Legal

RADX Technologies, Inc. Trifecta-SSD Product Warranty for Reseller and Distribution Sales 19JUL2021 V2.2

1. OVERVIEW. Except in the case of software or firmware subject to the provisions of a License Agreement between Buyer and RADX, or as specifically provided herein, this document constitutes the entire agreement of the between the purchaser (the “Buyer”) and RADX Technologies, Inc., (“RADX”) (individually, a “Party” and collectively, the “Parties”) with respect to the warranty of RADX Trifecta-SSD Products (the “Products”) which supersedes all prior understandings or agreements, whether written or verbal. Unless otherwise accepted by RADX in writing prior to Acceptance, no term or condition of Buyer’s Purchase Orders (“Purchase Order(s)”, “P.O.(s)” or “Order(s)”) inconsistent with the terms and conditions hereof shall be binding on RADX. Any additional or different terms, including but not limited to those on Buyer’s Purchase Orders, are hereby rejected by RADX and disclaimed by Buyer. Any amendment to these terms and conditions must be in writing, must clearly state that they amend these terms and conditions, and must be signed by an officer of RADX to be binding upon RADX.

2. PRICES. See RADX or Reseller Terms and Conditions of Sale.

3. PURCHASE ORDER ACCEPTANCE. See RADX or Reseller Terms and Conditions of Sale.

4. PAYMENT TERMS. See RADX or Reseller Terms and Conditions of Sale for Other Clauses Related to Payment Terms.

4.1 RADX shall not be liable under any warranty stated herein if the purchase price has not been paid in full by Buyer.

5. SHIPMENT AND TITLE. All Product shipments will be made Ex Works (as defined in Incoterms 2000) RADX’s facility in either Palo Alto, CA or San Jose, CA. Title and risk of loss to Hardware Product(s) passes from RADX to Buyer upon shipment from RADX’s facility. Title to Software remains with RADX and/or applicable third party licensor(s). RADX retains a security interest in the Products (and replacements) and Work Product(s) that result from services delivered hereunder and in the proceeds from the sale or disposition thereof until RADX has received payment in full. Buyer shall, upon request by RADX, execute all documents (such as a UCC-1 Financing Statement) necessary to perfect such RADX security interest. Notwithstanding the foregoing, RADX has the right, upon demand, to repossess the Products delivered hereunder if Buyer fails to make timely payment. Furthermore RADX reserves the right and Buyer agrees that RADX has the right to estoppel for Buyer’s use of RADX Work Product until RADX has received payment in full.

6. WARRANTY.

6.1 WARRANTY DISCLAIMER. RADX makes no warranty or representation that RADX Commercial Off the Shelf (“COTS”) or Modified COTS (MCOTS) Hardware, Software, Firmware or Integrated Products (“RADX Products”) or RADX MCOTS or developmental Hardware, Software, Firmware or Integrated Products developed as part of “RADX Services”: i) will work in combination with any hardware or software products provided by third parties, except as provided in the Third Party Products paragraph below, ii) will operate in a fashion that is uninterrupted or error free, iii) are specifically fit for any purposes, iv) when used on non-RADX provided hardware, will deliver performance at any specific performance level or that is specifically fit for any purpose, or v) that any or all defects in RADX COTS, MCOTS or developmental Products developed pursuant to RADX Services will be corrected.

6.2 RADX WARRANTY PERIOD AND CONFORMANCE TO RADX PERFORMANCE VERIFICATION TEST(S). RADX warrants that for a period of twelve (12) months commencing on the latter of (a) the Effective Date for RADX Products governed by RADX Firmware and/or Software License Agreements, (b) the date of shipment of RADX COTS Products or (c) the Acceptance Date for milestone based efforts (the “Warranty Period”), RADX COTS, MCOTS or developmental Products, when properly installed and operated in the operating environment specified by RADX and according to the applicable (at the time of shipment) RADX Specifications, User’s Guide(s), Installation and Operations Manual(s), Site Preparation Guide(s) or similar documentation provided by RADX, will not exhibit gross defects in materials or workmanship and will substantially function as specified by RADX solely as demonstrated by conformance of the RADX Products with the published RADX Performance Verification Test(s) (“PVT[s]”) on the associated RADX Integrated Solution, RADX Specified Reference Platform and/or RADX Text Harness for the Product(s). RADX reserves the right to require any and all claims of non-conformance by Buyer to be reproducible by RADX personnel on an equivalent RADX Reference Platform using published RADX PVT(s) and Acceptance Criteria.

6.3 CLAIMS OF DEFECT OR NON-CONFORMANCE. Unless otherwise mutually agreed to by the parties, Buyer agrees to provide claims of perceived gross defects in materials or workmanship or non-conformance with RADX Acceptance Criteria associated with RADX PVT on RADX Products via the RADX Support Email Address at [email protected] or [email protected]. For warranty support, Buyer must file any and all claims within the RADX Warranty Period. RADX agrees to employ reasonable commercial efforts to acknowledge via email or other method (at RADX’ sole discretion) to Buyer claims within one (1) business day of receipt of such claims for warranty actions. For claims made outside of the RADX Warranty Period, RADX will employ reasonable commercial efforts to acknowledge such claims within seventy-two (72) hours of receipt.

6.4 RADX COTS AND MCOTS HARDWARE WARRANTY. If: i) any RADX COTS or MCOTS Hardware Product or component thereof contains a defect in materials or workmanship, where such defect is evidenced by non-conformance of the RADX COTS or MCOTS Hardware with one or more of the applicable RADX Acceptance Criteria on the associated RADX PVT(s) and appropriate RADX Integrated Solution or RADX Specified Reference Platform; and ii) Buyer notifies RADX of such defect within the RADX Warranty Period pursuant to Section 5.3, above, and provided that such defect is replicable by RADX, RADX will at its sole option and expense: i) repair such defective RADX COTS or MCOTS Hardware or component thereof to enable compliance with the applicable RADX Acceptance Criteria; ii) deliver to Buyer an equivalent replacement RADX Hardware product or component thereof to enable compliance with the applicable RADX Acceptance Criteria; or iii) if repair or replacement are not feasible remedies, refund to Buyer the price paid in return for the defective RADX COTS or MCOTS Hardware or component thereof. If RADX elects to repair or replace the defective RADX COTS or MCOTS Hardware or part, RADX will employ reasonable commercial efforts to ship such repaired or replaced item to Buyer no later than thirty (30) days after RADX receives the defective RADX COTS or MCOTS Hardware or component from Buyer, except that long-lead third-party items and batch returns of more than ten (10) units may be subject to a turnaround time greater than thirty (30) days. Upon request, expedited service may be provided to Buyer if available, at a per-item charge specified by RADX.

