SPECIFIC TERMS AND CONDITIONS OF SALE

APPLICABLE TO EVK4 HD

These “SPECIFIC TERMS AND CONDITIONS OF SALE” (the “T&C’s“) apply to the compact USB3 event-based vision evaluation kit based on the first HD event-based vision sensor co-developed by Prophesee and Sony Semiconductor Solutions Corporation (“EVK4”) as well as its equipment and associated supplies and services as the case may be (hereinafter collectively referred to as the “Product”), respectively sold and supplied by PROPHESEE S.A., a company duly organized and existing under the laws of France, whose registered office is 74, rue du Faubourg Saint-Antoine, 75012 Paris, France (“Prophesee“) to any entities whatsoever (as individually hereinafter referred to as the “Client”) having received a commercial offer (the “Quotation“) from Prophesee. Unless otherwise agreed in written between the parties in e.g. a specific contract, no other terms shall apply, and the Client’s terms and conditions are excluded even if attached to the Client’s purchase order (the “PO”) or to any other documents. In case of discrepancy between these T&C’s and another document alleged by the Client, these T&C’s shall prevail over the latter.

THE PRODUCTS ARE DEEMED AS PROTOTYPES AND ARE NOT QUALIFIED AS INDUSTRIAL GRADE PRODUCTS. THEY ARE INTENDED, SOLD AND SUPPLIED BY PROPHESEE FOR INTERNAL EVALUATION PURPOSE ONLY. AS CONSEQUENCE, RESTRICTIONS OF USE (see § 5.), EXCLUSIONS AND LIMITATIONS OF WARRANTY AND LIABILITY (see § 6.), LIMITED LICENSE FOR EVALUATION PURPOSE (see § 8) ARE BROUGHT TO YOUR ATTENTION. IF YOU DISAGREE WITH SUCH RESTRICTIONS OF USE AND/OR INTEND TO USE THE PRODUCT OTHERWISE THAN FOR INTERNAL EVALUATION, PLEASE DO NOT ORDER.

SALES CONTRACT

1.1 A Quotation shall not represent a Prophesee’s binding commitment to sale and supply the Client until the Client has placed a PO to Prophesee pursuant to this Quotation then Prophesee has confirmed its acceptance of such PO in written by letter issued by email to the Client (“Order Confirmation”).

Prophesee may further withdraw its Quotation by serving a notice to the Client prior to the term of the Quotation’s validity period, as set forth by default to thirty (30) days, unless stated otherwise in the Quotation. Failing to receive a Purchase Order within the validity period of the Quotation, it shall be deemed as automatically withdrawn at its expiration date. Prophesee may also partially accept a PO in its Order Confirmation, by specifying therein changes, reserves and/or conditions to its Quotations or the PO acceptance. Without refusal to such changes, reserves and/or conditions upon receipt by the Client, the terms of the Order Confirmations shall be deemed as final and binding between the Client and Prophesee (collectively hereinafter individually referred to as a “Party” or collectively as the “Parties”).

1.2 Once the Client has placed a Purchase Order pursuant to a Quotation and Prophesee has accepted such Purchase Order by Order Confirmation, the Parties are deemed as irrevocably bound by a final sales contract, whose documents as follow form integral part of, by order of precedence: i) the Order Confirmation; ii) the Quotation; iii) the technical specification of the Product; iv) the non-disclosure agreement as may be executed between the Parties; and vi) the T&C’s herein (hereinafter collectively referred to as the “Contract”). Such sales Contract constitutes an entire and final agreement between the Parties with respect to the supply and sale of the Product to the Client and supersedes any prior discussions, negotiations and agreements.

1.3 As consequence, the Client cannot decide to cancel the Contract without Prophesee’s prior agreement. In any case of termination, for any reason whatsoever, the Client shall reimburse to Prophesee any Costs which cannot be avoided with respect to such termination. Any partial payment(s) already remitted shall be offset with these Costs. The term “Costs” as above means direct material costs, the charges for handling, storing and supply of procurement and/or equipment, costs for services, for work in process, salaries, wages and other such charges arising directly from the work as well as associated general overheads and incidental expenses. The Costs include also the financial consequences for Prophesee raised by the termination of its agreements with subcontractors. In any cases, the Costs shall not exceed the price of the Contract so canceled and shall be, as a minimum, equal to 15% of the Contract price terminated, as liquidated damages for termination, without prejudice.

