Surgical Vision Equipment Terms and Conditions

1. Rights Granted & Permitted Use. J&J Vision shall at all times retain all title, ownership and intellectual property rights in and to the software components of the Equipment and all other software, including any subsequent upgrades, updates, enhancements, modifications or replacements, as well as any and all copyrights, patents, trade secret rights and other intellectual property in the Equipment and software products. Transfer of title to the Equipment to Purchaser as provided in the Agreement does not convey any license, expressly or by implication, to manufacture, duplicate, reverse engineer or otherwise copy or reproduce any of the software. Purchaser acknowledges and agrees that software is licensed rather than sold, irrespective of Purchaser acquiring title to the Equipment. J&J Vision hereby grants Purchaser a non-exclusive, non-transferable license to use the software for the purposes of this Agreement. J&J Vision does not claim that the software shall be free from defects or that Purchaser will enjoy uninterrupted access. J&J Vision shall have no obligation to supply software upgrades.

2. Software. J&J Vision shall grant Purchaser a limited, non‑exclusive, non‑transferrable license to use the software products (the "Software"), as set forth in this Agreement. Software delivered with or integrated into the Equipment may solely be used in conjunction with such Equipment and for its intended use. J&J Vision does not warranty that the Software will be error-free or bug-free or that the use of the Software will be uninterrupted. J&J Vision shall retain any and all intellectual property and trade-marks in the Software. J&J Vision may, from time to time and in its sole discretion, elect to make software upgrades, software updates, or additional software available to existing customers at no extra charge (a "Special Release"). In the event a Special Release becomes commercially available during the term of this Agreement, and Purchaser's payments are current, J&J Vision may make available and install such Special Release at the same time other services or scheduled preventative maintenance are being performed on the Equipment, subject to availability of J&J Vision personnel needed to install such Special Release. J&J Vision will inform the Purchaser if the Special Release requires training, and schedule training at the Purchaser's site immediately following installation. Such training shall be invoiced to the Purchaser at J&J Vision's then-prevailing rates. Notwithstanding anything to the contrary, Software that provides new clinical application(s), or which J&J Vision has elected, in its sole discretion, to make available to Purchasers at an additional charge, may not constitute a Special Release, but may be available from time to time at an additional charge. Notwithstanding anything to the contrary, J&J Vision may require Purchaser to enter into a separate patent license, and/or pay additional patent license fees, in order to use all or a portion of the capabilities provided by a Special Release.

3. Changes Requested by Purchaser. The Equipment to be provided by J&J Vision shall be as specified in the order accepted, in writing, by J&J Vision. Should J&J Vision agree (in its sole discretion) to any request by Purchaser which involves extra cost to J&J Vision, such extra cost may be charged by J&J Vision and shall be paid for by Purchaser, and the scheduled delivery and/or completion dates shall be extended to the extent required.

4. Installation; Performance. All prices include standard installation. All necessary labour and materials for electrical wiring or other site preparation shall be supplied by Purchaser, at Purchaser's expense, prior to installation and connection by J&J Vision. Purchaser shall obtain all permits and licenses required by any federal, provincial or local authorities in connection with the installation and operation of the Equipment and shall bear any expenses in obtaining same or complying with any related rules, regulations, ordinances and statutes.

5. Mediation. Any controversy or claim arising out of or related to this Agreement (a "Dispute"), shall be first submitted to mediation according to International Centre for Dispute Resolution – Canada's ("ICDR Canada") Canadian Mediation Rules. Such mediation shall be attended on behalf of each party for at least one session by a senior business person with the authority to resolve the Dispute. The parties shall use reasonable commercial efforts to attend the mediation within 30 days after the controversy or claim arose and was communicated to the other party. If the Dispute is not resolved through mediation it shall be submitted to binding arbitration in accordance with Section 6. All aspects of the mediation shall be kept confidential.

