These Terms and Conditions of Sale (“Terms and Conditions”) shall be the sole terms and conditions governing the sale of products (“Products”) of HyperLight Corporation (“HyperLight”) to the purchaser (“Purchaser”) listed on the price quotation provided by HyperLight (“Quote”). HyperLight’s acceptance of Purchaser’s purchase order or other order documentation (“Order”) is expressly conditioned on Purchaser’s acceptance of these Terms and Conditions. Any and all Purchaser terms and conditions are hereby rejected and shall be of no effect.

1. Quotations and Prices
All prices are set forth in a Quote provided by HyperLight and shall be invoiced and payable in U.S. Dollars. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions that are not a part of the original Quote. Prices are exclusive of all federal, state, municipal or other government excise, sales, use, occupational or like taxes, tariffs, customs, duties and importing fees, the payment of which shall be the sole responsibility of Purchaser regardless of whether invoiced to Purchaser by HyperLight. Prices are consequently subject to increase by the amount of any such tax, tariff, duty, or fee that HyperLight pays or is required to pay or collect upon sale or delivery of the Products. 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 Purchaser at its expense. HyperLight reserves the right to adjust prices if due to lack of confirmation or information from Customer, Products cannot be tendered for delivery within twelve (12) months after placement of an Order.

2. Terms of Payment
Except as otherwise set forth in the Quote, payment shall be due in full upon placement of an Order. Overdue payments shall be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1.5% per month compounded monthly. Amounts owed by the Purchaser with respect to which there is no dispute shall be paid without set-off for any amounts that the Purchaser may claim are owed by HyperLight and regardless of any other controversies that may exist. Purchaser does hereby grant to HyperLight a security interest in the Products and proceeds therefrom as security for the performance by Purchaser of all its obligations hereunder.

3. Shipment
HyperLight will select the carrier and ship the Products to the Purchaser’s address indicated on Purchaser’s Order. HyperLight reserves the right to make shipments in installments. HyperLight reserves the right to make shipments when Product is available and shall invoice shipments as made. Any delivery schedule set forth herein or in any Quote is estimated in good faith by HyperLight but not guaranteed. HyperLight reserves the right to allocate production and deliveries among its various customers under any circumstances. HyperLight will not assume any liability in connection with the shipment or constitute any carrier as its agent. Purchaser shall be responsible for making all claims with carriers, insurers, warehousers and others for non-delivery, loss, damage or delay. All claims for damages to the Products or shortages must be made within thirty (30) days of shipment. Under no circumstances shall HyperLight be liable to Purchaser for any delay either in shipment or in delivery.

4. Title and Risk of Loss
Except as otherwise stated on a Quote, all Products will be shipped EXW (Incoterms 2010) (HyperLight’s facility). Products held or stored by HyperLight for the Purchaser shall be at the sole risk of Purchaser, and Purchaser shall be liable for the expense to HyperLight of holding or storing Products at Purchaser’s request.

5. 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 authorized agent of HyperLight. HyperLight, at its option, may accept or reject any such request by Purchaser, and HyperLight reserves the right to impose charges on Purchaser in connection therewith. Purchaser shall not return any Products for any reason without the prior authorization of HyperLight.

A quantity discount price applies only when Purchaser purchases the agreed-to quantity. In the event Purchaser causes a lesser quantity to be delivered, Purchaser shall be invoiced for and pay for the quantity delivered under the applicable pricing schedule, in addition to any cancellation charges.

6. Source Inspection
Source inspection by Purchaser or Purchaser’s customer must be stipulated in writing, at the time of the applicable Order, and is subject to reasonable charges and safety and security conditions. Purchaser shall have no right of access to any HyperLight facility except as specifically authorized in advance by HyperLight. Purchaser or Purchaser’s agent shall indemnify and hold HyperLight harmless from any and all suits, damages, and expenses of Purchaser, its agent or its customer resulting from personal injury including death or loss or damage of property occurring during, or in connection with, any visit to any HyperLight facility.

7. Warranty
Except as otherwise provided herein, HyperLight warrants to the Purchaser that for 60 days from delivery, each Product sold hereunder will be free of defects in materials or workmanship and will substantially conform to specifications set forth in published data sheets. HyperLight’s sole liability and responsibility under this warranty is, at its option, to repair or replace any Product that is returned to it by Purchaser and that HyperLight determines does not conform to the warranty or credit Purchaser’s account for such returned Product. Product returned to HyperLight for warranty service will be shipped to HyperLight at Purchaser’s expense and will be returned to Purchaser at HyperLight’s expense (unless such Product is not found to have a fault, in which case return shall be at Purchaser’s expense). HyperLight’s obligation to honor its warranty is contingent upon receipt of payment in full for the Products entitled to such warranty.

