All Customer Orders are subject to these terms and conditions and all additional terms and conditions presented on or accompanying an Episensor Quotation or Episensor Order Confirmation. Episensor specifically rejects and the Customer disclaims all printed provisions in the Customer’s printed Orders including associated forms and/or documents. These terms and conditions, together with the Episensor Order Confirmation shall constitute the entire agreement between Episensor and the Customer with respect to any Customer Order and the Materials and/or Services provided herein.

These terms and conditions supersede any prior or contemporaneous agreements or representations written or oral. Any amendment of these terms and conditions must be in writing and signed by Episensor to be binding on Episensor. In the event of a conflict between the Customer’s Order or associated documents and the terms and conditions herein, the terms and conditions herein including the Order Confirmation shall govern.

1. Definitions and Interpretation

Within this document definitions are defined as follows:

“Episensor” means Episensor Limited and/or its designated subsidiaries.

“Customer” means the person or entity however constituted to whom the Material and/or Services are provided.

“Delivery” means the date of the Customer’s receipt of Material or completion of Services at the Customer’s designated location.

“Intellectual Property” means all drawings, data, designs , tooling, equipment, procedures, engineering changes, inventions, trade secrets, copyrights, mask works, source code, object code, patents, patent applications, know-how, computer and/or Product software and all parts thereof, trademarks and all other information, technical or otherwise

“Material” means the Products and/or Standard Software offered for sale or licensed to the Customer at time of sale.

“Order” means the Customer’s request for the purchase of Material and/or Services, exclusive of any printed terms and conditions contained thereon, and constitutes an offer by the Customer to purchase the Material and/or Services under the terms and conditions stated herein. Orders can be made orally or in writing via a sales representative, by phone, fax, purchase order or can be made online through Episensor’s website. Orders made orally shall be binding on the Customer as if they were made in writing.

“Order Confirmation” means a written acceptance by Episensor of the Customer Order under the terms and conditions stated herein and is binding on the Customer.

“Price” means the total cost including tax of the Materials and/or Services as stated on the Order Confirmation and invoices.

“Product” means equipment of Episensor design and manufacture, or other manufacturer’s equipment offered for sale by Episensor to the Customer. Product does not include Standard Software.

“Quotation” means the price quoted for Episensor’s Services and/or Material. Quotations for Services will include the Schedule.

“Schedule” means the schedule for performance and delivery of the Services agreed with the Customer.

“Services” means various types of services as provided by Episensor to the Customer.  Services are not Material. Additional fees apply for Services.

“Shipment Date” means the date on which Episensor has scheduled shipment of Material to the Customer.

“Standard Software” means a set of instructions which allows hardware/non-intelligent Products to store, manipulate and/or process information. Standard Software is licensed by Episensor separately or as part of a Product sale. Standard Software is not Product.

2. Quotations, Orders and Order Confirmations

2.1 Quotations must be in writing and are valid for 30 days unless otherwise stated.

2.2 Quotations for Services may be subsequently adjusted on the agreement of the parties hereto to reasonably reflect the adverse cost impact to Episensor of :

i. Any Customer changes or delays which are outside of the scope of Services, or ii. Legal and/or regulatory changes which occur after the issuance of the Quotation for the Services, or iii. The failure of the Customer to perform its obligations under the terms and conditions herein stated.

2.3 Episensor will notify the Customer of any adjustments to the quoted Price in writing.

2.4 In the event that agreement on the adjusted Price cannot be reached, Episensor shall have the right to terminate the Order, in whole or in part and in addition to any other remedy available to Episensor, and the Customer shall make immediate payment to Episensor in respect of any Materials delivered and/or Services rendered.

2.5 An Order constitutes an offer by the Customer to purchase the Material and/or Services under the terms and conditions herein stated.

2.6 Orders can be made orally or in writing via a sales representative, by phone, fax, purchase order or can be made online through Episensor’s website. Orders made orally shall be binding on the Customer as if they were made in writing.

2.7 An Order Confirmation constitutes acceptance by Episensor of the Customer Order  under the terms and conditions herein stated.

3. Changes to Customer Orders

3.1 The Customer may not change its Order without Episensor’s written consent.

3.2 Where a change to a Customer Order is agreed, Episensor will provide a revised Quotation in respect of any additional charges incurred by the requested change. The Customer agrees to pay any such additional charges.

3.3 Episensor reserves the right to change the Order and will notify the Customer of any such changes for their agreement and will confirm any such changes in the Order Confirmation.

4. Price and Payment

4.1 Prices quoted for Material and Services are based on Episensor’s published list prices in effect at time of Episensor’s receipt of the Customer’s Order unless otherwise stated in the Quotation or Order Confirmation.

4.2 All published list prices are subject to change by Episensor without notice. Episensor retains all rights to change the Material and/or Services or may discontinue any Material and/or Services at its sole discretion.

