, Customer shall be entitled to postpone a shipment date for up to a maximum period of thirty (30) days. Capsulab will have no responsibility or liability for failing to meet any subsequent shipment or delivery dates as a result of a postponement by Customer.

5. Incoterms and Risk of Loss. Unless agreed otherwise in the Order, delivery of the Machines, Consumables, and Peripheral Hardware shall be Ex Works (Incoterms 2020) Capsulab's or its third party manufacturer's designated facility, and delivery shall be deemed to occur once the Machine, Peripheral Hardware, or Consumable (as the case may be) is made available for pickup by Customer (or its carrier) at such facility. Risk of loss of, or damage to, the Machine, Peripheral Hardware, or Consumable (as the case may be) shall pass to Customer upon such delivery. Customer will select and be responsible for the shipping method, carrier, and freight charges. Following delivery, Customer shall keep Capsulab and its Affiliates insured against all liability to other persons for death, personal injury, and damage to or loss of property arising directly or indirectly out of the use, possession or operation of the Machine, Peripheral Hardware, and Consumables.

6. Title. Title to the Machine (excluding, for clarity, the Embedded Software and any Leased Machines), Peripheral Hardware, and Consumables shall only pass to Customer upon full payment therefor by the Customer. To the extent the foregoing arrangement is not permissible under applicable Law, then: (a) title shall pass to Customer at the same time as risk of loss/damage (in accordance with Section 2.5 (Incoterms and Risk of Loss) above); and (b) pending full payment for such items, Capsulab hereby reserves and maintains, and Customer hereby grants to Capsulab, a first priority purchase money security interest in such items, wherever located, together with all replacements and proceeds (including without limitation insurance proceeds) related thereto or derived therefrom, and Customer agrees upon Capsulab’s request to sign appropriate financing statements (and other documentation) evidencing Capsulab’s security interest. 

7. Leased Machines. If the Order specifies a Machine as being leased (instead of sold) to Customer (such Machine, a "Leased Machine"), the provisions of this Section (Leased Machines) shall apply: Title to the Leased Machine remains with Capsulab (or its Affiliate). The Leased Machine is leased to Customer for the duration of the lease period specified in the Order ("Lease Period"). For the avoidance of doubt, the Lease is personal to Customer and may not be transferred or sub-leased to any third party without Capsulab's prior express written approval. Customer shall ensure that the Leased Machine is used only at its designated location specified in the Order (and not relocated to another location without Capsulab's prior express written approval), and remains within Customer's custody and control at all times. Customer shall be solely responsible and liable for any damage or loss related to the Leased Machine until returned to Capsulab (including during the entire transportation process) and shall reimburse Capsulab for the full Leased Machine price upon any damage or loss to the Leased Machine. Upon expiration of the Lease Period, Customer shall return (at its expense and in good working order and condition, without any damage) the Leased Machine to Capsulab or its designated contractor (and/or Capsulab may elect to pick up and repossess the Leased Machine, at Customer's cost and expense). In the event the Customer fails to provide specific details regarding the condition of the Leased Machine at the time that Customer receives it, it will be presumed to be in excellent condition.

8. Storage Costs. Customer shall reimburse Capsulab for any and all costs and expenses of Machine, Peripheral Hardware, and/or Consumable storage incurred by Capsulab or its Affiliate: (a) after the date that such items (as applicable) are made available to Customer at the applicable delivery point (per the applicable Incoterms); and/or (b) as a result of Customer requesting a postponement of shipment, and Capsulab agreeing to such postponement. After thirty (30) days of storage: (A) the Machine, Peripheral Hardware, and/or Consumable (as applicable) being stored shall be deemed delivered and accepted by Customer, and, in respect of Machines, the Warranty Period for such Machine shall commence; and (B) the Fees for such Machine, Peripheral Hardware, and/or Consumable (as applicable) shall be paid for in full by Customer (and until Customer has made such payment, Customer shall not be entitled to postpone any further shipment).

9. Acceptance. Unless otherwise specified in an Order, each Machine, Peripheral Hardware, and Consumable shall be deemed accepted upon delivery. In the event that an Order provides for an acceptance testing (or similar approval) process for such items, such items shall in any event be deemed accepted upon the earlier of (a) failure of Customer to reject the item within the acceptance testing or approval timeframe, or (b) use of such items in production or for commercial purposes.

10. Machine Export License. As between the Parties, Capsulab (and/or the third party manufacturer) shall be responsible for obtaining applicable export licenses for delivery of the Machine to Customer under this Agreement.

11. Replacement for Engineering Samples. If the Order specifies that the Machine or Consumable is an engineering or evaluation sample (or similar designation), Capsulab reserves the right (but is not obligated) to replace or modify the Machine (or parts thereof) or Consumable at Capsulab’s cost and expense (a "Replacement Notice"). Following receipt of a Replacement Notice, Customer shall fully and promptly, and in any event by no later than five business days from receiving a Replacement Notice, cooperate with Capsulab's instructions for returning the Machine or Consumable.