Experimental or prototype Products are sold as-is, with all faults. HyperLight will manufacture experimental or prototype Products with best effort to meet provisional specifications.

8. Warranty Disclaimer
EXCEPT AS PROVIDED HEREIN, HYPERLIGHT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. LABELING ON PRODUCTS AND PACKAGING IS INTENDED SOLELY FOR COMPLIANCE WITH APPLICABLE LAW AND HYPERLIGHT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, THAT ARISE FROM SUCH LABELING OTHER THAN AS REQUIRED BY APPLICABLE LAW. IN NO EVENT SHALL HYPERLIGHT BE RESPONSIBLE UNDER ITS WARRANTY FOR ANY DEFECT THAT IS CAUSED BY NEGLIGENCE OF PURCHASER OR A THIRD PARTY, ELECTROSTATIC DISCHARGE, MISUSE OF A PRODUCT, OR MISTREATMENT OF A PRODUCT. HYPERLIGHT SHALL HAVE NO RESPONSIBILITY FOR ANY PRODUCT THAT HAS BEEN ALTERED OR MODIFIED IN ANY WAY, INCLUDING ELECTROMIGRATION EFFECTS OUTSIDE OF HYPERLIGHT’S RELATED PROCESS TECHNOLOGY SPECIFICATIONS, RADIATION-INDUCED DAMAGE, OR UNAUTHORIZED REPAIR. WARRANTY IS NOT EXTENDED AS TO ORDINARY WEAR AND TEAR OR DAMAGES RESULTING FROM ENVIRONMENTAL, NORMAL LIFETIME, OR EXTERNALLY INDUCED DEGRADATION. HYPERLIGHT SHALL HAVE NO RESPONSIBILITY TO THE EXTENT ANY DEFECT OR FAILURE IS CAUSED BY NONCOMPATIBILITY OF THE PRODUCTS WITH OTHER COMPONENTS USED BY PURCHASER. HYPERLIGHT SHALL HAVE NO RESPONSIBILITY FOR NONSTANDARD PRODUCTS OR PRODUCTS PURCHASED THROUGH UNAUTHORIZED CHANNELS. THE WARRANTY OF REPLACEMENT PRODUCTS SHALL TERMINATE WITH THE WARRANTY OF THE PRODUCT.

9. Limitations of Liability
HYPERLIGHT’S EXPRESS WARRANTY TO PURCHASER DESCRIBED HEREIN ARE SOLELY FOR THE BENEFIT OF PURCHASER AND NO OTHER PARTY, CONSTITUTE HYPERLIGHT’S SOLE LIABILITY AND THE PURCHASER’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO THE PRODUCTS, AND ARE IN LIEU OF ALL OTHER WARRANTIES, INDEMNITIES, LIABILITIES AND REMEDIES. IN NO EVENT SHALL HYPERLIGHT BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE DAMAGES OR FOR COST OF REPLACEMENT GOODS, DUE TO ANY CAUSE WHATSOEVER, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF HYPERLIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. THE TOTAL LIABILITY OF HYPERLIGHT WILL BE LIMITED TO THE AMOUNT PAID BY PURCHASER TO HYPERLIGHT FOR THE PRODUCTS INVOLVED WITHIN THE PRIOR TWELVE (12) MONTH PERIOD. THE EXISTENCE OF MULTIPLE CLAIMS RELATED TO THE SAME PRODUCT AT ISSUE SHALL NOT ENLARGE OR EXTEND THIS LIMIT. THIS PARAGRAPH SHALL NOT LIMIT EITHER PARTY’S LIABILITY FOR FRAUD OR ANY MATTER THAT CANNOT BE SO LIMITED UNDER APPLICABLE LAW. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST HYPERLIGHT MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS ACCRUED.

10. Use in Life Support and Other Critical Applications
Products sold by HyperLight are not designed, intended or approved for use in life support, implantable medical devices, transportation, nuclear, safety or other equipment where malfunction of the Product can reasonably be expected to result in personal injury, death, severe property damage or severe environmental harm. Purchaser uses or sells Products for use in such critical applications at Purchaser’s own risk and agrees to defend, indemnify and hold harmless HyperLight from any and all damages, claims, suits or expenses resulting from such use.

11. Intellectual Property Rights; No Resale
“Intellectual Property” means intellectual property and proprietary rights of any kind or nature including, without limitation, know-how, designs, technical drawings and documents, specifications, processes, developments, improvements, confidential or proprietary information, trade secrets, inventions, patents, trademarks, and copyrights.

Unless and to the extent otherwise agreed by HyperLight and Purchaser in a separate written agreement, no licenses or other rights to Intellectual Property rights are granted by HyperLight hereunder.