PRICE, TAXES, AND PAYMENT TERMS

2.1 Price. All the prices stipulated in the Quotation are either in Euros, in US Dollars or in RMB, in accordance with the Carriage Paid To (CPT) Incoterms® ICC 2020, inclusive of relevant packing, based on current economic and financial conditions at the date of the Quotation and for its validity period. Unless the Client has placed a Purchase Order within this period, Prophesee may actualize the price.

2.2 Taxes. All customs and excise duties, import and/or export duties and other taxes, tariffs and surcharges of any nature whatsoever now or hereafter levied or imposed in any country or territory, either directly or indirectly, in respect of the supply of the Product or Services shall be borne by the Client and are payable in addition to the Price.

2.3 Term of payment. Unless otherwise stipulated in the Quotation, the Order Confirmation or in the invoice, the price of the Contract must be prepaid before shipment of the Products.

2.4 Method of payment. Payment shall be exclusively made by the Client by direct bank transfer to Prophesee’s bank account number as set forth on the invoice, unless Prophesee agrees with a payment by credit-card and provides instructions for purpose to the Client in its invoice.

Client shall make all payments required here-under net and free of any deduction, withholding, or other bank fees and charges. No payment by any other person than the Client is authorized. Prophesee reserves the right to send the payment back to the payer in case of any payment made by a third party and to charge bank transfer fees resulting from such transaction to the Client, without prejudice to further claim or indemnification Prophesee could claim for bad or late payment.

2.5 Late Payments. A fixed compensation amount of forty euros (40€) for recovery costs shall automatically be due, without prior notice, by the Client for any invoiced amount not fully paid by its due date, in accordance with the articles L.441-6 and D.441-5 of the French Commercial Code. In addition, Prophesee shall be entitled to claim additional compensation if the recovery costs exceed such fixed compensation amount. On top of these recovery costs, Client shall pay interest to Prophesee on the aggregate amount of any payments that are not paid on or before the date such payments are due under a Contract, at a rate per annum equal to the interest rate applied by the European Central Bank in its latest refinancing operation plus ten per cent (10%) from the due date of such payment, or the highest rate permitted by applicable law, calculated on the number of days such payments are paid after the date such payments are due. In the event of failure to make payment when due under the Contract, Prophesee shall be entitled, without prejudice to its other rights and remedies, to terminate the Contract with neither liability nor compensation due to the Client.

DELIVERIES AND DELAYS

Delivery of Products shall be made Carriage Paid To (CPT) Incoterms® ICC 2020/Destination from Prophesee premises unless the Client opts to use its own freight forwarder in its PO and in such case, delivery shall be made Ex-Works (EXW)/Prophesee premises. Risks of losses and damages pass to the Client as stipulated under the applicable Incoterms® ICC 2020. Title to the Products (except for Software, where Prophesee retains title) shall pass to the Client at the time the Products have been delivered to the carrier. Delivery dates set forth in the Quotation are best estimates and not guaranteed, unless expressly stated otherwise in the Quotation. Prophesee shall use reasonable efforts to notify Client of any anticipated delays in delivery. Prophesee will not be liable for any loss, damages or penalty resulting from delay in delivery.

ACCEPTANCE

Client shall carefully and upon receipt examine the conformity of the delivered Products with those itemized in the Contract in terms of quantity, type, lack of damages, completeness of the package and delivery slip. Client will be deemed to have accepted the Products unless it notifies Prophesee in writing at: support@prophesee.ai of any non-conformity upon receipt and furnishes such written evidence or other documentation as reasonably required by Prophesee in connection with the claimed non-conformity. Client cannot reject Products except for their non-conformity and based on test procedures not approved by Prophesee.

