Erenna^® Service, Maintenance and Technical Support Plan

This ERENNA^® SERVICE, MAINTENANCE AND TECHNICAL SUPPORT PLAN ("Plan") is executed by and between Singulex, Inc., a Delaware corporation with a principal place of business at 1650 Harbor Bay Parkway, Suite 200, Alameda, CA 94502 ("Singulex"), and Customer upon execution of a Written Commitment (e.g., Purchase Order, Binding Quote, etc.) for the Plan. Singulex and Customer are each a "Party" and, collectively, are "Parties" in this Plan.

WHEREAS, Singulex provides a variety of Services in support of Singulex's Erenna® system,

WHEREAS, Customer wishes to obtain the Services pertaining to the Erenna® system as particularly described in this Plan, and Singulex is willing to provide such Services in accordance with the terms of this Plan; and

NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter contained and of other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree as follows:

Term of the Plan. This Plan shall commence on the date of execution (the Effective Date) by Customer of a Written Commitment to pay for the Plan Effective Date and shall remain in full force and effect for a Term as defined in the Written Commitment.
Equipment Eligible for Service. All Equipment to be included under this Plan is listed in the Written Commitment. All available Services for said Equipment are listed in Appendix A, and Services secured by Customer are listed in the Written Commitment.
Service Location. Whenever possible, the Equipment will be serviced on Customer’s premises, where the Equipment was installed by an authorized Singulex representative. If repair is not reasonably possible at Customer’s premises, Singulex will arrange for repair off-site, as well as the reinstallation of Equipment after its repair. Singulex may provide a replacement Erenna® system if deemed necessary, solely by Singulex, to make Equipment conform to specifications.
Price and Payment Terms. Customer commits to pay Singulex for Service of the Erenna® system(s) according to the terms described in the Written Commitment. Payment will be due net forty-five (45) days of the date of invoice pertaining to the Written Commitment.
Exclusions.
Singulex shall not be obligated to provide the Services required by this Plan:

5.1          If the Equipment has been modified or repaired by anyone other than an authorized Singulex employee or designee, or if the Equipment contains non-Singulex parts.

5.2          If the Equipment requires repair of damages caused by external factors, including, but not limited to: loss or damage resulting from the elements, neglect, misuse, abuse, or the operation of the Equipment in improper environments, such as, but not limited to, locations having defective or inadequate power source, static electricity, or excessive interference caused by external sources.

5.3          If Services requested are above and beyond those secured by Customer and listed in the Written Commitment.

5.4          If the serial numbers of the Equipment have been tampered with or are missing.

5.5          Use of Non-Singulex Supplies: Singulex does extensive research to develop supplies that perform optimally with Singulex equipment. Singulex supplies are required for use in Singulex equipment. In the event that non-Singulex supplies are used in Singulex equipment, and such non-Singulex supplies result in a malfunction or damage to the Equipment, charges for parts and labor to return the Equipment to operating condition shall be borne by Customer.
Obligations And Covenants Of The Parties.
6.1         Access. Customer will provide Singulex or its designee with access to the location(s) of Equipment ("Sites") at all times during which it may be required to perform Services as well as use of customary utilities and building services (including heat, light, ventilation, electric current and outlets, and use of a telephone and facsimile machine) at such Sites reasonably sufficient and necessary for Singulex or its designee to perform the Services. Customer acknowledges and agrees that access to the Sites is critical to Singulex's ability to provide the Services described herein. Customer will provide Singulex or its designee with such access to employees of Customer, including a contact (by name and telephone number) at each Site at which Services are to be performed, as is necessary and reasonable in connection with performance of the Services. To the extent Singulex or its designee is denied access to, or unsafe or hazardous conditions exist at, any Sites at which it is to perform Services under this Plan, Singulex shall be relieved of its obligation hereunder to provide such Services; provided, that Singulex observes any procedures applicable to such situations specified in this Plan and promptly notifies Customer of same.

6.2         Conduct of Singulex Personnel. Singulex represents that it shall perform the services (i) in a professional manner; (ii) in conformance with that level of care and skills ordinarily exercised in similar circumstances by providers of the same or similar services; and (iii) in compliance with all applicable Laws and Permits and with the Customer's site rules and regulations (to the extent they have been provided to Singulex). Singulex represents that it is presently free from any commitments or conflicts of interest that would impair Singulex from performing its obligations.