Except for designs provided to HyperLight by Purchaser, HyperLight is the sole and exclusive owner of all Intellectual Property rights related to the goods and/or services provided and/or developed under the Order. With respect to designs owned by Purchaser, such ownership shall be exclusive of HyperLight’s designs, processes, technologies, and other HyperLight confidential information utilized in meeting Purchaser’s designs. All improvements to HyperLight products, processes, and the related Intellectual Property, including without limitation improvements on the thin-film lithium niobate or thin-film lithium tantalate platform shall remain the exclusive property of HyperLight irrespective of whether the improvements were suggested or made by or on behalf of Purchaser or any other person.

Purchaser hereby acknowledges the validity of the HyperLight Intellectual Property including, without limitation, patents and patent applications presently pending. Purchaser hereby agrees that it will not directly or indirectly infringe HyperLight Intellectual Property or contest or challenge the validity of HyperLight Intellectual Property.

Purchaser shall not resell or otherwise redistribute HyperLight’s products, except that Purchaser may incorporate HyperLight’s chips into Purchaser’s product and sell or redistribute Purchaser’s product.

Academic purchasers shall not resell HyperLight’s products, either alone or in combination with any other product, service, or technology, unless expressly agreed by HyperLight on a case-by-case basis.

12. Assignment
Neither party may assign or delegate this agreement or its rights or obligations under this agreement without the prior written consent of the other party, except that no consent is required for (i) assignment to an entity in which the transferring party owns greater than 50 percent of the assets; or (ii) in connection with any sale, transfer, or disposition of all or substantially all of a party’s business or assets, provided that no such assignment will relieve an assigning party of its obligations under this agreement. Any assignment or delegation that violates this provision shall be void. HyperLight may, as it deems necessary, subcontract any part of the work or services to be provided pursuant to these Terms and Conditions.

13. Governing Law
Except as provided below, any and all matters in dispute between the parties, whether arising from or relating to these Terms and Conditions or arising from alleged extra-contractual facts including, without limitation, fraud, misrepresentation, negligence or any other alleged tort or violation of contract, shall be governed by, construed, and enforced in accordance with the laws of the Delaware, without regard to conflict of laws provisions and regardless of the legal theory upon which such matter is asserted, and any applicable United States federal law. The sole jurisdiction and venue for all actions related to the subject matter hereof shall be the state and federal courts located in Suffolk County, Massachusetts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from these Terms and Conditions.

14. Force Majeure
HyperLight shall not be liable for any loss or damage resulting from any delay in delivery or failure to give notice of delay when such delay is due to any cause or event beyond HyperLight’s control, including, without limitation, acts of nature, pandemics, epidemics, unavailability of supplies or sources of energy, riots, wars, terrorist acts, sabotage, fires, strikes, labor difficulties, delays in transportation, delays in delivery or defaults by HyperLight’s vendors, or acts or omissions of the other Purchaser. In the event of delay due to any such cause, time for delivery shall be extended for a period of time equal to the duration of such delay and the Purchaser shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result of any such cause, any scheduled delivery is delayed for a period in excess of one hundred twenty (120) days, HyperLight or Purchaser shall have the right by written notice to the other to cancel the Order for the Products subject to the delayed delivery without further liability of any kind.

15. General
A. Confidential Information.
Any non-disclosure agreement signed between the parties is expressly incorporated herein. In the event a non-disclosure agreement is not signed, all non-public, confidential or proprietary information of HyperLight, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by HyperLight to Purchaser, whether disclosed orally or in writing, and whether or not marked or identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by HyperLight in writing. Upon HyperLight’s request, Purchaser shall promptly return or destroy all materials received from HyperLight. HyperLight shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Purchaser at the time of disclosure; or (c) rightfully obtained by Purchaser on a non-confidential basis from a third party.

B. Export.
Purchaser acknowledges and agrees that the Products being sold hereunder are subject to the export control laws and regulations of the United States and/or other national governments and may be subject to export restrictions under such laws and regulations from time to time. These laws and regulations include, but are not limited to, the U.S. Export Administration Regulations (US EAR), the U.S. State Department’s International Traffic in Arms Regulations (ITAR), sanction regimes of the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) and export laws and regulations of the European Union (EU) and/or any of its member states. Purchaser shall comply with all such laws and regulations. Purchaser shall not, without prior U.S. Government authorization, export, reexport, or transfer any commodities, software, or technology, either directly or indirectly, to any country subject to a U.S. trade embargo or sanction or to any resident or national of said countries, or to any person, organization, or entity on any of the restricted parties lists maintained by the U.S. Departments of State, Treasury, or Commerce. In addition, any Products sold hereunder may not be exported, reexported, or transferred to any end-user engaged in activities, or for any end-use, directly or indirectly related to the design, development, production, use, or stockpiling of weapons of mass destruction (e.g., nuclear, chemical, or biological weapons, and the missile technology to deliver them).

