FSS-65-II-A - Od Os Inc. - 36F79719D0263

Terms and Conditions of Equipment Purchase, License and Service Agreement

Company OD-OS Inc.

6201 Oak Canyon Drive, Suite 200 Irvine, CA 92618 Phone: 949 415 7257 Fax: 949 415 7259 www.od-os.com

Contract 36F79719D0263

Schedule 65IIA – Medical Equipment and Supplies

Item # Product Name/ Description Awarded Price (net)

15600-I Navilas® Lasersystem 577s with 577 nm (yellow) wavelength, microsecond pulsing incl. Navilas® Endcustomer Software Licence, Transportation, Installation and Training

$96,482.41

155485 Navilas® Service Agreement for a Year, including: 1 year warranty extension for parts and labor, software updates, TSC

$8,954.77

155486 TSC for Navilas® 577s: Annual Technical Safety Check/ Calibration

$2,487.44

155841 Non-Contact Widefield Objective (ncPRP) for Navilas® 577s including installation and one (1) day Training without existing Service Agreement (item# 155485)

$3,979.90

155841-S Non-Contact Widefield Objective (ncPRP) for Navilas® 577s including installation and one (1) day Training, with existing Service Agreement (item# 155485)

$2,984.92

OD-OS Inc. Equipment Purchase, License and Service Agreement

December 2016 Page 1 / 3

EQUIPMENT PURCHASE, LICENSE AND SERVICE

AGREEMENT between CUSTOMER, USA (“Client” or a “Party” or together with OD-OS the “Parties”) and OD-OS Inc. a Delaware corporation with an address at 6201 Oak Canyon Drive, Suite 200, Irvine, CA 92618, USA (“OD-OS”, or a “Party” or together with Client the “Parties”)

Effective Date: Date of Equipment Acceptance (as defined in Section 2)

1 Subject Matter of the Agreement.

On the terms and conditions specified in this Equipment Purchase, License and Service Agreement (the “Agreement”) and the quotation, to which this Agreement is attached (the “Quotation”), OD-OS sells and/or licenses to Client the following products:

(i) the Navilas® Laser System (the “System”) with the software provided as part of or for use with the System as well as updates thereto if and when provided to Client (the “Software”), and

(ii) the accessories (the “Accessories”), and

(iii) the documentation including the Operator Manual (the “Documentation”), all as described and listed in Attachment A (the “Equipment”).

OD-OS will also provide associated services and support to Client but only as expressly set forth herein.

2 Delivery and Installation.

Client will, at its own cost, make all necessary and appropriate preparations for the installation of the Equipment and ensure that Client’s premises specified in the Quotation (the “Location”) meet all conditions specified in Attachment B including but not limited to Internet access for the Equipment (the “Installation Specifications”). Upon Client’s confirmation that the preparations have been completed, OD-OS will deliver the Equipment to the Location and will install the Equipment. With Client in attendance, OD-OS will perform OD-OS’s standard tests to confirm the functionality and operability of the Equipment (the “Tests”). Upon successful completion of the Tests, OD-OS will hand over the Equipment and transfer ownership and title to the System to Client (the “Equipment Acceptance”), subject to the security interest described in Section 15.9 below. Client will confirm delivery, functionality and operability of the Equipment by signing a certificate as attached hereto as Attachment C (the “Equipment Acceptance Certificate”).

3 Training.

Upon receipt of the Equipment Acceptance Certificate, OD-OS will at the Location instruct qualified members of Client’s staff nominated by Client (the “Trainee(s)”) in the handling, application and operation of the Equipment (the “Training”).

OD-OS will train only those Trainees who meet all applicable regulatory requirements for the performance of retinal imaging (the “Imaging”) in the operation of the Equipment for Imaging.

OD-OS will train only those Trainees who also meet all applicable regulatory requirements for the performance of laser photocoagulation to treat ocular conditions (the “Treatment”) in the operation of the Equipment for both Imaging and Treatment.

OD-OS will issue a certificate (the “Training Certificate”) for every Trainee, who completes the Training (the “Authorized Operator(s)”); every Training Certificate will specify whether the Trainee was trained in the operation of the Equipment for Imaging only or for both Imaging and Treatment. On Client’s request, additional Training sessions will be held at OD-OS’s standard rates applicable at the time.

