1. Acceptance

SELLER’S ACCEPTANCE OF BUYER’S PURCHASE ORDER IS EXPRESSLY MADE CONDITIONAL ON BUYER’S ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS OF SALE, WHICH ARE IN LIEU OF ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED IN BUYER’S PURCHASE ORDER OR OTHER DOCUMENT OR COMMUNICATION PERTAINING TO BUYER’S ORDER OR THE GOODS. BUYER’S ASSENT TO THE TERMS AND CONDITIONS CONTAINED IN THIS DOCUMENT SHALL BE CONCLUSIVELY PRESUMED FROM BUYER’S ACCEPTANCE OF ALL OR ANY PART OF THE GOODS OR FROM PAYMENT BY BUYER FOR ALL OR ANY PART OF THE GOODS. NONE OF THESE TERMS AND CONDITIONS MAY BE ADDED TO, MODIFIED, SUPERCEDED OR OTHERWISE ALTERED, EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED EXECUTIVE OF SELLER. FAILURE OF SELLER TO OBJECT TO ANY TERMS OR CONDITIONS WHICH MAY BE CONTAINED IN ANY DOCUMENT OR FORM OF BUYER SHALL NOT BE CONSTRUED AS A WAIVER OF THESE CONDITIONS, NOR AS AN ACCEPTANCE OF ANY SUCH TERMS AND CONDITIONS.

2. Payment Terms

Payment terms are as described above. Invoices not paid when due will bear interest to date of payment at the annual rate of eighteen (18%) percent or such lower rate as may be the maximum permitted by law. If customer fails to make payment when due, Iris Dynamics Ltd. May pursue any legal or equitable remedies, in which event Iris Dynamics, Ltd. will be entitled to reimbursement of costs for collection and reasonable attorney’s fees. There is a $25 USD service charge on all returned cheques.

3. Taxes

The quoted purchase price may be increased to the extent that Seller’s cost of the product sold hereunder may be increased as a result of (1) any agreements, codes, or legislative enactments made or enacted pursuant to federal, provincial or municipal legislation; and (2) increase in the cost of labor or raw materials. In addition to paying the quoted purchase price, Buyer is solely liable for any excises, levies or taxes which Seller may be required to pay or collect, under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the goods covered hereby, and Buyer agrees to pay the amount thereof on the same terms as it shall pay the quoted purchase price.

4. Warranty

The Seller warrants, to the Buyer, that its products are free from defects in materials and workmanship FOR A PERIOD OF 2 YEARS FROM THE DATE OF DELIVERY. The Seller will, at its option, either repair or replace any part of its products that prove defective by reason of improper workmanship or materials. Repaired parts or replacement products will be provided by the Seller and will be either new or refurbished to be functionally equivalent to new. This warranty does not cover damage resulting from accident, unreasonable use, neglect, alterations, improper servicing, improper installation, connections with peripherals or other causes not arising out of defects in materials or workmanship. Any service or repair provided outside the scope of this limited warranty shall be at the Sellers rates and terms in effect.

5. Warranty Restrictions

BUYER EXPRESSLY UNDERSTAND AND AGREE THAT: BUYERS USE OF THE GOODS IS AT IT’S SOLE RISK. THE GOODS AND PRODUCTS AND THE ASSOCIATED MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF CONDITIONS, SELLER, ITS PARENT, SUBSIDIARY AND OTHER AFFILIATED COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY, THE “SELLER PARTIES”), EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SELLER PARTIES MAKE NO WARRANTY THAT: (I) THE GOODS AND PRODUCTS WILL MEET BUYER’S REQUIREMENTS; (II) THE QUALITY OF ANY AND ALL GOODS, PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL, INCLUDING ALL MERCHANDISE, GOODS AND SERVICES, OBTAINED OR PURCHASED BY BUYER DIRECTLY OR INDIRECTLY WILL MEET BUYER’S EXPECTATIONS OR NEEDS SELLER SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE GOODS AND PRODUCTS, INCLUDING ANY LIABILITY: (I) AS A MANUFACTURER OF GOODS; (II) FOR ANY INCORRECT OR INACCURATE INFORMATION OR ANY ‘BUG’ OF THE GOODS; (III) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY REGARDING THE GOODS; (IV) FOR ANY DISPUTES BETWEEN USERS OF THE GOODS OR BETWEEN A USER OF THE GOOD AND A THIRD PARTY; OR (V) FOR ANY OTHER MATTER RELATING TO THE SELLER’S GOODS, PRODUCTS, SERVICE OR ANY THIRD PARTY. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES THE SELLER PARTIES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE SELLER AND THE BUYER. THE GOODS, PRODUCTS, INFORMATION AND SERVICES OFFERED BY THE SELLER WOULD NOT BE PROVIDED TO BUYER WITHOUT SUCH LIMITATIONS.NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF THE SELLER FOR ANY REASON, AND BUYERS SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE CHARGES PAID BY BUYER DIRECTLY TO SELLER FOR GOODS PROVIDED SOLELY AND DIRECTLY BY SELLER TO BUYER IN THE SIX MONTHS PRIOR TO SUCH CAUSE OR CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY.

