General Terms And Conditions of Sale

1. General provisions

1.1     These general terms and conditions of sale (“GTCS”) apply to the sale of products (the “Product(s)”) by DEPIXUS, a French société par actions simplifiée having its registered office located 3-5 impasse Reille, 75014 Paris, France, registered with the trade and companies register in Paris under number 752282954 (the “Company” or “Depixus”), as well as to the provision of any related services to the Company’s customers (each, a “Customer”).

1.2     The GTCS are binding on the Customer and shall apply without any reserve to any order placed by the Customer. Validation of a given order by the Customer implies a full acceptance by the Customer of the GTCS in force on the day of the order.

1.3     The GTCS are systematically sent with any order confirmation sent to the Customer by the Company.

1.4     All Customers are therefore deemed to have read and accepted, without any reservation, all the provisions of the GTCS. The GTCS shall prevail over any conflicting provisions and conditions that may appear in any documentation issued by any Customer (such as general conditions of purchase). In the absence of an express prior acceptance by the Company, any conflicting provisions set out by any Customer will therefore be unenforceable against the Company.

2. Pre-contractual information

The Customer acknowledges that it has received all the information necessary to enable it to assess the offer made by the Company and, in particular, that prior to placing an order and entering into the contract, the Customer has been provided, in a legible and comprehensible manner, with these GTCS and with all the information required under applicable laws.

3. Purchase order – Order confirmation

3.1     The Customer shall submit purchase orders to the Company using the processes prescribed by the Company. Each order shall be in the form prescribed by the Company and shall include the information requested by the Company. All orders and resulting transactions shall be governed solely by the GTCS, and no term or condition that may be included by the Customer in an order shall apply nor bind the Company notwithstanding the Company’s acceptance and fulfilment of the order. The Customer shall ensure that an order is accurate and complete before the Customer submits such order to the Company.

3.2     An order is not binding on the Company unless and until the Company accepts the order by sending a written acceptance confirmation notice to the Customer. The Company is not obligated to process or accept any order. If the Company rejects an order after the Customer pays a deposit for the ordered Products, then the Company shall promptly return the deposit to the Customer. Orders confirmed in writing by the Company may not be cancelled or modified by the Customer, in whole or in part, without the Company’s prior written consent.

4. Price of the Products - Invoices

4.1     The prices of the Products in force at the time of the order are indicated in EUR, USD or GBP, excluding any VAT, duties and taxes, packaging costs, shipping and delivery costs.

4.2     The prices indicated do in particular not include (i) delivery charges, and (ii) any applicable federal, state, provincial or municipal sales, use, value-added, property, excise, import, export, foreign, withholding or other governmental taxes, duties, charges, levies, fees, excises, tariffs or assessments of any nature whatsoever now or hereafter imposed (collectively “Taxes”). The Customer is solely responsible and liable for, and will pay and remit promptly, all Taxes (other than corporate income taxes payable by the Company) associated with, based on or due as a result of the amounts paid by the Customer to the Company under the GTCS, and all related interest, penalties and expenses.

4.3     The Company reserves the right to change its prices at any time but undertakes to apply the prices in force at the time the order is placed, subject to availability on that date.

4.4     For each accepted order the Company will deliver to the Customer an invoice for the purchase price payable by the Customer for ordered Products and certain Taxes when the ordered Products are delivered by the Company to the Company.

4.5     Payments are net 30 payment DAP.

5. Terms and conditions of payment

5.1     The Customer expressly acknowledges that any order placed is an order with a payment obligation, which requires the payment of a price in exchange for the supply of the Product ordered.

5.2     The Customer will make required payments to the Company by wire transfer/electronic funds transfer to the bank account designated in writing by the Company from time to time, or by an alternative, commercially reasonable payment method specified in writing by the Company from time to time.

5.3     For the purpose of the GTCS, an amount will be deemed not paid by the Customer to the Company unless and until the amount has been unconditionally deposited to the Company’s designated bank account free and clear of all restrictions. Except as expressly set out in the GTCS or otherwise expressly agreed in writing by the Parties, all amounts due to the Company under the GTCS are payable in the currency set out in the quotation sent by the Company to the Customer (EUR, USD or GBP).

5.4     Except to the extent required by applicable law, all amounts payable to the Company under the GTCS are payable in full without any deduction or withholding. If the Customer is prohibited by law from making a payment free of deductions or withholdings, then the Customer will pay to the Company an additional amount so that the actual amount received by the Company after required deductions and withholdings and after payment of any additional Taxes or other charges due as a consequence of the payment of the additional amount will equal the amount that would have been received by the Company if the deductions and withholdings were not required.

