clade.io

General Terms and Conditions (GTC)
of CLADE GmbH

1.

General1.1

These GTC apply to all products and services provided by CLADE GmbH(hereinafter referred to as “CLADE”) to its Customers. General terms andconditions of Customers do not apply.

1.2

CLADE is a successful technology service provider in the field of chemical
analysis of liquids and offers various products in this area.

1.3

The products and services offered by CLADE particularly include thefollowing list – it being noted that this list is not conclusive but may be
extended or further developed by CLADE (hereinafter together also referred
to as “Products”):
1.3.1
Sale of MIRA Analyzer and its Software (hereinafter referred to as“Analyzer”, see definition in 3.1)
1.3.2
MIRA Analyzer-as-a-Service (subscription of the hardware(Analyzer) with on-site technical support including the sale or provision of
consumables)
1.3.3

Support Services

1.3.4

Software-as-a-Service (cloud-based provision of software)

1.3.5

Consulting services (contractual consulting services)

1.3.6

Analytical services (development services under a contract for work)

1.3.7
Digital Quality Center / “DQC” (provision of analysis by CLADE or
third parties)
1.4

The Customer is interested in obtaining certain Products from CLADE.

1.5

These GTC apply to the provision of CLADE’s Products to the Customer.

2.

Contractual Object

2.1

The Customer orders from CLADE certain Products from CLADE’s productportfolio.

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2.2

Contents, prices, any service levels and further contractual obligations for
the Products arise from a corresponding Individual Agreement between theParties (which - if appropriate - may consist of an offer by CLADE, but inany case consists of the Customer’s order and CLADE’s acceptance of theagreement) and/or the delivery note by CLADE.
Individual Agreement means all agreements concluded between the Parties
relating to the Products.

2.3 The Individual Agreement and/or the delivery note, any user documentation
possibly provided by CLADE and these GTC together form the contractual
relationship or respectively the contract between the parties, whereby theorder of precedence corresponds to the above list (hereinafter referred toas “Contract).
2.3

CLADE will provide the ordered Products according to the respective
Individual Agreement or delivery note and these GTC.

2.4 To the extent that CLADE’s Products and/or supplied or provided
consumables are subject to the REACH Regulation (EC) No. 1907/2006,
CLADE
shall
providetherelevant
safetydata
sheetsatwww.clade.io/downloads. With regard to these safety data sheets the
Customer undertakes to provide CLADE in writing with sufficient
information on how the Customer uses the substance so that the relevant
use can be, if applicable, taken into account in the registration dossier ofthe substance, and to inform CLADE in writing if that Customer becomesaware of new information on hazardous properties of the substances or
mixtures and/or if he obtains information that may result in the risk
management measures provided for in the safety data sheet no longer being
appropriate.
2.5

Any delivery and installation as well as any maintenance and/or care of
Products shall be carried out only by CLADE or a service provider authorized
by CLADE and named to the Customer.

2.6. In case of delivery of Products by CLADE to Customer, Customer will inspectthem immediately upon delivery and notify CLADE of any defects within five(5) business days. If this period expires, the Products will be deemed
approved and in conformity with the contract. § 377 paras. 2 to 5 HGB(German Commercial Code) applies accordingly.
2.7

Any warranty claims of Customer become statute-barred within one (1) year
after acceptance of the Analyzer or delivery of Products.

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2.8 Depending on the specific provisions in the individual service agreementwith CLADE or a service provider, the first level support for the Analyzer isprovided to the Customer by CLADE.
2.9 The Products shall be deemed to be in conformity with the contract if its
intended use is in accordance with the Individual Agreement and/or thedelivery note and these GTC
2.10 The Customer is obligated to use the Products exclusively in accordancewith the Individual Agreement and/or the delivery note and these GTC.
2.12 The requirements of CLADE regarding environment, location and installation
including the Customer’s local and technical infrastructure for the use of
the Products (e.g. online connection of the Products to the CLADE Cloud),
are listed in the relevant Annex to the Individual Agreement, the site
acceptance report or the delivery note which also clarify the respective
responsibilities of CLADE or the Customer.
2.13 Any requirements of CLADE with regard to the use, cleaning andmaintenance of the Analyzer as well as the validation of the measurement
results shall arise from the corresponding individual agreement or thedelivery note.
2.15 CLADE is entitled to have any services owed to Customer performed bysubcontractors or third parties.