5. RESTRICTIONS OF USE

The Products being not industrial grade products but engineering samples only, they are intended, sold and supplied by Prophesee for internal evaluation purpose by the Client only. As consequence, the Client shall not resale, distribute, transfer, export, re-export or lease the Products as standing alone device or in combination with any other items, including its own products. Further, no other activity than internal evaluation is allowed and the Client shall not and shall not cause or permit (i) to perform commercial activities, such as but not limited to production of goods for sale, public demonstration of the Products as standing alone or in combination with the Client’s goods or services.

Products are neither designed nor intended for use in weapons, military and space applications. By placing a PO, the Client represents and warrants that the Products shall not be used, directly or indirectly, in any activities related to the design, development, production, stockpiling or testing of any weapons, military or space applications and Client shall indemnify Prophesee for any damages resulting from such use. Products shall be stored and used in accordance with Products technical specifications and instructions of use. Client is solely responsible:(i) to use the Products in accordance with applicable laws, regulations and governmental policies; (ii) to secure all approvals and permissions required in connection with any such use. Client shall not and shall not cause or permit to (i) reverse engineer, disassemble, or otherwise perform analyses directed or intended at learning the technology, methodology, components, formula, processes, design, composition, construction or other information pertaining to the manufacture, characteristics or components of the Products, especially with respect to the hardware and software, or file formats, components or parts, tools or image processing of any Products; (ii) reverse engineer, decompile, translate, adapt or disassemble, or in any way attempt to reconstruct or discover the hardware code or software code by any means whatsoever; (iii) make any changes, alterations, modifications or improvements to the Products or any component thereof without express written consent from Prophesee; (iv) develop tools from Products or use non-Prophesee approved tools, products or software with Products; and (v) provide repair services for Products; without the express written consent from Prophesee.

Failing to comply with any of the restriction in use as set forth above, Prophesee shall automatically have the right to terminate the Contract and any pending Product delivery with immediate effect, without compensation to the Client, and the Client shall indemnify Prophesee for any damages, loss and costs, including reasonable attorney fees, resulting thereof.

NO WARRANTY

6.1 DUE TO THEIR NATURE OF PROTOTYPE AND NON-QUALIFIED AS INDUSTRIAL GRADE PRODUCTS, THEY ARE PROVIDED ON AN “AS IS” BASIS. AS CONSEQUENCE, PROPHESEE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WITH RESPECT THERETO, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, QUIET ENJOYMENT, AND ACCURACY.

6.2 Notwithstanding the foregoing, Client may request 2 hours of technical support without charge and/or if Client founds upon receipt that a Product do not meet its technical specifications as referenced in the Quotation, Client may promptly notify Prophesee in writing at: support@prophesee.ai upon discovery of the defect and in any cases prior to expiration of a one year period from its delivery, with all particulars evidencing the defect, and shall claim for the Return Material Authorization as set forth below in art. 6.5 below. In case the defect is confirmed by Prophesee, Prophesee shall, as sole remedy for the Client and at Prophesee option, use commercially reasonable efforts either repair, replace the defective Products or refund or credit monies paid by the Client for such non-conforming Products (hereinafter the “RRR Commitment”). The RRR Commitment shall not extend or be applicable to the repaired or replaced Products. The RRR Commitment is expressly excluded and shall not apply or extend to any software delivered with or embedded in the Products, whose specific access to and terms and conditions may be granted by Prophesee to Client subject to specific licensing terms and conditions to be separately agreed between the Parties.

6.3 The RRR Commitment is conditioned upon (a) proper storage, installation, use, operation, and maintenance of Products in compliance with their technical specifications, and (b) strict compliance with the restrictions on use as set forth below in Art. 5 Failure to meet any such conditions and restrictions makes the RRR Commitment null and void.

6.4 Prophesee is not responsible and RRR Commitment as above is excluded for normal wear and tear or evolution due to obsolescence of the Product components.