5.5     In the event of a late payment of any amount due to the Company, unless the late payment is not remedied with ten (10) calendar days as from the notice of a given late payment being sent by the Company to the Customer, the Customer shall pay penalties for late payment based on the amount not paid in a timely manner to which the EURIBOR + 3% rate shall be applied, pro rata the duration of the delay, on the basis of years of twelve (12) months comprising thirty (30) days each. These penalties for late payment shall be automatically granted to the Company, without the need for any formalities or prior notice.

5.6     A lump sum indemnity for recovery costs, equal to forty (40) euros, shall automatically be due, without prior notice, by the Customer to the Company in case of a late payment. The Company reserves the right to claim for an additional compensation if the actual recovery costs exceed this amount, subject to relevant evidence being notified to the Customer.

6. Delivery

6.1   Delivery - shipping

The Company shall deliver orders to the Customer on the terms DAP (as defined in Incoterms 2020) by making the ordered Products available at the Customer’s applicable facility based on the delivery details (in particular the address) provided by the Customer (it being specified that the Customer shall be liable in the event that the delivery is delayed or impossible because of wrong information provided by the Customer).

6.2   Shipping

The Company will arrange for a carrier to ship the ordered Products in accordance with the applicable storage/handling requirements, and for paying all related fees, costs and charges (it being specified that such fees, costs and charges – including custom/export/import taxes - will be invoiced to the Customer).

6.3   Retention of title

The Products are sold subject to a retention of title provision. In this respect, the Company retains the full ownership of the sold Products until full payment of the price of such Products by the Customer. Failing completion of the full payment at the latest on the payment deadline set out in the GTCS, the Company may claim the unpaid Products back and terminate any outstanding order. This provision does not prevent the transfer of risks of the Products as set forth in the GTCS.

6.4   Legal Compliance

The Customer shall at all times comply with all applicable laws (including laws regarding data and personal information protection, privacy, export and import controls, consumer protection and business practices, advertising and marketing, etc.) relating to the Customer’s performance of the GTCS.

6.5   Inspection/Return of defective Products

6.5.1     The Customer will, promptly and before the end of the applicable Inspection Period (as defined below), inspect and conduct quality control testing of all ordered products delivered. If the Customer identifies any defect in any ordered Product, then by or before the end of the applicable Inspection Period the Customer shall send to the Company a written notice setting out details of the defect and providing supporting documents (including photographs) and information regarding the defect. If the Customer fails to give a required defect notice regarding an ordered Product before the end of the applicable Inspection Period, then the ordered Product will be deemed compliant and the Customer will be deemed to have accepted the ordered Product.

6.5.2    For the purpose of the GTCS, “Inspection Period” shall mean seven (7) days after the Product is delivered by the Company to the Customer.

6.5.3    If the Customer submits a timely defect notice in accordance with the GTCS, then the Company in its discretion will either: (i) conduct, or require the Customer to conduct, further testing of the relevant Products to assess the alleged defect; (ii) require the Customer to return the relevant Products to the Company for replacement; or (iii) require the Customer to promptly return the relevant Products to the Company in exchange for a full credit for the purchase price that the Customer actually paid for the relevant Products. The Customer will cooperate with and assist the Company regarding the assessment of alleged defects. The Customer will not return a Product to the Company unless the Company has issued to the Customer an express, written return merchandise authorization (“RMA”) for the given Product. Defects that are reported by the Customer to the Company after the applicable Inspection Period will be ineligible for credit. If the Company issues an RMA for a Product, then the given Product must be received at the applicable distribution facility within ten (10) days of the RMA date. If a returned Product is not received at the applicable distribution facility within the ten (10) day period, then the RMA will be deemed void and no credit will be issued by the Company for the Product. The Customer will pay all costs to return Products to the Company, but the Company will reimburse the Customer for reasonable costs of returning Products that the Company confirms are actually defective, upon receipt of the relating proof of payment. For the avoidance of doubt, the Company is not responsible for defects caused during shipping.

7. Warranty of the Products

7.1   General provisions

7.1.1     The Products sold by the Company comply with the specifications set out in the commercial quotation remitted to the Customer and these GTCS to the exclusion of any other specification or provision which has not been expressly accepted by the Company.

7.1.2     Unless an extension of warranty has been granted in writing, the Company warrants that the Product will be free from defects during the warranty period of one (1) year from the date of installation of the Product (it being specified that this warranty period cannot exceed fifteen (15) months from the date of delivery).

