General Terms and Conditions

GENERAL

These Boreas Technologies Inc. " BOREAS " terms and conditions " Terms and Conditions ", govern the sale of products and/or the performance of services by BOREAS and/or its subsidiaries to any person or legal entity ordering products or services from BOREAS a " BUYER ".

BUYER shall be deemed to have accepted these Terms and Conditions upon any of the following by BUYER:

(a) written or electronic acknowledgement or acceptance of the Terms and Conditions;

(b) transmission to BOREAS of any order for BOREAS products or services;

(c) acceptance of (or payment or compensation for) any products or services provided by BOREAS and/or its subsidiaries.

BUYER’s acceptance of all the terms and conditions herein is an express condition to the formation of any contract between BUYER and BOREAS. Unless agreed to in a written instrument expressly referring to these Terms and Conditions and duly executed by an officer of BOREAS, any additional or different terms or conditions proposed by BUYER in any purchase order or otherwise are hereby rejected.

PRICE & QUOTATION

All prices are invoiced and payable in U.S. Dollars. All prices are subject to adjustment on account of modifications to specifications, quantities, shipment arrangements, delays and/or variation from these Terms and Conditions . All prices quoted by BOREAS if not indicated otherwise are based on U.S. dollars, Incoterms 2020 EXW (Ex Works) and are effective for thirty (30) days from the date of quotation. Should BUYER postpone the delivery date, BOREAS shall have the right to adjust the price of the undelivered goods and services to BOREAS’s price at the time of shipment of the goods and performance of services.

If, at any time, between the issuance of a quote and the incorporation of an item or a good in the fabrication process of BOREAS’ products, the cost of an item or good to be incorporated in BOREAS’ products is subject to an increase in price imposed by BOREAS’s suppliers of more than 20% from the price of such item or good at the time of quotation, through no fault of BOREAS, then upon notification from BOREAS to BUYER of a material suppliers price increase, prices for BOREAS products shall be adjusted in accordance.

BUYER could be granted a discounted price based on purchase volume or other performance objectives. Should BUYER misses such purchase volume or performance objectives, then BOREAS shall be entitled to backcharge BUYER of the difference between the then effective price of BOREAS’ products and the discounted price paid by BUYER. This charge will be in addition to any applicable cancellation charge.

TERMS OF SHIPMENT

All products are sold Incoterms 2020 EXW (Ex Works), as issued by the International Chamber of Commerce, at BOREAS’s head office or BOREAS’ supplier final assembly facility, as applicable. Accordingly, title and risk of loss or damage shall pass to the BUYER at the Ex works site. To clarify, BUYER shall be responsible for all transportation arrangements and insurance coverage of all goods between BOREAS’ head office or BOREAS’ supplier final assembly facility, as applicable, and BUYER’s destination and shall bear all costs, including custom fees and insurance costs, risk of loss, damage in-transit, and transportation delays relating to those arrangements.

If BUYER fails to make the necessary transportation arrangements to take delivery of the products within 30 days of receiving notice from BOREAS that the products are ready for delivery, the BUYER shall, in addition to any other liabilities arising from the law, be liable for all related costs including insurance and securing storage.

Should BOREAS agree to different terms of delivery then such terms shall minimally include the following terms and conditions. Unless BUYER provides specific written shipping instructions to BOREAS, BOREAS may select the carrier and ship the products to BUYER’s address indicated on BUYER’s purchase order. All products will be scheduled for shipment in accordance with BOREAS’ minimum order policy and applicable shipment sequence. BOREAS reserves the right to make shipments in installments as and when products become available for delivery and shall invoice shipments as made. BOREAS reserves the right to allocate production and deliveries among its various buyers under any circumstances. BOREAS will confirm in writing, and amend as appropriate, the shipment schedule. BOREAS will not assume any liability in connection with the shipment or constitute any carrier as its agent.

Terms of Payment

Payment terms are 50% at the conclusion of a contract and 50% C.O.D unless BOREAS has approved the BUYER for credit terms. If BOREAS extends credit terms to BUYER, all invoices shall be payable in full within thirty (30) days of the date of invoice. BOREAS reserves the right at any time, in its sole discretion, to revoke any credit extended to BUYER.

 

BUYER shall be considered in default of payment by the mere lapse of time without requiring any formal notice thereof. In the event of default, any outstanding amount shall bear interest at a rate of 2.0% per month (24.0% per year).

 

BUYER irrevocably waives its right, in advance, to any compensation (set-off right) on any amount due to BOREAS. Accordingly, any amounts owed by BUYER shall be paid without deduction for any amounts that BUYER may claim from BOREAS, regardless of any dispute or controversies that may exist between the parties.

