These Terms of Services (the “Manufacturer Terms”) are between the corporation which registers as a Manufacturer through the Axya Platform (the “Manufacturer”; “you”) and Axya, with a registered office at 1155 Rue Metcalfe Suite 1583, Montréal, QC H3B 2V6 (“Axya”). The Manufacturer Terms enter into force upon your acceptance and will continue in full force for as long as you have an active account with us (the “Term”).

PLEASE READ THESE TERMS CAREFULLY PRIOR TO CREATING AN ACCOUNT WITHIN THE AXYA PLATFORM. THESE TERMS APPLY TO YOUR USE OF THE SERVICES AS A MANUFACTURER, AND TO EVERY RFQ THAT YOU RESPOND TO WITHIN OUR SERVICES. WHEN YOU SUBMIT A QUOTE IN RESPONSE TO A BUYER’S RFQ, THIS QUOTE IS IN ACCORDANCE WITH THESE MANUFACTURER TERMS, EXCEPT FOR ADDITIONAL TERMS. FOR THE AVOIDANCE OF DOUBTS, IF YOU SUBMIT A QUOTE TO A RFQ WHICH CONTAINS BUYER REQUIREMENTS, YOU ARE AGREEING TO THESE BUYER REQUIREMENTS UNLESS YOU INDICATE OTHERWISE IN YOUR QUOTE.

DEFINITIONS

• “Additional Terms” means any deviations from the Manufacturer Terms which the Manufacturer and the Buyer agree upon, including the Buyer Requirements, if agreed upon by the Manufacturer through the issuance of a corresponding Quote or otherwise.

• “Applicable Laws” means any statute, regulation, rule, code, ordinance, constitution, treaty, common law, judgment, decree or other requirement of any federal, municipal, provincial, territorial or foreign government or one of its political subdivisions or of any arbitrator, court or tribunal of competent jurisdiction, which are applicable to these Terms, including the use of the Axya Platform by the Customer and the purchase of the Parts and Materials by the Manufacturer through the Axya Platform.

• “Axya Platform” means the platform operated by Axya to connect Members for the purpose of concluding a Transaction.

• “BETA Services” means any version of the Services, including any functionality, that is made available to the Customer to try at its option and which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

• “Buyer Requirements” means the Buyer’s requirements indicated in an RFQ, and which prevail over these Manufacturer Terms, if accepted by the Manufacturer’s submission of a corresponding Quote.

• “Buyer Terms” means the Buyer Terms which each Buyer agrees upon when creating an account to use the Axya Platform, and available at: [●]

• “Confidential Information” means any information of a party (the “Disclosing Party”) that is or will be divulged to the Manufacturer within the Axya Platform or pursuant to this Agreement, including to a Manufacturer (the “Receiving Party) and concerning the business, property, operations or finances of the Disclosing Party or its business, including exclusive information and trade secrets. Confidential information shall be indicated as such, or it shall be clear at the time of disclosure that the information is to be treated as confidential information depending on its nature or the context of the disclosure.

• “End Users” means individuals, such as employees or agents, which the Manufacturer authorizes to access and use the Services, such as through the Admin Console.

• “Export Control Laws” means any Canadian laws, regulations or orders governing transactions in controlled goods or technologies or dealings with countries, entities, organizations, or individuals subject to economic sanctions and similar measures, including the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), Part II.1 of the Criminal Code (Canada) and the Export and Import Permits Act (Canada), and any related regulations.

• “Intellectual Property” means any intellectual property, including, without limitation, the works, inventions (patentable or non-patentable), discoveries, improvements, trade secrets, know-how, scientific formulae, data, information, images, reports, results, analyses, software, models, research and development information, technical information, prototypes, specifications, models, designs, algorithms, products, compositions, processes and protocols, methods, tests, devices, computer programs, trade-marks and all proprietary rights provided by the law on patents, copyright, trademark law, the law of industrial design, the law of semiconductor chips, or any other legal provision or principle of civil law or common law applicable to the protection of information or incorporeal rights, including trade secrets, which can confer a right over any of the foregoing, as well as all applications, registrations or other proof of rights in any of the aforementioned elements.

• “Member” means either a Manufacturer or a manufacturer within the Axya Platform.

• “Parts and Materials” means the goods and products procured by the Manufacturer as part of a Transaction through the Axya Platform.

• “Parts and Materials Charges” means any costs, fees, expenses, delivery fees, shipping fees, duties and charges due for the Parts and Materials.

• “Purchase Order” means a purchase order which details the Parts and Materials, the Parts and Materials Charges, the Buyer Requirements and the Additional Terms.

• “Quote” means a legally binding quote submitted by a Manufacturer in response to an RFQ, through the marketplace on the Axya Platform.

• “RFQ” means requests for proposals issued by the Buyers within the Axya Platform.

