XSIGHT LABS LTD.

TERMS AND CONDITIONS OF SALE

Unless otherwise stated in a written instrument duly signed by Seller (as defined below), these Xsight Labs Ltd. Terms and Conditions of Sale (these “Terms and Conditions”) apply without any modifications to all sales of semiconductor chips (“Products”) made by Xsight Labs Ltd. and/or its subsidiaries (the seller contracting corporate entity, “Seller”) to the client (“Client”), notwithstanding any custom, practice, general terms and conditions of purchase or similar documents of the Client, terms accompanying purchase orders issued by Client or any other communication with Client, all of which are hereby rejected. Client’s order or acceptance of Products when delivered constitutes acceptance of these Terms and Conditions.

1. Purchases. Purchases from Seller are made by placing written purchase orders to Seller specifying the information required by Seller, and are subject to Seller’s explicit written acceptance. Seller may impose minimum quantity and other requirements on purchase orders. Software is licensed and not sold, and any reference to sale in the context of software means a limited license to use the software for its designated purpose only under these Terms and Conditions, or if so stated by Seller, the applicable license agreement of Seller.
2. Deliveries. Unless otherwise specified by Seller, delivery occurs Ex Works (Incoterms 2020) at Seller’s designated site. All freight, insurance and other shipping expenses, as well as any special packaging expenses will be charged to or directly paid by Client. Delivery dates are estimates. Seller will take reasonable efforts to deliver Products by the agreed delivery dates but will not be liable for any failure to do so. Seller may deliver and invoice Products in installments, may make early deliveries and may allocate quantities and deliveries among its clients. Client may not reschedule deliveries or cancel orders absent Seller’s written consent. Client’s sole remedy for any delay in delivery is to cancel that portion of the order that remains undelivered thirty days after Client notified Seller of a delay in delivery.
3. Acceptance. Client must inspect the Products after delivery and notify Seller within twenty-one days thereof of any delivery failure, including defect or non-conformity with the applicable specifications published by Seller prior to acceptance of the purchase order, accompanied by reasonable written evidence, other than latent defects or non-conformities that cannot be reasonably identified upon acceptance inspection. Failure to notify Company in writing within such period will be deemed acceptance. Refunds will only be issued to Client, for unused and undamaged Products returned to Seller with Seller’s prior written approval, under Seller’s return merchandise authorization processes. Client may not return Products without Seller’s written consent.
4. Software License. In the absence of a separate license agreement, Seller hereby grants Client a limited, non-exclusive, non-transferable, non-sublicensable except for end users, worldwide, limited right and license to use and distribute the firmware and software accompanying or contained in the Products (“Software”) in conjunction with the Products for the normal operation of the Products in compliance with and subject to the limitations contained in these Terms and Conditions and Seller’s documentation. Modification or making copies of the Software is prohibited. The documentation accompanying the Software may include third-party license terms applying to the Software.
5. Prices. Prices are stated in a quotation issued to Client by Seller and are valid for the period indicated therein (and if not indicated, for 30 days), or absent a quotation in the Seller’s published price list then in effect. Unless otherwise specified by Seller, all prices and fees are quoted by Seller in US dollars, and are exclusive of any shipping and insurance costs, taxes (including withholding, import, VAT, sale and other taxes), customs charges, or other charges or levies, other than taxes on Seller’s net income, all of which shall be borne by Client and may be charged to it by Seller. Seller may increase prices for any Products prior to their delivery to Client and will inform Client in writing of any such increase. Client may refuse to accept the price increase by written notice to Seller within 10 days of Seller’s notice of a price increase, in which case Seller may cancel that portion of the Client’s order relating to the affected Products.
6. Payment Terms. Unless Seller specifies otherwise, payments to Seller are due within 30 days of invoicing. All payments to Seller are due and will be made by Client without set-off, deduction or withholding of any kind. Late payments are subject to the lower of (i) a 2% monthly (24% per year) late payment interest, compounding daily from the due date until actual payment; and (ii) the maximum allowed rate under applicable law. Client hereby grants Seller a purchase money security interest in all Products and all proceeds due to Client related to the Products until payment in full of all amounts and related charges due to Seller in connection therewith and agrees to promptly sign all documents reasonably required by Seller to perfect its security interest. Without derogating from any other remedy afforded to Seller, Seller may immediately suspend its performance for as long as any amounts due to Seller (including late payment interest) remain unsettled. Client will reimburse Seller for all costs and expenses of Seller (including reasonable attorney fees and expenses) incurred by Seller in its efforts to collect payments due from Client.