 

If BOREAS has agreed to extend credit terms to BUYER, then BOREAS reserves title to all products sold to BUYER until total and full payment of any amounts due to BOREAS, including applicable taxes and interest.

TAXES, DUTIES & GOVERNMENTAL FEES

Prices are exclusive of all federal, state, municipal or other governmental excise, value added tax, sales, use, occupational or like taxes, tariffs, customs, duties and importing fees, the payment of which shall be the sole responsibility of BUYER regardless of whether invoiced to BUYER by BOREAS. Any certificate of exemption or similar document or proceeding required to exempt the sale of products from sales or use tax liability shall be obtained by BUYER at its expense.

Cancellation, Rescheduling, Returns and Modifications

Any request for order cancellation, rescheduling, return, or modification must be made in writing and such action must be approved in writing by an employee of BOREAS. BOREAS, at its option, may accept or reject any such request by BUYER.

 

Cancellation requests shall be subject, in addition to BOREAS written prior authorization, to termination charges as follow:

  1. Notice given less than 90 days prior to the delivery date: 100% of the purchase price
  2. Notice given more than 90 days but less than 180 days prior to the delivery date: 50% of the purchase price
  3. Notice given more than 180 days prior to the delivery date or rescheduling made 30 days prior to the delivery date for a date that is no later than 90 days later than the original delivery date: No cost

Buyer shall not return any products for any reason without issuance of a material return authorization (MRA) number by Boréas for such products.

If an unauthorized return is initiated by the BUYER, BOREAS will not be liable for any freight or handling or other charges incurred.

If BOREAS does not ship all quantities or complete delivery of products or services because of any action or omission on the part of BUYER and elects to cancel any quantity not so shipped, BUYER shall be liable for termination charges as provided herein.

Evaluation items such as integrated circuit engineering samples, demonstrators, and mock-ups shall be considered FINAL SALES. No refund, credit, or exchange will be authorized for these items even if returned.

Warranty

BOREAS warrants to the BUYER that each product conforms to BOREAS’s published specifications for such product.

 

This warranty lasts for:

 

  1. 12 months from the date of delivery for semiconductor devices.

 

  1. 90 days from the date of delivery for evaluation boards (Dev Kits).

 

No warranty is granted for pre-production samples, software, firmware and mock-up items since these products are made available for the BUYER for prototyping purposes only, the performance of such product could vary from expected and final product performance or design since the development phase is not entirely completed on these items.

 

Notwithstanding the foregoing, BOREAS will not be liable for a nonconforming or defective product if: 

 

  1. the nonconformity or defect was caused by any neglect, misuse, or mistreatment of the product, including any improper installation, storage or testing;

 

  1. the nonconformity or defect resulted from any modifications or repairs to the products by an entity other than BOREAS; or

 

  1. the nonconformity or defect resulted from BUYER’s design, specifications, integration of BOREAS’ evaluation products in other products, or BUYERS’ instructions for such products.

 

If the products do not meet the warranty specified above, BOREAS agrees to correct any defect, at its option, either by repairing or replacing the non-conforming products, or by crediting the BUYER’s account for such products. BOREAS’s liability under this warranty will be limited to products that are returned during the warranty period and that are determined by BOREAS not to conform to such warranty. If BOREAS elects to repair or replace such products, BOREAS will have a reasonable time to complete such actions. Repaired products will be warranted for the remainder of the original warranty period. Replaced products will be warranted for a new full warranty period.

 

BOREAS may provide BUYER with technical applications, or design advice, quality characterization, reliability data, or other services accessory to the purchase of BOREAS products. BUYER agrees that providing these services does not expand or otherwise alter BOREAS’s warranties as set forth above and no additional obligations or liabilities shall arise from BOREAS providing such services. BOREAS PROVIDES ALL SERVICES TO BUYER “AS IS” AND “WITH ALL FAULTS.” BOREAS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES.

 

EXCEPT AS SET FORTH ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, BOREAS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY OR ACCURACY.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES, SHALL BOREAS BE LIABLE TO BUYER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR KIND INCLUDING BUT NOT LIMITED TO, DAMAGES BASED UPON LOSS OF GOOD-WILL, LOSS OF SALES OR PROFITS, LOSS OF REVENUES, WORK STOPPAGE OR BACKLOG, EVEN IF THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE TO BOREAS OR COULD HAVE BEEN REASONABLY FORESEEN BY BOREAS. BOREAS’S LIABILITY FOR ANY MATERIAL INJURY TO THE BUYER IS LIMITED TO DAMAGES CAUSED BY ITS INTENTIONAL OR GROSS FAULT. TO THE EXTENT PERMITTED BY LAW, BOREAS’S TOTAL LIABILITY TO BUYER SHALL NOT EXCEED THE AGGREGATE PURCHASE PRICE OF THE PRODUCTS AND SERVICES SOLD TO BUYER AS STATED IN THE AGREEMENT GIVING RISE TO SUCH LIABILITY.