• “Services” means the Axya Platform and the Technical Support Services, indiscriminately.

• “Transaction” means the purchase of the Parts and Materials by the Buyer upon acceptance of a Quote submitted by the Manufacturer through the Axya Platform, in response to an RFQ.

• “Transaction Agreement” means the Manufacturer Terms, the Buyer Terms, the Additional Terms, the Buyer Requirements and any amendments thereto.

• “Transaction Fees” means the fees payable to Axya for the Transaction, which corresponds to 3% of the Parts and Material Charges before applicable taxes.

1. SUBJECT MATTER

The Axya Platform allows the Manufacturer to create RFQs and purchase Parts and Materials. Manufacturers apply to RFQs by submitting Quotes. are third party beneficiaries to these Buyer Terms with regardrs and can enforce the Buyer Terms against the Buyer.

1. AXYA PLATFORM

The Manufacturer must create an account to use the Services. By creating an account with us, you represent and warrant that (a) the individual acting on behalf of the Manufacturer in entering into these Manufacturer Terms has the authority to bind the Manufacturer; (b) the Manufacturer has all requisite right, power and authority to enter into, perform its obligations under, and grant the rights and authorizations under these Manufacturer Terms; (c) the Manufacturer is a corporation duly registered entity in the jurisdiction in which it operates, and is in good standing; (d) the information provided by the Manufacturer to validate its existence and good standing is truthful and accurate; and (e) the Manufacturer has not been found in breach of any Applicable Laws to the prevention of fraud, bribery, corruption, racketeering, money laundering or terrorism, including but not limited to the Canadian Corruption of Foreign Officers Act, as amended (“Anti-Bribery Laws”) and its use of the Services is not in breach of Export Control Laws.

You are responsible for providing and removing access to End Users. Except as set forth herein, the Manufacturer (a) is responsible for keeping credentials confidential, blocking access to compromised accounts, and changing compromised passwords in relation to End Users’ use of the Services; and (b) will be responsible for any actions performed through the Manufacturer Account.

1. ACCEPTABLE USE OF THE AXYA PLATFORM

The Services may not be used in a manner (i) that is prohibited by Applicable Laws; (ii) which constitutes a breach of individuals’ rights to privacy and other moral rights; (iii) in a way that is threatening, abusive, hateful or which constitutes harassment; (iv) that results in the abnormal, automated, constant and repeated requests for data (e.g. by denial of services attacks); (v) that gives rise to criminal, fraudulent or civil liability or penalties, or otherwise encourages such conduct; (vi) that results in the sharing of identifiers and passwords with unauthorized users; (vii) that involves the use of time-sharing services, network or other means of sharing accounts; (viii) that involves any robot, spider, scraper, deep link or other automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Services or any data collected, used or generated by the Services except through the functionalities which Axya makes available to Members; (viii) that involves decompiling, disassembling, reverse engineering, attempting to reconstruct or discovering any Intellectual Property or Confidential Information of Salesfloor disclosed under this Agreement, including, without limitation, source codes, ideas, and algorithms of the Services’ underlying technology by any means whatsoever and (ix) that involves violating Axya’s security safeguards and authorized configurations for the Services (including its network, servers and related systems), including, without limitation by knowingly posting or transmitting files, data or computer text which contain viruses, worms, Trojan horses, malicious software or any other contaminating or destructive features.

1. CONFIDENTIAL INFORMATION

Confidential information does not include information which the Receiving Party can prove: (i) is readily available to the public in the same form through no fault of the Disclosing Party; (ii) does not originate from the Disclosing Party and was lawfully obtained by the Receiving Party in the same form from an independent third party without any restriction on disclosure, or (iii) does not originate from the Disclosing Party and was in the possession of the Receiving Party in the same form prior to its disclosure to the Receiving Party by the Disclosing Party. The Receiving Party acknowledges and agrees that Confidential Information may constitute Intellectual property of the Disclosing Party, regardless of whether the Confidential Information is protected by valid copyrights or patents. The Receiving Party will only use and disclose the Confidential Information of the Disclosing Party for the intended purposes, such as to allow Axya to provide the Services in accordance with this Agreement, including to facilitate the Transaction. For the avoidance of doubts, the Manufacturer will only use the Manufacturer’s Confidential Information in relation with a Transaction, and the Quotes, Purchase Orders, RFQ, Buyer Requirements and Additional Terms are Confidential Information. The Receiving Party will apply the same level of care to protect the Disclosing Party’s Confidential Information than for its own Confidential Information, but no less than a reasonable degree of care. Upon the conclusion of a Transaction, the Receiving Party will securely delete all of the Disclosing Party’s Confidential Information, unless retention is required for business continuity purposes, or to comply with Applicable Laws. Notwithstanding the foregoing, Axya maintains copies of all Confidential Information hosted on the Axya Platform until an account is deleted. It is the Manufacturer’s responsibility to delete Confidential Information from the Axya Platform when no longer needed.