3. SOFTWARE LICENSES

12. Embedded Software License. Customer shall use the Embedded Software solely in accordance with the applicable Documentation. Subject to the terms and conditions of this Agreement, in respect of each instance of Embedded Software received by Customer, Capsulab grants Customer a limited, revocable, non-exclusive, non-assignable (except as permitted in Section 3.5 below), and non-sublicensable right and license to use the Machine's copy of the Embedded Software solely on, and in connection with, the Customer's authorized use of the Machine ("Embedded Software License").

13. Application Software Subscription. Customer shall use the Application Software solely in accordance with the applicable Documentation. Subject to the terms and conditions of this Agreement, in respect of each Application Software subscription purchased by Customer, Capsulab grants Customer a limited, revocable, non-exclusive, non-assignable, and non-sublicensable right to internally access and use the Application Software (and if applicable, download and install the Application Software on a device owned or controlled by Customer) solely in connection with Customer's authorized use of the Machine ("Application Software Subscription").

14. License Term for Embedded Software. Unless stated otherwise in the Order, the Embedded Software License shall be perpetual for as long as the Machine is operational.

15. Subscription Term for Application Software. Unless stated otherwise in the Order, the Application Software Subscription shall be for the following duration:

1. for Application Software installed on Peripheral Hardware: perpetual for as long as Customer owns Peripheral Hardware on which the Application Software is installed; or

2. for Application Software provided via the cloud (such as on a SaaS basis): for a period of twelve (12) months, following which it shall automatically renew for successive periods of twelve (12) months unless either Party notifies the other Party in writing of non-renewal not less than thirty (30) days prior to the renewal commencement.

16. Assignment of Embedded Software License. Customer may assign each Embedded Software License once, and only if Customer meets all of the following conditions:

1. the assignment is of the Embedded Software License as a whole;

2. the assignment is permanent; and

3. the assignment is to an person in connection with the transfer of ownership to such person of the applicable Machine on which the Embedded Software resides, and such person agrees in writing: (i) that Capsulab shall have no obligation or liability of any kind whatsoever towards such person; (ii) to be bound by the scope of the Embedded Software License, and the relevant provisions of this Section 3 (Software Licenses); and (iii) to be bound by the usage restrictions set forth in Section 7.2 (Usage Restrictions) below.

17. Embedded Software Updates. In respect of Embedded Software updates, upgrades, or improvements provided by Capsulab pursuant to this Agreement (each, an "Embedded Software Update"), Capsulab shall have no further responsibility or liability in respect of the corresponding Machine if Customer does not implement such Embedded Software Update to the Machine within thirty (30) days after Capsulab delivers the Embedded Software Update to Customer.

18. Delivery of Software on Standalone Basis. Application Software, as well as any Embedded Software provided on a standalone basis, will be delivered or otherwise made available electronically (in the manner Capsulab elects) and will be deemed accepted on such delivery or provision.

19. General Terms of License. For the avoidance of doubt: (a) the Application Software and Embedded Software are only provided on, as applicable, a license or subscription basis (and are not sold) pursuant to this Agreement; and (b) the Embedded Software License and Application Software Subscription are subject to whatever volume, location, duration, and/or other limitations or parameters (such as regarding available features and functionalities) may be specified in the Order (the "Usage Scope"), and Customer shall not use any technical or other means within, or external to, the Application Software or Embedded Software to exceed or circumvent the Usage Scope.

4. SUPPORT SERVICES

Subject to Customer remaining current all payment obligations under this Agreement, Customer will be entitled to receive the applicable Support Services.

For the avoidance of doubt, Support Services for a Machine shall only commence after the expiration of its respective  Warranty Period.

Unless stated otherwise in the Order, each Party shall be entitled to terminate Support Services

5. PROFESSIONAL SERVICES

20. Initial Professional Services. If applicable, and subject to payment by Customer of the applicable Fees therefor, Capsulab shall provide whatever initial Professional Services may be specified in the Order ("Initial Professional Services").

21. Additional Professional Services. Any Professional Services in addition to the Initial Professional Services must be mutually agreed to between the Parties, and shall be set out in sequential Professional Services Statements of Work signed by the Parties and referencing this Agreement (each, a "Professional Services SOW"). Professional Services shall be charged in accordance with such Professional Services SOW. Each Professional Services SOW shall be deemed incorporated by reference into this Agreement.

6. FEES AND PAYMENT TERMS

22. Fees. Customer agrees to pay Capsulab the fees and other charges set forth in the Order (the "Fees").

23. T&M Fees and Rates. To the extent the Fees for any Professional Services or Support Services are stated to be charged on a time-and-materials (T&M) basis ("T&M Fees"), the T&M Fees will be calculated in accordance with the applicable time-and-materials (T&M) rates ("T&M Rates") specified in the Order (and, if the Order does not specify applicable T&M Rates for such Professional Services or Support Services, the T&M Rates shall be accordingly to Capsulab's then-current time-and-material rates).

