EXHIBIT A

TERMS AND CONDITIONS OF SALE

This Exhibit A sets forth the general legal terms governing Customer’s purchase and use of the Hyphen System. The specific commercial, operational and deployment details applicable to a particular transaction are set forth in the applicable order form or quote agreed by the Parties (each, an “Order Form”), which may include pricing, payment schedules, delivery and installation timelines, deployment location, subscription term, service and maintenance fees, packaging fees, training scope and any agreed performance metrics or service levels. Any such terms apply only to the extent expressly stated in the applicable Order Form. Except as expressly set forth in an Order Form, Hyphen does not make any commitments regarding throughput, uptime, availability, production rates, service response times, training outcomes or other performance characteristics of the Hyphen System. In the event of a conflict, the Order Form will control over this Exhibit A.

  1. DEFINITIONS

Capitalized terms used but not defined in this Exhibit A have the meaning given in the Order Form.

“Aggregated Data” means any data that is derived or aggregated in deidentified form from (a) any Customer Information or (b) Customer’s use of the Hyphen System, including usage data and trends.

“Agreement” means the Order Form together with this Exhibit A and any schedules or addenda referenced in either of them.

“Authorized Users” means Customer’s employees and contractors who are properly trained to use the Hyphen System and who access the Hyphen System solely on Customer’s behalf.

“Customer” means the customer for the Hyphen System identified in the Order Form.

“Customer Information” means all information, data, content and other materials provided by Customer through the Hyphen System or to Hyphen in connection with the Hyphen System, including order data and recipes, but excluding Aggregated Data.

“Customer Materials” means any and all materials provided by Customer to be used by the Hyphen System in performing automated food assembly, including food, condiments, packaging and Customer’s standard operating procedures.

“Documentation” means Hyphen’s user manuals, standard operating procedures and data sheets relating to the Hyphen System, as updated from time to time.

“Effective Date” means the effective date indicated in the Order Form.

“Equipment” means the Hyphen proprietary automated Makeline modules and related hardware identified in the Order Form.

“Hyphen Materials” means Hyphen-branded or Hyphen-specified packaging and other consumables provided by Hyphen as set forth in the Order Form.

“Hyphen Software” means Hyphen’s proprietary software, firmware and related code that is embedded in, installed on or otherwise provided with the Equipment and that enables the operation and functionality of the Makeline, including any updates, patches, bug fixes or modifications that Hyphen may make available from time to time.

“Hyphen System” means, collectively, the Equipment and the Hyphen Software.

“Location” means the Customer site identified in the Order Form where the Equipment will be installed and operated.

“Maintenance and Services Package” means the maintenance, support, repair and related services package that Customer subscribes to for the Subscription Term as specified in the Order Form.

“Makeline” means Hyphen’s robotic food production system.

“Subscription Term” means the initial and any renewal subscription period for the Maintenance and Services Package.