7. Limited Warranty. Subject to the full and timely payment of all fees due to Seller and the following warranty limitations, and except for die and Products designated as pre-Production, reference design, test, beta or similarly designated Products which are sold “as is” and for which no warranty is given, Seller warrants that for 12 months from delivery to Client (the “Warranty Period”), (a) the Products shall materially comply with the applicable specifications published by the Seller prior to delivery; (b) the Software will be free from material programming errors (the “Warranty”). Seller does not warrant that the Products or Software will operate in hardware or software combinations elected by Client or meet Client’s requirements, or that the Products or Software are error free or will operate without interruptions. The Warranty is void in the event that a Product or the accompanying software has been: (i) subject to misuse, negligence, accident, improper storage, containment and/or operation outside the environmental, mechanical, or electric specifications for the Product or extraordinary heat, cold or humidity, fire, electrical irregularity, vandalism, or improper installation, use or maintenance by anyone other than Seller, or; (ii) modified, customized, repaired or altered by anyone other than Seller or its authorized service providers, or (iii) combined with, or installed on Products, or equipment other than as detailed in the written specifications published by Seller; or (v) damaged by causes not attributable to or beyond the reasonable control of Seller. No other warranties are provided, express or implied, all of which are hereby expressly disclaimed.
8. Warranty Remedies. Warranty claims must be made in writing within the Warranty Period. Claims received after the lapse of the Warranty Period are void. Seller may require the use the Seller’s form warranty claim document and provide reasonable evidence along with the claim (such as photos, description of the claimed defect, etc.). Client’s sole and exclusive remedy, and Seller’s sole and exclusive liability, for a breach of the Warranty, shall be that the Seller, at its sole option, and solely following confirmation of a defect or failure of a Product to perform as warranted, shall either repair or replace the nonconforming Product component within a reasonable time or return the price paid for the Product. Client must follow Seller’s return instructions.
9. Restrictions. Client shall not (and shall not allow others to): (i) reverse engineer, disassemble, decompile, modify or alter, create derivative works of or reproduce the Products or any part thereof; (ii) separate any component or part of the Products or separately use any component part thereof on any equipment or system; (iii) obscure, remove or destroy any proprietary markings or legends placed upon or contained within the Products; (iv) attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces by any means whatsoever; (v) use the Products for any illegal or immoral purpose, or for any military use; or (vi) permit or encourage any third party to do any of the foregoing.
10. Intellectual Property. As between the parties, all right, title and interest in and to all intellectual property rights (whether patentable or not, registered or not, or otherwise) in the Products, services, technology, material and documentation of the Seller reside solely with the Seller (and/or its licensees, as applicable). Any feedback provided to Seller will belong solely to Seller without any right to royalties or other consideration for its use. Client obtains no right to Seller’s Products, services or technology other than the limited right to make use of the Products and of the licenses expressly granted to it hereunder subject to the timely payment of all associated fees. Client may not, nor may it allow others to, remove, alter or obscure any marks or tagging information from the Products.
11. Indemnification. Seller will indemnify, and at Seller’s election defend, Client from and against any direct damages and losses, arising out of a third-party claim in which it is found by a competent court that Client’s use of the Products in compliance with these Terms and Conditions and applicable law infringes upon the registered intellectual property in the United States of that third party. Seller’s indemnification undertaking is conditioned on Client providing a written notice within 10 days of receiving a claim, allowing Seller to assume the defense, negotiations and all related proceedings, reasonably cooperate and assist Seller with the defense, and not settling any claim or admitting any liability or wrongdoing without Seller’s prior written consent. Seller will be entitled to settle, compromise or pursue the defense of any such claim at its sole discretion. The Seller’s indemnification undertaking shall not apply to the extent that the infringement claim arises from (i) the use of the Products in a manner for which they were not intended, or not in compliance with the documentation or instructions provided by Seller, including these Terms and Conditions, (ii) not installing and using the most recent updates made available, (iii) compliance with Client’s specifications, the alteration or modification of a Product, or the combination thereof with any software, hardware, system, services or application not provided by Seller, or (iv) removal, alteration or modification of any notices or trademarks. Seller may also, in its sole discretion and expense, procure for Client the right to continue using the infringing Product, replace it with a non-infringing alternative or modify it so that it becomes non-infringing, or terminate Client’s use and credit Client the purchase price, depreciated on a 12-month basis. THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF NON-INFRINGEMENT AND ACTS A SOLE REMEDY AND COMPANY’S SOLE LIABILITY FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS AND/OR SOFTWARE.
12. Privacy. Both Seller and Client will process personal information obtained from the other in compliance with applicable privacy laws. Client must obtain on Seller’s behalf all consents required for Seller to process personal information received from Client or its personnel in order for Seller to perform under its engagement with Client. Such processing includes conducting credit assessments and managing orders and accounts and export of personal information.