In case of an unauthorized access, use or disclosure of another party’s Confidential Information in breach of these Terms, including a breach of confidentiality, integrity or availability which presents potential or actual risks to this party or its Confidential Information (each a “Security Breach”), the breached party will notify the affected party without undue delay, and at most, within 72 hours. The notification will contain enough information to allow the affected party to provide all required information, and the breached party will collaborate in good faith with the affected party to recover any Confidential Information or to mitigate the impacts of such Security Breach. The notification will occur using the contact information set forth in the Purchase Order unless agreed otherwise.

1. INTELLECTUAL PROPERTY

As between the parties, each party (and each Member) remains at all times the exclusive owner of all rights, titles and interests in its Intellectual Property, including its Confidential Information. You agree that the foregoing statement applies to the Intellectual Property and Confidential Information of each of Member that you may process or otherwise access in relation to your use of the Axya Platform, or otherwise in connection with these Terms.

Notwithstanding any statement to the contrary, we remain the exclusive owner of the suggestions, requests for improvement, recommendations or other commentary you provide to us regarding our Services as long as they relate to such Services (the “Feedback”). You waive any moral rights in the foregoing, and you hereby assign to us, without limitation of any kind, all your rights, titles and interests in these elements, under these Terms, Axya accepting this assignment.

1. TRANSACTIONS

THE MANUFACTURER AGREES AND UNDERSTANDS THAT THE MANUFACTURER TERMS APPLY BY DEFAULT TO ANY TRANSACTION, UNLESS ADDITIONAL TERMS AND BUYER REQUIREMENTS ARE NEGOTIATED BY THE PARTIES AS PART OF THE TRANSACTION AGREEMENT.

Each Quote is valid for the time indicated by the Manufacturer, or if none is indicated, during 30 days from the date of quotation. The Manufacturer may not modify the Quote during this period unless agreed upon with the Buyer. The Transaction Agreement is between the Members, and Axya is only responsible for responsibilities and liabilities which it has expressly agreed to.

YOU AGREE AND ACKNOWLEDGE THAT WE WILL PROVIDE YOU WITH ACCESS TO A NETWORK OF BUYERS AND THAT YOU WILL CONDUCT TRANSACTIONS WITH SUCH BUYERS WITHIN THE AXYA PLATFORM ONLY. IF WE DISCOVER THAT YOU ENTERED INTO TRANSACTIONS WITH BUYERS TO WHICH YOU HAVE BEEN INTRODUCED TO ON THE AXYA PLATFORM WITHOUT USING THE AXYA PLATFORM, WE RESERVE OUR RIGHTS TO SUSPEND YOUR USE OF THE SERVICES.

A contract is created between the Manufacturer and the Buyer upon the issuance of a Purchase Order, unless (a) the Purchase Order is issued after a Quote ceases to be binding and valid or (b) does not correspond to the Additional Terms agreed upon as part of the Transaction Agreement, in which case, the Manufacturer may request modifications to the Purchase Order within five (5) business days of receiving such Purchase Order. Axya is not responsible for verifying whether the Purchase Order complies with the Buyer Requirements or any Additional Terms. Axya does not provide any legal advice on the content of a Purchase Order, including Additional Terms, and the Members decide themselves whether the Additional Terms are appropriate for their business and legal requirements. If the Buyer is subscribed to Axya’s payment management services, the Purchase Order is generated by Axya, on behalf of the Manufacturer.

1. PAYMENT TERMS

Parts and Materials Charges. The payment terms set forth herein apply by default to any RFQs, except as supplemented by the Buyer Requirements indicated in such RFQ, and any Additional Terms. Unless indicated otherwise, the Parts and Materials Charges set forth in a Quote exclude any applicable taxes and duty, and the Parts and Materials Charges are based on exchange rates applicable on the Quote date. Buyers are solely responsible for paying the Parts and Material Changes to the Manufacturer, and the Manufacturer will address all invoices and procurement documents to the Buyer. In some cases, Axya may accept to manage or handle payments as an agent for the Buyer. If so, you agree and understanding that we are not responsible for the payment, and that we only manage it on behalf of the Buyer. We are not liable if the Manufacturer does not receive part or all a payment for the Parts and Materials Charges.

Payment Terms. Unless the Buyer and Manufacturer agree to different payment terms, the Buyer is responsible for paying the Parts and Material Charges in accordance with the Purchase Order, and within 30 days of the invoice date, which will be issued by the Manufacturer upon reception of a Purchase Order. Unless indicated otherwise, all Fees will be paid in Canadian Dollars by wire transfer at the banking account identified in an invoice or a Purchase Order. The Manufacturer will pay for the Transaction Fees within 30 days of the issuance of an invoice by Axya to this effect. Notwithstanding the foregoing, the Manufacturer hereby agrees that Axya may set-off or deduct any Transaction Fees from the Parts and Materials Charges, in which case, the Manufacturer will receive the Parts and Materials Charges, minus the Transaction Fees. The Transaction Fees is non-reimbursable and non-cancellable, even if the Transaction is cancelled for any reason.