4.3 The Customer must pay the Price within 30 days of the date of invoice and on the terms stated thereon. Episensor reserves the right to suspend Delivery of the Services or Material until payment is received.

4.4 Late payments will be charged interest at the rate of 3% per annum or the maximum permitted by law on outstanding balances may be charged.

4.5 The costs of recovery of late payments or Materials shall be paid by the Customer.

4.6 All amounts due shall be payable in Euros unless otherwise specifically agreed in the Order Confirmation.

5. Schedule for the Performance of Services

5.1 Episensor will perform the Services in accordance with the schedule stated in the Quotation. Both parties agree to adhere to the schedule, however, each party will give due consideration to any reasonable proposal by the other party regarding changes in the schedule which, if agreed upon, will be recorded in writing.

5.2 Dates for performance of Services are estimated by Episensor in good faith but not guaranteed by Episensor.

5.3 Except as otherwise set forth in the Quotation, Episensor will have unrestricted access to the Customer’s site and any other locations at which Services are to be performed at all times (including overtime hours, Saturdays, Sundays and holidays) for the purpose of performing the Services.

6. Packaging, Shipment and Service Dates

6.1 All Products shall be suitably packed for shipment. Episensor may charge for packing and/or packaging including special documentation to comply with the Customer requirements.

6.2 The Shipment Date for Material or date for performance of the Services is estimated by Episensor but is not guaranteed by Episensor.

6.3 Shipments are made from Episensor’s shipping location in Limerick, Ireland.

6.4 The Customer, regardless of the circumstances, will not hold Episensor liable for any liabilities, penalties, or charges of any nature due to the late performance of the Services.

6.5 Episensor assumes no liability for any direct or liquidated damages during shipment or delivery of Material. Material may be tendered in partial shipments at Episensor’s discretion.

6.6 In the event of shipment delay requested by the Customer or a delay caused by lack of shipping instructions, Episensor will store all Material covered thereby at the Customer’s risk and expense. Episensor will invoice the the Customer at the full price for the Material including an additional storage fee.

7. Title, Risk of Loss and Insurance

7.1 Risk of loss, damage and insurance responsibilities for the Products pass from Episensor to the Customer upon acceptance of the Product by the shipping agent or carrier.

7.2 Title to all Material shall remain with Episensor until such time as full payment is received by Episensor.

7.3 Software shall remain with Episensor or its licensors, but risk of loss, damage and insurance responsibilities shall pass to the Customer at Episensor’s shipping location.

8. Acceptance of Material and/or Services

8.1 Material and/or the Services delivered that do not conform with the Material and/or Services specified in the Order Confirmation shall be notified by the Customer to Episensor in writing immediately and at the latest 7 days after Delivery and Episensor shall have no liability to the Customer thereafter.

8.2 The Customer must obtain an authorisation for return of Material to Episensor and return such Material for correction or completion as required.

8.3 With respect to Services, Episensor shall at no additional charge (if determined by Episensor to be Episensor’s fault), take prompt action to correct such unsatisfactory Services.

9. Material and Services Warranty

9.1 Episensor warrants from the date of shipment to the Customer that Product bearing the Episensor name will substantially conform to Episensor specifications in effect as of the date of shipment and will be free from substantial defects.

9.2 The Customer is responsible for ensuring that the Material and/or Services are suitable for their needs and Episensor provides no warranty in this regard or of fitness for any particular purpose. Fitness for use of by the Customer for their particular needs must be agreed in writing with Episensor prior to the Order.

9.3 Episensor warrants that the Services will be provided in a workmanlike manner.

9.4 The Customer must promptly, and at the latest within 7 days after Delivery, notify Episensor in writing of any claimed defect in the Material and/or Services. Episensor or its agent may inspect the Material and/or Services on the Customer’s premises and shall correct any defects by repair or replacement at its discretion. Episensor must authorise the return of any such Material and the Customer will return them to Episensor by the Customer at their own expense by the same method that it was delivered to them and to the location it was delivered to the Customer from.

9.5 Except as provided for herein, no warranty, express or implied, as to the condition, quality, performance, merchantability or durability of the Material and/or Services is given by Episensor and all such warranties are hereby excluded.

10. Liability

10.1 Except in relation to liability for personal injury (including sickness and death) Episensor accepts no liability in respect of any loss or damage (including direct and consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of Material and/or Services supplied or due to the negligence of Episensor, its employees or agents. 10.2 Without prejudice to Clause 10.1 Episensor accepts no liability for:

(i) claims relating to or arising from the use of equipment not bearing the Episensor name; (ii) loss or damage caused by the use of the Material and/or Services supplied inconsistent with the use supplied for; (iii) loss resulting from any defect in the Material and/or Services which they have remedied under Clause 9.4.