6.3         Consumables. The Customer agrees to source all its requirements for consumable components from Singulex for use with the Equipment in accordance with US Patent 7,572,640 and any other relevant Singulex patents including: Reagent plate kits, System calibrators, Systems buffers, Sgx micro-particles (MPs) with capture antibodies, and Sgx Detection Antibodies.
Indemnity.
For purposes of this Plan, "Losses" means all losses, liabilities, damages and costs (including Taxes) and all related expenses (including reasonable attorney's fees and disbursements and reasonable costs of investigation, litigation and settlement), and an "Affiliate" of a Party means any entity that directly or indirectly controls, is controlled by or is under common control with that Party. Control shall be deemed to refer to the direct or indirect power (i) to vote 51% or more of the securities having ordinary voting power for the election of directors of such entity or (ii) to direct or cause the direction of the management or policies of such entity, whether by contract or otherwise.

7.1          By Customer. Customer will indemnify, defend and hold Singulex, its Affiliates and each of their respective officers, directors, employees, agents, successors and permitted assigns (each, a 'Singulex Indemnitee") harmless from and against any and all Losses arising out of or relating to:

(a)          any claim by a third party (other than a Singulex Indemnitee) that any Equipment, software, materials or Services provided to Singulex by Customer in connection with Singulex's performance of the Services infringe upon the proprietary rights of such third Party; or

(b)          any claim by a third party (other than a Singulex Indemnitee) relating to the failure by Customer to comply in any material respect with any applicable law related to its use of the Equipment or Services; or

(c)           any violation of Federal, State, local or other laws or regulations or a failure by Customer to obtain any required permits, rights or licenses required in its performance of services under this Plan.

7.2          By Singulex. Singulex will indemnify, defend and hold Customer, its Affiliates and their respective officers, directors, employees, agents, successors and permitted assigns (each, a "Customer Indemnitee") harmless from and against any and all Losses arising out of or relating to any claim by a third Party (other than a Customer Indemnitee):

(a)          that the Equipment, materials or Services provided to Customer by Singulex or its designee infringe upon the proprietary rights of such third Party; or

(b)          alleging a violation of Federal, state, local or other laws or regulations or a failure by Singulex to obtain required permits, rights or licenses required in its performance of Services under this Plan.

7.3          Cross Indemnity. Each Party agrees to indemnify, defend and hold harmless the other Party and its Affiliates, officers, directors, employees, agents, successors and permitted assigns from and against any and all Losses arising out of or in connection with the injury of or damage to any person or real or tangible personal property to the extent such injury or damage: (i) is proximately caused by the negligence or willful misconduct of any person (other than an indemnitee) for whose conduct the indemnitor is liable and (ii) arises or occurs in connection with this Plan or the provision or receipt of the Services.
No Warranty & Limitation of Liability.
8.1         Singulex agrees to use its "best efforts" to provide the Services required under this Plan in a prompt manner, but in no event shall Singulex be liable for any damages or liabilities, directly or indirectly caused by the Equipment not being repaired properly, by length of down time, temporary shortages or unavailability of the replacement parts, or temporary unavailability of qualified Service personnel at Singulex.

8.2         NEITHER SINGULEX NOR THE CUSTOMER MAKES ANY REPRESENTATIONS OR EXTENDS ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE OR FOR NON-INFRINGEMENT OF A PATENT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT.

8.3         NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOSS OF PROFIT, ARISING OUT OF THIS PLAN OR WITH RESPECT TO A PARTY'S PERFORMANCE OR NON-PERFORMANCE OF THIS PLAN.
Termination
9.1         Grounds For Termination

(a)         Payment Default. Singulex may terminate, upon ten (10) days advance written notice, all Services under any Service Request in the event that Customer fails to remit payment for any undisputed invoice eighty (80) days after such invoice is issued, unless Customer cures such payment default by paying in full, prior to the expiration of such ten-day notice period, all outstanding amounts listed on such written notice as due and payable to Singulex.

(b)         Breach of Contract. Other than any failure by Customer to make any payment to which subsection (a) above applies, either Party may terminate this Plan upon sixty (60) calendar days' written notice for any material breach or default (or any series of breaches or defaults which in the aggregate constitute a material breach or default) of any terms and conditions of this Plan relating to Services by the other Party (the "Breaching Party"), unless within such sixty (60) day notice period, the Breaching Party: (i) has cured such breach or default or (ii) if such breach or default by its nature cannot be cured within sixty (60) days, has commenced to cure such default or breach and diligently pursues such cure until accomplished and such cure is accomplished within ninety (90) calendar days of such notice of termination. To the extent this Plan terminates because of an uncured breach by Singulex, Singulex shall refund to Customer any maintenance fees paid for the portion of the year following termination for which Services are not provided.