C. Sales and Distribution to the United States Government.
In any contract with the United States government or in any contract that is a subcontract of any tier under a United States government contract: 1. HyperLight accepts only those clauses of the United States Federal Acquisition Regulations (FAR) that the regulations themselves mandate be flowed-down to a party in HyperLight’s position, given all relevant limitations, including HyperLight’s status as a customer or a subcontractor and the size and type of contract; and 2. HyperLight retains proprietary rights in all technical data and computer software provided under such contract. Neither the United States government nor any higher-tier contractor under a United States government contract receives any rights in technical data and computer software beyond the rights provided to all commercial customers under these Terms and Conditions, except that HyperLight grants to the United States government the minimum additional rights required under the narrowest applicable provisions of the FAR or DFARS. Except as specifically agreed in writing, HyperLight will not provide certified cost and pricing data and therefore does not accept any Cost Accounting Standards, defective pricing, or audit requirements.

D. Compliance with Laws.
Each party shall comply, and shall cause its employees to comply, with all applicable local, national, regional and international laws, ordinances, regulations, codes, standards, directives and international conventions and agreements to the extent that any of the foregoing have the force of law by being directly enforceable by a governmental authority, a court or other proper tribunal (collectively “Laws”), including but not limited to (a) anti-bribery and recordkeeping Laws, including but not limited to the U.S. Foreign Corrupt Practices Act (“FCPA”), the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (“OECD”), and the Inter-American Convention Against Corruption, (b) environmental Laws, and (c) import and export control Laws, including but not limited to the U.S. Export Administration Regulations (US EAR), the U.S. State Department’s International Traffic in Arms Regulations (ITAR), sanction regimes of the U.S. Department of Treasury Office of Foreign Assets Controls (OFAC), export laws and regulations of the European Union (EU) and/or any of its member states and export laws of other national governments. Purchaser shall not, without prior U.S. Government authorization, export, re-export, or transfer any commodities, software or technology, either directly or indirectly, to any country subject to a U.S. trade embargo or sanction or to any resident or national of said countries, or to any person, organization, or entity on any of the sanctioned parties lists maintained by the U.S. Departments of State, Treasury or Commerce. Each party shall comply, and shall cause its employees to comply, with all applicable laws, ordinances and/or directives of countries in which they conduct business as they relate to the Universal Declaration of Human Rights, child labor laws, data privacy laws, criminal reporting laws, Environmental, Health and Safety laws or any similar laws, including, but not limited to identifying and filing or purchasing (as applicable) any and all required permits, certificates, licenses, insurance, approvals and inspections required in performance of its obligations hereunder.

E. Bankruptcy or Insolvency.
HyperLight reserves the right, by written notice of default, to cancel any Order, without further obligation or liability to Purchaser, on the occurrence of any of the following: (i) the insolvency of Purchaser; (ii) the filing of a voluntary petition in bankruptcy by Purchaser; (iii) the filing of an involuntary petition to have Purchaser declared bankrupt; (iv) the appointment of a receiver or trustee for Purchaser; (v) the execution by Purchaser of an assignment for the benefit of creditors; (vi) the discontinuance of business by Purchaser; or (vii) the sale by Purchaser of the bulk of its assets other than in the usual course of business.

F. Severability.
Should any of these Terms and Conditions be held by a court of competent jurisdiction to be contrary to law, that term or condition will be enforced to the maximum extent permissible and the remaining Terms and Conditions will remain in full force and effect.

G. No Agency.
HyperLight and Purchaser are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by these Terms and Conditions. Purchaser is solely responsible for its employees and agents and shall indemnify HyperLight against any claim, liability, cost or damage related to Purchaser’s actions or those of its employees or agents, including, but not limited to, the making of unauthorized warranties or representations on behalf of HyperLight.

H. Third Party Beneficiaries.
Purchaser represents that there exist no third party beneficiaries to Purchaser’s rights hereunder.

I. Basis of Bargain.
THE PARTIES AGREE THAT THE WARRANTY DISCLAIMER, THE LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY PROVISIONS ARE MATERIAL, BARGAINED TERMS THAT ARE FUNDAMENTAL TO THESE TERMS AND CONDITIONS AND ARE REFLECTED IN THE CONSIDERATION TO BE GIVEN BY BOTH PARTIES UNDER THESE TERMS AND CONDITIONS AND IN THE DECISION BY BOTH PARTIES TO ACCEPT THESE TERMS AND CONDITIONS.

J. Entire Agreements and Amendments.
These Terms and Conditions constitute the entire agreement between the parties and supersede all previous communications, whether oral or written. Any change to these Terms and Conditions may be made only upon mutual agreement of the parties in writing.