The following terms and conditions (the Terms and Conditions) apply to the sale of products (the Products) by Femtum inc. (Femtum or Seller) to the client (the Buyer) and more generally govern the contractual relationship between Buyer and Seller (the Parties).

1. ENTIRE AGREEMENT

1.1. The Terms and Conditions as set forth herein, including Seller’s formal invoice to Buyer, shall constitute the entire agreement between Seller and Buyer and shall supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding the transactions contemplated hereunder.

1.2. The Parties acknowledge and agree that all oral or written agreements, including but not limited to purchase orders and Conditional PO, which are different from or purport to be in addition to these Terms and Conditions are not applicable and are not binding on Seller. Buyer will be deemed to have accepted these Terms and Conditions if any Products are sold, supplied or delivered by Seller to Buyer.

2. QUOTATION, PRICES AND TAXES

2.1. Unless otherwise agreed by the Parties, prices and orders are exclusive of shipping, brokerage, packaging and insurance costs as well as federal, provincial, state, local sales and excise and value-added, goods and services taxes, all of which, present or future, shall be assumed and paid by Buyer. In the event that Seller is obliged to pay any such tax, fee or charge at the time of sale or thereafter, Buyer shall reimburse Seller therefore.

2.2. Unless otherwise stated by Seller in writing, all price quotations shall expire thirty (30) days thereafter. Notwithstanding the foregoing, Seller reserves the right to modify any price quotation, provided that it shall inform the Buyer at the earliest opportunity of such change.

3. PAYMENT TERMS

3.1. The purchase price shall be payable in accordance with one of the three following options (to be decided at the sole discretion of Seller and confirmed in writing on the Seller’s formal invoice): (i) 100% of the purchase price upon delivery of the Products to Buyer, (ii) 50% of the purchase price upon execution of these Terms and Conditions and 50% of the purchase price upon delivery of the Products to Buyer, or (iii) in the context of a Conditional PO, when explicitly offered by Seller and agreed by the parties in writing, in accordance with the payment terms applicable under Section 14. Unless otherwise agreed by Seller, the purchase price shall in no case be subject to any discount, reimbursement, suspension, retention, charge back or reduction of any nature.

3.2. In the event Buyer fails to make any payment to Seller on or before the Payment Dates, Buyer’s entire accounts with Seller will become immediately due and payable without notice or demand and all past due amounts will be subject to an interest charge accruing at a rate of 2% per month, calculated and compounded monthly (24% per annum), or such lower rate as may be the maximum permissible rate of interest under applicable law. In addition, Seller reserves the right to stop the execution of any work or the delivery of the Products in the event that Buyer fails to make any payment on a Payment
Date.

4. PURCHASE ORDERS

4.1. Purchase orders and/or Conditional PO will be deemed accepted by Seller upon the first of the following events to occur: (i) delivery by Seller to Buyer of a written acknowledgment and acceptance of the purchase order and/or Conditional PO; (ii) performance of any of Seller’s obligations under the purchase order and/or Conditional PO, or (iii) issuance of an invoice by Seller to Buyer in respect of said purchase order and/or Conditional PO.

4.2. Purchase orders and/or Conditional PO shall be in writing and shall specify: (i) quantities of the Products being purchased; (ii) the estimated delivery date; and (iii) shipping instructions.

4.3. Buyer’s orders are irrevocable until acceptance or rejection and Buyer may not cancel, change or modify an order without the written acceptance of Seller and full payment by Buyer of all applicable fees arising therefrom, including a cancellation charge, if applicable. In addition to the foregoing, in the case of a Conditional PO, the terms contained in Section 14 shall apply

5. SHIPMENT AND DELIVERY

5.1. Seller will make all reasonable efforts to meet the estimated delivery date agreed upon in writing by the parties. However, Buyer acknowledges and accepts that Seller shall not be liable for any loss whatsoever that Buyer may suffer due to early delivery or reasonable delays in operations, manufacturing or shipment.

5.2. Unless otherwise agreed by the Parties, all purchase orders are shipped ExWorks (EXW – Incoterms 2010) at the Seller’s premises.

5.3. Risk of loss will transfer to Buyer upon tender of the Products to Buyer’s representative or the elected carrier, and delivery of the Products at Seller’s premises shall constitute formal delivery to Buyer, regardless of whether Buyer’s representative or the elected carrier is at such location at the time of delivery and signs a delivery receipt. Notwithstanding the foregoing, in the case of a Conditional PO, risk of loss for damage beyond normal wear and tear during the Trial Period shall remain with Buyer, but Buyer shall have the right to reject Products that do not meet the Acceptance Criteria in accordance with Section 14.