3.

Property and Rights

3.1

Unless CLADE sells Analyzer to Customer, the sole ownership of theAnalyzer, which consist of hardware in the form of an analyzer including
the respective operating system software and standard application
software (hereinafter “Analyzer”) and any other physical objects provided(hereinafter also collectively referred to as "Contractual Hardware") shalllie and remain with CLADE for the entire duration of the Contract.

3.2

Unless expressly provided otherwise below, all industrial property rights
and copyrights as well as all associated usage and distribution rights to theContractual Hardware and the software provided by CLADE within thescope of the Products are and shall fully remain with CLADE.

3.3

CLADE grants Customer a simple, non-exclusive, non-transferable and nonsublicensable right to use the Contractual Hardware and its software
depending on the Product for the purposes of the Agreement for use in

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Customer's own corporation. With regard to the software, the granting of asimple right of use is limited to the playing or use of the software inconnection with the Contractual Hardware by any number of the
Customer’s employees at Customer’s site. The end user license terms(hereinafter referred to as "EULA") for the use of the software installed on
the Contractual Hardware are set out in CLADE’s respective EULA which
Customer must accept for commencing use of the Analyzer.
3.4 Customer is not entitled to rent out the Contractual Hardware and/or tofurther license the software and/or to copy, distribute and/or make thesoftware available to third parties. The Customer is not entitled to reverseengineer or reverse-translate the software or to remove program parts.
3.5

Customer is not entitled to remove identifiers, trademarks and/or copyrightnotices from the Contractual Hardware and/or the software provided within
the scope of the Products.

3.6 Customer is not entitled to make any changes or manipulations to theContractual Hardware.
3.7

Customer is not entitled to request the source code of the software.

3.8 Customer is obligated to use the Contractual Hardware and the software
provided within the scope of the Products exclusively in accordance with
the Individual Agreement and/or the delivery note as well as in accordancewith these GTC.
3.9 In addition, Customer is obligated not to infringe applicable law and/or therights of third parties, in particular trade secrets, within the scope of useof the Products of CLADE. Insofar as Customer violates the above
obligation, it shall indemnify CLADE against all third-party claims including
reasonable legal defense costs based on an attorney’s hourly fee customaryin the industry.
3.10 The mandatory provisions of §§ 69 a et seq. UrhG (German Act on Copyrightand Related Rights) as well as all property rights of Customer in case ofpurchase of the Analyzer remain unaffected by the provisions of thisSection 3.
4.

Renumeration

4.1

Customer undertakes to pay to CLADE the remuneration for the Productsof CLADE listed in the Individual Agreement and/or the delivery note on thedates provided for therein, unless the Parties expressly agree therein on theprovision of the Products free of charge for a limited period of time.

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4.2 The remuneration shall be invoiced in EURO and shall be settled in EURO.
Exchange rate risks shall be charged to Customer. The remuneration shallbe net plus statutory value added tax. Any additional (withholding) taxes
attributable to the remuneration shall be borne by Customer.
4.3 Regulations governing the reimbursement of travel expenses are set out in
the Individual Agreement and/or the delivery note or the corresponding
annex.
4.4 Unless otherwise agreed CLADE’s invoices are to be paid by Customer
within 14 days of the invoice date.
4.5 Payment shall be deemed to have been made as soon as CLADE can disposeof the amount.
4.6 In the event of default in payment CLADE shall be entitled to claim defaultinterest in the amount of 9 % above the base interest rate and to withhold
further Products and services until all outstanding claims have been settled.
4.7 Unless CLADE sells Analyzer to Customer, CLADE is entitled to increase theremuneration appropriately after the end of the agreed initial contractual
term or after two years of the contractual term. If the Customer does notagree with the increase and informs CLADE of this within 4 weeks after
after the announcement of the price increase in writing, each party shall beentitled to terminate the Agreement which in this case is continuous in
relation to the previous remuneration rules by giving six months' notice.
4.8 In the event of justified doubts as to the solvency or creditworthiness of
Customer, CLADE shall be entitled to demand advance payment or asuitable security with regard to the payment to be made by Customer. If
Customer is not prepared to pay in advance or to provide the security,
CLADE shall be entitled to withdraw from the contract after a reasonablegrace period and to claim damages for non-performance.
4.9 Customer shall only be entitled to set-off and retention rights vis-à-vis theclaims of CLADE, if the counterclaim has been acknowledged or legally
established and it is a counterclaim from the same contractual relationship.
The assignment of claims against CLADE requires the consent of CLADE.
5.