  1. EQUIPMENT PURCHASE, DELIVERY AND ACCEPTANCE
    1. Sale of Equipment. Subject to Customer’s payment of the applicable Equipment purchase price in the Order Form, Hyphen will deliver the Equipment to Customer for use solely at the Location in connection with Customer’s food service operations. All Equipment is sold on a non-exclusive basis and nothing in the Agreement restricts Hyphen from selling to other customers.
    2. Delivery; Shipping; Carrier Coordination. Delivery of the Equipment will occur FCA – Hyphen’s facility (Incoterms® 2020). At Customer’s request, Hyphen may coordinate pickup scheduling with a freight carrier selected by Hyphen and approved by Customer, or Customer may designate its own freight carrier (in either case, the “Designated Carrier”). Notwithstanding Hyphen’s coordination assistance, Customer remains solely responsible for contracting with the Designated Carrier and for all freight charges, insurance, and risk of loss or damage following delivery of the Equipment to the Designated Carrier at Hyphen’s facility. Hyphen’s coordination of shipping logistics is provided solely as a convenience and does not create any liability for the acts or omissions of the Designated Carrier.
    3. Risk of Loss; Title; Security Interest. Risk of loss, theft, damage or destruction to the Equipment passes to Customer upon delivery of the Equipment to the Designated Carrier. Title to the Equipment passes to Customer upon Hyphen’s receipt of full payment of the Equipment purchase price stated in the Order Form. Until Hyphen receives such payment in full, Hyphen retains title to the Equipment, and Customer grants Hyphen a purchase money security interest in the Equipment and all proceeds of the Equipment and will sign any documents Hyphen reasonably requests to perfect or record that interest.
    4. Acceptance. The Equipment will be deemed accepted on the earlier of: (a) the date Customer signs Hyphen’s installation or site acceptance form, (b) Customer begins food production on the Makeline, or (c) seventy-two (72) hours after delivery unless Customer provides written notice describing a material nonconformity that prevents operation of the Equipment in substantial accordance with the Documentation. Hyphen will use commercially reasonable efforts to remedy any confirmed nonconformity, and the Equipment will be deemed accepted upon correction. Minor non-material deviations do not justify rejection. Acceptance is final and irreversible and is not conditioned on achieving any performance metrics unless expressly stated in the Order Form. Acceptance will trigger the start of the Subscription Term of the Hyphen Maintenance and Services Package.
    5. Damage to Equipment. Customer is responsible for any damage to the Equipment, including dispensers, caused by incorrect handling, misuse or failure to follow the Documentation by Customer’s personnel or contractors as well as by poor site conditions (humidity, pests, water leaks), unapproved cleaning agents and materials and use of incorrect or non-Hyphen materials in the Makeline. Hyphen will repair or replace any such damaged Equipment or components at Customer’s cost, including parts and any associated labor, travel and shipping charges, and such repairs or replacements are excluded from the limited warranty in Section 10.1.
    6. Relocation. Customer may not remove the Equipment from the Location or materially change its configuration without Hyphen’s prior written consent, except as necessary for routine maintenance within the same premises as long as all installation and site requirements in the Documentation remain satisfied.
  2. HYPHEN SOFTWARE LICENSE AND USE OF HYPHEN SYSTEM
    1. License to Hyphen Software. Subject to Customer’s compliance with this Agreement and payment of all applicable fees, Hyphen grants Customer a limited, perpetual (unless terminated pursuant to this Agreement), non-exclusive, non-transferable, non-sublicensable right for its Authorized Users to access and use the Hyphen Software and Documentation solely as embedded in, or for use with, the Equipment at the Location. The Hyphen Software is licensed, not sold. Customer is responsible for all use of the Hyphen Software under its accounts. The Hyphen Software may be used by Customer for its internal purposes only and solely in conjunction with the use of the Makeline. Customer acknowledges that the Hyphen Software may also be subject to additional terms and conditions set forth in executable or electronic license agreements, which shall control and govern all such Hyphen Software use. Subject to the terms of such license agreements, all rights not expressly granted herein are reserved, and all other uses of the Hyphen Software are subject to the Agreement as well as the payment of any applicable Hyphen Software license fees, including fees for specific Hyphen Software functionalities, as identified by Hyphen in the applicable Order Form.
    2. Restrictions on Use of Hyphen System. Customer will not, and will not permit any third party, to:
      1. modify or create derivative works of the Hyphen System or add, affix or attach any accessories, parts or replacements to the Equipment without Hyphen’s prior written consent;
      2. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive the source code of any component of the Hyphen System, except to the limited extent this restriction is expressly prohibited by applicable law;
      3. sell, resell, rent, lease, sub-lease, assign, license, sub-license, convey or transfer the Hyphen System to any third party or allow use of the Hyphen System by any third party, other than Authorized Users;
      4. remove the Equipment from its place of installation without Hyphen’s prior written consent;
      5. store on, or transmit in, the Hyphen System any infringing, inappropriate, unlawful or tortious material or malicious code;
      6. interfere with or disrupt the integrity or performance of the Hyphen System;
      7. use the Hyphen System, Documentation or Hyphen’s confidential information to develop, commercialize, license or sell any technology, product or service (other than the sale of any Customer food items in the authorized Location); or
      8. delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on or included in any component of the Hyphen System.
    3. Suspension. Hyphen may, without liability, suspend Customer’s access to the Hyphen System if: (a) Customer’s account is ten (10) days or more overdue, (b) Hyphen reasonably believes the Hyphen System is being used in violation of law, the Agreement or the Documentation or (c) Hyphen reasonably determines that suspension is necessary to address a security risk to the Hyphen System or any third party. Hyphen will restore access promptly after the underlying issue is resolved.