7.1.3     Any warranty shall be excluded if the alleged default is the result of, including but without limitation, a fair wear and tear of the Product, a misuse of the Product, any utilisation non-compliant with the Product’s purpose or specifications, a repair or modifications made by the Customer, a lack of supervision or maintenance, mishandling, breakages, shock, incompatible power supply, failure of the set-up of the Product by the Customer, unauthorized or incompatible network system, any environment incompatible with the technical requirements of the Product, and generally of any event beyond the control of the Company. It is the sole responsibility of the Customer to take all necessary measures of safety and hygiene including decontamination of the laboratory where the Product will be installed.

7.1.4     The Customer acknowledges and agrees that the Company is subject only to an obligation of means for services provided to the Customer.

7.1.5     The warranties set forth in these GTCS are exclusive of any other warranty. The Company shall not grant any other statutory, express or implied warranty for the Products and, in particular, no implied warranty of merchantability or fitness for a particular purpose or any implied warranty of non-infringement, or any warranty against hidden defects or in relation to liability for defective products. The Company does not warrant that the Product will meet Customer’s requirements or will be fit for a particular purpose.

7.1.6    Except as expressly set out in the GTCS, Products are sold to the Customer on an “as is” and “as available” basis, and without any representations, warranties, conditions or guarantees of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or course of performance, including any representations, warranties, conditions or guarantees of or relating to capacity, durability, errors, fitness for a particular purpose, functionality, merchantability, non-infringement, performance, results or quality, all of which are hereby disclaimed by the Company to the fullest extent permitted by law.


7.1.8     It is reminded that the attempt to reach amicable solutions prior to any legal action does not interrupt the time limits for action under the legal warranties or the duration of any contractual warranties.

7.2   Service Contract Agreement

7.2.1     The Customer may decide to enter into with the Company, in relation to a given Product, a service contract agreement (the “Service Contract Agreement”).

7.2.2     The conditions applicable to the Service Contract Agreements are set out in Schedule A hereto.

8. Intellectual property rights

8.1     Depixus retains all the intellectual property rights it holds on the Products (including any Software – as defined in Schedule A), as well as on any development or derivative work thereof and on anything developed or delivered by or on behalf of Depixus under the GTCS; it being specified that the intellectual property rights retained by Depixus shall in particular include, without limitation, patents or patent applications, drawings and patterns rights, trademarks, concepts and know-how, copyrights, etc.

8.2     The Customer acknowledges and agrees that, unless otherwise expressly provided herein, the acquisition of Products from Depixus entails no transfer or assignment from Depixus to the Customer of any intellectual property right, and that, in particular, the ownership on the Software is never transferred to the Customer.

8.3     Depixus grants in favour of the Customer a personal, non-exclusive and non-transferable licence to access and use the Software in relation with any Product purchased by the Customer.

8.4     The Customer undertakes to keep any intellectual property rights granted by Depixus strictly confidential and undertakes not to seek to apply reverse engineering on the Product (including any Software).

8.5     The Customer additionally undertakes not to interfere with or prejudice against any intellectual property rights belonging to Depixus or any third party software owner used in or embedded in the Product. The Customer shall indemnify and hold Depixus harmless against all liability, damages, losses and expenses, (including attorneys’ fees and other costs of legal defense), that Depixus may suffer or incur as a result of a breach by the Customer of this section.

9. No right of withdrawal

9.1     The Customer acknowledges that, acting as a professional, the Customer does not benefit from any withdrawal period.

9.2     By accepting these GTCS, the Customer expressly acknowledges that he/she has been informed that there is no right of withdrawal for the Products.

9.3     Except as expressly set out in the GTCS or unless the Company in its discretion expressly agrees in writing otherwise, the Company is not obligated to accept the return of any Product from the Customer, to agree to the exchange of any Product, or to credit the Customer for any Product returned to the Customer by any person, and the Customer will not make any claim against the Company for any damaged or defective Product.

10. Customer service / technical support

10.1 Customers may contact the Company at the following contact details:

10.2 When contacting Depixus, please have the following information available:

  • System Serial Number
  • Current version of Software, both name and version number
  • Current version of Operating System on computer
  • Description of problem and any troubleshooting steps already taken

10.3     Unless otherwise specified in the applicable quotation, Services are generally provided during normal working hours, Monday through Friday, 9:00 AM to 5:00 PM local time (CET), excluding holidays.