Audit

5.1

CLADE is entitled, subject to a notice period of one week, to audit
Customer's business premises once a year during normal business hours on
working days, either itself or by a third party obligated to secrecy, and to

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check whether Customer uses the Contractual Hardware and software
provided by CLADE within the scope of the Products in accordance with theprovisions of the Individual Agreement or delivery note and these GTC andtransmits any information that is relevant to calculate the remuneration
correctly, completely and punctually.
5.2

CLADE will ensure that the audit does not unduly impair Customer’sbusiness processes.

5.3

If the audit reveals breaches of contract by Customer or incomplete
information or payment arrears on the part of Customer, Customer shallbear the costs of the audit, otherwise CLADE. Any outstanding payments
shall be settled by Customer without undue delay. Further claims of CLADE
remain unaffected.

5.4 Section 5 does not apply in case CLADE sells the Analyzer to Customer.
6. Warranty and liability for defects in terms of German Civil Code
6.1 CLADE warrants that the Contractual Hardware is fit for use as provided by
the contract and meets, at the time of delivery according to section 2.6.,
the specifications set forth in Annex 1. CLADE warrants that the Contractual
Hardware is fit for the measurement of aqueous fluids if using apps
(applications) especially designed and designated by CLADE for such use.
Minor errors of the Contractual Hardware and Software do not affect theperformance of CLADE if the overall functionality of the Analyzer is not
impeded in any way.
6.2 CLADE does not assume any warranty for the accuracy and/or correctnessof measurement results obtained by Customer through the use ofContractual Hardware. Likewise, CLADE does not assume any warranty for
uninterrupted production to the degree it is based on the use of CLADE’s
Contractual Hardware and software.
6.3.

The statutory regulations shall apply to the Customer´s rights in case of
defects of quality and title insofar as not otherwise determined below.

6.4.

No warranty shall be provided for wear parts as defined in the valid user
manual.

6.5.

No warranty shall be provided for the Contractual Hardware and CLADE
shall not be liable for any defects or any damages resulting froma. any changes, modifications, repairs, services, de-installations,reinstallations or any other interventions performed by persons orservice providers not authorized by CLADE in writing.

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clade.iob. abuse, misuse, improper operation or mishandling due to noncompliance with the specifications and requirements in the valid user
manual, in particular, but is not limited to the use of the Analyzer at alocation other than that approved by CLADE, the modification of theenvironmental conditions specified by CLADE, the use of the Analyzer
in an environmental condition not authorized by CLADE, failure to
perform preventive maintenance in accordance with the valid user
manual (including keeping an accurate log of preventive maintenance).
c. changing the network configuration or network infrastructure specified
by CLADE for the Analyzer, the use of the Analyzer in a network
configuration or network infrastructure not authorized by CLADE, linking
the Contractual Hardware and/or software not approved by CLADE.
d. damage due to forces external to the Analyzer including, but not limited
to, acts of God, flooding, power surges, power failures, defective
electrical worke. transportation, foreign equipment/attachments or Customer-supplied
replacement parts or utilities or services.
6.6. CLADE’s warranties do not apply to any defects resulting from misuse,neglect, or accident on the part of the Customer, including without
limitation: operation with solvents or samples that are not supplied orapproved by CLADE for use with the Analyzer; operation outside of theenvironmental or use specifications or not in conformance with the
instructions for the instrument system, software or accessories; improperor inadequate maintenance by the user of the Analyzer; installation of theAnalyzer or interfaces, or use thereof in combination with products and/or
software not supplied or authorized by CLADE; and modification or repairof the Analyzer not authorized by CLADE.
6.7. CLADE’s warranties do not cover, and CLADE has no obligation to repair,
replace or refund the price of, any product, component, software, wettedpart, consumable, or service part, if a defect or failure arises or is caused
by: externally caused short circuits, incorrect voltages or other improper
external inputs; failure to store or failure to use the Analyzer in accordancewith CLADE‘s instructions; failure to use the Analyzer in accordance withgood laboratory practices by technically qualified persons; other misuseor neglect, including but not limited to improper storage, maintenance,
shipping, handling, improper or abnormal use, including operation outsideof the environmental or use specifications specified by CLADE;
unauthorized change or modification; use with chemicals, reagents or any
other product not supplied or authorized in writing by CLADE for use withthe products; accidents of any kind or nature; and any non-CLADE
designated products including without limitation software (including
without limitation viruses, Trojan horses or other malicious software) thatis attached to, loaded on or otherwise connected with, or that accesses,
the CLADE products.