6.5 RADX COTS AND MCOTS SOFTWARE AND/OR FIRMWARE WARRANTY. If: i) any RADX COTS or MCOTS Software and/or Firmware or Component or Media thereof contains a gross defect in materials or workmanship as evidenced by non-conformance of the RADX COTS or MCOTS Software and/or Firmware with one or more of the applicable RADX Acceptance Criteria on the associated RADX PVT(s) and RADX Reference Platform; and ii) Buyer notifies RADX of such defect within the RADX Warranty Period pursuant to Section 5.3, above, and provided that such defect is replicable by RADX, RADX will, at its sole option and expense: i) employ reasonable commercial efforts to provide to Buyer in a timely fashion and in a manner solely determined by RADX, a Software and/or Firmware patch, new Software and/or Firmware version or new Media to enable compliance with the applicable RADX Acceptance Criteria on the associated RADX PVTs(s) and RADX Reference Platform; or ii) if provision of a Software and/or Firmware patch, new Software and/or Firmware version or new Media to enable compliance with the applicable RADX Acceptance Criteria is not a feasible remedy, refund to Buyer the price paid for the non-compliant RADX Software and/or Firmware or component thereof.

6.6 RADX COTS AND MCOTS INTEGRATED PRODUCT WARRANTY. RADX COTS and MCOTS Integrated Products are solely warranted as a complete system. RADX does not warrant the individual components of the Integrated Product when not integrated as delivered. Provided Buyer does not disassemble, reconfigure and/or add unauthorized third party hardware or software to the RADX COTS or MCOTS Integrated Product subject to warranty claim, then: i) if any RADX COTS or MCOTS Integrated Product (which consists of RADX provided COTS and MCOTS hardware, software and/or firmware and/or RADX provided third-party hardware, software and/or firmware) or component thereof contains a gross defect in materials or workmanship evidenced by non-conformance of the RADX COTS or MCOTS Integrated Product with one or more of the applicable RADX Acceptance Criteria on the associated RADX PVTs(s); and ii) Buyer notifies RADX of such defect within the RADX Warranty Period pursuant to Section 5.3, above, and provided that such defect is replicable by RADX, then RADX will, at its sole option and expense: i) employ reasonable commercial efforts to provide to Buyer in a timely fashion and in a manner solely determined by RADX, an appropriate remedy as described in Section 5.4 or 5.5, above, to enable compliance with the applicable RADX Acceptance Criteria on the associated RADX PVTs(s) and RADX Reference Platform; or ii) if provision of such a remedy to enable compliance with the applicable RADX Acceptance Criteria is not feasible, refund to Buyer the price paid for the non-compliant RADX Integrated Product Hardware, Software and/or Firmware or component thereof.

6.7 RADX COTS AND MCOTS SOFTWARE AND/OR FIRMWARE UPDATES. During the Warranty Period, Software and/or Firmware Updates to RADX COTS AND MCOTS Software and/or Firmware purchased by Buyer and i) which features the same Major Release Number (i.e., Version “1.2” and Version “1.3” both feature “1” as their Major Release Number), ii) and which supports the same RADX or RADX specified third-party Reference Platform(s) previously purchased by Buyer, will be made available by RADX to Buyer free of charge via email or RADX’s Support Website or via other means of conveyance at the sole discretion of RADX. During or after the Warranty Period, RADX Software and/or Firmware Updates to Software and/or Firmware purchased by Buyer that features a different Major Release Number (e.g., Version “1.2” and Version “2.3” feature different Major Release Numbers) but which also support the same RADX or specified third-party Reference Platform(s) purchased by Buyer may be purchased by Buyer as part of an extended warranty package or at the applicable list price.

6.8 RADX MCOTS OR DEVELOPMENTAL PRODUCTS DEVELOPED PURSUANT TO A SERVICES CONTRACT. The Warranty Period for RADX Services, and unless otherwise specified in the Statement of Work (“SOW”) associated with a mutually agreed to Consulting Agreement or a RADX accepted P.O. stating otherwise, shall be twelve (12) months from the date of acceptance as defined by passage of the Acceptance Criteria associated with the RADX PVT specified within the Statement of Work of the Services Contract or P.O. In such instances, will provide warranty equivalent on RADX developed hardware, software, and integrated products equivalent to that provided by RADX on its COTS and MCOTS Products, provided that any and all warranty claims adhere to the processes and definitions for such RADX COTS and MCOTS Products within this Section 5.

7. INSTALLATION. Where RADX is contracted by Buyer to install Products, Buyer shall provide or arrange such installation space, environment, electrical supply, power points and other facilities as RADX shall have specified, at no charge to RADX. If installation is delayed beyond thirty (30) days for reasons not attributable to RADX, any payment milestone contingent upon installation shall become due.

8. BUYER ACCEPTANCE OR REJECTION OF PRODUCTS AND/OR SERVICES. After delivery of the Products, or performance of Services, Buyer shall inspect the Products and/or Services for conformity to the Purchase Order within a period of fifteen (15) calendar days (the “Acceptance Period“). Unless otherwise agreed to by the Parties via a Milestone Schedule, Acceptance of Products/Services by Buyer shall automatically occur upon the earlier of (a) expiration of the Acceptance Period unless RADX has received written notice via email at [email protected] or [email protected], the RADX Support Website or as otherwise directed by RADX describing the reasons for non-conformance, or (b) upon Buyer’s commercial use of the applicable Products/Services.

9. THIRD-PARTY PRODUCTS. For any and all third party products included within RADX Hardware, Software, Firmware or Integrated Products and/or listed in the RADX documentation or specifications as being compatible (“Third-Party Products“), RADX will employ commercially reasonable efforts to provide compatibility, except where the incompatibility is caused by a “bug” or other defect in the Third-Party Product. All warranties on Third-Party Products are passed through to Buyer from the original manufacturer, are between Buyer and such third party only, and RADX makes no warranties whatsoever as to any such Third-Party Products. RADX is not responsible for any or all incompatibilities, whether caused by “bugs” or other defects in Third-Party Products or otherwise.

