TERMS OF SERVICE

EFFECTIVE: July 20, 2022

IMPORTANT, READ CAREFULLY : YOUR USE OF AND ACCESS TO THE WEBSITE AND PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE “SERVICES”) OF MYRAEB GROUP AND SUBSIDIARY BIO CMC PLATFORMS LLC. AND THEIR AFFILIATES (“MYRAEB GROUP'') IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS.

BY CLICKING/CHECKING THE “I AGREE” BUTTON/BOX, ACCESSING THE MYRAEB WEBSITE OR BY UTILIZING THE SERVICES, THE INDIVIDUAL OR LEGAL ENTITY (“Customer”) AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL EXHIBITS, QUOTATION FORMS, ORDER FORMS, AND INCORPORATED POLICIES (THE “AGREEMENT” OR “TOS”). THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS OF SERVICE.

MYRAEB will provide the Services, and you may access and use the Services, in accordance with this Agreement. MYRAEB may provide any of the Services hereunder through any of its Affiliates. If You order Services through an on-line registration page or an order form or quotation form (each an “Order Form”), the Form may contain additional terms and conditions and information regarding the Services you are ordering. Unless otherwise expressly set forth in any such additional terms and conditions applicable to the specific Service which You choose to use, those additional terms are hereby incorporated into this Agreement in relation to Your use of that Service.

System Requirements. Use of the Services requires one or more compatible devices, Internet access (fees may apply), and access to MyraEB software, and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software, and Internet access, Your ability to access and use the Services may be affected by the performance of these factors. High speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility.

DEFINITIONS. The following terms will have the following meanings whenever used in this Agreement.

1. Services.

2 Security and Processing of Customer Content.

3. IP & FEEDBACK.

3.1 IP Rights in the Software. Provider retains all right, title, and interest in and to the Documentation and Software, including without limitation Deliverables and any Upgrades, except to the extent of the limited licenses specifically set forth in Section 2.1 (Licenses). Customer recognizes that the Software and its components are protected by copyright and other laws.

3.2 Customer. As between the parties, Customer retains all its right, title, and interest in and to Customer’s Confidential Information, including Customer Content, and all intellectual property and proprietary rights therein. Except as expressly set forth in this Agreement, MYRAEB and BIO CMC SYSTEMS acquire no right, title, or interest from Customer under this Agreement in or to Customer Content.

3.3 Feedback. Customer hereby grants Provider a perpetual, irrevocable, worldwide license to use any Feedback that Customer communicates to Provider during the Term, without compensation, without any obligation to report on such use, and without any other restriction. Provider’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses under copyright, patent, and any other form of intellectual property. Notwithstanding Article 5 (Confidential Information), Feedback will not be considered Customer’s Confidential Information or its trade secret.

4.0 FEES & REIMBURSEMENT.

4.1 Fees. Customer shall pay Provider as follows:

4.2 Invoices. Unless otherwise set forth in this Agreement, payment against all invoices will be due within 30 days of issuance thereof.

4.3 Fees for Renewed Terms. Provider may increase the License Fee effective at the start of a renewal License Term (as described in Section 9.1) following Provider’s notice of the increase. No new License Term will go into effect before payment of the applicable License Fee.

4.4 Taxes. Amounts due under this Agreement are payable to Provider without deduction for any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, Provider may require that Customer submit applicable Sales Taxes to Provider. However, the preceding sentence does not apply to the extent that Customer is tax exempt, provided it gives Provider a valid tax exemption certificate within 30 days of the Effective Date. Provider’s failure to include any applicable tax in an invoice will not waive or dismiss its rights or obligations pursuant to this Section 4.4. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer shall separately pay Provider the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section 4.4 does not govern taxes based on Provider’s net income.

5 CONFIDENTIAL INFORMATION.

5.1 Confidential Information Defined. “Confidential Information” refers to the information (as defined below) that one party to this Agreement (“Discloser”) may disclose to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Disclosed orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within 7 business days; (c) any source code disclosed by Provider and any names of actual or potential customers disclosed by Customer, whether or not marked as confidential; and (d) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that Confidential Information may include Discloser’s valuable trade secrets.