Late Payment. If the Buyer is late in the payment of the Parts and Material Charges, the Buyer will pay for interests corresponding to 1.5% monthly, or 18% annually, on any such late Parts and Material Charges, unless such late Parts and Material Charges are disputed in accordance with the Dispute Resolution Procedure set forth below. If the Buyer has not paid for such Fees within 60 days from the invoice date, and unless different terms have been agreed upon, the Buyer will be responsible for any collection costs, expenses and fees, including reasonable attorneys’ fees. The foregoing will also apply to the payment of the Transaction Fees to Axya by the Manufacturer.

Taxes. If we are required to collect any taxes from you in accordance with Applicable Laws, or the administration thereof, you agree to pay these taxes in addition to the payment of the Transaction Fees.

1. SHIPPING AND DELIVERY

Unless agreed otherwise in a Purchase Order (such as through the Buyer Requirements or Additional Terms), any delivery and shipping within Canada is subject to the DDP Incoterms 2010. This means that the Manufacturer fulfils the obligation to deliver when the Parts and Materials have been made available at the named place in the Purchase Order. The Manufacturer bears the risks and costs, including duties, taxes and other charges of delivering the Parts and Materials to the Manufacturer, clear for importation when applicable.

The Manufacturer is responsible for delivering the Parts and Materials based on the Purchase Order, including any agreed upon times for delivery as documented in the Purchase Order (the “Delivery Schedule”). Unless agreed otherwise in the Transaction Agreement, if the Manufacturer cannot deliver the Parts and Materials within the Delivery Schedule, the Manufacturer is responsible for providing the Manufacturer with a notice without undue delays. If the Delivery Schedule is delayed of more than 15 days and such delay, which isn’t caused by a Force Majeure (as defined below), would cause substantial costs or harm to the Manufacturer, the Manufacturer will, at the Manufacturer’s reasonable discretion: (a) cancel the Purchase Order and reimburse the Manufacturer for the Parts and Materials Charges, and in which case, the Manufacturer will return the Parts and Materials to the Manufacturer upon reception, if received after reimbursement or (b) the Manufacturer will offer a discount to the Manufacturer corresponding to 2% of the Parts and Materials Charges for each day that the Parts and Materials delivery is late from the agreed upon Delivery Schedule after these 15 days. The Manufacturer will not be obliged to pay any penalties or liquidated damages due to this delay except as set forth herein.

Unless otherwise agreed in a Purchase Order, the Delivery Schedule begins at the latest of (a) 5 days after the Purchase Order is issued; (b) the date at which all licenses and government’s authorization, including under Export Laws (as defined below), are obtained; (c) on the date at which the payment of the Parts and Materials is received by the Manufacturer, if indicated as a condition in the Purchase Order; (d) on the date at which the Manufacturer receives the requested technical information required to ship the Parts and Materials or (e) on the date at which the Parts and Materials are produced and ready for shipment if the Manufacturer and Manufacturer agreed to a delay for the production of the Parts and Materials. If the delivery is more than 30 days behind the Delivery Schedule, the Buyer may terminate the Purchase Order with cause, and the Manufacturer will reimburse any Parts and Materials Charges, and assume any fees applicable to the return of the Parts and Materials to the Manufacturer, if applicable.

The liability of risk is passed to the Buyer when the Parts and Materials are delivered to the Buyer or a transport company in accordance with a Purchase Order. If the delivery cannot be completed due to the Buyer’s fault, such as if the Buyer is not available to receive the delivery at the time agreed upon, the liability of risk will be passed to the Buyer when the Manufacturer has fulfilled its part of the delivery.

1. PARTS AND MATERIALS

Unless the Manufacturer and the Buyer negotiate otherwise in the Transaction Agreement, and to the maximum extent permitted by Applicable Laws, during a period of 12 months from the date at which the Parts and Materials are delivered (the “Warranty Period”), the Manufacturer warrants to the Manufacturer that the Parts and Materials will comply with the specifications agreed upon in the Purchase Order, represented in a Quote, or otherwise set forth in the technical documentation provided by the Manufacturer (the “Parts and Materials Warranty”). The Manufacturer is responsible for obtaining any additional Parts and Materials Warranty through the Buyer Requirements, or as part of Additional Terms.