6. Arbitration. Any Dispute arising out of or related to this Agreement or breach of this Agreement that is not resolved through mediation shall be settled by arbitration by a single arbitrator administered by ICDR Canada in accordance with the Canadian Arbitration Rules. The parties shall use reasonable commercial efforts to attend the arbitration within 30 days after the date the mediation was completed. The seat of the arbitration shall be in Toronto, Ontario and the language of the arbitration shall be English. The arbitrator shall apply the substantive laws of Ontario. The proceedings of the arbitration shall be confidential and there shall be no appeal from the award rendered by the arbitrator, judgment on which may be entered in any court having jurisdiction.

7. Remedies. Nothing shall restrict or prohibit either party from seeking urgent relief from a court of competent jurisdiction to preserve a legal right or remedy, or to protect a proprietary trade secret right, or to otherwise seek emergency legal or equitable remedies necessary to preserve or restore the status quo pending the outcome of arbitration or mediation, and no court action shall be deemed a waiver of the requirement to mediate or arbitrate a Dispute.

8. Training and Educational Services. In connection with the purchase or use of the Equipment, J&J Vision will, at no additional cost, provide Purchaser with initial system operator and physician training to the extent required by then-prevailing regulatory requirements and/or as reasonably requested by Purchaser for all system operators and physicians who intend to use the Equipment. Other than the foregoing, any additional training (whether for additional system operators, physicians, or otherwise) will be subject to availability of J&J Vision training personnel, and subject to at J&J Vision's standard charges therefore. All training and clinical education as provided under this Section are included in the purchase price of the Equipment.

9. Equipment Operation. Purchaser agrees that all Equipment used in connection with this Agreement shall be operated exclusively by a licensed practitioner in a safe and reasonable manner in accordance with any such Instruction for Use provided by J&J Vision. Purchaser further agrees to operate the Equipment in compliance with the standards and regulations of Health Canada, as revised from time to time. Purchaser agrees to indemnify and hold J&J Vision and its affiliates, officers, directors and employees harmless from and against all claims, demands, actions, causes of action, judgments, and costs including reasonable attorney's fees, arising out of or in conjunction with the misuse or unintended use of Equipment by Purchaser or any other party other than J&J Vision, or its use with another manufacturer's equipment.

10. Credit. Purchaser acknowledges that J&J Vision shall have the right to verify Purchaser's credit references and/or credit resources and that this Agreement shall not be deemed accepted by J&J Vision until J&J Vision is satisfied with such financial information. Purchaser agrees to fully cooperate with J&J Vision and to execute any and all documents J&J Vision deems necessary in this regard.

11. Limitation of Liability. IN NO EVENT SHALL J&J VISION AND ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS OR REVENUES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY OR OTHER FINANCIAL LOSS ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE, EVEN IF J&J VISION AND/OR ITS AFFILIATES HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. J&J VISION'S (AND ITS AFFILIATES') AGGREGATE LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM, THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID TO J&J VISION UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE CLAIM AROSE.

12. Indemnity. Subject to Section 13, each party shall defend, indemnify and hold harmless the other party, its affiliates and their directors, officers and employees from and against any and all claims, suits, actions, causes of action or liability of any kind for damages, losses, expenses and costs, including reasonable legal fees and disbursements, arising out of or in any way connected with: (a) any and all breaches by such indemnifying party of any representations, warranties, covenants, terms or obligations under this Agreement and (b) the negligence and willful misconduct or fraud of such indemnifying party or its representatives in connection with the Products and Equipment provided hereunder. The parties agree that this indemnity shall survive termination or expiration of this Agreement.

13. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT OR THE TERMS INCORPORATED BY REFERENCE HEREIN, J&J VISION DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES OR GUARANTEES WITH RESPECT TO THE PRODUCT OR EQUIPMENT, OF ANY NATURE, EXPRESS OR IMPLIED, STATUTORY, BY OPERATION OF LAW OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR THAT THE OPERATION OF THE EQUIPMENT OR USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.