  3. CUSTOMER RESPONSIBILITIES. Customer will:
    1. Site Readiness. Before the scheduled installation date, (a) obtain any required permits or authorizations, (b) provide adequate space for the installation and use of the Hyphen System, and (c) provide, in a manner reasonably satisfactory to Hyphen, the electrical, mechanical, plumbing and other connections and the administrative and network access described in the Documentation to permit Hyphen to install, manage and support the Hyphen System.
    2. Operation; Care of Hyphen System. Be responsible for day-to-day operation of the Hyphen System, maintain the Hyphen System in good condition and working order, and follow the operating and maintenance handbook as provided by Hyphen. 
    3. Compliance. Ensure that its use of the Hyphen System and its operations at the Location comply with all applicable laws, ordinances, rules and codes.
    4. Security. Require all Authorized Users to keep user names and passwords used to access the Hyphen System secure and confidential and promptly notify Hyphen of any actual or reasonably suspected compromise.
    5. Customer Materials; Food Safety. Provide all Customer Materials to be used by the Hyphen System in a clear and appropriately labeled manner. Customer is solely responsible for the safety, quality and regulatory compliance of food, ingredients and other Customer Materials used with the Hyphen System and for compliance with all health, safety and food handling requirements at the Location.
    6. Taxes and Card Fees. Unless Customer provides a valid tax-exemption certificate acceptable to the applicable tax authority, Customer will pay applicable taxes listed on the Order Form or reimburse Hyphen for any such amount paid by Hyphen to the tax authority on Customer’s behalf. Customer will pay any credit card or debit card transaction fees if Customer chooses to pay any amounts by credit card or debit card.
  4. HYPHEN RESPONSIBILITIES; IMPLEMENTATION, MAINTENANCE AND SUPPORT
    1. Implementation Services. Upon payment of the applicable installation and training fee stated in the Order Form, Hyphen will manage Equipment logistics, setup, testing and initial on-site training at the Location and make the Hyphen System available to Customer (collectively, the “Implementation Services”).
    2. Training Services. Training services are limited to the scope, duration, and format described in the Order Form and are intended solely to provide operational guidance. Training does not certify Customer personnel, guarantee outcomes, or expand Hyphen’s warranty, service, or performance obligations. Any additional or repeat training is billable at Hyphen’s then-current rates.
    3. Maintenance and Service. During the Subscription Term and subject to payment of the applicable fees in the Order Form, Hyphen will, in accordance with the Maintenance and Services Package specified in the Order Form, (a) provide regular maintenance and servicing of the Equipment and (b) repair or replace faulty components to maintain the performance of the Makeline in accordance with the Documentation and any uptime, throughput or response time commitments expressly stated in the Order Form. Repairs caused by Customer misuse, contamination, non-Hyphen packaging, power issues, surges or inadequate utilities, and replacement of wear and tear of consumables are not included as part of the Maintenance and Services Package.
    4. Performance Metrics; Exclusive Remedies. Any uptime, throughput, response time, or service-level commitments apply only if expressly stated in the applicable Order Form and will be measured solely in accordance with the methodology set forth therein. Customer’s exclusive remedy for Hyphen’s failure to meet such commitments, if any, will be the service credits or other remedies expressly stated in the Order Form. In no event will any service-level failure give rise to termination rights, refunds, or damages. 
    5. Hyphen Materials. Subject to payment of any per-unit packaging fees in the Order Form, Hyphen will supply Customer with automation-friendly packaging. Packaging fees are recurring and based on usage as stated in the Order Form. Hyphen may modify packaging specifications or pricing upon reasonable prior notice. Use of non-Hyphen or non-approved packaging voids applicable warranties and service obligations to the extent damage or performance issues arise from such use.
    6. Support. Hyphen will provide support for the Hyphen System in accordance with the Documentation.
  5. FEES AND PAYMENT; LATE CHARGES
    1. Fees. Customer will pay all fees set out in the Order Form, which may include: (a) fixed purchase prices for the Equipment, (b) recurring maintenance and service fees, (c) one-time implementation, installation and training fees, (d) per-unit Hyphen packaging fees. All such fees will be paid in accordance with the timing and frequency specified in the Order Form.
    2. Additional Fees and Change-Related Charges. In addition to the fees set forth in the Order Form, Customer will pay Hyphen at Hyphen’s then-current rates for any additional services, costs or expenses arising from or relating to: (a) Customer’s failure to satisfy site readiness requirements or delays attributable to Customer; (b) missed, rescheduled or canceled installation, training or service appointments requested by Customer or caused by Customer; (c) expedited services, after-hours services, weekend services or holiday services requested by Customer; (d) configuration changes, modifications, relocations or other changes to the Hyphen System requested by Customer after acceptance or installation; (e) re-installation, re-training or repeat services required due to Customer actions or requests; or (f) corrective services, repairs or replacements required as a result of misuse of the Hyphen System, use of non-Hyphen materials or supplies, or Customer’s failure to operate or maintain the Hyphen System in accordance with the Documentation or this Agreement.
    3. Payment Conditions; Delivery Hold. All payments are due strictly in accordance with the Order Form and are non-cancellable and non-refundable, except as expressly stated in the Agreement. Hyphen may, without liability, delay or suspend shipment, delivery, installation, acceptance, maintenance, support, training, or access to the Hyphen System if any invoice is unpaid when due. Any delivery or installation dates provided by Hyphen are contingent upon Customer’s timely payment of all amounts due.
    4. Late Charges; Collection Costs. To the extent permitted by law, any amount not paid when due will accrue late charges at one and one-half percent per month, or the maximum rate allowed by law if lower, from the due date until paid. Late charges will be added to any past due amount on the date such payment is due and every thirty days thereafter until paid in full. Customer will reimburse Hyphen for all reasonable costs incurred in collecting any late payments, including reasonable attorneys’ fees and court costs.
