1.1 These Terms and Conditions (“Terms”) govern the sale of NeuroBionics IO Fiber (the “Product”) by NeuroBionics, Inc. (“NeuroBionics”) to the customer (the “Customer,” together with NeuroBionics, the “Parties,” and each individually a “Party”) named on an institutional purchase order that is accepted by NeuroBionics (“PO”) and Customer’s use of the Product.

1.2 These Terms together with any quotation or invoice and the order confirmation, in each case, issued by NeuroBionics (the “Agreement”) comprise the entire agreement between the Parties, and supersede all other prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. By purchasing the Product, Customer agrees to be bound by these Terms. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party. For the avoidance of doubt, any terms in a PO that are inconsistent with or in addition to these Terms are expressly rejected.

2.1 NeuroBionics IO Fiber. Multifunctional neural probes designed for research purposes.

2.2 Configurations. Available in various configurations to suit specific research needs.

2.3 Customization. Customization options may be available upon request.

3.1 Sole Intended Use. The Product is intended solely for preclinical research and laboratory use (“Intended Use”).

3.2 Not for Human Use. The Product is not approved for clinical applications, human implantation, or therapeutic use. CUSTOMER ASSUMES FULL RESPONSIBILITY FOR COMPLIANCE WITH APPLICABLE REGULATIONS AND ETHICAL GUIDELINES.

4.1 Quotation. A quotation is required for all custom product orders and may be provided on request for standard products. Price quotes are valid for ninety (90) days from issuance. Prices exclude taxes, shipping, and applicable duties.

4.2 Purchase Order. Orders may be placed by way of PO via email to order@neurobionics.io. All orders are subject to acceptance by NeuroBionics by issuance of an order confirmation.

4.3 Pre-payment. Pre-payment may be required from first-time customers outside of the US and any other Customer at NeuroBionics’s discretion.

4.4 Payment Terms. Customer shall pay NeuroBionics all amounts due within thirty (30) days from the date of invoice for established accounts. NeuroBionics is entitled to charge a monthly finance charge of one and a half percent (1.5%) of amounts that remain outstanding past the due date.

4.5 Payment Options. Customer may pay via business check, electronic transfer (ACH), or wire transfer.

4.6 Currency. All invoices and payments must be issued in US dollars unless otherwise agreed in writing by NeuroBionics.

5.1 Shipping Costs. All shipping costs, as well as duties, brokerage fees, and VAT, are the responsibility of the Customer.

5.2 Standard Shipping. Unless otherwise expressly agreed by the Parties in writing, NeuroBionics shall select the method of shipment of and the carrier for the Products. Standard Shipments are generally made via FedEx, UPS or another carrier of NeuroBionics’s choice.

5.3 Delivery Time. Products will be delivered within a reasonable time after the acceptance of the PO. Standard lead times are 6-8 weeks from the order confirmation date. These are estimates only and are subject to shipping variations and requirements. Expedited shipping may be available upon request and subject to additional charges. NeuroBionics may, in its sole discretion, without liability or penalty, make partial shipments of Products to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the Products shipped, in accordance with the payment terms specified in Section 4, whether such shipment is in whole or partial fulfillment of Customer’s PO.

5.4 Customer-Provided Shipping. Customers may provide an account number for their own shipping service.

5.5 Handling Fee. A fifteen-dollar ($15) USD handling fee will be charged for Customer-provided shipping orders.

5.6 Incoterms. Unless otherwise agreed in writing by the Parties, all shipments are made under EXW incoterms, and responsibility is assumed by the Customer upon package pickup by the carrier at the address set forth in Section 13

5.7 Risk of Loss. Title and risk of loss pass to the Customer upon carrier pickup from the address set forth in Section 13.

5.8 Insurance. Shipments are made with a default insurance option ($500 USD). Additional shipping insurance will be added upon Customer request, at the heightened rate.

6.1 Limited Warranty. NeuroBionics warrants to Customer that for a period of thirty (30) days following the date of delivery, all NeuroBionics-manufactured products will be free from material defects in workmanship and material, subject to stated manufacturing tolerances and the expected rate of defective channels set forth in Section 6.4. Arrays with defective channels not exceeding the expected rate of defective channels shall not, for the avoidance of doubt, constitute a breach of this warranty.