10. ACTIONS OF OTHERS. RADX shall not be liable under the applicable warranty where the alleged defect was caused by Buyer or its end customer’s or any third person’s misuse, neglect, improper other cause beyond the range of the intended use, or by accident, fire, lightning or other hazard.

11. WARRANTIES EXCLUSIVE. To the full extent allowed by law, the foregoing warranties and remedies are exclusive and are in lieu of all other remedies, warranties, terms, or conditions, express or implied, either in fact or by operation of law, statutory or otherwise. RADX’s warranties herein convey to Buyer and to the ultimate End User (the “End User“), but are not extended to any other third parties. RADX neither assumes nor authorizes any other person to assume for it any other liability in connection with the sales, installation, maintenance or use of its Products or performance of Services. Replacement Products assume the warranty status of the Product being replaced and have no separate or independent warranty of any kind. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, RADX MAKES NO WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE. RADX SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.

12. LIMITATION OF LIABILITY. RADX’S LIABILITY TO BUYER ARISING OUT OF OR RELATING TO ANY PRODUCTS OR SERVICES SHALL BE LIMITED TO DIRECT DAMAGES TO TANGIBLE PROPERTY UP TO BUT NOT TO EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID BY BUYER TO RADX FOR SUCH PRODUCTS OR SERVICES. IN NO EVENT SHALL RADX BE LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS, OR ANY SPECIAL, INDIRECT, RELIANCE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY REGARDLESS OF THE REASON. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER RADX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. The disclaimers of warranty and limitations of liability set forth herein are an essential part of the contract formed by these terms and conditions and have been factored by RADX into the prices offered in the Quote.

13. RETURNS. Products may NOT be returned to RADX without prior authorization. At RADX’s request and after issuance of a RADX Return Material Authorization (“RMA”) number via email, RADX’s Support Website or other methods indicated by RADX, Buyer or the End User shall return defective Product or component thereof to a receiving point designated by RADX. RADX reserves the right to reject shipping cartons that are not marked with appropriate RMA numbers. Buyer/End User will pay the transportation charges for all RADX Products and and/or parts returned to RADX under warranty in accordance with these terms and conditions. RADX will pay the transportation charges to return RADX Products and/or parts currently under warranty to Buyer/End User. Repaired or replacement RADX Products and/or parts exchanged under the limited warranties set forth above may be new or reconditioned at RADX’ sole discretion. All replaced Hardware Products returned to RADX become the property of RADX.

14. CHANGE ORDERS AND CANCELLATION REQUESTS. See RADX or Reseller Terms and Conditions of Sale for Clauses Related to Change Orders and Cancellation Requests.

15. CANCELLATION FOR DEFAULT. See RADX or Reseller Terms and Conditions of Sale for Clauses Related to Cancellation for Default.

16. EXPORT COMPLIANCE. Buyer acknowledges that RADX Products are subject to U.S. export control laws and regulations, including but not limited to the U.S. Export Administration Regulations (EAR) and the U.S. International Traffic in Arms Regulations (ITAR). Buyer shall comply strictly with all U.S. export laws and regulations and assumes sole responsibility for obtaining required export or re-export licenses at Buyer’s sole risk, cost and expense. Buyer shall not directly or indirectly export, re-export or transmit any Products to any country or foreign national thereof to which such export, re-export, or transmission is restricted or prohibited. Buyer shall indemnify and hold RADX harmless against any liabilities suffered by RADX for any violation of this provision. Buyer agrees to furnish an End User Statement or End User Certificate for any Product if requested by RADX prior to the date of shipment.

17. U. S. GOVERNMENT USE; RESTRICTED RIGHTS. Unless otherwise agreed to by RADX, RADX Hardware, Software, Firmware and Integrated Products are Commercial, Off-the-Shelf (“COTS“) or Modified COTS (MCOTS) items which, along with accompanying documentation, have been developed entirely at private expense. RADX Software and Firmware products are delivered and licensed as “commercial computer software” as defined in DFARS 227.7202-1(a) and FAR 27.405-3(b). Accordingly, all COTS and MCOTS Software and Firmware sold by RADX shall be governed by the RADX and/or 3rd Party COTS Binary Firmware and Software Standard License Agreement(s), including Warranties and COMMERCIAL SOFTWARE DATA RIGHTS for U.S. Government Purchasers. Buyer or its End User agree that they are entitled solely to the rights provided for in the applicable RADX COTS Binary Firmware and Software Standard License Agreement(s).

18. GOVERNING LAW, VENUE, LANGUAGE AND EXPENSES. The transactions contemplated herein shall be governed in all respects by the laws of the State of California without regard to conflicts of law rules. In the event that a dispute arises, Buyer and RADX hereby submit to the personal and exclusive jurisdiction and venue of the state and federal courts located in San Diego County, State of California, United States of America. The United Nations Convention on the International Sale of Goods shall not apply. The parties hereby confirm that the English language shall be the governing language of these terms and conditions. The parties also hereby confirm that, in the case of any conflict or claim that results in litigation between the parties related to the sale of RADX Products or Services, that all costs associated with said litigation, including legal fees, incurred by the prevailing party, shall be paid by the opposing party.

19. DISPUTE RESOLUTION AND ARBITRATION. See RADX or Reseller Terms and Conditions of Sale for Clauses Related to Dispute Resolution and Arbitration.

20. FORCE MAJEURE. RADX will be excused from any obligation to the extent performance thereof is prevented by acts of God, fire, flood, riots, material shortages, strikes, governmental acts, disasters, earthquakes, inability to obtain labor or materials through its regular sources, or any other cause beyond RADX’s reasonable control.