The Parts and Materials Warranty is provided directly by the Manufacturer to the Manufacturer, and Axya is not liable or otherwise responsible for exercising any claims regarding the Parts and Materials Warranty (each a “Warranty Claim”). Notwithstanding the foregoing, Axya may, in its sole discretion, enforce any such Warranty Claim against the Manufacturer on behalf of the Manufacturer, including or not as part of the Payment Procurement Services.

Upon delivery of the Parts and Materials, the Manufacturer is responsible for validating that the Parts and Materials are in accordance with: (a) the Parts and Materials Warranty; (b) the RFQ, including with regard to the quality of the Parts and Materials; (c) the specifications, needs and agreement with the Manufacturer and (d) any Additional Terms.

In case of a breach of the Parts and Materials Warranty by the Manufacturer, and unless indicated otherwise in a Purchase Order, the Manufacturer will, at the Manufacturer’s reasonable discretion and at no additional cost to the Manufacturer, (a) repair the Parts and Materials so that it complies with the Parts and Materials Warranty; (b) provide the Manufacturer with substantially similar Parts and Materials Warranty; (c) reimburse the Manufacturer for the Parts and Materials or (d) provide a discount to the Manufacturer for the Parts and Materials, which shall be reasonable and proportional to the non-compliance. The Manufacturer assumes delivery and shipping costs.

Unless indicated in a Purchase Order and as set forth herein, the sale is final, non-reimbursable and non-cancellable. Notwithstanding the foregoing, the Manufacturer may accept returns of the Parts and Materials in accordance with the Manufacturer’s terms and conditions as part of any Additional Terms.

1. REPRESENTATIONS AND WARRANTIES

   1. BUYER REPRESENTATIONS AND WARRANTIES

The Buyer represents and warrants that:

• The RFQs created through the Axya Platform, along with any Additional Terms and Buyer Requirements, are in compliance with Applicable Laws.

• The Buyer is legally authorized to order the Parts and Materials through the Axya Platform, including that the export and import of the Parts and Materials, including any related technical information, are not in violation of Export Control Laws.

• The Buyer’s purchase of the Parts and Materials and subsequent payment is not in violation of the AML Requirements.

• The Buyer’s use of the Parts and Materials will be in accordance with the Buyer’s reasonable instructions and documentation.

1. SUSPENSION

You agree that we can suspend your access and use of the Services, or parts thereof, (a) in case of a violation of Applicable Laws; (b) if you or your End Users commit or attempt to commit an Abuse; (c) as necessary to protect our infrastructures and other Members (a “Suspension”); (d) if Axya determines in its reasonable discretion that the Transaction is unlawful, such that it constitutes a breach of Export Laws, Anti-Bribery Laws or AML Requirements; (e) if the Manufacturer is more than 60 days late in the payment of the Transaction Fees. Each Suspension shall be the minimum extent possible to resolve the circumstances which gave rise to such Suspension. In addition to the foregoing, the Manufacturer may suspend the provision of the Parts and Materials until the payment of the Parts and Materials Charges is received if indicated in a Purchase Order.

1. DISCLAIMERS

YOU AGREE AND UNDERSTAND THAT NEITHER AXYA NOR ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES OR OFFICERS (THE “AXYA REPRESENTATIVES”) NOT BE LIABLE FOR ANY CLAIMS, PENALTIES, FINES, LIQUIDATED DAMAGES, INTERESTS, ALLEGATIONS, LOSSES, DAMAGES, CLAIMS, COSTS OR EXPENSES (THE “LOSSES”) RESULTING FROM THE PROCUREMENT OF THE PARTS AND MATERIALS, EXCEPT IF SPECIFICALLY AGREED UPON IN THESE TERMS OR AN ORDER FORM.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY NEITHER AXYA NOR THE AXYA REPRESENTATIVES WILL HAVE ANY LIABILITY WHATSOEVER WITH REGARD TO THE PAYMENT OF THE PARTS AND MATERIALS, PROCUREMENT OR TRANSACTION.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER AXYA NOR THE AXYA REPRESENTATIVES ARE RESPONSIBLE OR LIABLE FOR ANY DELAYS IN RECEIVING OR FAILURE TO RECEIVE THE PARTS AND MATERIALS CHARGES FROM THE MANUFACTURER IN BREACH OF THE TERMS, INCLUDING ANY INTERESTS AND PENALTIES IMPOSED BY THE MANUFACTURER AS A RESULT OF SUCH DELAY OR FAILURE. THE FOREGOING SHALL APPLY EVEN IF THE MANUFACTURER IS SUBSCRIBED TO THE PAYMENT MANAGEMENT SERVICES, AND THE MANUFACTURER IS SOLELY RESPONSIBLE FOR THE PAYMENTS OF SUCH INTERESTS AND PENALTIES.