10.4     Phone and/or email support will be provided as first-line support. Some issues may be resolved by permitting remote access to the instrument. If the attending Depixus representative determines that a repair or field visit is necessary to resolve the Customer's issue, Depixus will use commercially reasonable efforts to have a field service engineer (FSE) arrive at the Customer's location within three (3) business days. All service requests from Customers with a service contract will receive preferential consideration over service requests from Customers that are not under an existing warranty or Service Contract Agreement.

10.5     If the Customer or Customer’s authorized representative is not available at the agreed time of FSE arrival for a scheduled FSE visit and results in the engineer being unable to proceed with the service call, the Customer will be charged 6 hours (EUR/USD/GBP 350/per hour) plus any travel costs for the missed service call.

11. Liability and guarantee

11.1    The Company’s liability shall be strictly limited to direct and tangible damages suffered by the Customer and is strictly capped to the amount paid by the Customer for the given Product.

11.2    The Company's liability will in particular be excluded in the following cases:

i     Indirect, incidental, consequential, special, punitive or exemplary loss or damage of any nature or kind whatsoever or for any loss of data, loss of in formation, loss of business, loss of markets, loss of savings, loss of inc ome, loss of revenue, loss of profits, loss of use, loss of production or loss of goodwill;

ii     Force majeure (including (i) acts of God, flood, drought, earthquake or other natural disaster, (ii) epidemic or pandemic, (iii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, (iv) nuclear, chemical or biological contamination or sonic boom,(v) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, (vi) collapse of buildings, fire, explosion or accident and (vi) interruption or failure of utility service);

iii     Damage resulting from misuse of the Products or any fault on its part; in particular, the Company may not be held liable for any accident or damage caused by the use of the Products to the Customer and/or to any third party; the Company declines all liability for any damage resulting from the use of the Products, to any person or property whatsoever;

iv     Events attributable to a third party

12. Miscellaneous provisions

12.1  Entire agreement of the Parties

These GTCS constitute a contract governing the relationship between the Customer and the Company. They constitute the entirety of the rights and obligations of the Customer and the Company relating to their subject matter. If one or more provisions of these GTCS is/are declared null and void in application of a law, regulation or following a final decision by a competent court, the other provisions will retain all their force and scope. In addition, the fact that one of the parties to these GTCS does not take advantage of a breach by the other party of any of the provisions of these GTCS shall not be interpreted as a waiver on its part to take advantage of such a breach in the future.

12.2   Amendment of the terms and conditions

12.2.1    The Company reserves the right to amend these GTCS, at any time and without prior notice.

12.2.2    The GTCS applicable to the Customer for a given order are those in force on the date the order is placed; it is therefore specified that any modification of the GTCS made by the Company will not apply to any order placed previously, unless the given Customer expressly agrees otherwise.

13. Language

Where the GTCS have been translated into another language other than English only the English version shall have precedence unless otherwise agreed in writing between the parties.

13.1  Complaints

In the event of a dispute, the Customer must first contact the Company at the following contact details:

13.2  Applicable law - mediation - jurisdiction

13.2.1    These GTCS and any dispute, claim or challenge that may arise from them shall be governed, interpreted and applied in accordance with French laws, excluding its conflict of laws provisions. It is in particular expressly agreed that the United Nations convention on agreements for the international sale of goods shall not apply to these GTCS and/or to any sale of Products.

13.2.2    In the event that the complaint process with the Company's Customer service does not enable a complaint to be settled satisfactorily, the competent courts in Paris, France, will have jurisdiction in the event of any dispute relating to Products and more generally the GTCS. The Customer expressly waives any objection to venue in front of such courts and any claim in relation with such applicable jurisdiction.

Schedule A – Service Contract Agreement

A – General terms

1.   Terms

1.1    This Service Contract Agreement (the "Service Contract Agreement" or the "Agreement") sets forth the warranty terms applicable to the purchase by the buyer ("Customer'') of goods and/ or services ("Products") from DEPIXUS SAS ("Depixus” or the “Company") when Customer has agreed to purchase extended warranty services from Depixus (the “Services”). Customers may purchase extended service contracts at the time of Product(s) purchase or may renew their service contracts prior to their expiration.

1.2    These terms become effective on the date Customer purchases an extended warranty pursuant to Depixus’ general terms and conditions of sale (the "GTCS") with Depixus (the "Effective Date") and are incorporated into the GTCS by reference. To the extent there is any conflict between this Service Contract Agreement and the GTCS, this Service Contract Agreement shall take precedence.