11. Assignment

11.1 Episensor may assign, subcontract or transfer its rights and obligations in whole or in part to a third party and will give the Customer written notice thereof.

11.2 The Customer may not assign, subcontract or transfer its rights or obligations without Episensor’s prior written consent and any such assignment, subcontract or transfer without such consent shall be void.

12. Intellectual Property Rights

12.1 All Intellectual Property developed, made or supplied by or for Episensor in the production of any Material or the performance of any Service sold, rendered or licensed herein will be and remain the sole property of Episensor (or its licensors, if any).

12.2 The Customer agrees not to reverse engineer any Materials purchased herein.

12.3 If any Product bearing the Episensor name, in Episensor’s opinion, is likely to or becomes the subject of a claim of infringement of any valid Irish or international copyright or patent, Episensor shall, at its option and expense, either:

(i) modify it to make it non-infringing; (ii) settle such claim by procuring for The Customer the right to continue using the Product; or (iii) defend the Customer against such claim in which case the Customer must provide reasonable assistance to Episensor where requested and Episensor will pay the Customer for any damages actually incurred which are awarded by a court of final jurisdiction, provided the Customer gives it the assistance requested.

12.4  The Customer must give Episensor prompt written notice of all facts and circumstances necessary or desirable for a proper defense of any claim and Episensor shall not be responsible for any settlement made without Episensor’s written consent.

12.5 If, in Episensor’s opinion, none of the foregoing alternatives are reasonably available to Episensor, then Episensor may discontinue the sale of the Material and/or Service and in that event the Customer may

(i) continue using the same at its sole risk until an injunction or other court order terminating the continued use thereof has been issued; or (ii) return the Material to Episensor, including any associated media, any printed material, and any “online” or electronic documentation and receive a prorated refund of the Product purchase cost based on an established prorata period of five [5] years from date of Delivery of the Material by Episensor.

12.6 The Customer indemnifies Episensor for any claim that arises from:

(i) use of the Product in a manner other than for which it was intended; (ii) any infringement, or alleged infringement, of any patent or copyright issued by any country other than the Republic of Ireland or any other country where Episensor has obtained patent or copyright protection; (iii) modifications or changes made to the Product which are not authorized by Episensor; (iv) operation of the Product in combination with other products selected by The Customer for its use; or (v) Episensor’s compliance with The Customer’s designated designs, material usage or specification furnished by The Customer , in which case The Customer shall defend, indemnify and hold Episensor harmless against any claim of infringement of any copyright or patent.

13. Confidential Information

13.1 Both parties hereto will treat any and all information received from the other that is confidential in nature as confidential information and will not disclose the said confidential information to any other person or entity.

13.2 The Customer recognizes and agrees that the unauthorized use or disclosure of the Confidential Information would cause irreparable injury to Episensor for which it would have no adequate remedy at law, and that any actual or contemplated breach of this clause will entitle Episensor to obtain immediate injunctive relief prohibiting such breach, in addition to any other rights and remedies available to it. The obligations herein contained will expressly survive the final payment of any/or all The Customer Order.

14. Cancellation

14.1 Either party may terminate the Order if the other fails to perform any of its material obligations herein and such failure is not remedied within fifteen [15] calendar days after notice has been given to the defaulting party.

14.2 Episensor may, upon written notice to the Customer, terminate any and/or all the Customer Orders if:

(i) The Customer 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 an insolvent debtor. (ii) The Customer fails to pay for the Material and/or Services in the time specified herein (iii) The Customer is in breach of any export control laws.

15. Jurisdiction

15.1 The terms and conditions herein are to be interpreted in accordance with the law of the Republic of Ireland and is subject to the exclusive jurisdiction of the Irish Courts.

16. Severability

16.1 If any provision of these terms and conditions is held by a court to be invalid, illegal or unenforceable, then that shall not render unenforceable any other portion of these terms and conditions but rather these terms and conditions shall be construed as if it did not contain the particular invalid, illegal or unenforceable provision or provisions.

17. Force Majeure

17.1 Episensor is not liable for failure or delay in fulfilling its obligations due to any causes beyond its control. In the event of any such delay, the date for shipment or performance of Services will be extended correspondingly.

17.2 If an event of force majeure prevents or delays Episensor’s performance for more than six [6] months, Episensor shall have the right to terminate the applicable Order, with immediate effect.

18. Software License

18.1 Episensor licenses to the Customer the Standard Software, when included with a Product sale or when purchased separately, in accordance with the terms of Episensor’s Software license.

19. Survival of Terms

19.1 The termination or cancellation of any Customer Order or any relationship created herein between the parties or the delivery of Material or performance of Services under shall not affect each party’s obligations and rights under these terms and conditions, which by their nature, survive, notwithstanding such termination, cancellation, delivery or performance.