Terms & Conditions

TERMS AND CONDITIONS

The following terms and conditions (“T&Cs”) are applicable to all sales of products (“Products”) with Service (“Service”) included made by Vivreau US LLP (“Vivreau”) to any purchaser of the Products (“Buyer”) placed through whatever means.

1. Buyer’s Acceptance of Terms. By placing an order with Vivreau through whatever means (an “Order”), Buyer accepts these T&Cs and these T&Cs prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its Order or other documents containing any such terms. Fulfillment of Buyer’s Order by Vivreau does not constitute acceptance of any of Buyer’s terms and conditions in the Order or other documents and does not serve to modify or amend these T&Cs. If there is any inconsistency between these T&Cs and terms and conditions contained in any other document submitted by Buyer, these T&Cs shall control even if Buyer’s documents expressly limit acceptance to use of Buyer’s terms and conditions. These T&Cs and any basic Order terms (i.e. list of the Products, quantity, UPC or item number, requested delivery date; price, billing address and delivery location) constitute the entire agreement between the parties as to any particular purchase by Buyer of Product and associated Service.

2. Orders. Buyer will provide written Orders to Vivreau from time to time. Each Order constitutes a separate offer from Buyer to purchase Products, which may include Service, and an Order will not be binding upon Vivreau until accepted. Vivreau’s written confirmation, receipt of payment, commencement of work, or shipment of Products in connection with an Order, whichever occurs first, shall constitute acceptance of the Order by Vivreau.

3. Delivery. All Products will be delivered Ex Works (EXW) per Incoterms 2020 and title to the Products shall pass from Vivreau to Buyer when the Products leave Vivreau’s warehouse. Products will ship one to two weeks prior to scheduled/agreed installation date by Vivreau technician.

4. Price. Prices for the Products and Service are based on Vivreau’s quote to Buyer on Vivreau’s current price lists, as applicable. Vivreau may change any prices at any time. Price does not contain applicable taxes, sales tax or otherwise, which will be charged separately in accordance with government or taxing authority regulations.

5. Payment. Vivreau’s payment terms are either via prepayment or Net 30 from date of delivery, if Buyer has pre-approved credit terms with Vivreau. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. In addition, Buyer shall reimburse Vivreau for all expenses and costs incurred or expended by Vivreau in enforcing any of its rights hereunder and/or collecting any past due sums, whether or not suit is commenced. Buyer may not reduce any payment by any alleged discounts or other deductions without Vivreau’s prior written consent. Buyer is responsible for paying all applicable local, state, federal, use, sales and excise taxes in relation to the purchase of the Products.

6. Inspection. Buyer shall carefully inspect all Products and shipping documents promptly upon delivery of Products. No claim for the failure of a Product to comply with the Warranty will be valid or enforceable against Vivreau unless Buyer gives Vivreau written notice specifying in detail the issue within 24 hours from the date that Buyer receives the Products. Buyer shall supply such reasonable documentation as to any loss as Vivreau may request. Buyer shall be deemed to have accepted all Products not rejected in accordance with the preceding sentences. If any Products are non-conforming, Buyer has provided proper notice, and if the non-conformity was not caused by Buyer or due to misuse or handling after Vivreau delivered the Product to Buyer, Vivreau will, at Vivreau’s option, (i) replace the non-conforming Products at no additional charge to Buyer or (ii) reimburse Buyer for amounts Buyer paid for such non-conforming Products. This Section 6 sets forth Buyer’s sole and exclusive remedy and Vivreau’s sole liability for any failure of the Products to comply with the Warranty.

7. Product Warranty. Vivreau warrants that, for the period of one year from the Warranty Start Date the Products will be free from material defects in materials and workmanship (“Warranty”). The “Warranty Start Date” is the earlier of the date of installation of the Product or 3 months following the date that the Product is delivered to Buyer from Vivreau’s EXW warehouse, provided that Buyer must notify Vivreau of the customer name, address, type of Product, GPO affiliation of customer and contact name. The Warranty will not apply and will be considered void if: (a) any Product is modified without Vivreau’s written consent; or (b) any Product has been altered or repaired other than by Buyer or a third party expressly approved by Vivreau; or (c) any Product has been subjected to abuse, misuse, neglect, negligence, accident, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Vivreau, or (d) any Product has been used in combination with any other products not supplied, approved or recommended by Vivreau.