21. LICENSE AGREEMENTS. Notwithstanding anything to the contrary herein, to the extent the Products are delivered with a RADX or Third Party Product license agreement(s) (the “License Agreement(s)“), the terms and conditions of such License Agreement(s) shall apply in addition to the terms and conditions set forth herein. To the extent there is a conflict between the terms and conditions of such License Agreement(s) and those set forth herein, the term or condition set forth in the License Agreement(s) shall govern in all cases. Nothing herein shall be construed to grant any rights or license to use any Product or other intellectual property in any manner or for any purpose not expressly permitted by the License Agreement. Unless otherwise granted in a specific RADX or Third Party Product License Agreement(s), RADX grants to Buyer and the ultimate End User the right to use Software or Firmware Products in binary form only, on the specific RADX platform purchased or on a Third-Party hardware platform approved by RADX. No other license is granted, except pursuant to the terms of an appropriate License Agreement(s).

22. CONFIDENTIAL INFORMATION. Buyer acknowledges that Products contain a combination of trade secret, know-how, patent, proprietary, and confidential information of a commercial or technical nature (“Confidential Information”), and are valuable property of RADX. Buyer agrees to protect Confidential Information with the same confidentiality protections as are used, or should be used, for its own confidential information, and in any case, shall make the best commercial effort to protect such Confidential Information. Confidential Information is and remains the sole property of RADX (or its licensors, if any). Buyer agrees that it shall not directly or indirectly reverse engineer any Products. In situations where the Parties have executed a Non-Disclosure Agreement (NDA), then, for all matters regarding Confidential Information except aspects of Confidential Information covered by a License Agreement between the parties, the NDA shall prevail.

23. PUBLICITY AND USE OF RADX MARKS. Neither the Buyer nor RADX shall release any publicity, advertisement, or news release regarding any contract, subcontract or purchase order between the Parties without the other Party’s express written consent. Buyer shall not use any RADX trade/service marks or trade names (“collectively “marks”) for any purpose whatsoever without the express written consent of RADX, except as expressly permitted by the rules of use set forth in RADX’s website.

24. ASSIGNMENT. RADX may freely assign or pledge the payments due (and the documentation supporting such payment obligation) from Buyer under the applicable Purchase Order, and may assign all of its other rights and obligations by giving Buyer written notice thereof but without being obligated to obtain Buyer’s consent prior thereto. In the event of an assignment, RADX shall be discharged of any further liability pursuant to the affected Purchase Orders. Buyer may not assign its rights or delegate its obligations under any or all of its Purchase Orders unless RADX’s written consent is obtained prior thereto and any such assignment without such consent shall be void.

25. SEVERABILITY. If any provision of these terms and conditions is held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not invalidate, void or render unenforceable any other portion of these terms and conditions.

26. SURVIVAL OF TERMS. The termination or cancellation of any Buyer Purchase Order shall not affect the parties’ obligations and rights hereunder which by their nature should be understood to survive such termination or cancellation.

RADX Terms and Conditions of Sale

1. OVERVIEW. The then-current, published RADX price list or email or written RADX quotation to which these Terms and Conditions of Sale are attached by reference or inclusion (the “Price List” or “Quote“) constitutes an offer to sell or license the quoted Hardware, Software, Firmware and/or Integrated Products (the “Products“) and/or associated services (the “Services“) to the named purchaser (the “Buyer“), conditional on the Buyer’s agreement to the terms and conditions set forth below and RADX Technologies, Inc., (“RADX”) agrees to sell the same only upon these terms and conditions. Except in the case of Software or Firmware which are subject to the provisions of a RADX Binary or Source Code License Agreement (a “License Agreement”) between Buyer and RADX, or as specifically provided herein, this document constitutes the entire agreement of the parties with respect to the purchase and sale of the Products and supersedes all prior understandings or agreements, whether written or verbal. As described below, without prior agreement in writing from RADX, no term or condition of Buyer’s Purchase Orders [“Purchase Order(s)”, “P.O.(s)” or “Order(s)”] inconsistent with the terms and conditions hereof shall be binding on RADX. Any additional or different terms, including but not limited to those on Buyer’s Purchase Orders, are hereby rejected by RADX and disclaimed by Buyer. Any amendment to these terms and conditions must be in writing, must clearly state that they amend these terms and conditions, and must be signed by an officer of RADX to be binding upon RADX. Unless otherwise specified in the Quote, or unless withdrawn earlier by RADX, the Quote will expire thirty (30) days from the date issued. RADX COTS Product Price Lists are typically updated on a quarterly basis; however, they are subject to change without notice.

2. PRICES.

2.1 Unless otherwise indicated, Prices in the RADX Price List or Quote are Free-On-Board (“FOB”) RADX or RADX’ Contract Manufacturer’s location in California, Utah or other location in the USA, in US dollars, and include packaging for domestic or international commercial shipment, as appropriate, and are exclusive of any other amounts including without limitation fees for export, special packaging, transportation, shipping and insurance, and are payable as per the Quote or the Price List.

2.2 RADX Prices do not include any taxes, customs, duties or tariffs. When RADX has the legal obligation to pay or collect any such taxes, duties or tariffs, the appropriate amount shall be paid by Buyer unless Buyer provides RADX with a valid exemption certificate. Buyer agrees to indemnify and hold RADX harmless for any liability for any tax, duty, or tariff in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon.

3. PURCHASE ORDER ACCEPTANCE. Purchase Orders are subject to formal acceptance in writing, via email, letter, or fax, by RADX even if received elsewhere by a RADX salesperson, selling agent or other representative. RADX will employ commercially reasonable efforts to confirm or reject any Buyer Purchase Order within five (5) business days of receipt by RADX’.

4. PAYMENT TERMS.

4.1 RADX will invoice Buyer for each Product shipment or Milestone Payment (“Milestone”), in the case of milestone-based payment schedules. The amount invoiced will include the agreed-to milestone payment and/or the price of the Products and/or Services plus all applicable taxes, fees, transportation, insurance, and other fees or charges.

4.2 Unless otherwise agreed to by Buyer and RADX. Buyer and RADX agree that Partial Shipment of separable items on Buyer’s Purchase Order is authorized. If all Line Items in Buyer’s Purchase Order are not shipped at the same time, RADX will invoice Buyer at the time of shipment for the Products, delivery of the Services or the Milestones being completed.

4.3 Payment via wire transfer should be remitted to:

J. P. Morgan Chase Bank

Wire Transfer Routing No: 021000021

Checking Account No.: 625135006

Name on Account: RADX Technologies, Inc.