6.5 Returns of Products. Upon a notice of non-conformity or defect, subject to timely and complete notification in accordance with Art. 4 or 6.2 as above, Prophesee will advise what to do with the Products involved. In case a return of Products is needed for non-conformity correction, repair or replace, Prophesee shall grant a Return Material Authorization (RMA) number to the Client. No Product return will be accepted by Prophesee without the prior issuance of RMA number. Costs associated with the shipment of Products to Prophesee shall be borne by the Client. If the non-conformity or defect does not fall under the RRR Commitment or is not due to Prophesee, RRR Commitment shall not apply, and defect or failure analysis service fees will be charged to the Client at an hourly rate of 150 euros Ex-VAT, what is agreed to be paid by the Client without reserve.

6.6 THIS ARTICLE 6 PROVIDES THE EXCLUSIVE REMEDIES FOR ALL CLAIMS BASED ON NON-CONFORMITY, FAILURE OF OR DEFECT IN PRODUCTS AND PROPHESEE’S SOLE LIABILITY FOR ANY BREACH, REGARDLESS OF WHEN THE NON-CONFORMITY, FAILURE OR DEFECT ARISES, AND WHETHER A CLAIM, HOWEVER DESCRIBED, IS BASED ON CONTRACT, WARRANTY, INDEMNITY, TORT/EXTRA-CONTRACTUAL LIABILITY (INCLUDING NEGLIGENCE AND MISREPRESENTATION), STRICT LIABILITY OR OTHERWISE. THE RRR COMMITMENT PROVIDED IN THIS ARTICLE 6 IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS AND GUARANTEES WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY.

6.7 IN NO EVENT SHALL PROPHESEE BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOSS OF PROFIT OR REVENUE, LOSS OF BUSINESS, COST OF REMOVAL, REINSTALLATION, RECOVERY, RECALL, REPLACEMENT OF GOODS, ANCILLARY COSTS FOR PROCUREMENT OF SUBSTITUTE PRODUCTS, RETESTING, LABOR COSTS, LOSS OF DATA OR FOR ANY OTHER LOSS RESULTING FROM THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF THE PRODUCTS, OR FROM DELAYS IN DELIVERY OR THE INABILITY TO DELIVER (HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY), EVEN IF PROPHESEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.8 IN NO EVENT SHALL PROPHESEE’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH A CONTRACT OR ANY PRODUCTS (WHETHER ASSERTED AS A TORT CLAIM, A CONTRACT CLAIM, OR OTHERWISE) EXCEED THE AMOUNTS PAID BY CLIENT TO PROPHESEE FOR THE PRODUCT PURCHASED PURSUANT TO SUCH CONTRACT.

N/A
INTELLECTUAL PROPERTY

All intellectual property rights related to the Products, including without limitation the design, the hardware, the software, are retained by Prophesee and its grantors. Prophesee grants the Client a limited rigth to use intellectual property rights of the Product for internal evaluation purpose only. This right to use is non-exclusive, limited, personal to the Client, non-transferable, non sub-licensable and without further compensation to Prophesee than the full payment of its sale price. Apart from the right to use the Products for evalution purpose, nothing contain in the Contract shall be construed by implication or otherwise as granting any intellectual property right or title to the Client in and to the Products or any other intellectual property rights of Prophesee. No right to resell, distribute, transfer or lease any Products as standing alone device, or any of their components, is conveyed expressly by implication or by estoppel. All computer programs, software or hardware supplied by Prophesee are provided by means of a non-exclusive, revocable license to use on a specified machine for use and operating the Products only, are to be kept confidential, and not to be further copied or divulged to any third party. Client shall not remove, obliterate, delete from, add to, or otherwise alter trademarks, logo and/or trade names affixed to the Products and Prophesee asserts its full rights to control the use of its trademarks.

GOVERNING LAW AND EXCLUSIVE JURISDICTION

9.1 The Contract shall be governed by and construed in accordance with the laws of France, without reference to its conflict of law principles. The provision of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

9.2 Any dispute, controversy or claim arising out of or relating to a Contract, which the parties fail to resolve in good faith within thirty (30) days after such dispute is first identified by either party in writing to the other, including any question regarding its validity, construction, existence or termination, shall be subject to the exclusive jurisdiction of the courts of Paris, France.