NEITHER AXYA NOR ITS REPRESENTATIVES ARE RESPONSIBLE FOR THE USE OF THE PARTS AND MATERIALS BY THE BUYER OR OTHER THIRD PARTIES IN VIOLATION OF DOCUMENTED INSTRUCTIONS, APPLICABLE LAWS OR THE TRANSACTION AGREEMENT, INCLUDING THESE MANUFACTURER TERMS, AND THE BUYER IS RESPONSIBLE FOR FOLLOWING ANY MANUFACTURER’S INSTRUCTIONS REGARDING THE USE OF THE PARTS AND MATERIALS.

EXCEPT AS PROVIDED IN THE ADDITIONAL TERMS, AND SUBJECT TO THE TERM, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE MEMBERS, AXYA AND THE AXYA REPRESENTATIVE DO NOT WARRANT THAT THE SERVICES, THE PARTS AND MATERIALS, THE SHIPPING, THE TRANSACTION AGREEMENT AND ANY TECHNICAL INFORMATION WILL BE ERROR FREE OR UNINTERRUPTED OR FIT FOR A PARTICULAR PURPOSE. EXCEPT AS SET FORTH HEREIN AND SUBJECT TO APPLICABLE LAWS, THE MEMBERS, AXYA AND THE AXYA REPRESENTATIVES HEREBY DISCLAIM ANY AND ALL IMPLIED OR EXPRESS WARRANTIES, WHETHER STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE AND NON-INFRINGEMENT. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAWS AND EXCEPT AS SET FORTH HEREIN, THE SERVICES, THE PARTS AND MATERIALS, THE SHIPPING, THE TRANSACTION AGREEMENT AND ANY TECHNICAL INFORMATION ARE PROVIDED AS IS, AS AVAILABLE AND WHERE IS. NO ORAL ADVICE, WRITTEN OR ELECTRONICALLY DELIVERED BY AXYA OR THE AXYA REPRESENTATIVES WILL CREATE ANY REPRESENTATION OR WARRANTY.

1. BETA SERVICES

If the Manufacturer is provided with the BETA Services, they are provided without warranty or representation of any kind, and Axya disclaims all warranties and representations, whether implied or express. The BETA Services are provided “as is”, “as available” and “where is”, at the Manufacturer’s sole risks. There may be bugs and errors in the BETA Services, and you may be required to share Feedback. With regard to Beta Services, this section shall have precedence over the remaining Terms in case of conflict.

1. MODIFICATIONS TO THE SERVICES AND TERMS

We reserve our right to change the Services upon written notice to the Manufacturer, except that such changes will not affect current Order Forms. We may also modify the Manufacturer Terms from time to time. If we modify the Manufacturer Terms: (a) such modifications will not apply to current Purchase Orders and issued RFQs; (b) we will provide you with a prior notice, through the Axya Platform or the email registered with your accounts, at least 30 days before these changes are effective and (c) we will update the Latest Update date above. If we provide you with a prior notice and you do not object to the changes to the Terms within 30 days, we will understand that you agree with these changes. We will also understand that you agree with these changes if you submit a new RFQ and validate the current Terms as applicable when issuing the RFQ.

1. TECHNICAL SUPPORT AND MAINTENANCE

Axya will provide reasonable TSS such as to allow the Manufacturer and its End Users to use the Axya Platform. The TSS are available through live chat and email at questions@axya.co. If a request cannot be resolved through Level 1 initial support, a TSS ticket is created and prioritized based on its severity. Responses to TSS requests are provided between 9 AM and 5 PM ET, excluding any statutory holidays in the province of Quebec (the ’Business Hours”). During the Business Hours, Axya will acknowledge the reception of the request within 48 hours. Axya will provide reasonable follow up for TSS tickets until resolution, including by providing workaround where appropriate.

1. INDEMNIFICATION

You hereby agree to indemnify, defend and hold us (including the Axya Representatives) harmless from and against any third party claims, penalties, fines, costs, expenses (including reasonable attorneys’ fees), actions, damages, losses or liabilities arising directly or indirectly out of, related to, or resulting from (a) your breach of Applicable Laws; (b) your breach of the Additional Terms and (c) your gross negligence, fraud and wilful misconduct.

1. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, AND EXCEPT IN THE CASE OF GROSS NEGLIGENCE, FRAUD AND WILFUL MISCONDUCT, NEITHER AXYA NOR THE AXYA REPRESENTATIVES WILL BE LIABLE TO THE MANUFACTURER AND THE MANUFACTURER’S REPRESENTATIVES (A) FOR ANY LOSSES OF PROFITS, SPECIAL, INDIRECT, INCIDENT, CONSEQUENTIAL OR EXEMPLARY DAMAGES IN RELATION TO THE TERMS OR THE PERFORMANCE OF THE SERVICES, REGARDLESS OF IF IT HAS BEEN MADE AWARE OF THE POSSIBILITY OF OCCURRENCE OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUCH DAMAGES INCLUDE LOSS OF DATA, REPUTATIONAL DAMAGES, COSTS OF NOTIFICATION OR RETRIEVAL OF DATA, AND LOSS BUSINESS AND OPPORTUNITIES AND (B) ANY DIRECT DAMAGES ARISING OUT OR IN CONNECTION WITH THE TERMS, TRANSACTION AND PERFORMANCE OF THE SERVICES SHALL BE LIMITED TO THE GREATER OF THE VALUE OF THE TRANSACTION FEES PAID TO AXYA OVER THE LAST 12 MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO SUCH DAMAGES. THE FOREGOING SHALL NOT APPLY IF AXYA FAILS TO MAKE A PAYMENT TO A MANUFACTURER PURSUANT TO THE PAYMENT MANAGEMENT SERVICES, IN WHICH CASE, AXYA’S AGGREGATE LIABILITY WILL BE LIMITED TO THE PAYMENT OF THE PARTS AND MATERIALS CHARGES, INCLUDING ANY INTERESTS AND PENALTIES LEGALLY IMPOSED IN ACCORDANCE WITH THE TERMS, WHICH SHALL NOT EXCEED 15% OF THE VALUE OF THE PARTS AND MATERIALS CHARGES.

UNLESS INDICATED OTHERWISE IN A PURCHASE ORDER, THE MEMBERS’ LIABILITY TO EACH OTHER WILL BE LIMITED TO THE VALUE OF THE PARTS AND MATERIALS CHARGES PAID BY THE MANUFACTURER TO THE MANUFACTURER.

THE LIMITS OF LIABILITY SET FORTH HEREIN ARE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, AND DO NOT INCLUDE DAMAGES RESULTING FROM ANY BODILY HARM, MORAL DAMAGES, GROSS NEGLIGENCE, FRAUD, WILFUL MISCONDUCT AND MATERIAL BREACHES OF APPLICABLE LAWS.

1. FORCE MAJEURE

Neither the Manufacturer, nor the Manufacturer or Axya will be liable for delays in failure of performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God or public enemy, acts of government in either its sovereign or contractual capacity, flood, earthquake or other natural disaster, strike or other labour disputes, acts of war, acts of civil disobedience, denial-of-services and distributed-denial-of-services, ransomware and other cyber-attacks that are not caused or facilitated by negligence (a “Force Majeure”).

Notwithstanding anything to the contrary, the parties agree and acknowledge that pandemics such as the circumstances caused by COVID-19 will be considered a Force Majeure even if known by the parties at the time of executing a Purchase Order, but only to the extent that the Force Majeure was not known at the time of executing a Purchase Order.

In the event of a Force Majeure, the affected party will advise the Manufacturer or Axya within 3 days. If the Manufacturer cannot deliver the Parts and Materials, or if such delivery is substantially delayed by the Force Majeure, and such delays cause material disagreements to the Manufacturer, the Manufacturer may cancel a Purchase Order upon writing notice, if the Force Majeure is not resolved within 5 days of receiving such notice. In the event of such cancellation, the Manufacturer will pay for the direct costs and expenses resulting from this termination, such as any Fees which cannot be cancelled, including the Transaction Fees, and the Manufacturer will provide to the Manufacturer any Parts and Materials which the Manufacturer pays for in accordance with the foregoing. In no event will Axya be responsible for a Manufacturer’s Force Majeure, and the Manufacturer shall pay Axya for all Transaction Fees due, regardless of any cancellation due to a Force Majeure.

The Manufacturer is solely responsible for subscribing to appropriate insurance coverage, including where any delivery terms do not include insurance for the shipment of the Parts and Materials.

1. DISPUTE RESOLUTION PROCEDURE

Mandatory Mediation. Except as agreed upon pursuant to a Purchase Order, any dispute, misunderstanding, complaints and claims between the parties, or between a party and a Member, arising from the application or interpretation of the Terms, including with regard to the Parts and Materials, a Transaction, or the use of the Axya Platform (each a “Dispute”), that is not resolved within thirty 30 days from a written notice of Dispute being given by one party to the other party (the “Plaintiff”) shall be referred to mandatory mediation. The Breached Party and the party which is subject to the Dispute at the request of the Breached Party (the “Defendant”) agree to participate in good faith in at least one (1) mediation session by delegating a person of authority to participate. The mediator will be selected jointly by the parties acting reasonably, or in case of a Dispute between Members, the Members may require that Axya select, acting reasonably, a mediator on their behalf. The mediation will be conducted in English in the City of Montreal, Province of Quebec, or, if the Defendant and the Plaintiff (the “Participants”) agree, through videoconferencing technology. The Participants are each responsible for their own costs relating to the mediation and will share equally the other costs associated with the mediation, such as any professional fees. The Participants may agree to conduct the mediation in any other language of their choices, including French, subject to the availability of mediators. The parties agree that the mediation will be considered confidential, and the information shared during the mediation cannot be used in subsequent legal proceedings, including arbitration.