    5. No Setoff. Customer may not withhold, set off or reduce any amounts due under the Agreement based on any claim against Hyphen.
    6. Hyphen reserves the right to withhold support, maintenance or dispatch of technicians until overdue fees are paid in full.
  6. TERM AND TERMINATION
    1. Term. The Agreement starts on the Effective Date and continues until terminated as set out in this Section 7. 
    2. Renewal. Unless either Party gives the other Party written notice of non-renewal at least ninety (90) days before the end of the then-current Subscription Term, the Maintenance and Services Package will automatically renew for successive one-year renewal periods at Hyphen’s then current service and maintenance fees.
    3. Termination for Cause. Either Party may terminate the Agreement for cause upon written notice if the other Party materially breaches the Agreement and fails to cure the breach within thirty (30) days after receiving written notice describing the breach in reasonable detail.
    4. Effect of Termination. Upon any expiration or termination of the Agreement:
      1. Hyphen will have no further obligation to provide services relating to the Hyphen System;
      2. Customer will pay all fees accrued but unpaid as of the effective date of termination and, except where Customer terminates for Hyphen’s uncured material breach, all remaining subscription, maintenance and service fees for the then-current Subscription Term will become immediately due and payable; and
      3. each Party will, upon the other Party’s written request, return or destroy all of the other Party’s confidential information, subject to customary archival copies kept under confidentiality.
    5. Survival. Sections 2.3, 2.5, 3.2, 3.3, 4, 5.3, 6, 7.4, 7.5, 8, 9, 10, 11, 12 and 13 survive expiration or termination of the Agreement.
  7. INTELLECTUAL PROPERTY; DATA; FEEDBACK
    1. Hyphen. Hyphen and its licensors retain all right, title and interest, including all related intellectual property rights, in the Hyphen System, any services provided by Hyphen, Hyphen Materials, the Documentation, Hyphen’s confidential information, Aggregated Data and all derivative works, improvements or modifications of any of the foregoing, regardless of who makes them. No rights are granted to Customer other than as expressly set out in the Agreement.
    2. Customer. Customer retains all right, title and interest, including all related intellectual property rights, in and to Customer Information and all derivative works, improvements or modifications of it, regardless of who makes them. Customer grants Hyphen a non-exclusive, worldwide, royalty-free license to use Customer Information and Customer Materials solely to provide, manage, support and improve the Hyphen System and related services. Customer remains solely responsible for complying with all applicable data protection laws in providing Customer Information to Hyphen.
    3. Aggregated Data. Hyphen may create Aggregated Data and may use Aggregated Data for any lawful purpose, including analytics and improving its products and services.
    4. Feedback. If Customer provides Hyphen with any suggestions, comments, ideas or other feedback regarding the Hyphen System or Hyphen’s services, Hyphen may use and exploit that feedback without restriction or obligation to Customer.
  8. CONFIDENTIALITY; CUSTOMER MARKS. The then current mutual nondisclosure or confidentiality agreement between the Parties (“MNDA”) governs any disclosure and use of confidential or proprietary information. For the avoidance of doubt, the Agreement, the Hyphen System, Hyphen Materials, support and maintenance, Implementation Services, the Documentation, fees and pricing information, and any performance information relating to the Hyphen System are Hyphen confidential and proprietary information. Customer Information and Customer Materials are Customer confidential and proprietary information. Notwithstanding any contrary term in the MNDA or in the Agreement, Customer grants Hyphen a limited, non-exclusive, royalty-free license to use and display Customer’s name and logo on Hyphen’s website and in Hyphen’s promotional materials as part of a general customer list.
  9. WARRANTIES AND DISCLAIMER
    1. Equipment Limited Warranty and Warranty Period. Hyphen warrants that, for a period of one year from the date of Equipment delivery to the Location (the “Equipment Warranty Period”): (a) the Equipment shall be free from defects in materials and workmanship; and (b) the Hyphen Software shall perform substantially in accordance with its published documentation.
    2. Limited Warranty Remedies. In respect of a valid warranty claim under Section 10.1, Hyphen, as its sole obligation and as Customer’s sole remedy hereunder, shall (a) in the case of the Equipment, either repair or replace, at Hyphen’s sole option, any such Equipment with a new or refurbished conforming Equipment, as determined by Hyphen in its sole discretion, provided that (i) Hyphen, in its discretion, shall be entitled to re-acquire (at no cost to Hyphen except as expressly provided in clause (ii) below) the ownership of any such defective Equipment that has been replaced; (ii) at Hyphen’s request and cost and expense, Customer shall return to Hyphen any such replaced Equipment within thirty (30) days; and (iii) Hyphen will be entitled to invoice the Customer for any such items not returned within this time period; and (b) in the case of the Hyphen Software, make commercially reasonable efforts to resolve inconsistencies between the functionality of such software and its published specifications.
    3. Exclusion of Warranties. Hyphen’s limited warranty obligations hereunder shall terminate and shall not apply where any Equipment or Hyphen Software failure or other breach of warranty was caused by: (i) catastrophe, fault or negligence of the Customer; (ii) operation or use of the Equipment in violation of applicable laws or regulations; (iii) improper or unauthorized use; (iv) use of any unauthorized consumables; (v) installation, modification or repair other than by Hyphen or its authorized technical representatives; (vi) removal of the Equipment from the Location, unless authorized by Hyphen in writing; (vii) unusual stress; (viii) power surges; (ix) deviation from Hyphen’s recommended maintenance procedures; or (x) failure to maintain the prescribed environmental or other conditions at the Location or any other failure to comply with applicable Equipment instructions and/or Documentation.