(c)         Insolvency Event. This Plan will terminate automatically and immediately without requirement of notice upon the occurrence of an Insolvency Event. An "INSOLVENCY EVENT" has occurred with respect to a Party if:

         (i)         a receiver, liquidator or trustee of such Party is appointed by court order and such order remains in effect for more than ninety (90) calendar days, or a receivership, insolvency or bankruptcy proceeding is commenced or a petition is filed against such Party under any applicable liquidation, conservatorship, bankruptcy, moratorium, insolvency, reorganization or similar law for the relief of debtors (collectively, "BANKRUPTCY LAWS") from time to time in effect and generally affecting the rights of creditors, and such proceeding or such petition has not been dismissed or stayed within ninety (90) calendar days of the commencement or filing thereof;

         (ii)         such Party commences a voluntary case under any Bankruptcy Law or voluntarily seeks, consents to or acquiesces in the benefit or benefits of any provision of any Bankruptcy Law, consents to the filing of any petition against it under any Bankruptcy Law, makes an assignment for the benefit of its creditors, admits in writing its inability to pay its debts generally as they become due or consents to the appointment of a receiver, trustee, liquidator or conservator for it or any part of its property; or

         (iii)         Notwithstanding anything to the contrary in this Section 9(c) which would automatically terminate this Plan, this Plan shall not so terminate if, and for so long as: (i) neither Customer or Singulex is in material breach of its obligations (including payment obligations) under this Plan and (ii) if Customer is the bankrupt entity, Customer prepays in full for any Equipment and Services hereunder.

(d)         Corporate Dissolution Or Liquidation. This Plan will terminate automatically and immediately without any requirement of notice if proceedings are commenced for the dissolution, winding-up or liquidation of either Party.
General Provisions
10.1         Independent Contractors. The relationship between both parties established by this Plan is that of independent contractors, and nothing contained in this Plan shall be construed to give either party the power to direct and control the day-to-day activities of the other. Neither party is an agent, representative or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Plan shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such relationship upon either party. Singulex shall be solely responsible for and have control over the means, methods, techniques, and sequences of the services. Neither Singulex nor its employees, agents, or representatives are employees of the Customer and Singulex retains the exclusive right to hire, discipline, evaluate, and terminate its own employees and to set their hours, wages and terms and conditions of employment.

10.2         Permits. Singulex shall, at its sole expense, obtain, keep in force, and comply with, any and all permits, licenses, qualifications and approvals (collectively, "Permits") required under any applicable laws with respect to the Services provided to the Customer.

10.3         Insurance. Singulex agrees that it shall maintain the following insurance in amounts no less than that specified for each type: (i) general ability insurance with combined limits of not less than $1,000,000 per occurrence and $1,000,000 per accident for bodily injury, including death, and property damage; (ii) workers' compensation insurance in the amount required by the law of the state(s) in which the Singulex's workers are located and employer's liability insurance with limits of not less than $1,000,000 per occurrence; and (iii) in the event that use of a company-owned motor vehicle is required in the performance of this Plan, automobile liability insurance with combined limits of not less than $1,000,000 per occurrence and $1,000,000 per accident for bodily injury, including death, and property damage. Upon request, Singulex shall provide the Customer with evidence of Singulex's insurance.

10.4         Authorized Use. As stated in the documentation accompanying the Equipment, Components, Reagents and Consumables, certain Equipment, Components, Reagents and Consumables are intended for research use only and are not to be used for any other purpose, which includes but is not limited to, unauthorized commercial uses, in vitro diagnostic uses, ex vivo or in vivo therapeutic uses or any type of consumption or application to humans or animals.

10.5         Confidentiality. The parties shall hold in confidence and not use for itself or others any and all information disclosed to or developed by the other party in its performance hereunder.

10.6         Governing Law & Jurisdiction. This agreement and the parties' actions under this Plan shall be governed by and construed under the laws of the state of Delaware, without reference to conflict of law principles.

10.7         Entire Plan. This Plan, including the attached exhibits, constitutes the entire Plan between both parties concerning Services of Customer's Equipment, and replaces all previous communications, representations, understandings, and Plans, whether verbal or written between the parties to this Plan or their representatives. No representations or statements of any kind made by either party, which are not expressly stated in this Plan, shall be binding on such parties.

10.8         All Amendments in Writing. No waiver, amendment or modification of any provisions of this Plan shall be effective unless in writing and signed by a duly authorized representative of the party against whom such waiver, amendment or modification is sought to be enforced. Furthermore, no provisions in either party's purchase orders, or in any other business forms employed by either party will supersede the terms and conditions of this Plan.