4 Software License.

4.1 OD-OS grants Client a non-exclusive license, which may not be transferred, assigned or sublicensed except in case of a resale of the Equipment, to use the Software only (i) for Client’s operation, (ii) on the Equipment on which it is initially installed or on replacement Equipment provided by OD-OS, (iii) in accordance with the Documentation, and (iv) in accordance with the terms and conditions of the Agreement.

4.2 OD-OS will inform Client of (a) all updates, revisions, additions, modifications, enhancements and new versions of the Software, which are required for the proper functioning of the Software (the “Mandatory Updates” and, together with the Non-Mandatory Updates, the “Software Updates”), (b) all other updates, revisions, additions, modifications, enhancements and new versions and releases of the Software, which do not increase the functionality of the Software (the “Non-Mandatory Updates” and, together with the Mandatory Updates, the “Software Updates”) and (c) all new versions and releases of the Software, which increase the functionality of the Software (the “Software Upgrades”) if and when released by OD-OS.

4.3 OD-OS will provide and install all Mandatory Updates on the Client’s Equipment free of charge. Under a Service Agreement (as defined in Sec. 8), if any. Non-Mandatory Updates will be provided without additional charge and Software Upgrades may be licensed on special terms. In absence of a Software Agreement, Client may purchase licenses for Non-Mandatory Updates and/or Software Upgrades on OD-OS’s terms and conditions applicable at the time. Software Upgrades may be licensed at OD-OS’s standard rates applicable at the time. Client will make all arrangements for OD-OS’s installation of Software Updates and Upgrades as necessary and appropriate.

Authorized Operators will be familiarized with the changes in the functionality and/or operability of the Equipment caused by a Software Update or Upgrade in writing and/or during the next Training.

4.4 Third party Software provided as part of or with the Equipment, if any, is licensed on the terms and conditions of the respective third party.

5 Limited Warranty; Disclaimer of Warranty.

5.1 Equipment Nonconformance. OD-OS warrants and

represents that for a period of twelve (12) months from delivery (the “Warranty Period”) the Equipment will perform in conformance with the specifications set forth in the Operator Manual. Should the Equipment fail to function or operate in accordance with the Operator Manual (the “Nonconformance”) within the Warranty Period, and should Client not be able to correct the Nonconformance by following the procedures described in the Operator Manual, OD-OS will at its discretion and expense perform remote and/or on-site repair services at the Location or OD-OS’s repair center to bring the Equipment into conformance with the Operator Manual (the “Repair Services”).

5.2 Exceptions. This warranty shall not apply, and OD-OS shall have no responsibility (i) for any Nonconformance that is caused by (a) neglect, misuse or mistreatment, including but not limited to improper installation, operation, use, maintenance or testing by Client or any third party, (b) use in fields of application and environmental conditions other than those expressly specified in the Documentation, (c) use in combination with other products not approved by OD-OS for this purpose, (d) excessive stress or (e) normal wear and tear; (ii) for any Equipment that has been altered or modified in any way without OD-OS’s consent; and

(iii) if Client fails to notify OD-OS of apparent defects within ten

(10) business days of delivery and of hidden defects within ten

(10) business days after they were detected.

5.3 THIS WARRANTY AND REPRESENTATION IS IN LIEU OF

ALL OTHER WARRANTIES AND REPRESENTATIONS,

EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION

ANY WARRANTIES OF MERCHANTABILITY OR FITNESS

FOR A PARTICULAR PURPOSE, WHICH WARRANTIES ARE

EXPRESSLY DISCLAIMED.

6 Equipment Functionality and Operability / Preventive Maintenance.

Client is – in particular during the Warranty Period - responsible to perform the self-maintenance and care described in the Operator Manual and ensure the continued functionality and operability of the Equipment in accordance with the Operator Manual. To assist Client in this regard, OD-OS offers to perform on-site preventive maintenance and calibration services as specified in the Operator Manual (the “Preventive Maintenance”) on an annual basis. Preventive Maintenance will be scheduled in consultation with Client and will be provided at OD-OS’s standard rates applicable at the time.