OBSOLESCENCE

As a result of the continuous improvement of its Products and technologies and unavailability of certain Products components, subassemblies or manufacturing processes, Prophesee provides no warranty of continuity of supply of Fit, Form, Function Products for a period exceeding one year from delivery of the Product and no indemnity nor compensation shall be due to the Client for Products termination.

ETHICS

As a responsible and compliant company with international standards, Prophesee is not selling or liaising with any company infringing anti-bribery and corruption laws or regulations, including OECD Convention of 1997 and the United Nations Convention against Corruption (UNCAC) of 2003, United States Foreign Corrupt Practices Act of 1977, UK Bribery Act of 2010 and French Sapin 2 Law of 2016 and their respective amendments (collectively the “ABC Regulations”). As consequence of the foregoing, by ordering Product, the Client solemnly declares that (i) it has not infringed any ABC Regulations; (ii) neither it, its representatives nor its executive managers have been, to the best of its knowledge, subject to civil or criminal sanctions, in France, USA, United Kingdom or abroad, for infringement of ABC Regulations; and (iii) no investigation or proceedings which could lead to such sanctions have been brought against it or against such person. The Client warrants that it complies with the ABC Regulations. The Client further warrants that it has not granted and shall not grant, directly or indirectly, any gift, present, payment,remuneration or benefit whatsoever aiming at getting or as counterpart to any Contracts executions or Products deliveries by Prophesee.

The Client shall inform Prophesee’s Compliance Officer at the following address: legal@prophesee.ai of any gift, present, payment, remuneration or benefit whatsoever that it may grant, directly or indirectly grant to any employee, executive manager or representative of Prophesee or to any people that may influence their decision within the frame of the execution or performance of any Contracts or Products deliveries from Prophesee. In the event of failure to comply with this clause, Prophesee shall automatically have the right to terminate the Contract and any pending Product delivery with immediate effect and without compensation to the Client, without prejudice to any remedies Prophesee claim to the Client as consequence thereof.

END OF LIFE PRODUCT MANAGEMENT

Management of electronic waste is a major concern for Prophesee. While designing sustainable and recyclable products, Prophesee is involved in limitation of the impacts on the environment. Following the European directive DEEE 2 n° 2012/19/UE of July 4th 2012 related to the waste of electric and electronic equipment and the French Decree N 2005-829 of July 20th, 2005 concerning the composition of the electric and electronic equipment and the elimination of the waste stemming from these equipment, Prophesee commits to recycle Products returned by Client at the end of life. Any Client can send its end of life detector back to Prophesee at its costs, subject to the specific end-of-life return material procedure, available upon request to the Client support services of Prophesee. Prophesee will proceed with their destruction and final elimination in a responsible way, in compliance with the end-of life return material procedure and at no extra expense for the Client.

PERSONAL DATA PROTECTION

Within the frame of the Contract negotiation and execution, each Party might have to make available to the other personal data as defined under the European Regulation n°2016/679 dated April 27, 2016,relating to the protection of natural persons with regard to the processing of personal data (hereinafter the “GDPR”) of individuals involved in the Contract such as: name, title, business telephone, address, and email (“Business Contact Information”). Each party may store and otherwise process such Business Contact Information, subject to the following: (i) to provide each other the Business Contact Information relating to the concerned persons, to the extent that these personal data were legitimately collected and processed; (ii) to ensure that its employees and/or processor are aware on GDPR, and that they obtained a valid consent from the concerned persons; (iii) to process the Business Contact Information only in so far as strictly necessary for the performance of the Contract, and as strictly agreed by the Parties ; (iv) to restrict their transfer to third parties offering the same guarantees than those defined herein and refrain to transfer them to third parties located outside of the European Economic Area without having obtained a prior consent from the other Party; (v) to take appropriate technical (logic and physical) and organizational security measures for insuring their protection ; (v) to return and/or delete the Business Contact Information when they are no more necessary,or upon request of the other Party, and in any case 5 years after the term or expiry of the Contract ; and (vi) to include, in all of its contracts with processors or suppliers, the obligations as set under this article. Any breach of the above obligations could lead to Contract termination for breach, without prejudice to liabilities of the defaulting Party.