10.4 WARRANTY DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 10 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT). HYPHEN DISCLAIMS THAT THE OPERATION OF HYPHEN SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE FUNCTIONS THEREIN WILL MEET OR SATISFY THE CUSTOMER (OR USER’S) REQUIREMENTS OR INTENDED USE. THE REMEDIES PROVIDED IN SECTION 10.2 (LIMITED WARRANTY REMEDIES) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF HYPHEN TO CONFORM WITH SUCH LIMITED WARRANTY, AND CUSTOMER SHALL HAVE NO CLAIM, EXCEPT AS AFORESAID, AGAINST HYPHEN OR ANY OTHER MANUFACTURER, SUPPLIER OR LICENSOR OF THE EQUIPMENT, HYPHEN SOFTWARE OR RELATED SERVICES, WHETHER BASED IN CONTRACT, TORT, PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE. REPAIR OR REPLACEMENT (AS ELECTED BY HYPHEN) IN THE MANNER PROVIDED ABOVE SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF HYPHEN WITH RESPECT TO ITS LIMITED WARRANTY, AS WELL AS FOR ANY CLAIMS BASED ON OR RELATING TO THE QUALITY AND PERFORMANCE OF THE EQUIPMENT. CUSTOMER IS SOLELY RESPONSIBLE IN ALL CASES FOR SELECTION OF THE EQUIPMENT AND RELATED HYPHEN SOFTWARE AND SERVICES TO ACHIEVE CUSTOMER’S INTENDED RESULTS OR FOR CUSTOMER’S PARTICULAR APPLICATIONS.