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6.8. CLADE’s warranties do not cover de-installation, reinstallation,transportation of hardware, routine services such as cleaning, optimizationor connection to peripheral components not ordered through CLADE.
Repair or service by a person not authorized by CLADE voids CLADE’s
warranties.
6.9. In case a defect is reported, Customer shall give CLADE an opportunity toreview the complaint, particularly by making available respective Analyzer
to CLADE for inspection. For this purpose, CLADE shall have the choice ofattempting to remedy the complaint by telephone or by remote
maintenance first. If the problem cannot be remedied in this way,
Customer shall allow CLADE or its service provider access to the businesspremises on site during business hours and, after prior consultation, also
outside business hours in accordance with its security and access. At
CLADE’s request, Customer must sent the Analyzer subject to complaintback to CLADE, following CLADE´s shipping instructions. Freight charges
and shipments to CLADE are Customer’s responsibility.
6.10.
If the delivered Analyzer is defective, CLADE shall be entitled to its
choice of supplementary performance, either by rectifying the defect(repair) or by providing a new, non-defective Analyzer (replacement).
Customer shall give CLADE the opportunity to supplementary performanceat least twice, setting a reasonable deadline. If it is not possible to effectsupplementary performance or if the attempt to supplementary
performance is unsuccessful, or if the reasonable deadline for effecting
supplementary performance has expired without result or can bedispensed with according to statute, Customer may, at its election, rescind
the contract or reduce the purchase price. However, there is no right ofrescission in the case of minor defects. Removed parts become theproperty of CLADE:
6.11.
In the event of a justified defect complaint, CLADE will cover thenecessary expenses for the purpose of examining the Analyzer andeffecting supplementary performance, particularly including transport,
shipping, infrastructure, labor and material costs.
6.12.
The limitation period for claims based on defects shall be 12 months
from the date of acceptance according to section 2.6. The statutory
limitation period shall apply to claims for damages in the event of intent
and gross negligence as well as in the event of injury to life, body andhealth based on an intentional or negligent breach of duty.
6.13.
Further claims by Customer are excluded. This applies in particular
to claims for indirect and unforeseeable damage, loss of data, data
network failures, loss of production and use, loss of turnover, loss of profit
or rent or purchase of a replacement product loss of savings and/or
financial loss due to claims by third parties.
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This shall not apply if:
a. CLADE has fraudulently concealed a legal or material defect or has
provided a guarantee for its absence, or for a characteristic of theAnalyzer.
b. the damage is due to intent or gross negligence on the part of CLADE,
one of its legal representatives or vicarious agents, or is due to anegligent violation of material contractual obligations on the part of
CLADE or these persons. Material contractual obligations are obligations
whose fulfillment is material to due and proper implementation of thecontract and which the contractual partner regularly expects and cantrust to be fulfilled.
c. a culpable breach of obligations on the part of CLADE or its legal
representatives or vicarious agents has led to personal injury or
damages to health; ord. CLADE is liable under the German Product Liability Act(“Produkthaftungsgesetz”).
e. a delivery date has been guaranteed and the delivery has not been madeuntil the guaranteed date.
6.14. Insofar as the prerequisites for an amount of limited liability pursuant to
Section 6.13 on the part of CLADE exist, the liability of CLADE shall belimited to 100.000 Euro per claim and one (1) Million Euro in total.
6.15. Insofar as CLADE's liability for damages is excluded or limited, this shallalso apply with regard to the personal liability for damages of CLADE's
employees, representatives and vicarious agents.

7.

Third Party Rights

7.1.

In case a third party asserts claims against the Customer in connection
with usage of the Product, CLADE shall indemnify the Customer against
such claims.

7.2.