6.2 Warranty Exclusions. The warranties in this Section 6 do not apply to any Product that: (a) has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions, guidelines, or specifications issued by NeuroBionics; (b) has been reconstructed, repaired, or altered by any person or entity other than NeuroBionics; or (c) has been used with any third-party products, hardware, or product that has not been previously approved in writing by NeuroBionics. Customer-performed modification not specifically approved by NeuroBionics and/or the usage or implantation of the Product in animal tissue or culture will void the warranties.

6.3 Customers Exclusive Remedy for Breach of Warranty. Notwithstanding any other provision of these Terms, this Section 6.3 contains Customer’s exclusive remedy for Products that do not conform to the warranties of this Section 6, subject to the exclusions and limitations of Section 6.2 (“Defective Products”). Customer’s remedy under this Section 6.3 is conditioned upon Customer’s compliance with the obligations set forth herein. Products must be inspected and defects reported within thirty (30) calendar days following delivery, and before use (the “Inspection Period”). After the Inspection Period, NeuroBionics will be under no obligation to repair, replace, or otherwise offer compensation for Defective Products. During the applicable warranty period, with respect to any Product which is alleged to be a Defective Products:

(a) Customer shall notify NeuroBionics, promptly in writing, of any alleged claim or defect within the applicable warranty period;

(b) Customer shall ship, at NeuroBionics’s expense and risk of loss, such Product(s) to NeuroBionics at a location specified by NeuroBionics in writing for inspection and testing by NeuroBionics;

(c) If NeuroBionics’s inspection and testing reveal, to NeuroBionics’s reasonable satisfaction, that such Products are Defective Products, and that any such defect has not been caused or contributed to by any of the factors described under Section 6.2 above, NeuroBionics shall in its sole discretion and at its expense, refund, repair or replace such Defective Products; and

(d) NeuroBionics shall ship to Customer, at Customer’s expense and risk of loss, the repaired or replaced Products to the Customer’s address, as specified in the PO.

THIS SECTION 6.3 SETS FORTH CUSTOMER’S SOLE REMEDY AND NEUROBIONICS’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED PRODUCT WARRANTY SET FORTH IN SECTIONS 6.1.

6.4 Expected Rate of Defective Channels. Multi-channel arrays are typically shipped with a certain allowance for inoperative channels, typically one (1) out of six (6), as long as those channels are not critical elements such as ground or reference. This is being done to guarantee a low, competitive price for arrays, as a guarantee of 100% channel operation of hand-manufactured products would cause attrition rates and costs to increase considerably, demanding a large increase in prices. Customers may request a guarantee of 100% functional channels at shipment, which can be provided with an enhanced quality control fee dependent on the array type.

6.5 DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES IN THIS SECTION 6, (A) NEITHER NEUROBIONICS NOR ANY PERSON ON NEUROBIONICS’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY NEUROBIONICS, OR ANY OTHER PERSON ON NEUROBIONICS’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 6 OF THESE TERMS. NEUROBIONICS HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES TO THE FULLEST EXTENT PERMITTED BY LAW.

7.1 Cancellation and Modifications. Each PO is considered binding upon receipt. An order may be cancelled within two (2) business days of PO submission. Order changes must be requested within two (2) business days of PO submission. NeuroBionics will consider whether to accept change requests in its reasonable discretion. Once manufacturing begins, modifications may not be possible.

7.2 48-h Cancellations. Orders canceled after two (2) business days of PO submission may be subject to a cancellation fee of ten percent (10%) of the order value or the summed value of direct labor, materials, overhead, and reasonable profit of work already performed, whichever is greater.

7.3 Non-Returnable Products. Returns or exchanges of NeuroBionics-manufactured products will be accepted on a case-by-case basis, at NeuroBionics’s sole discretion, with a twenty percent (20%) restocking fee required for all returned or exchanged items. Custom-built products such as adapters, extenders and custom probes are non-returnable. Products with evidence of use, mishandling, implantation, or removal from specialized packaging will not be accepted for return.