10.5 Use of Unauthorized Parts and Consumables. In the event Hyphen determines that damage to any Equipment has been caused by the use of unauthorized parts and/or consumables, Hyphen may offer to diagnose and repair the Equipment or its components at Hyphen’s then current maintenance restoration rates. Unauthorized relocation, unapproved modifications, third-party repair attempts and failure to install recommended updates or patches will void the warranty. Consumables such as gaskets, seals, drip trays, fill positioners, buffer pads and dispensers are excluded from the warranty.

  1. INDEMNIFICATION
    1. By Hyphen. Hyphen will indemnify, defend and hold harmless Customer from any third-party claim that the Hyphen System, as delivered by Hyphen and used by Customer in accordance with the Agreement, infringes any copyright, trade secret, trademark or United States patent issued as of the Effective Date, and will pay any resulting damages, costs and reasonable attorneys’ fees finally awarded against Customer or agreed in settlement. If such a claim occurs or in Hyphen’s opinion is likely to occur, Hyphen may, at its option and expense: (a) obtain for Customer the right to continue using the allegedly infringing item, (b) replace or modify the item so it becomes non-infringing while providing substantially equivalent functionality or (c) if neither option is commercially reasonable, terminate the Agreement and refund to Customer any pre-paid fees for the Maintenance and Services Package for the unused portion of the then current Subscription Term. This Section does not apply to claims arising from: (1) use of the Hyphen System in combination with other products or services where the claim would not have arisen but for the combination, (2) modifications to the Hyphen System not made by Hyphen, (3) Customer’s continued use of the allegedly infringing item after Hyphen has provided a replacement or modification, (4) Hyphen’s compliance with Customer’s designs, specifications or instructions, or (5) use of the Hyphen System in violation of the Agreement. This Section states Hyphen’s sole liability and Customer’s exclusive remedy for any intellectual property infringement claim.
    2. By Customer. Customer will indemnify, defend and hold harmless Hyphen from any third-party claim and related losses, damages and expenses arising out of Customer Information, Customer Materials, Customer’s food products or Customer’s use of the Hyphen System in violation of the Agreement.
    3. Personal Injury and Property Damage. Each Party will indemnify, defend and hold harmless the other Party from any third-party claim and related losses arising from bodily injury or death of any person or damage to tangible property to the extent caused by: (a) in the case of Hyphen, Hyphen’s performance of services or a malfunction of the Equipment, or (b) in the case of Customer, Customer’s business and operations.
    4. Procedure. The indemnified Party must give prompt written notice of any claim, grant the indemnifying Party sole control of the defense and settlement of the claim and provide reasonable cooperation at the indemnifying Party’s expense. Any settlement that imposes a payment obligation on the indemnified Party or admits fault requires the indemnified Party’s prior written consent.
  2. LIMITATION OF LIABILITY. In no event will either Party be liable to the other Party for any lost profits or any indirect, special, incidental, punitive or consequential damages however caused, whether in contract, tort or under any other theory of liability, even if advised of the possibility of such damages. Except for the excluded claims below, in no event will either Party’s aggregate liability arising out of or relating to the Agreement exceed the fees paid or payable by Customer under the Order Form in the six-month period immediately preceding the event giving rise to the claim. These limitations of liability do not apply to: (a) infringement by one Party of the other Party’s intellectual property rights, (b) indemnification obligations, (c) breach of confidentiality, (d) fraud, gross negligence or willful misconduct, or (e) Customer’s payment obligations. Under no circumstances will Hyphen be liable or responsible for the cost of procurement of substitute products or services, and in no event will Hyphen have any liability for death, personal injury or illness caused as a result of the consumption of any food prepared using the Hyphen System.
  3. INSURANCE. Customer will obtain and maintain, at its expense, insurance coverage in commercially reasonable amounts and with insurers reasonably acceptable to Hyphen, as follows:
    1. Property Insurance. “All-risk” property insurance covering the Equipment (including in transit after delivery, if applicable) against loss or damage, on a replacement cost basis. Hyphen will be named as a lender’s loss payee (or loss payee, as applicable) with respect to such property insurance to the extent of Hyphen’s interest in the Equipment.
    2. Commercial General Liability. Commercial general liability insurance covering bodily injury and property damage arising out of or relating to Customer’s possession, operation, use or maintenance of the Hyphen System, naming Hyphen as an additional insured on a primary and noncontributory basis.
    3. Evidence of Coverage. Upon request, Customer will provide certificates of insurance (and additional insured and loss payee endorsements) evidencing the coverage required by this Section 13. Customer will provide written notice to Hyphen of any cancellation or material reduction of coverage.