2.   Eligibility

Instruments must be currently covered under the initial Depixus warranty or Service Contract Agreement to be eligible for coverage under a new or repeat Service Contract Agreement. If a Product has been out of warranty or Service Contract Agreement, a reinstatement inspection will be required before the Product can be placed under a new Service Contract Agreement. Customer shall be responsible for the cost of any repairs required to allow the Product to pass the reinstatement inspection before the Product can be placed under a new Service Contract Agreement.

3.   Health and Safety

Depixus may require a completed certificate of decontamination or transfer of a Product to a suitable, safe, and secure location reasonably determined by Depixus as a condition to servicing any Product. The Customer warrants that any Product or component thereof to be serviced will be fully decontaminated of radioactive, biological, toxic, or other dangerous materials or substances prior to servicing so that the service technician will not be exposed to any such materials. Customer shall not assign Depixus personnel to work in bio-safety Level 3 or Level 4 laboratories without prior written notice to Depixus and Depixus’ prior written consent.

4.   Delivery

Depixus will use reasonable efforts to provide the Services as quickly as possible from receipt of the Customer's service request into Depixus’ local service center. Depixus shall remotely resolve Customer requests for support Services whenever possible. As necessary, on-site support Services will be scheduled at a time mutually agreed upon by Depixus and the Customer. It is the Customer's responsibility to provide access to the Product so Depixus may complete Services within the scheduled or guaranteed time period, if applicable.

5.   Hours of Operation

Unless otherwise specified in the applicable quotation, Services are generally provided during normal working hours, Monday through Friday, 9:00 AM to 5:00 PM local time (CET), excluding holidays.

6.   On-Site Response Time

Depixus will use the best commercial efforts to meet quoted and purchased on-site response times. Calls made to regional telephone support numbers during Depixus’ hours of operation where the Customer left a message for a return call, including the caller's name and telephone number, will be responded to within two business hours unless another response time is specified in the quotation. If on-site service is required, a Depixus representative will be on-site within three (3) business days unless specific additional guaranteed response time upgrades have been purchased.

7.   Warranty

Depixus warrants that it will provide its Services in accordance with the relevant section(s) of the GTCS, which can be found on Depixus’ website and are provided to the Customer along with this Agreement. With respect to SW Support Services (as defined below), Depixus will provide such Services in a professional and workmanlike manner. However, Depixus does not guarantee that each or any Software support incident is capable of being resolved through SW Support Services.

8.   Payment & Shipping

International: Net 30 payment/DAP‍

9.   Complete System Coverage

The Agreement covers the service of the Product in its entirety unless specifically excluded in this Agreement.

10.   Computer Coverage

Service Contract Agreements cover, if applicable, the computer purchased with the system. Coverage is not provided for computers experiencing performance issues due to Customer modification or misuse.

11.   Repair Location

Depixus will dispatch a service engineer as required to diagnose and repair instrument problems or complete routine preventive maintenance. Depixus will cover all travel costs, related expenses, and labor as long as the given Product is covered by a service contract or warranty.

12.   Replacement parts / Instrument

Depixus will provide either replacement parts, a replacement instrument, or field service at Depixus’ sole discretion to correct any Customer issues. Replacement parts will only be sent directly to the Customer in cases where the parts are Customer-installable. If replacement parts or Products are provided, the damaged parts must be returned within two weeks after receipt of the replacement. The Customer will receive one additional flow cell with the purchase of the Product (NB, the flow cell is made available to the Customer and not meant to proactively replace a well-performing cell).

13.   Shipping costs

A Customer issue that requires shipping will be covered under a service contract.

14.   Software Coverage and Updates

Instruments under the Service Contract Agreement are entitled to software updates during the Agreement period. A software update includes bug fixes and minor feature improvements.

15.   Preventive Maintenance

Service agreements include two preventative maintenance (PM) visits per year. The first visit is included during system installation or upon renewal of the service contract. The second visit is typically scheduled six (6) months after the installation date.

16.   Missed Service Call

If the Customer or Customer’s authorized representative is not available at the agreed time of FSE arrival for a scheduled FSE visit and results in the engineer being unable to proceed with the service call, the Customer will be charged six (6) hours (EUR/USD/GBP 350/per hour) plus any travel costs for the missed service call.