5.4. If Buyer causes or requests a delay of shipment, or if Seller ships or delivers an order erroneously as a result of inaccurate, incomplete or misleading information supplied by Buyer or its agents or employees, all storage and other additional costs and risks will be borne by Buyer.

5.5. Seller will retain title to the Products sold, supplied or delivered by Seller until such time as Buyer has paid for such Products in full. For clarity, in the case of a Conditional PO, title shall remain with Seller throughout the Trial Period and until all payment obligations under Section 14 have been satisfied.

6. WARRANTY

6.1. Seller warrants that the Products, under normal use and service and when used in accordance with specifications supplied by Seller, are sold free from any and all material defects and will be of merchantable quality for a period of twelve (12) months from shipment.

6.2. In case of a breach of warranty, Buyer’s remedy shall be limited to the following remedies (to be decided at the sole discretion of Seller): (i) refund of Buyer’s purchase price for the defective Products, without interest; (ii) repair of the Products by the Seller, or (ii) replacement of the defective Products, provided all such defective Products be returned to Seller, along with acceptable evidence of purchase. All Products repaired or replaced under warranty are only warranted for the remaining period of time in the original warranty for the particular defective Product. All claims under this warranty
must be made by Buyer and no claim will be accepted by any third party. Notwithstanding the foregoing, the warranty will not apply if the Products have been subject to modifications, unauthorized maintenance or repair, misuse, improper storage, repackaging, neglect, accidents or if they have been combined with other products.

6.3. THE FOREGOING IS THE EXCLUSIVE REMEDY OF BUYER, AND IS IN LIEU OF ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS WARRANTY MAY BE MODIFIED ONLY IN WRITING BY AN OFFICER OF SELLER. NO OTHER REPRESENTATIVE OR ANY OTHER PERSON IS AUTHORIZED TO REPRESENT OR ASSUME FOR SELLER ANY WARRANTY EXCEPT AS SET FORTH HEREIN.

    7. LIMITED LIABILITY

    7.1. Buyer acknowledges and agrees that the use of the Products can result in damages, including permanent damage to flesh and eyes, if not used in accordance with Product Specifications (hereinafter defined) and following a proper safety training. Such safety training is not provided by Seller and Buyer agrees and acknowledges that all users of the Products and individuals that may have access to the facilities in which the Products are operated must obtain proper safety training. THE ENTIRE RISK AS TO THE USE OF THE PRODUCTS IS ASSUMED BY BUYER. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR LOSS OR DAMAGE, INCLUDING FLESH AND EYE DAMAGE, RESULTING FROM THE USE OF THE PRODUCTS UNDER ANY CONDITIONS.

    7.2. SELLER’S TOTAL LIABILITY TO BUYER FOR ALL CLAIMS OF ANY KIND WHATSOEVER, WHETHER BASED UPON CONTRACT, TORT (REGARDLESS OF THE DEGREE OF FAULT OR NEGLIGENCE) OR OTHERWISE, FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE PERFORMANCE OR BREACH OF A PURCHASE ORDER AND/OR CONDITIONAL PO SHALL IN NO EVENT EXCEED 100% OF THE NET AMOUNT OF THE ORDER PRICE OF THE RELEVANT PURCHASE ORDER AND/OR CONDITIONAL PO.

    7.3. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF GOODWILL OR OTHER SIMILAR LOSSES OR DAMAGES EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

    8. INDEMNIFICATION

    8.1. Buyer shall indemnify, hold harmless and defend Seller and its employees, officers, directors, shareholders, representatives and agents from and against any actions, cause of action, judgment or claim for damages to property or bodily injury, loss of life, liability of any nature (including violation of any applicable laws or regulations in connection with the transportation, installation, use or repair by Buyer of the Products), costs, or expenses including reasonable legal fees to the extent caused by the negligent act or omission or willful misconduct of or breach of these Terms and Conditions infringement by Buyer.

      9. FORCE MAJEURE

      9.1. A Party will be excused from delays in the performance of a purchase order which arise from force majeure. Force Majeure means any unforeseen circumstances beyond the control and without the fault or negligence of the delaying party, causing a delay or failure in performance, and includes an act of God, war, civil insurrection, riot, acts of government, whether promulgated in the form of law or otherwise, labor disputes, shortages in the Products, delays caused by carrier, epidemics, serious floods, fires, explosions, earthquakes, tidal waves, typhoons, storms and/or accidents which affect vital
      equipment or facilities used in the performance of this order. In a case of Force Majeure duly notified to the other party, the period for performance by both parties shall be automatically extended for the duration of the event of Force Majeure.