10.9         Notices. Any notice required or permitted by this Plan shall be deemed given if sent by registered mail, postage prepaid with return receipt requested, or by overnight carrier, addressed to the other party at the address set forth in the preamble of this Plan or at such other address for which such party gives notice hereunder. Delivery shall be deemed effective three (3) days after deposit with postal authorities or the next day after being shipped via overnight carrier.

10.10         Typographical Errors. Stenographical, clerical or computer errors on the face of any Singulex invoice shall be subject to correction by Singulex.

10.11         Arbitration. Any dispute relating to the interpretation or performance of this Plan shall be resolved at the request of either party through binding arbitration. Arbitration shall be conducted in Alameda County, California in accordance with the then-existing rules of the American Arbitration Association or, at Customer's option, the International Centre for Dispute Resolution® (ICDR)]. Judgment upon any award by the arbitrators may be entered by any state or federal court having jurisdiction. Singulex and Customer intend that this Plan to arbitrate be irrevocable.

10.12         Force Majeure. In the event that either party is unable to perform any of its obligations under this Plan or to enjoy any of its benefits because of any Act of God, strike, fire, flood, governmental acts, orders or restrictions, Internet system unavailability, system malfunctions or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party (a "Force Majeure Event"), the party who has been so affected shall give notice immediately to the other party and shall use its reasonable best efforts to resume performance. Failure to meet due dates resulting from a Force Majeure Event shall extend such due dates for a reasonable period. However, if the period of nonperformance exceeds sixty (60) days from the receipt of notice of the Force Majeure Event, the party whose ability to perform has not been affected may, by giving written notice, terminate this Plan effective immediately upon such notice or at such later date as is therein specified.

10.13         Assignability and Binding Effect. Except as expressly set forth within this Plan, neither party may transfer or assign, directly or indirectly, this Plan or its rights and obligations hereunder without the express written permission of the other party, not to be unreasonably withheld; provided, however, that both parties shall have the right to assign or otherwise transfer this Plan to any parent, subsidiary, affiliated entity or pursuant to any merger, consolidation or reorganization, provided that all such assignees and transferees agree in writing to be bound by the terms of this Plan prior to such assignment or transfer. Subject to the foregoing, this Plan shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.

10.14         Severability. If any provisions of this Plan are held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, they are to that extent to be deemed omitted and the remaining provisions of this Plan shall remain in full force and effect.

10.15         Headings. The titles and headings of the various sections and sections in this Plan are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Plan.

10.16         Survival. The obligations of the parties under this Plan, which by their nature would continue beyond the termination, cancellation or expiration of this Plan, shall survive termination, cancellation or expiration of this Plan.

Understood, Agreed & Approved

The Customer acknowledges that they have carefully reviewed these terms and upon agreeing in writing to purchase service in a Written Commitment, maintenance and technical support as described herein agrees to and accept all of its terms and conditions.

APPENDIX A: SCOPE OF SERVICE, MAINTENANCE & TECHNICAL SUPPORT FOR EQUIPMENT

The Singulex Service, Maintenance & Technical Support Plan is governed by this Appendix A. The plan includes the following Services for the Erenna® of serial number(s) described on the executed Written Commitment:

On-site Application/Instrument Service (if required);
Erenna Immunoassay System software updates (excludes next generation upgrades);
Erenna Immunoassay System hardware updates;
SMDCurveFit software updates;
Routine preventative maintenance to the Erenna Immunoassay System as specified by the Singulex Erenna Immunoasaay System Operation Manual;
Parts and Labor;
Technical support for the Erenna Immunoassay System;
Technical support for Erenna Immunoassays.
Optional Extras, applicable if specified in the executed Written Commitment:
Technical support for Erenna Immunoassay system:
a. Priority Response Time - provide next business day or 2 business day priority response dependent upon location from Singulex U.S. or Singulex Europe service center;
Technical support for Erenna Immunoassays:
a. Phone or e-mail response within 24 hours.

IF THE ERENNA IMMUNOASSAY SYSTEM’S WARRANTY EXPIRES OR IS NOT EXTENDED, SERVICE WILL BE CHARGED ON A TIME AND MATERIALS BASIS.

For questions, please contact:
Lynn R. Zieske, Ph.D.
Vice President, Commercial Solutions
Singulex, Inc.
p: (510) 995-9040
l.zieske@www.singulex.com

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Erenna® Service, Maintenance and Technical Support Plan

Erenna^® Service, Maintenance and Technical Support Plan