8.1 Compliance with Law. Customer shall at all times ensure ethical compliance in research use of the Product and compliance with all laws and regulations applicable to the Product, Customer’s performance of its obligations hereunder, and Customer’s use of the Product.

8.2 Ownership of Intellectual Property. NeuroBionics shall own and retain all right, title and interest in and to all intellectual property rights related to the Product and all drawings, design, specifications, electronic media, production techniques and methodologies, product concepts, and other information developed by NeuroBionics during the course of or resulting from the Customer’s purchase of custom items designed by NeuroBionics.

8.3 No Reverse Engineering or Modification. Customer may not reverse-engineer, reproduce, or modify the Product without written consent of NeuroBionics.

NeuroBionics may provide Customer with non-public, confidential, or proprietary information of NeuroBionics, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, pricing, discounts, or rebates (“Confidential Information”). Confidential Information may be disclosed orally or disclosed or accessed in written, electronic, or other form or media, and need not be marked, designated, or otherwise identified as “confidential.” Customer hereby agrees to use Confidential Information solely for performing this Agreement and no to disclose Confidential Information to any third party unless authorized in advance by NeuroBionics in writing. Upon NeuroBionics’s request, Customer shall promptly return all documents and other materials containing or reflecting Confidential Information.

10.1 Indemnification by NeuroBionics. Subject to these Terms, including those set forth in Section 10.3, NeuroBionics shall indemnify, defend and hold harmless the Customer against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees (collectively, “Losses”) based on a claim that a Product infringes a patent or other intellectual property right of a third party; provided, however, that NeuroBionics shall have no obligations under this Section 10.1 with respect to claims to the extent arising out of: (a) any customization or new design based upon an instruction, information, designs, specifications, or other materials provided by Customer; (b) use of the Product in combination with any materials or equipment not supplied to Customer or specified by NeuroBionics in writing, if the infringement would have been avoided by the use of the Products not so combined; or (c) any modifications or changes made to the Product by or on behalf of any person or entity other than NeuroBionics.

10.2 Indemnification by Customer. Subject to these Terms, including those set forth in Section 10.3, Customer shall indemnify, defend and hold harmless NeuroBionics and its employees, independent contractors, agents, successors and permitted assigns (collectively, “NeuroBionics Indemnified Party”) against any and all Losses arising out of or resulting from: (a) Customer’s unauthorized use of a Product or use of a Product that is outside of the Intended Use, (b) Customer’s negligence or willful misconduct, or (c) Customer’s breach of these Terms.

10.3 Indemnification Procedures. The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any demand, claim, action or proceeding (an “Action”) for which indemnification is sought and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. Customer shall not settle any Action in a manner that adversely affects the rights of a NeuroBionics Indemnified Party without NeuroBionics’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. The indemnified party’s failure to perform any obligations under this Section 10.3 shall not relieve the indemnifying party of its obligations under this Section 10.3 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.

11.1 Use-Case Inappropriateness. NeuroBionics is not liable for any errors due to use-case-inappropriate design or product selection, miscommunications, errors in design submission or specification authoring, or inappropriate usage techniques or implantation methodologies.

11.2 LIMITATION OF LIABILITY. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY OR THEIR REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

11.3 MAXIMUM LIABILITY FOR DAMAGES. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO NEUROBIONICS PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12.1 Assignment. Customer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Customer without the prior written consent of NeuroBionics. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.

12.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

12.3 No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

12.4 Severability. If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

12.5 Notice. All notices shall be in writing. Notices to NeuroBionics should be addressed to the contact information set forth in Section 13, and notices to Customer shall be sent to the address set for in the PO or invoice, or to such other address for either Party as that Party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested), or e-mail (with confirmation of receipt such a read receipt feature or a reply email). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.

12.6 Governing Law and Jurisdiction. These terms and conditions shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. Any dispute arising out of or in connection with these Terms shall be subject to the exclusive jurisdiction of the state or federal located in Suffolk Country, Commonwealth of Massachusetts, and both Parties hereby consent to such jurisdiction.

All Shipment, returns, and other physical mail should be addressed to:

NeuroBionics

Electronic correspondence: support@neurobionics.io

Please note that these terms and conditions are subject to change without notice. It is recommended that you review the most current version of the terms and conditions before placing an order.