The indemnification obligation on the part of CLADE pursuant to clause
7.1 requires that the customer informs CLADE without undue delay about
the claims asserted by third parties, does not independently acknowledge
any infringements and has not modified the product or used it in a manner
not in accordance with the license or operating instructions and makes
available without undue delay any information requested by CLADE for theassessment of the situation or defense against the claims.

7.3. CLADE's indemnification obligation pursuant to Section 7.1 requires that
the Customer immediately informs CLADE of the claims raised by a third

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party, leaves the defense of rights to CLADE depending on CLADE's
decision and supports CLADE to a reasonable extent free of charge.
8.

Confidentiality

8.1

The Parties will treat all information relating their business, this Agreement
or the Analyzer, business transactions and documents which become
known to them in connection with the Agreement and which are either
marked as confidential or are by their nature recognizably to be classified
as confidential (hereafter also referred to as “Confidential Information”) as
strictly confidential, shall use it exclusively for the purposes of thisAgreement and will not disclose it to third parties.

8.2. Confidential Information does not include information which can be provedtoa. be already known to the Recipient prior to disclosure by CLADE andwithout breach of this confidentiality agreement, orb. be already known or generally available to the public prior to disclosure
to the recipient by CLADE, orc. become known or generally available to the public after disclosure to
the Recipient by without the cooperation or fault of the Recipient, ord. disclosed or made available to the recipient at any time by anauthorized third party without breach of any confidentiality obligation,ore. has been developed by the Recipient or under the guidance of theRecipient independently of the knowledge or use of the information,
and/orf. must be disclosed due to official or court orders.
9.

Insurance
Unless CLADE sells Analyzer to Customer, Customer is obligated to insure
the Contractual Hardware, in particular the Analyzer, against damages
caused by fire, water, etc. to an appropriate amount for the duration of thisAgreement and will submit CLADE with the corresponding insurance policy
at the request of CLADE prior to conclusion of the Agreement.

10.

Force Majeure10.1 Force majeure is any event that was not foreseeable at the time of theconclusion of the Agreement or respective Contract, is beyond the controlof the Parties and that makes it impossible or unreasonably difficult tofulfill the contractual obligations. Force majeure shall be deemed to include
for instance strikes, wars, insurrection, embargos, acts of terrorism,
pandemics, break downs, earthquakes, hurricanes or floods, shortages of

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raw materials, import or export sanctions, governmental interference orindustrial disputes as well as non-performance by suppliers.
10.2. In the event of force majeure, CLADE is entitled to suspend the performanceof the Agreement for the duration of the force majeure situation, without
CLADE being obliged to pay any damages.
10.3. If the event of force majeure lasts more than three months or if it isforeseeable that it will last more than three months, the respective Lease
Contract may be terminated by either Party. In this case, CLADE is not
obliged to pay any compensation to the Customer.
11.

Data generated by the ProductThe use of the Product generates measurement results that containanalysis data. CLADE reserves the right to use and store analysis data in ananonymous form that excludes identification of the customer, if and to theextent that no legitimate interests of the customer known to CLADE are
affected. Analysis results will not be transmitted or published to third
parties for any purpose without prior written consent of the Customer.

12. Data Privacy
Insofar as the two parties exchange personal data (Art. 4. No. 1 DSGVO) witheach other for the purpose of fulfilling this agreement, this data may only
be used by the respective receiving party for the purposes for which it wastransmitted. The processing of personal data shall only be carried out by
employees who have been committed to confidentiality in the processingof personal data. If a party uses processors for the processing of personaldata, they shall be obliged to likewise do so. The transfer of received
personal data to third parties is prohibited, unless this is permitted by therespective other contracting party or it is permitted or ordered by law.
Unless statutory retention obligations require otherwise, personal data
received shall be deleted immediately after the purpose of use has ceased
to apply.

13. Communication
13.1 CLADE is entitled to use the fact of the contractual cooperation with theCustomer for advertising purposes to the extent customary in the industry
and will agree the details thereof with the Customer in advance. The
Customer may only prohibit the corresponding use of CLADE for objectively
justified important reasons.