13. Confidentiality. For the purposes of this Agreement, “Confidential Information” means any information, data and knowledge, regardless of form or storage medium, which is delivered or disclosed, directly or indirectly (whether before or after the date hereof) by or on behalf of either party (the “Disclosing Party”) to the other party (the “Receiving Party”), or that comes to the Receiving Party’s knowledge in the framework of this Agreement, in writing, orally, through visual means, or by observation, analysis, inspection or other study of such information, data or knowledge. For avoidance of doubt, Seller’s technology, source code, and any other technology owned by or licensed to Seller constitute Seller’s Confidential Information. Confidential Information shall not include any information which (i) was publicly known and made generally available in the public domain through no breach of confidentiality by the Receiving Party; (ii) is rightfully in Receiving Party’s possession free of any obligation of confidence prior to the time of disclosure by the Disclosing Party; (iii) is disclosed to the Receiving Party on a non-confidential basis by a person who is not bound by confidentiality towards the Disclosing Party and is not otherwise prohibited from transmitting the information to the Receiving Party; or (iv) is developed by and on behalf of the Receiving Party independently of and without use of, reference to or basis on any of the Disclosing Party’s Confidential Information; all as can be demonstrated by evidence in writing. Confidential Information does not have to be marked or designated in any manner whatsoever in order to gain protection under this Agreement or under law. All Confidential Information furnished under this Agreement by the Disclosing Party is and shall at all times remain the property of that party. Receiving Party shall hold and maintain the Disclosing Party’s Confidential Information in confidence, taking at least the same measures it takes to protect its own Confidential Information but in any case not less than reasonable care, will not use, copy, distribute and/or disseminate any Confidential Information for any purpose (whether for its own uses and/or or whether for third parties and/or whether for commercial use or not) other than for the purpose of carrying out its obligations hereunder, and will not disclose any Confidential Information to any third parties or to any of its employees, except only to those of its employees who are required to have the Confidential Information and who are bound by written obligations of confidentiality and non-use no less stringent than those contained in this Agreement prior to any such disclosure. In the event that Receiving Party becomes legally compelled pursuant to a binding order of a competent court to disclose any contents of the Confidential Information, it may do so; provided, however, that Receiving Party (i) promptly notifies the Disclosing Party prior to any such disclosure, to the extent practicable; (ii) cooperates with the Disclosing Party in any attempts it may make to obtain a protective order or other assurance that confidential treatment be accorded to the Confidential Information, and (iii) if disclosure is required, (a) furnish only that portion of the Confidential Information that in Receiving Party’s counsel’s opinion Receiving Party is compelled to disclose, and (b) take all reasonable measures to obtain reliable assurance that confidential treatment will be afforded the Confidential Information. All documents and other tangible objects containing or representing Confidential Information, and all copies thereof which are in the possession of the Receiving Party or under its control, shall be and remain the property of the Disclosing Party and shall be promptly returned (or at the Disclosing Party’s election, destroyed) to the Disclosing Party upon its written request and such return (or destruction, if requested by the Disclosing Party) confirmed in writing promptly thereafter, save that Receiving Party may retain one copy of the Confidential Information for archive and compliance purposes.
14. Exclusion of Warranties. OTHER THAN SELLER’S EXPRESS WARRANTIES SET OUT IN THESE TERMS AND CONDITIONS, THE PRODUCTS (AND ANY OTHER RELATED PRODUCTS AND SERVICES OF SELLER) ARE PROVIDED “AS IS” AND WITH ALL FAULTS, AND ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, PREFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, ARE EXPRESSLY DISCLAIMED. SELLER DOES NOT WARRANT THAT THE DEVICE WILL BE FREE FROM DEFECTS OR THAT USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE. SELLER IS NOT RESPONSIBLE, AN HAS NO LIABILITY FOR ANY HARDWARE, SOFTWARE, OR OTHER ITEM OR SERVICE PROVIDED BY ANY PERSON OR ENTITY OTHER THAN SELLER. NO ORAL OR WRITTEN INFORMATION OR ADVICE BY SELLER WILL CREATE A WARRANTY.
15. Unsuitable Uses. THE PRODUCTS ARE NOT INTENDED OR APPROVED AND ARE NOT SUITABLE FOR USE IN MILITARY APPLICATIONS, OR SITUATIONS OR ENVIRONMENTS WHERE FAILURE, DELAY, OR ERROR COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE DAMAGE; and Client may not make use of the Products for such purposes. Client will indemnify Seller and its affiliates and representatives for any cost or expense incurred by any such party due to use of the Products in such applications, situations or environments.
16. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, DOWNTIME, SERVICE INTERRUPTION, LOST OR STOLEN DATA, LOSS OF GOODWILL, LOSS OF BUSINESS OR LOST PROFITS, UNDER ANY LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, EQUITY OR CONTRACT) AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT DEROGATING FROM ANY OF THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF SELLER, ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS, IN CONNECTION WITH ANY PRODUCT WILL BE LIMITED TO THE CONSIDERATION ACTUALLY RECEIVED BY SELLER UNDER THE APPLICABLE PURCHASE ORDER FOR THE AFFECTED PRODUCT. ALL LIMITATIONS AND EXCLUSIONS APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY WARRANTY OR REMEDY. CLIENT MUST FILE A CLAIM WITHIN ONE YEAR OF THE CAUSE OF ACTION ARISING.
17. Export Controls. The Products and related technical data, technology and documentation, are subject to export control laws of the United States, European Union, Canada, Israel and other countries, and Client agrees to abide by all such export controls, including embargoes, and sanctions placed by such countries, at all times. Client shall not directly or indirectly export, re-export or transfer Products for the benefit of any person or entity other than in compliance with all such laws and shall require its distributors, resellers and end users to comply with such laws. Without derogating from the foregoing, Client shall not directly or indirectly transfer Products to any person designated on any prohibited persons list published by Israel, the European Union, Canada or the U.S. Departments of the Treasury, Commerce, or State, or to anyone in the Crimea region, Russian Federation, Iran, North Korea, Syria, Sudan or in any other destination subject to an applicable embargo (for as long as such territories are subject to sanctions, embargoes, or other similar prohibitions). In no event may the Products be used in connection with any military application, including any nuclear, biological or chemical weapon, missile or unmanned air vehicle technology or military intelligence.
18. Bankruptcy. Seller may cancel any purchase order without further obligation or liability to Client if Client becomes subject to any bankruptcy or insolvency proceedings, executes an assignment for the benefit of creditors, is unable to meet its payment obligations when due or ceases carrying out its business.
19. Force Majeure. Seller shall not be liable for any failure to perform due to any cause beyond its reasonable control, which causes shall be deemed to include, without limitation, fire, flood, storm, severe weather, earthquake, sabotage, war, armed hostilities, terrorism, civil unrest, riot, insurrection, labor grievance, strike, lockout, outbreak of disease, epidemic (including COVID-19), pandemic, destruction of or damage to production facilities, unavailability of resources and material, failure of energy sources or supply chain, failure or lack of transportation, malicious code, embargoes, governmental orders and changes in laws.
20. Entire Agreement; Amendments and Waivers. These Terms and Conditions constitute the entire agreement and understanding between the parties with respect to the subject matter hereof, supersede and govern in conflict with any prior discussion, correspondence, negotiation, agreement, understanding, arrangement, proposal or memorandum, and may not be amended except by a written instrument executed by both Seller and Client. No failure or delay on the part of any party hereto in the exercise of any right hereunder shall impair such right or be construed as a waiver of, or acquiescence in, any breach of any representation, warranty, covenant or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. Any waiver by Seller will only be granted in writing.
21. Remedies Cumulative; Assignment and Relationship. Client may not assign, transfer, pledge, or transfer in any other manner, any of its rights or obligations under this Agreement. Seller may assign its rights and obligations hereunder by written notice. Unless where expressly provided otherwise, all rights and remedies of each party will be cumulative, and the exercise of one or more rights or remedies will not preclude in and as of itself the exercise of any other right or remedy available to each party, under any legal theory. The relationship between the parties is that of independent contractors, and nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. Seller’s licensors are third-party beneficiaries of these Terms and Conditions and may with Seller’s consent enforce their rights directly with Client.
22. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with laws of Israel, without regard to the conflict of law rules thereof. The competent courts of Tel Aviv-Yafo, Israel, shall have exclusive jurisdiction over any disputes between the parties hereto, whether in law or equity, arising out of or relating to these Terms and Conditions, and the parties consent to and agree to submit to the exclusive jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded.
23. Notices; Electronic Signatures. Except as otherwise provided herein, all notices, requests, claims, demands, waivers and other communications hereunder shall be in writing. Electronic signature or delivery of documents or signatures by facsimile, email or in electronic form (including by scanned .pdf image) shall be as effective as delivery of an original manually executed document.
24. Severability. If any term, provision, covenant or restriction herein is held by a court of competent jurisdiction or other authority to be invalid or unenforceable, the remainder of the terms, provisions, covenants and restrictions herein (or portions thereof) shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and such invalid, void or unenforceable term shall be deemed to be replaced by a valid or enforceable (as the case may be) term which comes closest to expressing the parties’ original intention.