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7 Repair Services Repair Services for Defects, for which warranty claims are excluded as per Section 5.2, will be provided at OD-OS’s standard rates applicable at the time. OD-OS will provide Client with a quotation for such Repair Services upfront.

8 Separate Service Agreement During the term of a service agreement as specified in Attachment D entered into by the Parties, if any (the “Service Agreement”), OD-OS offers Preventive Maintenance, Repair Services, Non-Mandatory Updates and Software Upgrades, Support (as defined in the Service Agreement) and Training as specified in the Service Agreement.

9 Termination of Software Licenses If Client defaults in the performance of any of its obligations under Sections 4.1, 11 or 13 of this Agreement and fails to correct such default within thirty (30) days after written notice by OD-OS, OD-OS may - in addition to any other remedies it may have - terminate the licenses to the Software granted Client under the Agreement (the “Software Licenses”) with immediate effect upon written notice.

10 Protection of OD-OS’s Rights.

10.1 OD-OS Property. Except as otherwise provided for in this Agreement, OD-OS, its affiliates and/or licensors retain all rights and interest in the Equipment, the OD-OS Confidential Information (as defined in Section 13) and all intellectual property rights with respect thereto, including but not limited to the Navilas® trade name and trademark.

10.2 No Reverse Engineering. Except as expressly permitted

by mandatory law, Client will not reverse engineer, reverse assemble, disassemble or decompile the System and/or Software or otherwise attempt to discover any source code, algorithms, trade secrets or other proprietary rights embedded in or relating to the System and/or Software by any means whatsoever.

11 Client’s Representations and Warranties.

11.1 Trainees. Client represents and warrants that all Trainees meet all applicable regulatory requirements for the performance of Imaging and/or Treatment, as applicable.

11.2 Permitted Use. Client represents and warrants that the

Equipment will be operated only

(i) by Authorized Operators;

(ii) for Imaging and/or Treatment;

(iii) in strict compliance with the Declaration of Conformity for the Equipment, a copy of which is provided with the Operator Manual; and

(iv) in strict compliance with all applicable laws and regulations and the Operator Manual

(the “Permitted Use”).

12 Information and Reporting.

12.1 Information. Client will provide OD-OS with all information required or reasonably requested by OD-OS for the performance of this Agreement.

12.2 Unusual Events. Client will report non-trivial unusual behavior of the Equipment and every extraordinary event associated with the use of the Equipment (the “Event(s)”) to the OD-OS Support Contact (the “Event Report(s)”). Event Reports made by phone will within one (1) business day be summarized in writing and sent to the OD-OS Support Contact by email.

13 Confidentiality.

The Equipment, the Event Reports and any material and information OD-OS provides to Client for the purpose of the Agreement, and any information that Client provides to OD-OS, (each such Party acting as the “Disclosing Party”) which, in each case, is designated as “Confidential”, “Proprietary” or some similar designation or, if disclosed orally or visually, is identified as confidential at the time of disclosure and summarized in writing, marked as “Confidential”, “Proprietary” or with a similar legend and delivered to the other Party (the “Receiving Party”) within ten (10) business days thereafter constitute “Confidential Information” as far and as long as it has not come into the public domain. The Receiving Party will treat as secret all Confidential Information, will not use Confidential Information except to exercise its rights and perform its obligations under the Agreement, and will not disclose Confidential Information to any third party including any employee of the Receiving Party who does not have a need to know for the Receiving Party’s performance hereunder. Without limiting the foregoing, the Receiving Party will use at least the same degree of care it uses to protect its own business and trade secrets, but in no event less than reasonable care, to prevent the disclosure of Confidential Information. The Receiving Party will promptly notify the Disclosing Party of any actual or suspected misuse or unauthorized disclosure of Confidential Information. With the exception of the Equipment, the Receiving Party will deliver to the Disclosing Party all of the Disclosing Party’s Confidential Information and all copies thereof, if any, upon the Disclosing Party’s written request.