24. Billing Periods. Except as may be expressly stated otherwise in the Order, the Fees shall be payable in accordance with the following billing periods (each, a "Billing Period"):

1. Fees for a Machine (and for clarity, such Fees include the applicable Embedded Software License) shall be payable in full in advance;

2. Fees for Peripheral Hardware and Consumables shall be payable in full in advance;

3. Fees (if any) for an Application Software Subscription shall be payable on an annual basis in advance;

4. Fees for Professional Services shall be payable on a quarterly basis in advance; provided, however, that to the extent the Professional Services are charged as T&M Fees, such T&M Fees shall be payable on a monthly basis in arrears; and

5. Fees for Support Services shall be payable on an annual basis in advance; provided, however, that to the extent the Support Services are charged as T&M Fees, such T&M Fees shall be payable on a monthly basis in arrears.

25. Payment Terms. Except as may be expressly stated otherwise in the Order:

1. all Fees are stated, and are to be paid, in US Dollars;

2. Capsulab shall be entitled to invoice the Fees in full at the commencement of the corresponding Billing Period (and if, due to Customer's internal requirements, Customer is required to issue Capsulab a purchase order or purchase order number prior to receipt of an invoice, then Customer shall ensure it issues such purchase order or purchase order number prior to the commencement of the Billing Period);

3. Customer shall pay each invoice within thirty (30) days of invoice date;

4. all payments and payment obligations under this Agreement are non-refundable, and are without any right of set-off, deduction, or cancellation; and

5. any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by applicable Law.

26. Payment Dispute. If Customer, acting reasonable and in good faith, believes that Capsulab has invoiced Customer incorrectly and wishes to dispute the invoice (or portion thereof), Customer shall contact Capsulab no later than seven (7) days after receiving the invoice in which the alleged error appeared; otherwise Customer shall be deemed to have waived all claims in connection with the applicable invoice and payment. If Customer only disputes a portion of the invoice, Customer shall timely pay the undisputed portion. If Customer disputes an invoice more than once over a twelve (12) month period, Capsulab shall be entitled to suspend performance until the dispute is resolved.

27. Taxes. Fees payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges (except for taxes based upon Capsulab's net income), as well as transportation or insurance. Customer must provide a valid tax exemption certificate if claiming a tax exemption. In the event that Customer is required by any law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Capsulab shall be increased by the amount necessary so that Capsulab receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.

7. CAPSULAB TECHNOLOGY

28. Ownership of Capsulab Technology. Notwithstanding anything herein to the contrary, as between the Parties, Capsulab (and/or its licensors and suppliers, as applicable) is, and shall be, the sole and exclusive owner of (and is hereby assigned) all right, title (except for title to Machines, Peripheral Hardware, and Consumables that pass to Customer in accordance with Section 2.6 (Title)) and interest, including without limitation all Intellectual Property Rights, in and to the following (collectively, "Capsulab Technology"):

1. the Machines (for clarity, including without limitation the Embedded Software);

2. the Consumables;

3. the Peripheral Hardware;

4. the Application Software;

5. the Services;

6. all other deliverables supplied by Capsulab to Customer hereunder;

7. Capsulab's other Confidential Information;

8. any non-Customer-identifying information, data, reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use, of the Machines and/or Application Software (such as metadata, aggregated data, analytics);

9. any suggestions, ideas, enhancement requests, or other feedback for or about the Machine, Consumables, Peripheral Hardware, and/or Application Software (collectively, "Feedback"); and

10. regardless of inventorship or authorship, any improvements, derivative works, and/or modifications of/to any of the foregoing.

To the extent any of the foregoing Intellectual Property Rights do not automatically vest in Capsulab, Customer hereby assigns (and shall procure the assignment of) same to Capsulab. Customer undertakes to do all things reasonably requested by Capsulab (including without limitation executing, filing, and delivering instruments of assignment and recordation), at Capsulab's reasonable expense, to perfect such ownership rights. Any rights not expressly granted to Customer herein are hereby reserved by Capsulab and its suppliers and licensors.