      10. PROPRIETARY RIGHTS AND INFORMATION

      10.1. The sale of the Products hereunder to Buyer shall in no way be deemed to confer upon Buyer any right, interest or license in any intellectual property rights that Seller may have covering the Products. Seller retains for itself all proprietary rights in and to all designs, engineering details, intellectual property rights, know-how, and other data and materials pertaining to any Products supplied by Seller and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by the Seller in connection with the Products or with any and all products developed by Seller as a result thereof (the Product Information), including the sole right to manufacture any and all such Products. Buyer warrants that it will not disclose, or in any way distribute or make use of such Product Information, and that it will not manufacture or engage to have manufactured such Products.

      10.2. Buyer shall only use Product Information identified and approved by Seller from time to time to the extent reasonably necessary in carrying out its business activities related to the Products. More specifically, Buyer undertakes not to copy, reproduce or otherwise use or modify Product Information without Seller’s prior written authorization, nor file any patent or patent application for any product or substance similar to the Products or any component thereof or used for similar applications.

      10.3. Buyer is liable for ensuring that the use of Product Information is legally permitted in the given territory and that the Product Information does not infringe third parties’ rights. Seller does not give any warranty with regards to the valid use of the Product Information in a given territory and will assume no liability whatsoever with this regard.

      10.4. Products may entail the use of third party products sold or licensed separately by third party sellers (the Third Party Products). Seller does not support the Third Party Products and makes no representations and warranties of any kind with respect to the Third Party Products.

        11. OBLIGATIONS AND RESTRICTIONS

        11.1. Buyer may not assign its rights or obligations hereunder without the prior written consent of Seller.

        11.2. Buyer shall at all times, at its sole expense, ensure that the transportation, installation, use, operation or repair of the Products is carried out in accordance with all applicable laws, regulations and requirements established by any competent authority, as well as in accordance with the information communicated by Seller, including but not limited to specifications, brochures and technical documents (the Product Specifications). Moreover, Buyer agrees not to remove or alter any Product Specifications affixed to any of the Products or their respective packages.

        11.3. All non-public, confidential or proprietary information of Seller, including but not limited to Product Specifications, Product Information, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts and rebates, disclosed or otherwise revealed by Seller to Buyer, whether disclosed in oral, written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Products (Confidential Information) is confidential, and shall solely be used for the purpose of operating the Products by Buyer. Buyer shall in no event release, publish or otherwise disclose Confidential Information without the prior written consent of Seller, except to its own employees, agents and subcontractors to whom the Confidential Information must be communicated for the purpose of installing or operating the Products.

        11.4. Seller may subcontract any portion of the work on any Product at any time, but Seller’s obligations and rights hereunder shall not thereby be limited or affected.

          12. DEFAULT

          12.1. If Buyer is in default of these Terms and Conditions, Seller may, at its option, cancel any unexecuted portion of any order to which these Terms and Conditions apply and/or exercise any right or remedy which may be available to it at law. Buyer will be in default under these Terms and Conditions if: (i) Buyer fails to perform any covenant, obligation, undertaking or condition contained herein; (ii) Buyer is insolvent or Buyer fails to pay debts as they come due or if Buyer makes an assignment for the benefit of its creditors; or (iii) if a receiver/manager is appointed for Buyer or for any of the Products ordered pursuant to these Terms and Conditions, or if any petition is filed to adjudicate Buyer bankrupt.

          13. GOVERNING LAW AND NOTICES

          13.1. These Terms and Conditions are exclusively governed by and interpreted in accordance with the laws of the Province of Québec and the laws of Canada applicable therein, and the parties hereby attorn to the exclusive jurisdiction of the Courts of the Province of Québec.

          13.2. Any notice required under these Terms and Conditions shall be in writing and shall be sent by messenger service with acknowledgement of receipt or by facsimile. It is the express wish of the parties that the Terms and Conditions, and any document relating thereto be drawn up in the English language. Il est de la volonté expresse des parties que les présents termes et conditions et tous les documents s’y rattachant soient rédigés en anglais.