EXPORT CONTROL

As a responsible and compliant company with international standards, Prophesee is not selling or liaising with any company infringing export control laws or regulations. By placing a PO to Prophesee, Client represents and warrants that it is not (i) located in any country that is subject to a trade embargo, or has been designated as a terrorist supporting country by any government; (ii) owned, controlled by, or affiliated with, the government of any such embargoed or terrorist supporting country; or (iii) listed on any list of prohibited and restricted parties, including any terrorist organization, published by the European Union, the United Nations or the United States of America.

As consequence of the foregoing, the Clients commits: i) to use the Evaluation Kit for evaluation purpose only and in accordance with the restriction in use as set forth in Section 5 above; ii) not to resale the Products “as is” and as a standing alone device ; and iii) not to export, re-export or transfer the Products to any country for which any government requires an export license or any other government authorization, without first obtaining that export license or government authorization. Failing to comply with this clause, Prophesee shall be entitled to terminate the Contract and any pending Product delivery with immediate effect and without compensation to the Client, without prejudice to any remedies and indemnities Prophesee may claim to the Client as consequence thereof.

MISCELLANEOUS

15.1 Force Majeure. If Prophesee is delayed, hindered, or prevented from the performance of any obligation or act required pursuant to a Contract by reason of circumstances beyond its reasonable control or which is preventing Prophesee to perform its obligations under the Contract without unreasonable efforts, expenses and costs, such as strike, lockouts, labor troubles, restrictive governmental or judicial orders or decrees, embargos, riots, insurrection, war (declared or not), terrorism, fires, floods, hurricanes, earthquakes or other natural disasters, foreign or domestic embargoes, seizures, or an inability to procure materials or failure of power (each, a “Force Majeure Event”), then the performance of such obligation or act shall be excused for the length of time necessary to cure consequence of such Force Majeure Event and resume performance. Prophesee will exercise reasonable diligence to mitigate the consequences of the Force Majeure Event and shall resume full performance at the earliest possible date. The Client shall not be entitled to claim any compensation from Prophesee as a result of such Force Majeure Event and Prophesee shall be entitled to terminate the Contract with neither liability nor compensation to the Client, in case the Force Majeure Event is persisting for more than one (1) month.

15.2 Severability. If any provision of the Contract or the application thereof to any party or circumstance shall, to any extent, be held to be invalid or unenforceable, then the remainder of the Contract shall not be affected thereby and shall remain valid and be enforced to the fullest extent permitted by law. The parties hereto covenant and agree to replace in good faith the invalid or unenforceable provision by a valid and enforceable provision that achieves substantially the same practical and economic intent of and basic purposes of the invalid provision.

15.3 Non waiver. No waiver, amendment or modification of any of the terms of the Contract,including through any decision and/or the content of any minutes of meeting, report or other communication, whether oral or written, shall be valid binding upon Prophesee, unless set forth in a Quotation or a Order Confirmation duly signed by authorized representatives of Prophesee. Failure by Prophesee to enforce any rights under the Contract shall not be construed as a waiver of such rights nor shall a waiver by Prophesee in one or more instances be construed as constituting a continuing waiver or as a waiver in other instances.

15.4 Use of name. Client shall not use the name, symbol, trademark, trade name or logo of Prophesee, in any press release, publication or other form of public disclosure, including as part of a domain or company name or in keywords or online search optimizations, without express written consent from Prophesee.

15.5 Last release. Prophesee reserves the right to change these Terms and Conditions at any time. Any changes made to these Terms and Conditions will not apply to the Contract with Client for any Purchase Order received by Prophesee before the changes are made. The most recent revision date can be found at the end of these Terms and Conditions, as below.

Version 1.3 – Paris, June 2023