29. Usage Restrictions. Except as expressly permitted otherwise in this Agreement, Customer shall not (and shall not encourage or permit any third party to) do any of the following usage restrictions (in whole or in part), except as expressly permitted by this Agreement: (a) make, reproduce, "frame" or "mirror" any Capsulab Technology; (b) distribute or otherwise make available any Capsulab Technology to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment), or publicly perform or display any Capsulab Technology; (c) modify, adapt, or create a derivative work of, any Capsulab Technology; (d) decompile, disassemble, decrypt, reverse engineer, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) or internal composition (such as wiring, architecture, or chemical composition) of, any Capsulab Technology; (e) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in any Capsulab Technology; (f) circumvent, disable or otherwise interfere with security-related or technical features or protocols of any Capsulab Technology; (g) use any Capsulab Technology to develop any service or product that is the same as (or substantially similar to) any Capsulab Technology; (h) except as permitted by the Order, use any Capsulab Technology in connection with any stress test, penetration test, competitive benchmarking or analysis, or vulnerability scanning, or otherwise publish or disclose (without Capsulab's prior express written approval) any the results of such activities or other performance data of any Capsulab Technology; (i) employ any hardware, software, device, or technique to pool connections or reduce the number of servers/machines, users, or endpoints that directly access or use the Application Software (sometimes referred to as 'virtualisation', 'multiplexing' or 'pooling'); (j) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Application Software; and/or (k) take any action that imposes or may impose (as determined in Capsulab's reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Application Software, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.

Customer recognizes and agrees that, without limitation, all internal hardware, software, and functionality not readily visible from external view of the Machines constitute trade secrets belonging to Capsulab and/or its licensors and suppliers, and that efforts to determine such internal hardware, software or functionality may constitute misappropriation of trade secrets.

To the extent Customer is given the right, under any Law applicable to Customer, to receive information and/or materials for purposes of making any portion of the Embedded Software or Application Software interoperable with other software, and such information and materials are not contained within any Documentation, Customer agrees that it shall first request from Capsulab (in a detailed writing) access to such information and/or materials, and if Capsulab accepts such request, Capsulab may (in its sole discretion) impose additional conditions on such access and use.

8. CONFIDENTIALITY

30. General. Each Party (the "Recipient") may have access to certain Confidential Information of the other Party (the "Discloser"), whether in tangible or intangible form ("Confidential Information"). "Confidential Information" means information and/or material (whether in written, oral, visual, electronic, or other form) disclosed or made available, directly or indirectly, by Discloser and/or its Affiliates to Recipient and/or its Affiliates, or otherwise learned by Recipient by inspection, and that (A) is designated as confidential or proprietary by the Discloser, or (B) would be understood by a reasonable business person to be confidential or sensitive given the nature of the information or material, and/or the circumstances surrounding its disclosure. Confidential Information includes, but is not limited to: (a) any information related to Discloser’s business, such as cost data, pricing methodologies, price lists, business plans and opportunities, marketing plans, financial and accounting information, forecasts and valuations, market share data, sales volumes, discounts, and budgets; (b) information relating to actual or potential customers, suppliers, products and services; and (c) technical data, computer programs and software code (including firmware and source code), ideas, inventions, algorithms, know-how, analyses, lab notebooks, specifications, processes, techniques, formulas, engineering designs and drawings, architectures, circuit schematics and circuit layouts, models, samples, hardware configuration information, and other technology and intellectual property.

31. Exceptions. Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, is in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient's possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser.

32. Safeguarding. The Recipient shall not use the Confidential Information for any purpose, except to perform under this Agreement. Recipient agrees to use the same degree of care it employs for the protection of its own Confidential Information (and in any event, a reasonable degree of care), and to procure that all such measures and safeguards are taken by its Representatives (defined below).

33. Non-Disclosure. Recipient shall not disclose or make available any Confidential Information to any person other than to its Representatives (defined below) who have a strict need to know the Confidential Information for the purpose of Recipient performing its obligations under this Agreement, and who are bound to the Recipient by an agreement of confidentiality that contains substantially the same confidentiality obligations contained in this Agreement (or by comparable fiduciary or professional duties of confidentiality). Recipient shall remain primarily responsible and liable for its Representatives' acts and omissions in respect of the Confidential Information, as fully as if they were the acts and omissions of Recipient itself. "Representatives" means Recipient's and/or its Affiliates' directors, officers, employees, professional advisors (including, without limitation, attorneys, financiers, and accountants), contractors, and agents. For the avoidance of doubt, all pricing and payment terms under this Agreement are Confidential Information of Capsulab, and may only be disclosed by Customer to its Affiliates, accountants, financiers, and attorneys.

34. Compelled Disclosure. Recipient may disclose Confidential Information to the minimum extent required by a Legal Requirement; provided, however, that before Recipient does so disclose it shall, to the extent legally permitted, use reasonable endeavours to give the Discloser as much notice of such disclosure as possible, and reasonably assist Discloser in seeking a protective order or other appropriate remedy. "Legal Requirement" means (a) an order of any court of competent jurisdiction, any regulatory, judicial, governmental or similar body, or any taxation authority of competent jurisdiction, (b) the rules of any listing authority or stock exchange on which its shares or those of any of its Affiliates are listed or traded, and/or (c) the laws or regulations of any country to which its affairs or those of any of its Affiliates are subject.