IN NO EVENT SHALL BOREAS' AGGREGATE LIABILITY FROM ANY USE OF THE EVALUATION ITEMS PROVIDED HEREUNDER, INCLUDING FROM ANY WARRANTY, INDEMITY OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EXCEED THE TOTAL AMOUNT PAID TO BOREAS BY BUYER FOR THE PARTICULAR EVALUATION ITEM AT ISSUE. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THIS LIMIT.

Governing & Compliance with Law

This agreement shall be governed by, construed, and enforced in accordance with the laws of the Province of Quebec and with the laws of Canada applicable therein. The Parties irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Quebec, sitting in the judicial district of Saint-François, for any dispute relating to it. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

BUYER agrees that it will comply with and will use reasonable endeavors to ensure that any third party used by BUYER to fulfill its obligations will comply with, all applicable laws, rules, regulations, decrees, or official governmental orders relating to anti-bribery, anti-corruption and/or anti-money laundering, and any other anti-corruption laws.

Intellectual Property

BUYER acknowledges that all intellectual property rights in BOREAS’ products and services are and shall remain the sole and complete property of BOREAS and/or its licensors. Unless expressly agreed upon with BOREAS, intellectual property rights resulting from works made for hire shall also remain the sole and complete property of BOREAS and/or its licensors. 

Technical discussions, suggestions, feedbacks, test reports or similar communications regarding BOREAS technology shall not be considered as a contribution to any intellectual property of BOREAS and shall vest in BOREAS.

Due to the complexity of design and manufacturing techniques of electronic components as well as the early-stage development of the products and their potential use, BOREAS is not able to warrant that the products do not infringe any third-party intellectual property rights. If a third party makes a claim alleging that BOREAS’ products infringe its intellectual property rights, BOREAS may, at its option, defend against the claim or negotiate a compromise.

In the event of a successful third-party claim against BOREAS, BOREAS shall at its option modify the product or secure a license with the third party. If a solution is not possible or practicable, whether for economic or technical reasons, and that BUYER is prevented from using the products, any such products shall be returned to BOREAS and BOREAS shall reimburse BUYER of the amount paid for the products. Subject to the limitation of liability provisions above and provided that (i) BOREAS was promptly notified of any claims of infringement and (ii) the BUYER cooperates with BOREAS in the defense of any claim and/or any related settlement, BOREAS will indemnify the BUYER of a third-party claim. Such indemnification shall not apply to any claims of infringement (i) involving any modifications made to the products without the consent of BOREAS; (ii) deriving from the combination or use of the products with any other product or technology; and (iii) deriving from the BUYER’s designs or specifications. BUYER agrees, at BOREAS’ request, to defend, indemnify, and hold harmless BOREAS, its officers, directors, employees, contractors, and agents from any and all claims, losses, liabilities, damages, and costs (including reasonable attorneys’ fees) arising out of or in connection with claims of infringement made against BOREAS pursuant to (i) to (iii) above.

EXPORT NOTICE

Any goods that are sold to BUYER shall not be knowingly sold, supplied, or delivered, directly or indirectly to any destination that at the time of sale or delivery is an embargoed destination under the laws or policy of Canada, including Cuba, Iran, Sudan, North Korea, and Syria, or to any person or entity subject to sanctions under Canadian laws. BOREAS may at any time require BUYER to provide any relevant documents for the purpose of verifying the final country of destination of products sold here under and BUYER undertakes to advise BOREAS, upon request, of the country of destination.

FORCE MAJEURE 

BOREAS shall not be held responsible or liable for any loss or damage resulting from a delay in the delivery of the products or any failure to perform its obligations to BUYER if the causes of such delay or failure are attributable to a superior force including, without limitation, acts of God, governmental authority orders, strikes, embargoes, wars, plagues, default from suppliers, subcontractors or third parties, delays in transportation, supply shortages, or other causes beyond the reasonable control of BOREAS. In the event any delay occurs because of these causes, the date of delivery shall be extended by at least the period of time attributable to the event.

ASSIGNMENT

Agreements between the parties shall inure to the benefit of and shall be binding upon the heirs, successors, and assigns of the parties. BUYER shall not assign its rights and obligations under any agreement with BOREAS without BOREAS’s prior written consent

SEVERABILITY

If any provision of these Terms and Conditions are held to be invalid or unenforceable, such invalidity or unenforceability shall attach only to such particular term or condition. The validity of the remaining terms and conditions shall not be affected thereby.