4.4 For Buyers with approved credit applications on file with RADX who are currently in good standing with RADX with respect to payment history and who are notified by RADX as such, payments are due thirty (30) days after the date of invoice.

4.5 For all other Buyers, cash in advance of the date of performance of Services or shipment of Products or delivery of Services is required by wire transfer.

4.6 Any unpaid due amounts will be subject to interest at 1.5% per month, or, if less, the maximum rate allowed by law.

4.7 Unless otherwise agreed to by RADX, for Products that are to be exported, payment must be made in advance, sufficient to cover the full amount of the invoice, including shipping and other charges, if any.

4.8 RADX shall not be liable under any warranty stated herein if the purchase price has not been paid in full by Buyer.

4.9 RADX reserves the right to offset amounts RADX owes to Buyer against amounts Buyer owes to RADX, whether under the same or a different Purchase Order.

5. SHIPMENT AND TITLE. All Product shipments will be made Ex Works (as defined in Incoterms 2000) RADX’ facility in San Jose, CA or RADX’ Contract Manufacturer’s Facility in CA or elsewhere. Title and risk of loss to Hardware Product(s) passes from RADX to Buyer upon shipment from RADX or RADX’ Contract Manufacturer’s facility. Title to Software remains with RADX and/or applicable third-party licensor(s). RADX retains a security interest in the Products (and replacements) and Work Product(s) that result from any related services delivered hereunder and in the proceeds from the sale or disposition thereof until RADX has received payment in full. Buyer shall, upon request by RADX, execute all documents (such as a UCC-1 Financing Statement) necessary to perfect such RADX security interest. Notwithstanding the foregoing, RADX has the right, upon demand, to repossess the Products delivered hereunder if Buyer fails to make timely payment. Furthermore, RADX reserves the right and Buyer agrees that RADX has the right to estoppel for Buyer’s use of RADX Work Product until RADX has received payment in full.

6. WARRANTY.

6.1 WARRANTY DISCLAIMER. RADX makes no warranty or representation that RADX Commercial Off the Shelf (“COTS”) or Modified COTS (MCOTS) Hardware, Software, Firmware or Integrated Products (“RADX Products”) or RADX MCOTS or developmental Hardware, Software, Firmware or Integrated Products developed or modified as part of “RADX Services”: i) will work in combination with any Hardware or Software products provided by third parties, except as provided in the Third Party Products paragraph below, ii) will operate in a fashion that is uninterrupted or error free, iii) are specifically fit for any purposes, iv) when used with third party Hardware or Software, will deliver performance at any specific performance level or that is specifically fit for any purpose, or v) that any or all defects in RADX COTS, MCOTS or developmental Products developed pursuant to RADX Services will be corrected.

6.2 RADX WARRANTY PERIOD AND CONFORMANCE TO RADX PERFORMANCE VERIFICATION TEST(S). RADX warrants that for a period of twelve (12) months commencing on the latter of (a) the Effective Date for RADX Products governed by RADX Firmware and/or Software License Agreements, (b) the date of shipment of RADX COTS Products or (c) the Acceptance Date for milestone based efforts (the “Warranty Period”), RADX COTS, MCOTS or developmental Products, when properly installed and operated in the operating or reference environment specified by RADX and according to the applicable (at the time of shipment) RADX Specifications, User’s Guide(s), Installation and Operations Manual(s), Site Preparation Guide(s) or similar documentation provided by RADX, will not exhibit gross defects in materials or workmanship and will substantially function as specified by RADX solely as demonstrated by conformance of the RADX Products with the published RADX Performance Verification Test(s) (“PVT”) on the associated RADX Integrated Solution, RADX specified Reference Platform (“Reference Platform”) and/or RADX Text Harness for the Product(s). RADX reserves the right to require any and all claims of non-conformance by Buyer to be reproducible by RADX personnel on an equivalent RADX Reference Platform using published RADX PVT(s) and Acceptance Criteria.

6.3 CLAIMS OF DEFECT OR NON-CONFORMANCE. Unless otherwise mutually agreed to by the parties, Buyer agrees to provide claims of perceived gross defects in materials or workmanship or non-conformance with RADX Acceptance Criteria associated with the RADX PVT(s) for the subject RADX Product(s) via the RADX Support Email Address ([email protected]). For warranty support, Buyer must file any and all claims within the RADX Warranty Period. RADX agrees to employ reasonable commercial efforts to acknowledge via email or other method (at RADX’ sole discretion) to Buyer claims within twenty-four (24) hours of receipt of such claims for warranty actions. For claims made outside of the RADX Warranty Period, RADX will employ reasonable commercial efforts to acknowledge such claims within seventy-two (72) hours of receipt.

6.4 RADX COTS AND MCOTS HARDWARE WARRANTY. If: i) any RADX COTS or MCOTS Hardware Product or component thereof contains a defect in materials or workmanship, where such defect is evidenced by non-conformance of the RADX COTS or MCOTS Hardware with one or more of the applicable RADX Acceptance Criteria on the associated RADX PVT(s) when deployed on the RADX specified Reference Platform; and ii) Buyer notifies RADX of such defect within the RADX Warranty Period pursuant to Section 5.3, above, and provided that such defect is replicable by RADX, RADX will at its sole option and expense: i) repair such defective RADX COTS or MCOTS Hardware or component thereof to enable compliance with the applicable RADX Acceptance Criteria; ii) deliver to Buyer an equivalent replacement RADX Hardware product or component thereof to enable compliance with the applicable RADX Acceptance Criteria; or iii) if repair or replacement are not feasible remedies, refund to Buyer the price paid in return for the defective RADX COTS or MCOTS Hardware or component thereof. If RADX elects to repair or replace the defective RADX COTS or MCOTS Hardware or part, RADX will employ reasonable commercial efforts to ship such repaired or replaced item to Buyer no later than thirty (30) days after RADX receives the defective RADX COTS or MCOTS Hardware or component from Buyer, except that long-lead third-party items and batch returns of more than ten (10) units may be subject to a turnaround time greater than thirty (30) days. Upon request, expedited service may be provided to Buyer if available, at a per-item charge specified by RADX.