5.2 Non disclosure. Recipients shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and is subject to a written agreement with Recipient with non disclosure terms no less restrictive than those of this Section 5.2; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information to the extent required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest, limit, or protect such required disclosure, at Discloser’s expense.

5.3 Injunction. Recipient agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in Section 5.2 (Nondisclosure); (b) it would be difficult to determine the damages resulting from its breach of Section 5.2, and such breach would cause irreparable harm to Discloser; and (c) a grant of injunctive relieve provides the best remedy for any such breach, without any requirement that Discloser prove actual damage or post a bond or other security. Recipient waives any opposition to such injunctive relief or any right to such proof, bond, or other security.

5.4 Termination & Return. The obligations of this Article 5 will survive termination or expiration of this Agreement for any reason. Upon termination or expiration of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.

5.5 Retention of Rights. Upon termination of this Agreement for any reason, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof. However, the preceding sentence does not apply to Confidential Information to the extent incorporated into the Software’s or Deliverables’ object code. This Article 5 does not transfer ownership of Confidential Information or grant a license thereto. Discloser retains all right, title, and interest in and to all Confidential Information, except as set forth in Section 1.3.1 (Licenses) and the last sentence of Section 1.3.4 (Documentation) above.

5.6 Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:

6. REPRESENTATIONS & WARRANTIES.

6.1 From Provider.

  1. Re Function. Provider warrants that, during the License Term, the Software will perform materially as described in its Specifications. In case of breach of the warranty in the preceding sentence, Provider shall: (i) repair the Software; (ii) replace the Software with software of substantially similar functionality; or (iii) if such attempts do not succeed after 30 business days, refund can be issued for the the upcoming quarter in the License Term, in which case Customer shall promptly cease all use of that Software at the end of the quarter. The preceding sentence, in conjunction with Customer’s right to terminate this Agreement where applicable, states Customer’s sole remedy and Provider’s entire liability for breach of the warranty in this Subsection 6.1(a).

  1. Re IP Rights in the Software. Provider warrants that it is the owner of the Software and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the intellectual property rights to the Software in this Agreement without the further consent of any third party and without conditions or requirements not set forth in this Agreement. Provider’s representations and warranties in the preceding sentence do not apply to the extent that the infringement arises out of any of the conditions listed in Subsection 7.1(a) (Exceptions to IP Indemnity) below. In the event of a breach of the warranty in this Subsection 6.1(b), Provider, at its own expense, shall promptly take the following actions: (i) secure for Customer the right to continue using the Software; or (ii) replace or modify the Software to make it noninfringing, provided such modification or replacement will not materially degrade any functionality listed in the Specifications. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Provider’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Subsection 6.1(b) and for potential or actual intellectual property infringement by the Software.
  2. Re Development Services. Provider warrants that it will perform all Development Services in a professional and workmanlike manner. In case of breach of the warranty the preceding sentence, Provider, at its own expense, shall promptly re-perform the Development Services in question. The preceding sentence, in conjunction with Customer’s right to terminate this Agreement where applicable, states Customer’s sole remedy and Provider’s entire liability for breach of the warranty in this Subsection 6.1(c).

6.2 From Customer. Customer shall allow no unauthorized use of the Software, and shall take commercially reasonable steps to prevent unauthorized use by its Associates. Specifically, Customer shall not: (i) provide, make available to, or permit individuals other than Users authorized by Customer to use or access the Services, the Software, or Documentation, in a manner consistent with this Agreement; (ii) copy, reproduce, republish, upload, post, or transmit the Software or Documentation (except for backup or archival purposes, which will not be used for transfer, distribution, sale, or installation); (iii) license, sell, resell, rent, lease, transfer, distribute, or otherwise transfer rights to the Software or Documentation unless as authorized in this Agreement; (iv) modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code of the Software or Documentation; (v) create, market, distribute add-ons or enhancements or incorporate into another product the Software without prior written consent of Provider; or (vi) remove any proprietary notices or labels on the Software or Documentation without prior written consent of Provider.