Customer’s insurance obligations under this Section 13 are independent of Customer’s indemnity and other obligations under the Agreement.

  1. GENERAL PROVISIONS
    1. Arbitration; Governing Law; Venue. This Agreement shall be governed exclusively by the laws of the State of California, without regard to its conflict‑of‑laws principles. The Parties must submit all claims arising from or relating to the Agreement to binding arbitration administered by JAMS in Santa Clara County, California, in accordance with its then current rules. A single arbitrator will preside and may award only damages and relief permitted by the Agreement. Either Party may enter the arbitrator’s decision in any court of competent jurisdiction. Arbitration will be conducted on an individual basis and not on a class-wide basis. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply. Any claims that are not subject to arbitration will be brought exclusively in the state or federal courts located in Santa Clara County, California, and each Party consents to such jurisdiction and venue. Either Party may seek injunctive or other equitable relief in any court of competent jurisdiction for actual or threatened infringement of its intellectual property rights or breach of confidentiality obligations. 
    2. Assignment. Customer may not assign the Agreement or any of its rights, by operation of law or otherwise, or delegate any of its duties under the Agreement, in whole or in part, without Hyphen’s prior written consent. Any assignment or attempted assignment in violation of this Section is a material breach and is void. Subject to the foregoing, the Agreement is binding upon and inures to the benefit of each Party and its successors and permitted assigns. Hyphen may assign the Agreement without Customer’s consent in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets.
    3. Relationship of the Parties. The Parties are independent contractors. Nothing in the Agreement creates a partnership, joint venture or agency relationship between the Parties, and neither Party has authority to bind the other.
    4. Entire Agreement; Order of Precedence. The Agreement states the Parties’ entire understanding with respect to its subject matter and supersedes all prior and contemporaneous proposals and other written or oral communications relating to its subject matter. The Agreement takes precedence over any conflicting or additional terms in any purchase order or similar document of Customer. If there is a conflict between the Order Form and this Exhibit A, the Order Form controls. Any updated version of this Exhibit A applies only to Order Forms executed after the effective date of such update, unless otherwise expressly agreed in writing by the Parties.
    5. Amendment; Waiver. No modification of the Agreement and no waiver of any breach will be effective unless in writing and signed by both Parties. Waiver of any breach will not be deemed waiver of any other breach.
    6. Severability. If any provision of the Agreement is held invalid or unenforceable, the remaining provisions remain in full force and effect.
    7. No Third Party Beneficiaries. No provision of the Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities on any person other than the Parties and their respective successors and permitted assigns.
    8. Counterparts; Electronic Signatures. The Agreement may be executed electronically and in one or more counterparts, each of which is deemed an original and all of which together constitute one and the same instrument.

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Terms and Conditions Rev A