14 Remuneration.

In return for the rights and licenses granted and services provided to Client under the Agreement or a Service Agreement, if any, Client will pay to OD-OS the following:

(i) The purchase price for the System as specified in the

Quotation (the “System Purchase Price”), which includes

(a) the license fee for the use of the Software, (b) the purchase price for the initial set of Accessories as specified in Attachment A, (c) the fee for the installation of the Equipment, (d) the fee for the initial Training after installation of the Equipment, and (e) the purchase price and license fee for the Documentation; and

(ii) the annual fee specified in the Quotation for the services and support provided under a Service Agreement, if any (the “Service Fee”); and

(iii) for Non-Mandatory Updates and/or Software Upgrades licensed separately by Client the additional license fees at OD-OS’s standard rates applicable at the time (the “Additional License Fees”); and

(iv) the additional fees on a time and material basis at OD-OS’s standard rates applicable at the time for any additional services OD-OS agrees to perform at Client’s request (the “Additional Fee(s)”).

15 Invoicing and Payment Terms.

15.1 Purchase Price. OD-OS will invoice Client for a non-

reimbursable down payment in the amount specified in the Quotation at the time this Agreement is signed. The Down Payment will be credited against the Purchase Price, which will be invoiced upon delivery of the Equipment.

15.2 Service Fee. The Service Fee will be invoiced in advance, at the beginning of every contract year of the Service Agreement, if any.

15.3 Additional License Fees. Additional License Fees will be invoiced upon order confirmation.

15.4 Additional Fees. Additional Fees will be invoiced upon

completion of the respective service, if any.

15.5 Taxes. The Purchase Price and all fees are net of tax. All applicable taxes (e.g. Sales, Excise or Value Added Tax) will be added at the rate applicable at the time of invoice, if any.

15.6 Payment. Payment will be due upon receipt of invoice.

Subject to OD-OS’s withdrawal of credit approval, invoices will be payable without any deduction within ten (10) business days of the date of invoice.

15.7 No Set-Off. Client may not withhold payment or other

performance based on any claimed non-performance by OD- OS. Client shall not be entitled to set off any claims against OD- OS against payments due to OD-OS hereunder.

15.8 Late Payments. If payments due are not paid by Client within thirty (30) days of the date of invoice, OD-OS may, without prejudice to any other rights, withhold further services and claim interest at 8% (eight per cent) per annum from the date of the invoice.

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15.9 Security Interest. OD-OS reserves a security interest in the System, all additions, replacements and proceeds thereof to secure Client’s payment obligations. Such security interest is retained until Client’s payment obligations are satisfied in full.

OD-OS may file this Agreement or financing statements pursuant to the Uniform Commercial Code or other applicable law to evidence or perfect OD-OS' security interest. Client agrees to execute any additional agreements OD-OS deems necessary to perfect any such security interest.

16 Equipment Access.

Upon Equipment Acceptance, OD-OS will electronically provide Client with a temporary key to access the Equipment, which will be replaced by a permanent key to access the Equipment upon receipt of payment of all outstanding invoices.

17 IP Infringement.

17.1 Indemnification by OD-OS. OD-OS shall indemnify, defend

and hold Client harmless against any liability, damage, claim, cost or expense (including reasonable attorneys' fees), arising out of any third party claim brought against Client during the Warranty Period alleging that the Equipment, as supplied by OD-OS and used in accordance with the Agreement, directly infringes any United States copyright, trademark, patent, trade secret, or other United States intellectual property right of any third party (an “IP Infringement Claim”). OD-OS shall have no liability to the extent the alleged IP Infringement Claim arises from (i) alterations to the Equipment made by Client or any third party, (ii) use of the Equipment in combination with products not supplied by OD-OS, provided that the claim would not have arisen in the absence of such combination, or (iii) use of the Equipment in a manner for which it was neither designed nor contemplated, as evidenced by the Documentation and the Agreement.

17.2 OD-OS Options. In the event OD-OS becomes aware of an

IP Infringement Claim during the Warranty Period, or if OD-OS believes that an IP Infringement Claim may arise, OD-OS may, at its option (i) appropriately modify the Equipment or replace it with a non-infringing Equipment, so long as such modification or replacement does not materially alter the functionality of the Equipment; or (ii) obtain a license with respect to the applicable third party intellectual property rights. In the event neither of the foregoing alternatives is commercially practicable, OD-OS shall have the right to terminate the Agreement, in which case the Client may return the Equipment to OD-OS and OD-OS will reimburse Client the Purchase Price less a reasonable use fee for the time period between the delivery and the return of the Equipment based on a straight-line five (5) year depreciation period.