            14. CONDITIONAL PURCHASE ORDER TERMS

            14.1. For the purpose of this Section 14, “Acceptance Criteria” means the written performance and functional criteria set forth in the Conditional PO or an attached specification agreed in writing by the Parties prior to shipment. In the absence of an agreed written specification, the Acceptance Criteria shall be: (i) operation in material conformity with Product Specifications as defined in Section 11.2; and (ii) no material, reproducible nonconformity that prevents ordinary use of the Products in accordance with such Product Specifications.

            14.2. In the case where Seller and Buyer mutually agree to a conditional purchase order (a “Conditional PO”), Buyer shall pay an initial deposit equal to twenty percent (20%) of the total purchase price of the Products (the “Initial Deposit”). The Initial Deposit shall be payable upon issuance of Seller’s invoice.

            14.3. Upon delivery of the Products to Buyer, a trial and evaluation period of ninety (90) days (the “Trial Period”) will begin. During the Trial Period, Buyer may operate and test the Products to determine whether they meet the Acceptance Criteria as defined in Section 14.1.

            14.4. The Conditional PO is conditional solely with respect to Buyer’s right to evaluate the Products during the Trial Period in accordance with this section 14. Except as expressly stated herein, all other Terms and Conditions apply during the Trial Period.

            14.5. Buyer shall use the Products solely for evaluation at the site specified in the Purchase Order, in a safe, professional manner, in accordance with Product Specifications.

            14.6. Buyer shall not: (i) disassemble, reverse engineer, modify, or create derivative works; (ii) use the Products outside Product Specifications; (iii) relocate the Products without Seller’s prior written consent; or (iv) remove, alter, or obscure any proprietary markings, labels, or notices on the Products.

            14.7. During the Trial Period, Seller may access the Products remotely or on site (on reasonable notice) to monitor performance, apply updates, or address issues.

            14.8. Risk of loss shall pass per Section 5, of these Terms and Conditions. For clarity, Title shall remain with Seller until Acceptance (as defined below) and receipt of all amounts then due.

            14.9. Buyer shall maintain, at its expense, insurance covering loss, theft, or damage to the Products for not less than the full replacement value, naming Seller as loss payee and additional insured, during the Trial Period. Buyer shall provide Seller with a certificate of insurance evidencing such coverage prior to delivery of the Products.

            14.10. During the Trial Period, Buyer shall conduct reasonable tests to determine whether the Products meet the Acceptance Criteria. If Buyer believes the Products fail the Acceptance Criteria, Buyer must provide written notice describing the specific, reproducible nonconformities with reasonable detail within the Trial Period. Upon timely notice, Seller will use commercially reasonable efforts to cure any material nonconformity within a reasonable period not to exceed thirty (30) days, unless a longer period is mutually agreed in writing.

            14.11. Acceptance occurs on the earliest of: (i) written confirmation of acceptance by Buyer; (ii) Buyer’s failure to provide timely, sufficiently detailed rejection notice during the Trial Period; (iii) the Products materially meeting the Acceptance Criteria after cure (in each case, “Acceptance”). Upon Acceptance, Buyer shall pay the remaining eighty percent (80%) of the purchase price within thirty (30) days after the end of the Trial Period. Full ownership of the Products and title shall not transfer to Buyer until the full payment has been received by Seller.

            14.12. If, after Seller’s cure efforts, the Products materially fail to meet the Acceptance Criteria and Buyer timely rejects in writing, Buyer may return the Products to Seller at Buyer’s expense, provided that:

            • Products must be returned to Seller at Buyer’s cost and responsibility in good operating conditions (subject only to normal wear resulting from reasonable use during the Trial Period), free of liens, with all accessories, manuals, and packaging.
            • Buyer shall pay any fees related to deinstallation
            • Buyer shall be responsible for all costs associated with missing or damaged items beyond normal wear and tear. Seller is expressly authorized to deduct the amount (or part of the amount) of such repair or replacement costs from the Initial Deposit. If repair or replacement costs exceed the Initial Deposit, Buyer shall pay the difference to Seller within fifteen (15) days of receiving Seller’s invoice.

            14.13. If Products are not accepted, Seller shall refund the Initial Deposit to Buyer within thirty (30) days following receipt and inspection, less any deductions provided for in Section 14.12, if applicable.

            14.14. These Conditional PO terms apply only when explicitly referenced in Seller’squotation or invoice. In the event of conflict with any other terms contained inthese Terms and Conditions, the present Section shall prevail for the specific Conditional PO transaction