6.3 From Both Parties. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.

6.4 Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED ABOVE IN THIS ARTICLE 6, PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER HAS NO OBLIGATION TO INDEMNIFY, DEFEND, OR HOLD HARMLESS CUSTOMER, INCLUDING WITHOUT LIMITATION AGAINST CLAIMS RELATED TO PRODUCT LIABILITY OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, EXCEPT AS SPECIFICALLY SET FORTH IN ARTICLE 7 (Indemnification) BELOW. Provider does not warrant that the Software will perform without error or that it will run without immaterial interruption. Provider gives no warranty regarding, and will have no responsibility or liability for, any loss arising out of: (a) a modification of the Software made by anyone other than Provider, unless Provider approves such modification in writing; or (b) use of the Software in combination with any operating system not authorized in the Documentation or with hardware or software the Documentation describes as unsuitable (or words to the effect).

7.0 INDEMNIFICATION.

7.1 Indemnity From Provider. Provider shall defend and indemnify Customer and Customer’s Associates against any third party claim, suit, or proceeding arising out of, related to, or alleging infringement or misappropriation of a third party’s patent, copyright, trade secret, or other intellectual property right as a result of Customer’s authorized use of the Software (an “Indemnified Claim”).

  1. Exceptions to IP Indemnity. Provider’s obligations set forth in this Section 7.1 do not apply to the extent that an Indemnified Claim arises out of, relates to, or alleges: (i) Customer’s breach of this Agreement; (ii) revisions to the Software made without Provider’s written consent; (iii) Customer’s failure to incorporate Upgrades that would have avoided the alleged infringement; (iv) Provider’s modification of Software in compliance with specifications provided by Customer, including without limitation Deliverables to the extent created based on such specifications; or (v) use of the Software in combination with hardware or software not provided by Provider.
  2. Response to Claims. In the event of an Indemnified Claim, Provider may exercise any of the rights set forth in Subsections 6.1(c)(i) through 6.1(c)(iii) above, including without limitation its right therein to terminate licenses and require return of the Software.

7.1 Indemnity From Customer. Customer shall indemnify and defend Provider and Provider’s Associates (as defined below in Section 7.2) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging any of the acts or events described in Subsection 7.1(a)(i) through 7.1(a)(v) above.

7.2 Litigation & Additional Terms. The party indemnified above pursuant to this Article 7 (“Indemnified Party”) shall provide prompt notice of any Indemnified Claim and reasonably cooperate with the other party’s (“Indemnitor’s”) defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided: (a) if Indemnitor fails to assume the defense on time to avoid prejudicing the defense, Indemnified Party may defend the Indemnified Claim, without loss of rights pursuant to this Article 7, until Indemnitor assumes the defense; and (b) Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or its Associate admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation. Indemnitor’s obligations in Sections 7.1 will be excused if either of the following materially prejudices the defense: (i) Indemnified Party’s failure to provide prompt notice of the Indemnified Claim; or (ii) Indemnified Party’s or an Indemnified Associate’s failure reasonably to cooperate in the defense.

8. LIMITATION OF LIABILITY.

TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, GOODWILL, OR REVENUES OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM OF ANY NATURE, WHETHER IN CONTRACT, TORT, OR UNDER ANY THEORY OF LIABILITY, ARISING UNDER THIS AGREEMENT, EVEN IF A PARTY HAS BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.

TO THE EXTENT PERMITTED BY LAW, EACH PARTY’S ENTIRE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO BIO CMC SYSTEMS UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.