14. Diversion. Purchaser agrees that it will not divert or sell any Equipment or Products purchased pursuant to this Agreement to any other distribution channel, end-user, business entity or third party, unless otherwise specified in this Agreement. If J&J Vision determines, in its reasonable discretion that Purchaser has sold Equipment or Products in violation of this Section, J&J Vision may, in its sole discretion, void or terminate this Agreement effective immediately. Further, if J&J Vision becomes aware of any facts or circumstances from which J&J Vision might reasonably infer that Purchaser has sold or offered for sale any Products or Equipment in violation of this Section, J&J Vision shall have the right, in addition to any other remedies available to it, to suspend any discounted pricing, if applicable, under this Agreement or any other agreement between J&J Vision and Purchaser. In addition, Purchaser shall in such case promptly reimburse J&J Vision for any and all damages sustained and/or legal costs and attorney's fees reasonably incurred by J&J Vision related to such breach, including without limitation, the repayment of any rebates or discounts applied to any Products or Equipment or pursuant to any other agreements between J&J Vision and Purchaser, as well as the cost related to any audits conducted to assess compliance with this Section. J&J Vision reserves the right, within its sole discretion, to audit Purchaser's sales, purchases, books or records in order to confirm compliance with this Section. This Section shall survive expiration or termination of the Agreement for any reason.

15. Excess Inventory. Purchaser agrees to place orders for Products in a manner intended to meet the then-prevailing anticipated demands of Purchaser and not to accumulate an excessive amount of inventory for future consumption. If J&J Vision reasonably determines that Purchaser is placing orders to accumulate excess inventory, J&J Vision may (i) refuse to accept any orders for Products and/or (ii) increase Product pricing.

16. Audit. At any time during the Term, J&J Vision may conduct periodic audits of Equipment and Products at Purchaser's premises during regular business hours by providing 5 days' prior written notice to ensure all obligations are being discharged in accordance with this Agreement. Purchaser agrees to cooperate and provide access for this purpose. J&J Vision shall bear the costs in connection with any such audits, unless provided otherwise. Any loss or damage to Equipment that is discovered during any such audit, including theft, will be the sole responsibility of Purchaser and shall be repaired by Purchaser in its sole and absolute expense.

17. Insurance. Purchaser shall maintain sufficient insurance and shall bear the responsibility of the insurance for the Products and Equipment provided hereunder. Purchaser shall take reasonable care of the Products and Equipment and insure such Products and Equipment to its full replacement value, against loss or damage, and arrange for J&J Vision to be noted on the policy of insurance as an additional insured. Purchaser must provide evidence of all required insurance coverage to J&J Vision upon written request.

18. Confidentiality. Each party (the "Receiving Party") shall keep and maintain confidential all information of a proprietary or business nature relating to the other party (the "Disclosing Party") and its business, including, without limitation, this Agreement and the pricing terms contained herein (the "Confidential Information"). The Receiving Party shall not disclose any Confidential Information to any third party without the prior written consent of the Disclosing Party. The Receiving Party shall use the Confidential Information solely for the purpose of performing its obligations under this Agreement. This Section shall not prohibit a Receiving Party from disclosing Confidential Information if (a) such disclosure is required by law, judicial or government action, with advance notification to the Disclosing Party, in order to enable the Disclosing Party to oppose such disclosure and/or seek a protective order with respect thereto, (b) such disclosure is made to those employees or agents of the Receiving Party who are required to have such Confidential Information for the purpose of performing the Receiving Party's obligations under this Agreement, so long as the confidential nature of such Confidential Information is made known to such employees and agents and such employees and agents agree to keep and maintain such Confidential Information confidential, (c) such information is or becomes generally available to the public otherwise than as a result of a breach of this Agreement, or (d) such information was available to the Receiving Party on a non-confidential basis prior to the date of this Agreement as can be demonstrated by the Receiving Party.

19. Compliance with Laws. In performing its obligations under this Agreement, each party shall comply with all applicable federal, provincial and municipal laws and regulations. Neither party shall perform any actions that are prohibited by local and other anti-corruption laws (collectively "Anti-Corruption Laws") that may be applicable to one or both parties to the Agreement. Additionally, neither party shall make any payments, or offer or transfer anything of value, to any government official or government employee, to any political party official or candidate for political office or to any other third party related to the transaction in a manner that would violate Anti-Corruption Laws.