35. Return/Destruction of Confidential Information.  Promptly following written request by Discloser at any time, and subject to any ongoing rights that Recipient has pursuant to this Agreement, Recipient shall, as reasonably directed, return, destroy, and/or permanently delete all Confidential Information in its possession or control, and shall thereafter, upon written request, have one of its officers certify in a signed writing compliance with the foregoing. Notwithstanding the foregoing, the Recipient may retain an archival copy of Confidential Information solely to the extent that: (a) such archival copy is contained in electronic files as part of the Recipient’s regular data backup or archiving procedures, and/or (b) such retention is required by any Legal Requirement; and in each of the foregoing cases under paragraphs (a) and (b), provided further that the Recipient shall refrain from accessing or using such Confidential Information, and shall treat such Confidential Information at all times in accordance with the provisions of this Agreement and shall refrain from any use thereof. For the avoidance of doubt, and notwithstanding this paragraph, no portion of any Application Software may be retained by Customer.

9. LIMITED WARRANTY; DISCLAIMER.

36. Limited Warranty. Capsulab warrants that, during the applicable Warranty Period (defined below), each Machine delivered to and accepted by Customer hereunder will be free from material defects in materials and workmanship (the "Limited Warranty").

37. Repair and Replacement of Defective Machines. In the event of any Limited Warranty breach within the Warranty Period (such Machine, a "Defective Machine"), and provided Customer has notified Capsulab (at both the contract email specified in the Order and also to warranty@capsulab.com) of the defect promptly after discovery thereof, Capsulab shall first determine whether the defect can be resolved remotely via Capsulab's customer support portal, and Customer shall fully cooperate with Capsulab in such efforts. If Capsulab determines that it cannot resolve the defect via such means, Capsulab shall (at its sole option) repair the Defective Machine (or part thereof) or replace the Defective Machine (or part thereof) with a new or refurbished Machine or part (as the case may be). The foregoing service shall be Customer's sole and exclusive remedy, and Capsulab's sole and exclusive liability, for any breach of the Limited Warranty. In the event Capsulab repairs or replaces a Defective Machine pursuant to this Section, the above Limited Warranty shall remain in force for the longer of (a) the remainder of the original Warranty Period; or (b) thirty (30) days from the date of the delivery of the repaired or replacement Machine or part (as the case may be).

38. Warranty Period. Unless the Order specifies a shorter period, the "Warranty Period" shall commence acceptance of the Machine and shall be for a period of twenty-four (24) months.

39. Warranty Exclusions. The Limited Warranty shall not apply to (and Capsulab shall have no obligation or liability for) Machine problems or defects arising from any of the following (each, a "Warranty Exclusion"): (A) misuse, abuse, neglect, improper handling or installation, or use other than as specified in the applicable Documentation; (B) accident, natural disasters, or other factors beyond the reasonable control of Capsulab; (C) installation in/on a system or other property other than a system or property for which the Machine was intended or designed; (D) unusual mechanical, physical, or electrical stress;  (E) any failure by Customer to promptly implement an Embedded Software Update and/or comply with a Replacement Notice, as required by this Agreement; and/or (F) repair, reconfiguration, alteration, or servicing of the Machine by any person other than an authorized Capsulab representative. Any services provided by Capsulab in connection with the foregoing Warranty Exclusions shall be charged at Capsulab's then-current rates.

40. Warranty Returns and RMA. Customer shall return the Defective Machine DDP (Incoterms 2020) to Capsulab's designated repair facility, shipping charges prepaid. Title to any returned Defective Machine will pass to (or, if applicable, remain with) Capsulab upon receipt. No returns will be made without Customer first obtaining a Return Material Authorization (RMA) ticket and number ("RMA Ticket") from Capsulab. A Defective Machine returned to Capsulab without an RMA Ticket will be returned unopened, at Customer's sole risk, cost and expense, or otherwise discarded. When requesting an RMA Ticket, Customer shall provide the following information: (a) a detailed description of the nature of the defect, and the reason for the return; (b) model and serial number for each unit to be returned, and (c) applicable Capsulab invoice number and date. The RMA Ticket information (as well as other information and markings instructed by Capsulab) shall be marked on the parcel, which Customer shall package in its original packaging, unless permitted otherwise in writing by Capsulab, in which case Customer shall package it to reasonably accepted commercial standards for electronic equipment. Delivery back to Customer of repaired or replaced Machine will be DAP (Incoterms 2020) and Capsulab will pay shipping charges for delivery of such repaired or replaced Machine back to Customer (and Customer shall be responsible for customs clearance), provided that if Capsulab reasonably deems, in its sole discretion, that the returned Defective Machine was not covered by the Limited Warranty or was subject to a Warranty Exclusion, Customer will pay (or otherwise reimburse Capsulab for) all return shipping charges.

41. DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY:

1. THE MACHINES, PERIPHERAL HARDWARE, CONSUMABLES, APPLICATION SOFTWARE, SERVICES, CAPSULAB TECHNOLOGY, AND ANY OTHER GOODS OR SERVICES PROVIDED OR MADE AVAILABLE BY OR ON BEHALF OF CAPSULAB (COLLECTIVELY, THE "CAPSULAB MATERIALS") ARE PROVIDED AND MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL DEFECTS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BY CAPSULAB AND ITS SUPPLIERS AND LICENSORS; AND

2. CAPSULAB DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF CAPSULAB MATERIALS; (B) THAT CUSTOMER'S USE OF CAPSULAB MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; (C) REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS; OR (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS. CAPSULAB WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO HOSTING PROVIDERS OR PUBLIC NETWORKS.

10. LIMITATION OF LIABILITY

42. EXCEPT FOR A BREACH OF CONFIDENTIALITY UNDER SECTION ‎8 (CONFIDENTIALITY) OR A BREACH OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS (SUCH AS A BREACH UNDER SECTION ‎7.2 (USAGE RESTRICTIONS)), IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:

1. ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE LOSSES OR DAMAGES;

2. ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE;

3. ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION HARDWARE, REPUTATION, OR GOODWILL; AND/OR

4. THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.

43. THE COMBINED AGGREGATE LIABILITY OF CAPSULAB AND ALL CAPSULAB AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO CAPSULAB UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.

44. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, MISREPRESENTATION, RESTITUTION, OR OTHERWISE.

11. INDEMNIFICATION 

45. By Capsulab. Capsulab shall: (a) defend Customer against any third party demand or claim made against Customer during the Term alleging that Customer's use of the Machine or Application Software in accordance with this Agreement infringes such third party's copyright or patent (an "Infringement Claim"); and (b) indemnify and hold harmless the Customer for any amounts finally awarded against or imposed upon Customer by the court (or otherwise agreed in settlement) under the Infringement Claim, as well as for any out-of-pocket legal expenses (including reasonable attorney's fees) reasonably incurred by Customer under the Infringement Claim (provided, however, that any insurance recoveries and/or indemnity or contribution amounts received by the Customer prior to receipt of indemnification by Capsulab, shall reduce the indemnifiable amount to be paid by Capsulab by the amount of such recovery). Capsulab will have no liability or obligation under this paragraph with respect to any Infringement Claim arising from: (i) a modification to the Machine or Application Software not made by Capsulab; (ii) the combination of the Machine or Application Software with any third party product or service; (iii) Capsulab complying with Customer's instructions, designs, or specifications; and/or (iv) any Customer breach under this Agreement, such as a failure by Customer to promptly implement an Embedded Software Update and/or comply with a Replacement Notice.

46. By Customer. Customer shall: (a) defend Capsulab against any third party demand or claim made against Capsulab resulting from Customer's breach of this Agreement, including without limitation any breach of the Embedded Software License or under Section ‎7.2 (Usage Restrictions) (a "Misuse Claim"); and (b) indemnify and hold harmless Capsulab for any amounts finally awarded against or imposed upon Capsulab by the court (or otherwise agreed in settlement) under the Misuse Claim, as well as for any out-of-pocket legal expenses (including reasonable attorney's fees) reasonably incurred by Capsulab under the Misuse Claim.

47. Procedure. As a condition to such defense and indemnification obligations above, the indemnified Party agrees: (A) to provide the indemnifying Party with prompt written notice of the Infringement Claim or Misuse Claim, as applicable (hereinafter, a "Claim"); (B) to cede to the indemnifying Party full control of the defense and settlement of the Claim (except that any non-monetary obligation imposed on the indemnified Party under a settlement shall require its prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) to provide the indemnifying Party with all information and assistance reasonably requested by it; and (D) not to admit any liability under (or otherwise compromise) the Claim. The indemnified Party may participate in the defense of the Claim at its own cost and expense.

48. Capsulab Efforts. Should the Machine or Application Software (in whole or in part) become, or in Capsulab's opinion be likely to become, the subject of an Infringement Claim, then Customer permits Capsulab, at Capsulab's option and expense, to either: (a) obtain for Customer the right to continue using the Machine or Application Software (or part thereof); or (b) replace or modify the Machine or Application Software (or part thereof) so that it's use hereunder becomes non-infringing; provided, however, that if (a) and (b) are not, in Capsulab's opinion, commercially feasible, Capsulab may terminate the affected Order immediately upon written notice to Customer, and, once the Machine has been returned to Capsulab, Customer shall be entitled to a pro-rated refund of the Fees paid for such Machine amortized over three (3) years on a straight-line basis from the date of purchase of the Machine.

49. Sole Remedy. This Section represents Customer's sole and exclusive remedy, and Capsulab's sole and exclusive liability, for any Infringement Claims or other claims of infringement relating to the Machine or Application Software.

12. TERM AND TERMINATION

50. Term. This Agreement commences on the date of Order signature ("Effective Date") and, unless earlier terminated in accordance herewith, shall remain in full force and effect until the later of:

1. expiration of the Warranty Period for all Machines under the Order;

2. termination of all Support Services under the Order; and

3. expiration of all Application Software Subscriptions under the Order.