THE FOREGOING EXCLUSIONS AND LIMITS IN THIS SECTION 5 SHALL NOT APPLY TO LIABILITY OR OBLIGATIONS ARISING UNDER SECTIONS 1.2 (RESTRICTIONS) OR 7 (INDEMNIFICATION), CONFIDENTIALITY UNDER SECTION 5 INFRINGEMENT OR MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR CUSTOMER’S OBLIGATION TO PAY FOR SERVICES OR TAXES UNDER THIS AGREEMENT.

9. TERM & TERMINATION.

Term and Termination.

10. MISCELLANEOUS.

10.1 Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Provider employee or contractor will be an employee of Customer.

10.2 Users. Customer is responsible and liable for the acts and omissions of Users related to this Agreement and to the products and services provided pursuant to this Agreement, as if they were Customer’s own acts and omissions.

10.3Notices. Notices pursuant to this Agreement shall be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earliest of (a) actual receipt or (b) delivery in person, by electronic mail with electronic confirmation of receipt, or by certified mail return receipt requested.

For Provider- MyraEB and Bio CMC will have three managers: (i) Andrea F. Nuciforo Jr. of One Boston Place; (ii) Vijesh Sharma of 300 Baker Avenue, Suite 310, Concord Mass, 01742; and (iii) Nirmal Dass, of the same address in Concord.

For Customer: Customer Website or Representative

10.4 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by epidemics, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.

10.5 Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Provider’s express written consent. Except to the extent forbidden in this Section 10.5, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

10.6 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. If a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

10.7 No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

10.8 U.S. Government Restricted Rights. This Section 10.8 applies to all acquisitions of the Software (including without limitation Deliverables) or Documentation by or for the United States federal government, including by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with the Federal government. The Software and related documentation were developed at private expense and are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 (for civilian agencies) and 48 C.F.R. §227.7202 (for Department of Defense agencies), as applicable. Consistent with and subject to 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7702-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only such rights as are granted to all other end-users pursuant to the terms herein. Any provisions of this Agreement inconsistent with federal procurement regulations or other federal law are not enforceable against the U.S. Government. Unpublished rights are reserved under the copyright laws of the United States. Customer shall not remove or deface any restricted rights notice or other legal notice appearing in the Software or on any packaging or other media associated with the Software. This Section 10.8 does not grant Customer any rights not specifically set forth in this Agreement, including without limitation any right to distribute the Software to the United States federal government.

10.9 Bankruptcy Rights. The rights and licenses provided under this Agreement (the “License Provisions”) are licenses to “intellectual property,” as defined in Section 365(n) of the United States Bankruptcy Code (11 U.S.C. Sections 101, et seq.). If Provider is subject to any proceeding under the United States Bankruptcy Code, and Provider as debtor in possession or its trustee in bankruptcy rejects this Agreement, Customer may, pursuant to 11 U.S.C. Section 365(n)(1) and (2), retain any and all rights granted to it under the License Provisions, to the maximum extent permitted by law. This Section 10.9 will not be construed to limit or restrict any right or remedy not set forth in this Agreement, including without limitation the right to retain any license or authority this Agreement grants pursuant to any provision other than the License Provisions.

10.10 Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of Massachusetts, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; or (b) any international laws. The parties consent to the personal and exclusive jurisdiction of the state courts of Middlesex county, Massachusetts for all cases and controversies arising out of or related to this Agreement, including without limitation tort cases.

10.11 Conflicts. This Agreement, together with the Quotation and SOWs represent the entire agreement between BIO CMC SYSTEMS and Customer with respect to the Services. In the event of any conflict between this Agreement and any Order or SOW, this Agreement will govern and control unless the Order or SOW expressly and specifically overrides terms or conditions of this Agreement.

10.12 Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.

10.13 Technology Export. Customer shall not: (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export the Software or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations.

10.14 Non-Exclusivity. Customer acknowledges that the Software is provided on a non-exclusive basis. Nothing in the agreement shall be deemed to prevent or restrict Provider's ability to provide the Software or other technology, including any features, characteristics or functionality first developed for Customer, to other parties.

10.15 Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

10.16 Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.

10.17 Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party.