B - Instrument Service Contract Plan (only applicable to purchase of a Service Contract Plan for instruments)

17.   Service Contract Plan Purchase

The Product service contract plan agreement (the “Service Contract Plan”) purchased by Customer from Depixus shall apply to a specific Product or set of Products purchased from Depixus as stated on the Depixus quotation. In the event that the Customer has multiple Products of the same type in the same lab, the Customer must buy a multi-instrument support plan for that instrument type. Multiple plans must be purchased to cover different instrument types in the same lab.

18.   Product Recertification

If a Product has not been under warranty or a Service Contract plan prior to the commencement of a newly purchased Service Contract Plan, Depixus may require Product recertification on a time and materials basis not covered under the new Service Contract Plan prior to the effective date of the new Service Contract Plan.

19.   Planned Maintenance

The Customer and Depixus will schedule PM Services within a one-month period of the manufacturer's recommended PM timeframe. The Customer shall provide access to the Product for that visit. PM Services not completed because the Customer fails to provide access at a time reasonable to Depixus will be forfeited.

C - Service Contract Plan Terms

20.   Repair or Replacement

The decision to repair or replace any parts of a Product will be made by Depixus in its sole and reasonable discretion. Parts and components and their replacement will be subject to the GTCS.

21.   Exclusions

Services plans do not cover the repair or replacement of parts that are radioactive or contaminated with biological, toxic, or other dangerous materials or substances. Service Contract plans do not cover parts for any Product other than the covered Product as identified in the Service Plan by its specific serial number(s). Service plans do not cover consumables unless otherwise specified in the quotation. The list of consumables can be found in the Product's operating manual. Service Contract plans do not cover costs, repairs, or adjustments made necessary by the connection of the Product to electrical services or other utilities not in accordance with the installation requirements for the Product or by any interruption or surge in voltage (see Instruction Manual for specifications).

I     Unless otherwise expressly stated by Depixus in writing or under the terms of the purchased Services plan, parts in contact with any liquid, with the exception of the flow cell, are considered wetted and may be deemed user replaceable and not covered by any Services plan, including, but not limited to seals, filters, gaskets, etc.

II     Use of any non-Depixus’ parts or reagents that deposit or cause to be deposited residual matter in the Product flow path or that otherwise interrupt the flow path that are reasonably determined by Depixus to have caused Product failure will require remedial repairs of the affected parts to be completed outside a Service Contract plan at Depixus’ then prevailing rates for billable service. Depixus does not warrant parts not purchased from or installed by Depixus.

III     Unless otherwise specified in the quotation, Service Contract plans do not include Customer training or services related to the relocation of Products.

IV     Ancillary equipment not manufactured by Depixus, such as third-party computers, may be excluded from any Service Contract plan at Depixus’ discretion. Depixus will pass on to Customer any manufacturer's warranty of any such ancillary equipment, to the extent permitted by the manufacturer.

D - Software Support Terms

22.   Scope of Software Support Services

These software support terms apply to software support services purchased by Customer from Depixus, whether under a software support plan, another service contract plan, or on a time and materials basis. Customers may contract with Depixus for software support by Product type per lab location as specifically identified on a purchase order ("Covered Product"). In the event the Customer has multiple instruments of the same type in the same lab, the Customer must buy a multi-instrument software support plan for that instrument type. Multiple software support plans must be purchased to cover different instrument types in the same lab.

"Software" means the Depixus software programs that are Covered Products or, if the Covered Product is an instrument, are included with the Covered Product. Depixus will respond to a request for troubleshooting and telephone assistance for Software via telephone or email ("SW Support Services"). SW Support Services also include releases of Software that Depixus makes generally available to Customers during the software support plan term to correct errors, fix bugs, or create minor improvements, or enhancements of existing features (the "Update(s)"), which Updates Depixus will designate by a change in the number to the Update of the Software released during the term of this Agreement. As used herein, a Software Update is designated by a change in the number to the right of the first or second decimal point. For greater clarity, Updates do not include those releases of the Software that provide substantial new features or additional functionality which Depixus designates by a change in the number to the left of the first decimal point. The Customer acknowledges that all reported errors may not be corrected. Software, including any Updates that will be deemed part of the Software, must be used in accordance with the requirements and obligations in any Depixus Software license agreement, which is incorporated herein by reference. If other services are made available by Depixus under a SW Support Services plan, those services will be provided as shown on the applicable quotation.

23.   Software Service Limitation

Depixus will not be obligated to provide SW Support Services if any malfunction arises from or relates to (a) an error or malfunction of any third-party software used by Customer either separately or in conjunction with Depixus’ Software, or (b) Customer's failure to incorporate the latest Update previously released to Customer.