If the Participants settle the Dispute through mediation, they shall jointly draft a document setting out the terms of such settlement. This document, once signed, will be irrevocably binding for the Participants, and may be subject to homologation by a competent court in Montreal, Quebec, Canada.

Mandatory Arbitration. If the Participants do not agree to a resolution of a Dispute as part of mediation, the Participants agree that such Dispute will be referred to and finally resolved by arbitration under the Canadian Arbitration Association Arbitration Rules. The place of arbitration shall be Montreal, Quebec, Canada (unless agreed otherwise in writing between the Participants) The language of the arbitration shall be English, unless the Participants agree for the arbitration to occur in another language for which there is an available arbitrator. There will be a sole arbitrator selected jointly between the Participants, or if the Participants cannot agree, by a judge of a competent court in accordance with these Terms.

The arbitrator must select its award from one of the final offers made by each of the parties, in its entirety and without modification. The arbitrator must provide detailed reasons for its award. An oral hearing need not be held, and the parties may submit their observations in writing. There will be no appeal from the decision of the arbitrator on questions of fact, law or mixed fact and law. The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. The costs of the arbitration shall be divided equally between the Participants, and each Participant will bear its own costs of representation. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.

Governing Laws and Jurisdiction. The Manufacturer Terms are governed by and constructed in accordance with the laws of Quebec, Canada, and the federal law applicable therein, without giving effect to any choice or conflict of law provision or rule (whether in Quebec or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of Quebec, Canada. Specifically excluded from application of the Manufacturer Terms is the law known as the United Nations Convention on the International Sale of Goods. Except as set forth in these Terms, the parties attorn to the jurisdiction of the competent courts located in Montreal, Canada. If the Parties agree to another governing law and jurisdiction in the Transaction Agreement, such agreement is not applicable to Axya.

Disclaimer. NEITHER AXYA NOR ITS REPRESENTATIVES ARE RESPONSIBLE FOR RESOLVING ANY DISPUTES OR MISUNDERSTANDINGS BETWEEN THE MEMBERS. EXCEPT AS SET FORTH HEREIN, OR AS REQUIRED TO ENFORCE THESE TERMS AGAINST AXYA WHERE AN OBLIGATION IS DIRECTLY ATTRIBUTABLE TO AXYA, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, NEITHER AXYA NOR THE AXYA REPRESENTATIVES WILL BE INVOLVED IN ANY DISPUTES. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAWS, THE MANUFACTURER AND THE MANUFACTURER, INCLUDING THEIR AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS AND OTHER REPRESENTATIVES HEREBY WAIVE ANY RIGHTS TO SUE AXYA AND THE AXYA REPRESENTATIVES FOR THEIR DISPUTE, AND RENOUNCE ANY RIGHTS TO PARTICIPATE IN ANY CLASS ACTION LAWSUITS OR ANY TRIAL BY JURY.

1. TERM; TERMINATION

Each party may terminate these Manufacturer Terms, upon written notice to the other party if this party is in material breach of the Manufacturer Terms and has not remedy such breach within 30 days, or if the other party is insolvent, declared bankrupt, is subject to bankruptcy proceedings or ceases to conduct its business. The Manufacturer remains responsible for the payments of any Transaction Fees engaged until the termination date. If the Manufacturer Terms are terminated due to the fault of Axya, then the Manufacturer remains part of the Transaction Agreement, and the Manufacturer Terms continue to apply for such Transaction. All provisions that should survive the termination of these Manufacturer Terms by their nature, such as those applicable to any ongoing Transactions, will continue to apply for 5 years after the termination of the Manufacturer Terms, for any reasons whatsoever.

1. GENERAL PROVISIONS

Axya is an independent contractor, and the parties agree that the Manufacturer Terms do not create a partnership, joint venture, or agency relationship between the parties.

The waiver of a breach of any provision of the Terms will not operate or be interpreted as a waiver of any other or subsequent breach of the Terms. If any provision of the Terms is in violation of Applicable Laws or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions.

We may assign the Manufacturer Terms, or any parts thereof, in whole or in part, at any time in the context of a bona fide corporate reorganization, a sale of our assets, a merger and acquisition or bankruptcy filings. You may not assign the Manufacturer Terms, or part of it, to any other person without our prior written approval. Any attempt by you to assign the Manufacturer Terms without our consent is void. The Terms will inure to the benefit of permitted assigns and successors.

The parties acknowledge that they have required the Manufacturer Terms and all related documents to be prepared in English only. Les parties reconnaissent avoir demandé que le présent contrat ainsi que tous documents qui s’y rattachent soient rédigés uniquement en langue anglaise.

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