6. Claims

Claims by Buyer for shortages or errors in delivery must be made within fifteen (15) days after the delivery of the Goods. Goods are sold subject to the standard manufacturing practices of Seller’s suppliers.

7. Returns

No Goods shall be returned for credit without first obtaining written consent from an executive officer of Seller.

8. Shipment

Delivery terms are either F.O.B. Seller’s plant, Victoria, British Columbia Canada, or C.F. as specified on the reverse side of this document. In either case, Buyer shall assume all risk of loss or damage upon delivery by Seller to the carrier at the point of shipment. Scheduled dates of delivery are determined from the date of Seller’s acceptance of any order or orders placed by Buyer and are estimates of approximate dates of delivery, not a guaranty of a particular date of delivery. Seller shall not be liable for any damages caused by failure or delay in shipping the goods described herein, if such failure or delay is due to any war, embargo, riot, fire, flood, accident, mill condition, strike or other labor difficulty, an act of Buyer, an act of God, an act of a governmental authority, transportation shortage or failure, inability to obtain sufficient fuel, labor, materials or manufacturing facilities, or any other cause beyond the reasonable control of Seller.

9. Confidential Information

9.1

The Parties acknowledge and agree that during the term of this Agreement, Seller information has been or may be made available to Buyer, which may include, without limitation, financial information of the Seller, information regarding the Seller’s pricing and materials, the Seller’s computer programs, confidential website and other internet information, and other trade secrets and proprietary information including, without limitation, information relating in any way to any products, services, methods, computer/software or any other similar or related matters or items developed, enhanced or modified by the Seller, to include both hardware and software (collectively, the “Confidential Information”).

9.2

Buyer agrees that the Confidential Information a) is the sole and exclusive property of the Seller (and Buyer shall execute and deliver, at any time, such documents as the Seller shall request in order to confirm the same); b) is absolutely confidential to the Seller; and d) Seller may not disseminate or disclose or otherwise publish Confidential Information to others or use outside of the Seller in any manner whatsoever. During the Agreement term, and in the event of the termination of this Agreement, whether voluntary or involuntary, Buyer agrees not to use, disclose, transfer or exploit the Confidential Information at any time and in any manner whatsoever. Buyer further agrees to immediately return all Seller property and documents upon the termination of this Agreement including, without limitation, all such Confidential Information.

9.3

Notwithstanding anything contained in this Agreement to the contrary, if Buyer is requested or required (by oral questions or request for information or documents in court or administrative proceedings, interrogatories, subpoena, civil investigation, demand or similar court or administrative agency process) to disclose any Confidential Information, Buyer will promptly notify the Seller of such request or requirement prior to any disclosure of the Confidential Information so that Seller may seek an appropriate protective order and/or consider the possible waiver of Buyer’s compliance with this Agreement.

9.4

Buyer hereby acknowledges and agrees that the Seller’s remedy at law for any breach of any of Buyer’s obligations under this section would be inadequate, and Buyer agrees and consents that temporary and permanent injunctive relief may be granted in any proceeding which may be brought to enforce any provision of this section, without the necessity of proof of actual damages, it being acknowledged by Buyer that any such breach would cause irreparable injury to the Seller.