17.3 The obligations set forth in Sections 17.1 and 17.2 shall constitute OD-OS’s entire liability and Client’s sole remedy for any actual or alleged IP Infringement Claim.

18 Liability.

18.1 OD-OS’ Liability. OD-OS WILL NOT BE LIABLE FOR ANY

INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL

DAMAGES, WHETHER BASED ON CONTRACT, TORT, OR

ANY OTHER LEGAL THEORY, ARISING OUT OF THIS

AGREEMENT OR CLIENT’S USE OF THE EQUIPMENT.

OD-OS’ LIABILITY, IF ANY, FOR DIRECT DAMAGES

ADJUDGED IN A COURT OF COMPETENT JURISDICTION

TO BE CAUSED BY OD-OS SHALL NOT EXCEED THE

TOTAL AGGREGATE AMOUNT OF U.S. $100,000.00.

18.2 Force Majeure. Neither Party will be liable to the other where its performance of the Agreement is affected in whole or in part by reason of any event, delay or other failure beyond its reasonable control. Such Party will give prompt notice to the other of such event and will use all commercially reasonable efforts to resume performance as soon as possible.

19 Assignment. This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns, provided, however, that neither Party will assign any of its rights, with the exception of claims for payment, or obligations (by operation of law or otherwise) hereunder without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, either Party may assign this Agreement to any of its affiliates or to a successor in interest (or its equivalent) of all or substantially all of its relevant assets, whether by sale, merger, or otherwise.

20 Severability. In the event that any provision in the Agreement or part thereof is held to be invalid, or unenforceable, the other provisions as well as the other part of the provision will remain valid and enforceable.

21 Waiver. Failure by either Party to enforce any provision of the Agreement will not be deemed a waiver of future enforcement of that or any other provision.

22 Notices. Unless explicitly stated differently in the Agreement, any notice required or permitted to be given by either Party under the Agreement will be in writing and delivered in person or sent by overnight courier, with notice of receipt, to the other Party at its address set forth on page 1 of the Agreement or such new address supplied to the other Party in accordance with this Section 22.

23 Entire Agreement. The terms and conditions of the Agreement including its Attachments constitute the entire agreement between the Parties and supersede all previous agreements and understandings, whether oral or written, regarding the subject matter hereof.

24 Modification. No alteration, amendment, waiver, cancellation or any other change in any term or condition of the Agreement will be valid or binding on either Party unless mutually agreed in writing by both Parties. Any and all supplementary agreements or modifications hereto must be made in writing. This also applies to any waiver of this requirement of written form.

25 Governing Law. This Agreement will be construed, interpreted, and the rights of the Parties determined in accordance with the laws of the State of California, without regard to its principles of conflict of laws. Jurisdiction and venue for any action brought hereunder shall exclusively be in the state and Federal courts in San Francisco California, and Client hereby waives any objection to such jurisdiction and venue.

26 Counterparts. The Agreement may be executed in counterparts each of which, when executed and delivered, shall be original, but all such counterparts shall constitute one and the same document. The Parties agree that facsimile or emailed scanned copies of signatures shall be deemed originals.

27 Remedies. Client agrees that OD-OS’ remedies at law for a breach or threatened breach of any of the provisions of Sections 4.1, 5.2, 9, 11 and 12 hereof would be inadequate and OD-OS would suffer irreparable damages as a result of such breach or threatened breach. In recognition of this fact, Client agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, OD-OS shall be entitled to relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available.

28 Survival. Upon termination of this Agreement for any reason, the provisions of Sections 5, 7, 9, 10, 11, 13, 15.9, 18, 21, 23 and 25 shall survive.

29 Attachments. The following Attachments are integral parts of the Agreement:

Attachment A Equipment Attachment B Installation Specifications and OD-OS Support Contact Attachment C Equipment Acceptance Certificate Attachment D Service Agreement

30 Headings. The headings used in the Agreement are intended for reference purposes only and will not affect the interpretation or construction of any provision of the Agreement.