20. Force Majeure. Neither party shall be liable for failure or delay in performing any of its obligations hereunder if such failure or delay is occasioned by compliance with any governmental regulation, request or order, or by circumstances beyond the reasonable control of the party so failing or delaying, including without limitation, an Act of God, fire, flood, labour strike, work stoppage, recall, inability to obtain raw materials or inability maintain or obtain regulatory marketing approval, provided that the party affected by such failure or delays gives the other party prompt written notice of the cause and uses commercially reasonable efforts to correct such failure or delay.

21. Employment of Young Persons. Purchaser shall not employ any person under the age of 16 years old. No person between the ages of 16 and 18 years old shall be employed or retained to provide services unless such employment is in compliance with the health, safety and morals provisions in the International Labour Organization Convention 138 Concerning Minimum Age. No person under the age of 18 years old shall be employed unless such employment is in compliance with all applicable laws and regulations concerning age, hours, compensation, health and safety. Purchaser agrees to submit to periodic compliance inspections, maintain the records necessary to demonstrate compliance and provide annual certifications of compliance with the above terms. Purchaser shall permit representatives of J&J Vision to enter Purchaser's premises at any reasonable time during business hours to inspect relevant employment, health and safety records. Purchaser shall maintain the records necessary to demonstrate compliance. If Purchaser fails to comply with these obligations, J&J Vision shall have the right to terminate this Agreement without penalty as outlined herein.

22. Amendment. This Agreement may be amended at any time by mutual consent of the parties. However, any amendment must be adopted in writing and signed by each of the parties.

23. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein.

24. Assignment. Neither party may assign or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other party; provided, however, J&J Vision may, without notice or consent and at its sole discretion, assign any or all of its rights or obligations under this Agreement to: (i) an affiliate or subsidiary of J&J Vision or (ii) a third party in connection with the disposition or disposal of the business to which this Agreement relates. Any assignment or delegation, or attempt at the same, made without complying with this provision shall be void and without effect.

25. Successors and Assigns. This Agreement shall be binding upon the parties and ensure to the benefit of their respective successors and permitted assigns.

26. Third Party Rights. A person who is not a party to this Agreement shall not have any rights to enforce any term of this Agreement.

27. Independent Contractors. The relationship of the parties pursuant to this Agreement is that of independent contractors. Neither party shall be considered the agents, representatives, master, servant or representative of the other party. Nothing in this Agreement shall create any relationship of partner, joint venture, fiduciary or any other similar relationship between the parties.

28. Waiver. The failure of a party to insist on the strict performance of any term of this Agreement or to exercise its right hereunder shall not act as a waiver of those rights and such rights shall continue in full force and effect. A waiver of any provision of this Agreement shall only be valid in writing. A waiver of any party of a breach of this Agreement does not constitute a waiver of a repeat of the same breach or of other breach of rights or obligations under this Agreement.

29. Severability. If any provision contained in this Agreement is deemed invalid, illegal or unenforceable by a court of competent jurisdiction, such invalid provision or part thereof shall be deemed not to affect or impair the validity or enforceability of any other provision or part thereof contained herein, all of which remaining provisions or parts thereof shall be and remain in full force and effect.

30. Entire Agreement. This Agreement together with any additional terms and conditions incorporated by reference herein constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all proposals, oral and written, and previous negotiations and communications between the parties and their representatives with respect to the subject matter of this Agreement. J&J Vision specifically disclaims any terms and conditions appearing on a purchase order or similar document issued by Purchaser, which shall not be binding on J&J Vision regardless of when received by J&J Vision. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement. J&J Vision specifically disclaims any terms or conditions appearing on a purchase order or similar document issued by Purchaser regardless of when received by J&J Vision and such terms shall not be binding on J&J Vision. This Agreement shall not be modified in any way except by in writing signed by J&J Vision and Purchaser.

31. Headings. The headings contained herein are inserted for convenience of reference only and shall in no way be construed to be interpretations of terms.

32. Survival. Any provision which by law or its nature shall survive the expiration or termination of this Agreement shall survive any termination or expiration of this Agreement.

33. Counterparts. This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a Portable Document Format (PDF), or by using a web-based e-signature platform, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page or e-signature was an original thereof.