6.5 RADX COTS AND MCOTS SOFTWARE AND/OR FIRMWARE WARRANTY. If: i) any RADX COTS or MCOTS Software and/or Firmware or Component or Media thereof contains a gross defect in materials or workmanship as evidenced by non-conformance of the RADX COTS or MCOTS Software and/or Firmware with one or more of the applicable RADX Acceptance Criteria on the associated RADX PVTs(s) and RADX specified Reference Platform; and ii) Buyer notifies RADX of such defect within the RADX Warranty Period pursuant to Section 5.3, above, and provided that such defect is replicable by RADX, RADX will, at its sole option and expense: i) employ reasonable commercial efforts to provide to Buyer in a timely fashion and in a manner solely determined by RADX, a Software and/or Firmware patch, new Software and/or Firmware version or new Media to enable compliance with the applicable RADX Acceptance Criteria on the associated RADX PVTs(s) and RADX Reference Platform; or ii) if provision of a Software and/or Firmware patch, new Software and/or Firmware version or new Media to enable compliance with the applicable RADX Acceptance Criteria is not a feasible remedy, refund to Buyer the price paid for the non-compliant RADX Software and/or Firmware or component thereof.

6.6 RADX COTS AND MCOTS INTEGRATED PRODUCT WARRANTY. RADX COTS and MCOTS Integrated Products are solely warranted as a complete system. RADX does not warrant the individual components of the Integrated Product when not integrated as delivered. Provided Buyer does not disassemble, reconfigure and/or add unauthorized third party Hardware or Software to the RADX COTS or MCOTS Integrated Product subject to warranty claim, then: i) if any RADX COTS or MCOTS Integrated Product (which consists of RADX provided COTS and MCOTS Hardware, Software and/or Firmware and/or RADX provided third-party Hardware, Software and/or Firmware) or component thereof contains a gross defect in materials or workmanship evidenced by non-conformance of the RADX COTS or MCOTS Integrated Product with one or more of the applicable RADX Acceptance Criteria on the associated RADX PVTs(s); and ii) Buyer notifies RADX of such defect within the RADX Warranty Period pursuant to Section 5.3, above, and provided that such defect is replicable by RADX, then RADX will, at its sole option and expense: i) employ reasonable commercial efforts to provide to Buyer in a timely fashion and in a manner solely determined by RADX, an appropriate remedy as described in Section 5.4 or 5.5, above, to enable compliance with the applicable RADX Acceptance Criteria on the associated RADX PVTs(s) and RADX specified Reference Platform; or ii) if provision of such a remedy to enable compliance with the applicable RADX Acceptance Criteria is not feasible, refund to Buyer the price paid for the non-compliant RADX Integrated Product Hardware, Software and/or Firmware or component thereof.

6.7 RADX COTS AND MCOTS SOFTWARE AND/OR FIRMWARE UPDATES. During the Warranty Period, Software and/or Firmware Updates to RADX COTS AND MCOTS Software and/or Firmware purchased by Buyer and i) which features the same Major Release Number (i.e., Version “1.2” and Version “1.3” both feature “1” as their Major Release Number), ii) and which supports the same RADX or RADX specified third-party Reference Platform(s) previously purchased by Buyer, will be made available by RADX to Buyer free of charge via email or RADX’ Support Website or via other means of conveyance at the sole discretion of RADX. During or after the Warranty Period, RADX Software and/or Firmware Updates to Software and/or Firmware purchased by Buyer that features a different Major Release Number (e.g., Version “1.2” and Version “2.3” feature different Major Release Numbers) but which also support the same RADX or specified third-party Reference Platform(s) purchased by Buyer may be purchased by Buyer as part of an extended warranty package or at the applicable list price.

6.8 RADX MCOTS OR DEVELOPMENTAL PRODUCTS DEVELOPED PURSUANT TO A SERVICES CONTRACT. The Warranty Period for RADX Services, and unless otherwise specified in the Statement of Work (“SOW”) associated with a mutually agreed to Consulting Agreement or a RADX accepted P.O. stating otherwise, shall be twelve (12) months from the date of acceptance as defined by passage of the Acceptance Criteria associated with the RADX PVT(s) specified within the Statement of Work of the Services Contract or P.O. In such instances, RADX will provide warranty equivalent on RADX developed Hardware, Software, and Integrated Products equivalent to that provided by RADX on its COTS and MCOTS Products, provided that any and all warranty claims adhere to the processes and definitions for such RADX COTS and MCOTS Products within this Section 5.

7. RADX INSTALLATION. Where RADX is contracted by Buyer to install Products, Buyer shall provide or arrange such installation space, environment, electrical supply, power points and other facilities as RADX shall have specified, at no charge to RADX. If installation is delayed beyond thirty (30) days for reasons not attributable to RADX, any payment milestone contingent upon installation shall become due.

8. BUYER ACCEPTANCE OR REJECTION OF PRODUCTS AND/OR SERVICES. After delivery of the Products, or performance of Services, Buyer shall inspect the Products and/or Services for conformity to the Purchase Order within a period of fifteen (15) calendar days (the “Acceptance Period“). Unless otherwise agreed to by the Parties via a Milestone Schedule, Acceptance of Products/Services by Buyer shall automatically occur upon the earlier of (a) expiration of the Acceptance Period unless RADX has received written notice via email at [email protected], the RADX Support Website or as otherwise directed by RADX describing the reasons for non-conformance, or (b) upon Buyer’s commercial use of the applicable Products/Services.

9. THIRD-PARTY PRODUCTS. For any and all third-party products included within RADX Hardware, Software, Firmware, or Integrated Products and/or listed in the RADX documentation or specifications as being compatible (“Third-Party Products“), RADX will employ commercially reasonable efforts to provide compatibility, except where the incompatibility is caused by a “bug” or other defect in the Third-Party Product. All warranties on Third-Party Products passed through to Buyer from the original manufacturer, are between Buyer and such third party only, and RADX makes no warranties whatsoever as to any such Third-Party Products. RADX is not responsible for any or all incompatibilities, whether caused by “bugs” or other defects in Third-Party Products or otherwise.

10. ACTIONS OF OTHERS. RADX shall not be liable under the applicable warranty where the alleged defect was caused by Buyer or its end customers or any third party who misuses, neglects or other improper cause beyond the range of the intended use, or by accident, fire, lightning or other hazard.