51. Termination. Each Party may terminate this Agreement upon written notice to the other Party:

1. if such other Party materially breaches this Agreement and does not cure such breach within thirty (30) days after receiving written notice of such breach; and/or

2. upon the occurrence of any of the following events in respect of such other Party: (i) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) the other Party is liquidating, dissolving or ceasing normal business operations.

Upon termination of this Agreement (or any earlier expiration of the Application Software Subscription), Customer shall: (A) cease all access to and use of the Application Software (and Capsulab shall be entitled to cease provisioning Customer with access to the Application Software), and (B) if applicable, uninstall all copies the Application Software from Customer's device on which it is installed.

Termination of this Agreement shall not affect any rights or obligations that accrued as of the effective date of termination. Moreover, any provision that ought by its nature to survive termination of this Agreement (such as Customer's payment obligations hereunder), shall survive.

13. MISCELLANEOUS

52. Entire Agreement. This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation or statement not expressly specified in this Agreement. Without limiting the generality of the foregoing, this Agreement supersedes the following, each of which shall be deemed rejected, void and of no effect: (i) any shrink-wrap, click-wrap, or similar terms and conditions that accompany, or are included within, the Machine or Application Software, and (ii) any terms or conditions (whether printed, hyperlinked, or otherwise) in any purchase order or other standardized business forms, which purport to supersede, modify or supplement this Agreement. The section headings used in this Agreement are for convenience of reading only. The language of this Agreement is solely English, and all documents, notices, and other written communications relating to this Agreement shall be in English. This Agreement may be executed in any number of counterparts (including digitally, electronically scanned and e-mailed PDF copies, and any similarly signed and electronically or digitally transmitted copies) each of which will be considered an original, but all of which together will constitute one and the same instrument.

53. Amendment. This Agreement may only be modified or supplemented by a written instrument (referencing this Agreement) duly signed by each Party.

54. Subcontracting. All Services will be performed by Capsulab and/or its Affiliates, and are provided for the benefit of Customer only, but Capsulab shall remain responsible for its Affiliates' compliance. Customer shall fully cooperate with Capsulab and its Affiliates, and shall make available to them all relevant systems, assets, and resources, in connection with the provision of Services. With Customer's prior written approval (not to be unreasonably withheld, conditioned, or delayed) Capsulab may subcontract Services (in whole or in part) to a third party contractor, and without derogating from Capsulab's liabilities towards the Customer under this Agreement. Unless expressly agreed otherwise in writing, all Services shall be carried out remotely, and any physical attendance at Customer's offices or other locations requested by Customer, if agreed to by Capsulab (for example, if pre-agreed in a Professional Services SOW), shall be charged at Capsulab's then-current rates, and Capsulab shall also be entitled to reimbursement for travel and lodging costs and expenses incurred. For the avoidance of doubt, third party manufacturers of the Machine, third party suppliers of Machine sub-components, third party licensors of software, and third party providers of software tools in connection with any Services, shall not be deemed subcontractors of Capsulab for purposes of this Agreement.

55. Assignment. This Agreement may not be assigned, in whole or in part, by either Party without the prior express written consent of the other Party; except, however, that either Party may, upon written notice, assign this Agreement in whole to: (A) an Affiliate; or (B) a successor in connection with a merger, consolidation, or acquisition of all or substantially all of the assigning Party's assets or business relating to this Agreement. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and inure to the benefit of each Party and its respective successors and assigns. Furthermore, any Capsulab obligation hereunder may be performed (in whole or in part), and any Capsulab right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Capsulab.

56. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel, in without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy between the Parties under, or otherwise in connection with, this Agreement will be subject to the exclusive jurisdiction and venue of the competent courts located in Tel Aviv, Israel and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction. IF APPLICABLE, EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY. EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY'S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that Customer may have against Capsulab shall only be enforceable against Capsulab, and not any other entity or Capsulab's officers, directors, representatives, or agents. Without derogating from any limitations or exclusions of liability in this Agreement, Customer hereby irrevocably waives any claims against Capsulab for sums to which Customer is entitled under any insurance policy carried by or on behalf of Customer.

57. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.

58. Publicity. Capsulab may use Customer’s name and logo on Capsulab's website and in its promotional materials to state that Customer is a customer of Capsulab. Moreover: (a) Customer agrees to provide a quote from one of Customer’s executives about the Machine and Consumables, for publication on Capsulab's website and marketing materials; and (b) Customer agrees to reasonably cooperate with Capsulab in the creation and promotion of a case-study to be published on Capsulab's website and marketing materials. For the avoidance of doubt, use and publication of such quotes and case-study shall be at Capsulab's sole discretion.

59. Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.

60. No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Capsulab's Affiliates), there shall be no third-party beneficiaries of or under this Agreement.

61. Relationship. The relationship of the Parties is solely that of independent contractors. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, franchise, fiduciary, partnership, association, or otherwise between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.