Attachments to the

Version October 2016 Page 1 / 4

ATTACHMENT A

EQUIPMENT

1. The System consists of:

- a touchscreen

- a device head with components for imaging and treatment of the eye with a scanning device for the laser

- an instrument stage with joystick to manually move the device head

- an electronics module,

- an ophthalmic laser,

- an imaging computer,

- control electronics

- a foot switch

2. Accessories Table

Navilas® Contact Objective

Navilas® Non-Contact Objective

One Laser Safety Eyewear

Elbow rests (set of 3)

3. Software The Navilas® Software controls the interaction with the user via a specific graphical user interface (GUI).

The most significant part of the Software provides the Navigation functionality of the system. It allows the co-registration of images, tracking of movements of the eye between images, planning of treatment locations and laser parameters, as well as the registered superposition of the plan on the imaged area of the eye. Furthermore, the stabilization of the laser beam on the moving part of the eye, the pre-positioning of the laser beam to the pre-planned locations and documentation of the actual treatment with location and laser parameters is possible. This documentation allows an efficient patient data management.

In addition, the Software includes 3rd party software and specific software tools, which may be installed on the System and/or on a dedicated Client PC, as described in the Documentation.

4. Documentation

Operator Manual Declaration of Conformity Medical Device Log Book Copy of Electrical Safety Protocol Copy of Packing List

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ATTACHMENT B

INSTALLATION SPECIFICATIONS and OD-OS SUPPORT CONTACT

1. Installation Specifications

Electrical 115 - 230VAC, 50 – 60 Hz, 3A

Temperature 59 – 82 degrees F (15 – 28 degrees C)

Humidity Not to exceed 85%

Atmospheric Pressure 700 bis 1200 mBar

Floor Loading Sufficient to handle system weight and attending persons

Room Area 10 m2

Laser safety signs Present and visible

Internet connection Internet Access through Ethernet Cable with Network providing DHCP (required during Installation and for remote Service and Support and downloading of

Software Updates)

Loading dock, Elevator, Corridors Sufficient to handle (ca. 6 m2), to unpack and handle the System

Doors Minimum 85 cm

Weight with Tabel 67 kg

Dimensions of System (with Tabel) Length = 93cm, Width = 50 cm, Hight, System lowered

= 135 cm, Height, system fully raised = 160 cm

Dimensions crated System Two packages a 80 cm x 60 cm x 40 cm (LxBxH)

Shipping weight = 43 kg

Dimensions Tabel: 105 cm x 60 cm x 24 cm (LxBxH), 33kg

2. OD-OS Support Contacts

Telephone: +1 (877) 628 6367

Email: service@od-os.com mailto:service@od-os.com

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ATTACHMENT C

EQUIPMENT ACCEPTANCE CERTIFICATE

Version October 2016 Page 4 / 4

ATTACHMENT D

SERVICE AGREEMENT

1 Definitions All capitalized terms used in this Service Agreement have the meaning as defined herein or in the Agreement.

2 Subject Matter Client wishes to receive from OD-OS, and OD-OS agrees to provide to Client, Preventive Maintenance, Repair Services, Non-Mandatory Updates, Support (as defined in Section 4.4), Training and possibly Software Upgrades (together the “Service”) for the Equipment purchased by Client under the Agreement.

3 Term

3.1 The Service Agreement will commence on the first (1st)

anniversary of the Equipment Acceptance Date and will remain in effect for a period of one (1) year (the “Initial Service Term” or, together with the Renewal Service Term(s), the “Service Term(s)”). Unless either Party terminates the Service Agreement by giving three (3) months written notice to the end of a Service Term, the Service Agreement will automatically extend for an additional twelve

(12) months period (the “Renewal Service Term(s)” or, together with the Initial Service Term, the “Service Term(s)”).

3.2 Section 3.1 notwithstanding, the Service Agreement will

automatically terminate if and when the Software License is terminated in accordance with Section 9 of the Agreement.