10. Intellectual Property and Confidentiality

Both parties’ proprietary knowledge and intellectual property are critical ingredients to the performance of this agreement. It is understood that both companies retain all intellectual property rights, title and interests in and to their respective software and hardware at the initiation of this contract. Iris Dynamics Ltd. retains all rights title and interests with respect to its proprietary actuator designs and software. Any intellectual property developed by Iris Dynamics Ltd. as a result of this agreement shall remain the property of Iris Dynamics Ltd. The parties acknowledge that the mutual Non-Disclosure Agreement entered into and signed by both parties govern this agreement and such terms are incorporated by reference.

11. License & Reverse Engineering

Iris Dynamics Ltd.’s proprietary magnetic force feedback software and technology are the sole property of Iris Dynamics Ltd. Iris Dynamics Ltd hereby grants a non-exclusive license to use its magnetic force feedback software and technology which will be embedded into the actuators and devices that this contract concerns. This License extends only to the actuators and devices physically provided by Iris Dynamics Ltd. The Licensee/Buyer agrees not reproduce, reverse engineer, distribute, or to allow to be reproduced, reverse engineered, or distributed in whole or in part, the software, hardware, or technology without express agreement in writing from Iris Dynamics, Ltd. The Licensee/Buyer will protect Iris Dynamics Ltd.’s technology from unauthorized disclosure, reproduction, reverse engineering, or distribution with at least the same degree of care it normally exercises to protect its own Confidential, sensitive, or secret information & technology against undesired dissemination and use, and in no case shall the degree of care be less than reasonable care.

12. Cancellation & Refunds

Orders accepted by Seller are subject to cancellation by Buyer only upon the express written consent of Seller. Upon such cancellation and consent, Seller shall cease work and hold for Buyer all completed and partially completed articles and work in progress and Buyer shall pay Seller: for all work and materials that have been committed to and/or identified to Buyer’s order plus a cancellation charge as prescribed by Seller, in addition to a reasonable profit to Seller on the entire contract.

13. Indemnification

In addition to the foregoing, Buyer agrees to save and hold Seller harmless from any claims, demands, liabilities, suites or losses, costs, expenses or judgments including damages for any physical harm arising in whole or in part, directly or indirectly, out of the negligence or lack of care by Buyer or Buyer’s customers, agents, employees or invitees involving the use of the goods supplied by Seller. This indemnification shall include all costs, attorney’s fees and other expenses paid or incurred by or imposed upon Seller in connection with the defense of any such claim.

14. Governing Law

Any agreement arising out of this transaction shall be deemed to have been made in Victoria, British Columbia, Canada. The parties agree that the validity, interpretation and performance of any agreement arising out of this transaction shall be governed by the laws of the British Columbia, Canada without regard to conflicts of interest laws.

15. Default

In the case of default or breach by Buyer in the performance of any or all of the provisions of this agreement, Seller may cancel any outstanding order from Buyer and declare all obligations immediately due and payable and shall in addition have all remedies afforded by the law as enacted in British Columbia, Canada, and any other applicable law. Buyer shall in addition, be liable for Seller’s expenses incurred in exercising any remedies available to it, including reasonable attorney’s fees and legal expenses. All unpaid obligations shall bear interest at the contract rate provided under terms of payment above.

16. Delay

If Buyer requests deferral of deliveries, Seller’s agreement to defer delivery shall not excuse Buyer from its obligation to pay for the goods at the same times and in the same quantities as the original delivery schedule, including interest due pursuant to these terms and conditions. In addition to adhering to the original payment schedule, Buyer shall pay such storage charges as Seller may assess for storing the goods awaiting delivery. If Buyer requests deferral prior to commencement of production, Seller may require progress payments in connection with expenses for materials and services incurred by Seller in anticipation of production.

17. Waiver

A Party’s waiver or failure to enforce any provision of this agreement shall not constitute a waiver of such provision or any other provision or prejudice such Party’s right to enforce such provision or any other provision at any subsequent time as permitted by law.

18. Severability

If any provision of this agreement is judicially held to be void or unenforceable, such nullity or unenforceability shall not affect the validity or enforceability of the remaining provisions, which shall continue in full force and effect to the fullest extent permitted by law.

Last Updated: January 27, 2022