62. Force Majeure. Neither Party shall have any liability, or otherwise be deemed in breach, for any performance (excluding payment obligations) under this Agreement that is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below). The Party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed by the Force Majeure. If and when performance is resumed, all dates specified under this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such Force Majeure. For purposes of this Agreement, an event of "Force Majeure" shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, or failure of (or delay in) delivery by Capsulab’s suppliers or carriers; (c) invasion, war (declared or undeclared), terrorism, riot, insurrection, or civil commotion; (d) an act of governmental or quasi-governmental authorities (such as lockdowns); (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected Party.

63. Notices. Except as may be specified otherwise in this Agreement, all notices, consents, or other communications provided for in connection with this Agreement shall be in writing, shall be sent to the applicable contact specified in the Order, and shall be deemed given upon: (a) personal delivery; (b) the second business day after mailing via either U.S. mail or mailing via registered or certified mail with postage prepaid and return receipt requested; (c) upon delivery confirmation by nationally recognized overnight delivery service ("Courier"); (d) the second business day after sending confirmed by facsimile; (e) the first business day after sending by email.

64. Export Compliance. Customer represents and warrants that: (a) it is not a resident of, and will not access or use Capsulab Technology in, a country that the U.S. and/or Israeli government has embargoed for use of Capsulab Technology, and that Customer is not a person or entity named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to Capsulab. Customer shall promptly provide Capsulab with any requested information regarding the location (as well as intended location) of Capsulab Materials, in order to enable Capsulab to obtain any necessary export licenses (and, if required by applicable law, Capsulab shall not be required to ship any Machine to Customer until such export license has been obtained).

Customer shall be responsible for providing all required declarations, certifications, and/or other information in a timely manner as necessary for applicable export licenses, and shall be responsible for obtaining  any additional export licenses required for the performance of the Customer's obligations herein. Customer shall promptly provide Capsulab with any requested information required by applicable law regarding the location (as well as intended location and end-user identity) of the Machine, in order to enable Capsulab to obtain any necessary export licenses (and, if required by applicable law, Capsulab shall not be required to ship any Machine or provide any other Capsulab Technology to Customer until such export license has been obtained).

Customer shall not transfer, export, re-export, import, re-import or divert Capsulab Technology in violation of any Export Control Laws, and shall not transfer, export, re-export, import, re-import or divert Capsulab Technology: (A) to any country contrary to declarations provided to applicable regulatory authorities; (B) to any country listed in the sanctions list of the United Kingdom, European Union, or the U.S.A; and/or (C) to Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, Russia, the Crimea, Donetsk, or Luhansk regions of Ukraine, or North Korea. "Export Control Laws" means all applicable export and re-export control Laws applicable to Customer and/or Capsulab or its Affiliates, as well as the United States' Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.

In the event of a Customer breach under this Section (Export Compliance), Customer agrees to indemnify and hold harmless Capsulab and all Capsulab Affiliates (and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Capsulab or a Capsulab Affiliate (or such persons) as a result of such breach.

65. Expense. Except as expressly stated otherwise in this Agreement, each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).

66. Government Users. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that any Embedded Software and Application Software constitutes “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with any Capsulab Technology shall be as provided in this Agreement. If a government agency needs additional rights, it must negotiate a mutually acceptable signed written addendum to this Agreement specifically granting those rights.

67. Participation in Drafting; Essential Basis of the Agreement. The Parties intend that this Agreement be interpreted in all instances as if the Parties participated equally in the drafting of all its provisions, and that no provision in this Agreement should be interpreted in a manner unfavorable to a Party on the basis that it drafted the provision. Moreover, Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions of this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

68. Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any of Capsulab's or its Affiliates' employees, partners, representatives, or agents, in connection with this Agreement.

69. Customer Resources. Except for the Machines, Peripheral Hardware, Consumables, Application Software, and Services provided by Capsulab hereunder, Customer shall be solely responsible: (a) for providing all hardware, software, systems, assets, facilities, and ancillary goods and services needed for Customer to access and use the Machines, Peripheral Hardware, Consumables, and Application Software; (b) for ensuring their compatibility with the Machines, Peripheral Hardware, Consumables, and Application Software; and (c) for obtaining (and maintaining) all consents and licenses necessary to exercise Customer's rights hereunder. Moreover, Customer shall ensure that the location at which any Machines are used is insured in a Property Insurance policy against 'all risks' (and that such policy includes a waiver of subrogation towards Capsulab). Without derogating from any limitations or exclusions of liability in this Agreement, Customer hereby irrevocably waives any claims against Capsulab for sums to which Customer is entitled under any policy carried by Customer or on its behalf.

70. Technical Advice. Capsulab shall have no obligation or liability for any technical advice furnished to Customer, including without limitation technical advice with respect to the use of the Machines, Consumables, or Application Software, all such technical advice being given and accepted at Customer's risk.