4 OD-OS’s Obligations

4.1 Preventive Maintenance. OD-OS will once per Service

Term perform Preventive Maintenance free of additional charge. The annual Preventive Maintenance will be scheduled in consultation with Client at the beginning of every Service Term.

4.2 Repair Service.

4.2.1 Evaluation and Remedy of Nonconformance. OD-

OS will evaluate every Nonconformance reported in accordance with Section 5.4 by remote access and inform the Service Coordinator whether Repair Services will be performed remotely, on-site at the Location or at OD-OS’s repair center, in which case OD-OS will arrange for transportation of the Equipment at its risk and expense.

Subject to Section 4.2.2 OD-OS will at its discretion correct the Nonconformance and/or replace the Equipment or parts thereof with new or refurbished Equipment or parts as necessary and appropriate

4.2.2 Exceptions. Any Nonconformance, which in OD-OS’s

reasonable opinion was caused by (a) neglect, misuse or incorrect operation, (b) use in fields of application and environmental conditions other than those expressly specified in the Documentation, (c) use in combination with other products not approved by OD-OS for this purpose, or

(d) excessive stress will only be repaired on the basis of OD- OS’s standard rates applicable at the time. OD-OS will provide Client with a quotation for such Repair Services upfront.

4.3 Non-Mandatory Updates and Software Upgrades. OD-

OS will free of additional charge provide Client with all Non- Mandatory Updates released by OD-OS during the Service Term, if any. Client may license Software Upgrades if and when they become available on favorable terms and conditions, as specified by OD-OS at that time. OD-OS will install all Non-Mandatory Updates and Software Upgrades, if any, on the Equipment.

4.4 Support. OD-OS will grant Client access to the OD-

OS Help Desk for assistance regarding the functionality, handling, application and operation of the Equipment (the “Support”). Client’s Support requests will be responded to during OD-OS’s regular business hours by using Client’s telephone number and email address listed in the quotation (the “Client Support Contact” and, together with the OD- OS Support Contact, the “Support Contacts”)

4.5 Training. OD-OS offers one (1) Training per Service

Term free of additional charge, which will be scheduled at the same time as the annual Preventive Maintenance, if any.

5 Client’s Obligations

5.1 Service Coordinator. Client will nominate an

Authorized Operator to coordinate the Service (the “Service Coordinator”). The Service Coordinator shall be authorized and responsible for all communication between Client and OD-OS in connection with the Service.

5.2 Compliance with Agreement. Client will comply with

all of its obligations under the Agreement and will in particular ensure that

• the Equipment is used only in full compliance with the Agreement and the Operator Manual; and

• Internet access for the Equipment is available for remote diagnostics and service and to download Non-Mandatory Updates; and

• self-maintenance is performed as specified in the Operator Manual; and

• all Events are properly reported to the OD-OS Support Contact.

5.3 Preventive Maintenance. Client will at the beginning

of every Service Term schedule the Preventive Maintenance in consultation with OD-OS.

5.4 Nonconformance Reporting. For every

Nonconformance, which Client is unable to correct as recommended in the Operator Manual, the Service Coordinator will provide the OD-OS Support Contact with a detailed description of the Nonconformance and will on OD- OS request complete forms as provided by OD-OS.

5.5 Non-Mandatory Updates. Client will make the

necessary arrangements for OD-OS’s prompt and proper installation of all Non-Mandatory Updates provided by OD- OS during the Service Term.

5.6 Support. Client will address requests for Support by

telephone or email during OD-OS’s regular business hours by using OD-OS’s telephone number and email address listed in Attachment B (the “OD-OS Support Contact” and, together with the Client Support Contact, the “Support Contacts”).

5.7 Access. Client will grant OD-OS access to all Client

information and systems that OD-OS needs in order to provide the Service and Support in a proper and timely manner.

5.8 Infrastructure Support. Client will free of charge

provide OD-OS all appropriate infrastructure support, e.g.

electricity, telephone, data lines, etc. for Services provided on-site at the Location.

5.9 Replaced Items. Client will return all replaced

Equipment and/or parts (the “Replaced Items”) to OD-OS;

such Replaced Items will become the sole property of OD-

OS.

6 Terms and Conditions Unless otherwise expressly provided for herein, the terms and conditions of the Agreement shall apply