11. WARRANTIES EXCLUSIVE. To the full extent allowed by law, the foregoing warranties and remedies are exclusive and are in lieu of all other remedies, warranties, terms, or conditions, express or implied, either in fact or by operation of law, statutory or otherwise. RADX’ warranties herein convey to Buyer and to the ultimate End User (the “End User“), but are not extended to any other third parties. RADX neither assumes nor authorizes any other person to assume for it any other liability in connection with the sales, installation, maintenance or use of its Products or performance of Services. Replacement Products assume the warranty status of the Product being replaced and have no separate or independent warranty of any kind. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, RADX MAKES NO WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE. RADX SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.

12. LIMITATION OF LIABILITY. RADX’ LIABILITY TO BUYER ARISING OUT OF OR RELATING TO ANY PRODUCTS OR SERVICES SHALL BE LIMITED TO DIRECT DAMAGES TO TANGIBLE PROPERTY UP TO BUT NOT TO EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID BY BUYER TO RADX FOR SUCH PRODUCTS OR SERVICES. IN NO EVENT SHALL RADX BE LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS, OR ANY SPECIAL, INDIRECT, RELIANCE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY REGARDLESS OF THE REASON. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER RADX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. The disclaimers of warranty and limitations of liability set forth herein are an essential part of the contract formed by these terms and conditions and have been factored by RADX into the prices offered in the Quote.

13. RETURNS. Products may not be returned to RADX without prior authorization. At RADX’ request and after issuance of a RADX Return Material Authorization (“RMA”) number via email, RADX’ Support Website or other methods indicated by RADX, Buyer or the End User shall return defective Product or component thereof to a receiving point designated by RADX. RADX reserves the right to reject shipping cartons that are not marked with appropriate RMA numbers. Buyer/End User will pay the transportation charges for all RADX Products and and/or parts returned to RADX under warranty in accordance with these terms and conditions. RADX will pay the transportation charges to return RADX Products and/or parts currently under warranty to Buyer/End User. Repaired or replacement RADX Products and/or parts exchanged under the limited warranties set forth above may be new or reconditioned at RADX’ sole discretion. All replaced Hardware Products returned to RADX become the property of RADX.

14. CHANGE ORDERS AND CANCELLATION REQUESTS.

14.1 RADX Products are built-to-order. Except as indicated herein, and unless otherwise agreed to by RADX, the Parties agree that any and all Buyer Purchase Orders are considered Non-Cancellable/Non-Reschedulable (“NCNR”). Any and all changes or cancellations requested by Buyer to Buyer’s Purchase Orders are at RADX’ sole discretion and must be approved in advance in writing by RADX.

14.2 Buyer agrees that any and all changes requested by Buyer to Buyer’s Purchase Orders will be provided by written (paper-based or electronically transmitted) notice from Buyer to RADX and subject to acceptance or rejection by RADX.

14.3 Any change order increasing the purchase quantity may be accepted by RADX in writing or via electronic transmission, if RADX can satisfy the additional requirements from available capacity and if the additional purchases are within the Buyer’s authorized credit limit, if any.

14.4 At RADX’ sole discretion, Buyer’s Purchase Orders of RADX COTS or MCOTS Products that are not subject to Milestone Payments:

a) RADX agrees to use commercially reasonable efforts to meet Buyer’s requested shipment schedule of Products provided that such requests fall within RADX’ published lead time for the Products ordered.

b) If Buyer requests cancellation of all or any portion of a Purchase Order, and RADX agrees to such cancellation, Buyer agrees to pay a cancellation charge based on the number of days prior to the scheduled date of shipment as follows: i) cancellation prior to RADX placing orders for (90) or more days prior to scheduled date of shipment, 25%; ii) 61-89 days, 50% of the net purchase price; and iii) 31-60 days, 75% of the net purchase price. Cancellation is not permitted 30 or fewer days prior to the scheduled date of shipment.

c) Buyer may reschedule all or a portion of an order one (1) time, provided that Buyer agrees to pre-pay the total remaining invoice amount, if not previously pre-paid.

14.5 For all Purchase Orders accepted by RADX, RADX will provide a shipment schedule for the Products ordered as part of RADX’ Purchase Order Acceptance. If RADX is unable to meet its shipment schedule, RADX will provide notice as soon as it is reasonably aware of the situation and will provide Buyer with an updated shipment schedule. Buyer agrees that RADX may ship items before the scheduled shipment date, but not to arrive earlier than Buyer’s requested shipment date. If RADX fails to ship items by the RADX scheduled ship date, Buyer may reschedule shipment at no charge.

15. CANCELLATION FOR DEFAULT. RADX may, upon written notice to Buyer, cancel any or all Buyer Purchase Orders effective immediately if: i) Buyer fails to perform any material obligations and such failure is not remedied within fifteen (15) calendar days after notice has been given; ii) Buyer fails to pay for purchases in accordance with the terms stated herein; iii) if Buyer ceases doing business as a going concern; makes an assignment for the benefit of creditors; is unable to pay its debts as they become due; files a voluntary petition in bankruptcy; is adjudicated to be a bankrupt or insolvent debtor; files a petition seeking for itself any reorganization; or consents or acquiesces in the appointment of a trustee, receiver or liquidator; or iv) any proceeding seeking involuntary reorganization, or similar relief is filed against Buyer which is not dismissed within thirty (30) days after filing, or if any trustee, receiver or liquidator of Buyer or any substantial part of its business assets or properties is appointed without RADX’ consent or acquiescence and such appointment is not vacated within thirty (30) days after such appointment. Any cancellation pursuant to this clause will be in addition to and not in lieu of any other remedies available to RADX at law or in equity.

16. EXPORT COMPLIANCE. Buyer acknowledges that RADX Products are subject to U.S. export control laws and regulations, including but not limited to the U.S. Export Administration Regulations (EAR) and in some instances, the U.S. International Traffic in Arms Regulations (ITAR). Buyer shall comply strictly with all U.S. export laws and regulations and assumes sole responsibility for obtaining required export or re-export licenses at Buyer’s sole risk, cost and expense. Buyer shall not directly or indirectly export, re-export or transmit any Products to any country or foreign national thereof to which such export, re-export, or transmission is restricted or prohibited. Buyer shall indemnify and hold RADX harmless against any liabilities suffered by RADX for any violation of this provision. Buyer agrees to furnish an End User Statement or End User Certificate for any Product purchased by Buyer if requested by RADX prior to the date of shipment.