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13.2 All rights with respect to the promotion of the Products and theirdistribution are and shall rest solely with CLADE.
14. Terms of Agreement
14.1 An Individual Agreement under these GTC shall enter into force with thecontractual acceptance of the Customer’s order by CLADE or by thesignature of both Parties.
14.2 Unless otherwise agreed on by the parties, the duration of any Individual
Agreement shall correspond to the agreed subscription period for the
Products in accordance with the Individual Agreement and/or the deliverynote.
14.3 The termination or expiration of the contractual period of an Individual
Agreement shall not affect the validity of this Agreement of further
Individual Agreements.
14.4 Contractual periods agreed in Individual Agreements shall be automaticallyextended by one year at a time, unless terminated by either Party with six
months' notice.
14.5 The right of the Parties to extraordinary termination and termination
without notice of this Individual Agreement for good cause remains
unaffected.
14.6 CLADE is entitled to terminate an Individual Agreement extraordinarily
without notice if Customer continues to violate contractual obligations
despite a warning with the setting of a deadline or defaults on payment
obligations arising from the Individual Agreement for more than twomonths. In this case, the termination of the Individual Agreement shall notaffect the validity of further Individual Agreements insofar as Customer
behaves in accordance with the Agreement with regard to these further
Individual Agreements.
14.7 Any termination must be made in writing.
14.8 Unless otherwise agreed in the Individual Agreement and/or the delivery
note (e.g. in case of purchase of the Analyzer by Customer) Customer isobligated to return any Contractual Hardware received in the course ofproviding the Products, in particular the Analyzer, to CLADE or a service
provider designated by CLADE immediately after the end of the Agreement- cleaned in accordance with the specifications of CLADE - undamaged at

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its own expense and risk. If Customer violates the above obligations, heshall be liable to pay damages to CLADE.
14.9 After termination of the Agreement, Customer is also obliged to return all
documents and information received from CLADE to CLADE immediately or
to destroy them permanently and to prove the destruction in a suitableform at the request of CLADE.
14.10 If the Customer breaches the obligations pursuant to Section 8(Confidentiality), Section 12 (data privacy) and/or Sections 14.8 to 14.9, heundertakes to pay a contractual penalty of Euro 50,000.00 CLADE for eachcase of breach.
15.

Miscellaneous

15.1.

This Agreement constitutes the entire understanding between the Parties
with respect to the subject matter hereof, and supersedes and replaces
all prior agreements, understandings, writings and discussions between
the Parties relating to said subject matter, except if explicitly exempted inthis Agreement.

15.2.

All additions or modifications to this Agreement must be made in writing
and must be executed by both Parties, expressly stating that it is anamendment to this Agreement. Digital signatures, electronically signed
and/or scanned copies shall be sufficient.

15.3.

Customer shall be entitled to assign the rights and obligations under thisAgreement to its Affiliates. Affiliates shall meana. organization, which directly or indirectly controls Customer
b. organization, which is directly or indirectly controlled by Customer
c. organization, which is controlled, directly or indirectly, by the ultimate
parent company of Customer
Control as per a. to c. is defined as owning more than fifty percent of thevoting stock of a company or having otherwise the power to govern thefinancial and the operating policies or to appoint the management of anorganization.

15.4.

Customer is not entitled to assign this Agreement nor any right under or
obligation pursuant to this Agreement, without the prior written consent
of CLADE.

15.5.

Export of the Analyzer to countries outside the EU is strictly prohibited.

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15.6.

The Parties are not entitled to use each other's trademarks or trade names
without the other Party's prior written consent.

15.7.

CLADE is entitled to subcontract its obligations under this Agreement.

15.8.

Nothing in this Agreement shall be deemed or construed to constitute anagency relationship, employment relationship, partnership or joint venture
between or among the parties hereto. No party hereto shall have theauthority to act on behalf of any other party hereto or to bind the otherparty in any manner.

15.9.

This Agreement shall be governed and construed in accordance with thelaws of the Federal Republic of Germany excluding the United Nations
Convention on Contracts for the International Sale of Goods.

15.10. The Parties submit to the exclusive jurisdiction of the competent courts
in Stuttgart, Germany, with the exclusion of any other jurisdiction or
arbitration.
15.11. The invalidity or unenforceability of any provision of this Agreement will
not affect the validity or enforceability of the validity of the Agreement as
a whole, unless the invalid or unenforceable provisions are so essential to
the Agreement that it is reasonable to assume that the Parties would nothave concluded the Agreement without these provisions. If the invalid or
unenforceable provision cannot be replaced by a statutory provision, it
shall be replaced by a provision which reflects the concordant will of theParties. The corresponding shall apply in the event of an omission.

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