17. U. S. GOVERNMENT USE; RESTRICTED RIGHTS. Unless otherwise agreed to by RADX, RADX Hardware, Software, Firmware and Integrated Products are Commercial, Off-the-Shelf (“COTS“) or Modified COTS (MCOTS) items which, along with accompanying documentation, have been developed entirely at private expense. RADX Software and Firmware products are delivered and licensed as “commercial computer Software” as defined in DFARS 227.7202-1(a) and FAR 27.405-3(b). Accordingly, all COTS and MCOTS Software and Firmware sold by RADX shall be governed by the RADX and/or 3rd Party COTS Binary Firmware and Software Standard License Agreement(s), including Warranties and COMMERCIAL SOFTWARE DATA RIGHTS for U.S. Government Purchasers. Buyer or its End User agree that they are entitled solely to the rights provided for in the applicable RADX COTS Binary Firmware and Software Standard License Agreement(s).

18. GOVERNING LAW, VENUE, LANGUAGE AND EXPENSES. The transactions contemplated herein shall be governed in all respects by the laws of the State of California without regard to conflicts of law rules. In the event that a dispute arises, Buyer and RADX hereby submit to the personal and exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, State of California, United States of America. The United Nations Convention on the International Sale of Goods shall not apply. The parties hereby confirm that the English language shall be the governing language of these terms and conditions. The parties also hereby confirm that, in the case of any conflict or claim that results in litigation between the parties related to the sale of RADX Products or Services, that all costs associated with said litigation, including legal fees, incurred by the prevailing party, shall be paid by the opposing party.

19. DISPUTE RESOLUTION AND ARBITRATION. The Parties agree that, in any dispute between the Parties that arises under or relates to this Agreement that involves regular commerce, including the sale of Products or Services by RADX, but excluding disputes subject to injunctive or mandatory relief, and which has not been cured within thirty (30) days, then such disputes will be settled pursuant to the Dispute Resolution procedures outlined herein:

a) The aggrieved Party shall notify the other Party of the uncured breach in writing and suggest a remedy for the breach.

b) The other Party shall respond to the aggrieved Party’s correspondence within 5 Business Days.

c) Should the dispute remain unresolved, the parties shall meet at the aggrieved Party’s offices or a mutually agreed to neutral location and attempt to informally resolve the matter.

d) Should the dispute remain unresolved after the foregoing, both Parties agree that the legal remedy to the dispute shall be determined via arbitration pursuant to the following:

i) The arbitration is to be conducted in a location in reasonable proximity to the defendant.

ii) The arbitration is to be conducted by a single arbitrator mutually agreed to by the Parties who, at minimum, has domain and case experience that is directly relevant to the matter in question.

iii) Notwithstanding the provision in Paragraph 9 with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16) and administered by JAMS pursuant to its comprehensive arbitration rules and procedures.

iv) Judgment on any award resulting from arbitration may be entered in any court having jurisdiction and this clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

v) The arbitrator shall, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ and professionals’ fees and costs of the prevailing Party to the other Party.

vi) Since time is of the essence in settling any matters that require arbitration, each Party will employ all reasonable haste in addressing requirements related to the arbitration proceedings including, but not limited to, the nomination of arbitrators for mutual consideration, the provision of documents required by the arbitrator and the provision of personnel as required for arbitration related meetings and procedures. Furthermore, both Parties will employ all reasonable efforts to enable completion of the arbitration within ninety (90) days of commencement.

20. FORCE MAJEURE. RADX will be excused from any obligation to the extent performance thereof is prevented by acts of God, fire, flood, riots, material shortages, strikes, locusts, plague, pandemic, governmental acts, disasters, earthquakes, inability to obtain labor or materials through its regular sources, or any other cause beyond RADX’ reasonable control.

21. LICENSE AGREEMENTS. Notwithstanding anything to the contrary herein, to the extent the Products are delivered with a RADX or Third-Party Product license agreement(s) (the “License Agreement(s)“), the terms and conditions of such License Agreement(s) shall apply in addition to the terms and conditions set forth herein. To the extent there is a conflict between the terms and conditions of such License Agreement(s) and those set forth herein, the term or condition set forth in the License Agreement(s) shall govern in all cases. Nothing herein shall be construed to grant any rights or license to use any Product or other intellectual property in any manner or for any purpose not expressly permitted by the License Agreement. Unless otherwise granted in a specific RADX or Third-Party Product License Agreement(s), RADX grants to Buyer and the ultimate End User the right to use Software or Firmware Products in binary form only, on the specific RADX platform purchased or on a Third-Party Hardware platform approved by RADX. No other license is granted, except pursuant to the terms of an appropriate License Agreement(s).

22. CONFIDENTIAL INFORMATION. Buyer acknowledges that RADX Products contain a combination of trade secret, know-how, patent, proprietary, and/or confidential information of a commercial or technical nature (“Confidential Information”) which is the valuable property of RADX. Buyer agrees to protect Confidential Information with the same confidentiality protections as are used, or should be used, for its own confidential information, and in any case, shall make the best commercial effort to protect such Confidential Information. Confidential Information is and remains the sole property of RADX (or its licensors, if any). Buyer agrees that it shall not directly or indirectly reverse engineer any Products. In situations where the Parties have executed a Non-Disclosure Agreement (NDA), then, for all matters regarding Confidential Information except aspects of Confidential Information covered by a License Agreement between the parties, the NDA shall prevail.

24. ASSIGNMENT. RADX may freely assign or pledge the payments due (and the documentation supporting such payment obligation) from Buyer under the applicable Purchase Order, and may assign all of its other rights and obligations by giving Buyer written notice thereof but without being obligated to obtain Buyer’s consent prior thereto. In the event of an assignment, RADX shall be discharged of any further liability pursuant to the affected Purchase Orders. Buyer may not assign its rights or delegate its obligations under any or all of its Purchase Orders unless RADX’ written consent is obtained prior thereto and any such assignment without such consent shall be void.