8. Returns: Any returns of Product are subject to a twenty (20%) restocking fee and Buyer is responsible for return shipping charges. Returns are available for thirty (30) days. After thirty (30) days, returns are subject to Vivreau approval, at Vivreau’s sole discretion.

9. Service (if applicable): If Purchased, Buyer commits to one (1) year of Service for Products or Buyer can opt to sign Vivreau’s current Service agreement for these Products or longer terms. Service will be effective starting on the date of installation of Products. Service includes one preventative maintenance filter change, any necessary repairs to correct any Product issues, and associated filters and parts as needed. Such Service will be included in Service Price except if there is misuse or negligence on behalf or either Buyer or Buyer’s Customer, in which case, Vivreau will charge for repairs at Vivreau’s then current rate for labor and parts. Vivreau will provide Buyer with appropriate contact information for Service for repairs as needed. After this initial one (1) year Service, Buyer may renew (or continue to renew) Service with Vivreau directly through Vivreau’s Sales team.

10. Service Requirements (if applicable): If Buyer is contracting with Vivreau for an initial one (1) year Service, Buyer notify Vivreau promptly of any necessary repairs and to allow access for Vivreau’s technicians for such Service. Buyer will have access to contact information for Vivreau’s Service and understands Buyer’s obligations to follow Vivreau’s operating instructions for Product as referenced on www.vivreauwater.com. Buyer acknowledges their responsibilities with respect to CO2: (i) Buyer is responsible to provide CO2 for Products as needed; (ii) Buyer shall follow all applicable laws, statutes and regulations with regard to the use and handling of the CO2; and (iii) Buyer is responsible for all liability associated with CO2 and shall indemnify Vivreau as such.

11. Disclaimer of Other Warranties. EXCEPT FOR THE WARRANTY IN SECTION 7, THERE ARE NO WARRANTIES, CONDITIONS OR REPRESENTATIONS, EXPRESS OR IMPLIED BY STATUTE, USAGE, CUSTOM OF THE TRADE OR OTHERWISE WITH RESPECT TO THE PRODUCTS PROVIDED BY VIVREAU HEREIN OR PURSUANT HERETO, INCLUDING BUT NOT LIMITED TO, WARRANTIES, CONDITIONS, OR REPRESENTATIONS OF WORKMANSHIP, MERCHANTABILITY, NON-INFRINGEMENT, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR DURABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VIVREAU DOES NOT WARRANT THAT THE PRODUCTS WILL MEET ALL OF BUYER’S OR ITS CUSTOMERS’ NEEDS.

12. Limit of Liability. VIVREAU WILL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, CONTINGENT, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE OR USAGE,

COST OF SUBSTITUTE PRODUCTS, ADDITIONAL COSTS INCURRED BY BUYER, OR CLAIMS OF THIRD PARTIES. VIVREAU’S TOTAL LIABILITY TO BUYER FOR DAMAGE OR LOSS ARISING OUT OF, OR IN ANY WAY RELATED TO, THE SALE OF PRODUCTS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND/OR GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY OR ANY OTHER CAUSE AND SHALL IN NO EVENT EXCEED THE PRICE OF PRODUCTS TO WHICH SUCH CLAIM RELATES.

13. Obligations. Buyer will (i) ensure appropriate electrical, water access/plumbing, and drainage as per Vivreau’s requirements; (ii) comply with all applicable laws, statutes, rules and regulations; (iii) not make any Product claims unless such claims are already on Vivreau’s packaging, website or otherwise approved by Vivreau in writing; (iv) will not resell Products online; and (v) not engage in any unfair or unethical trade practices or make any false or misleading representations with respect to Vivreau, its personnel or Products.

14. Indemnification. Buyer agrees to defend, indemnify, and hold harmless Vivreau and its affiliates, or their respective officers, directors, employees, shareholders, agents, successors, or assigns from all liabilities, claims, and expenses, including attorney's fees, that arise from (i) Buyer’s breach of these T&Cs; (ii) the negligent or more culpable act or omission of Buyer or its employees or agents; (iii) any injury or death to persons or damage to property caused by Buyer’s performance of any installation, repair or replacement services related to the Products; and (iv) any failure by a Buyer to comply with any applicable laws.

15. Trademarks. All trademarks, trade names, trade dress, designs and logos, as well as any other text or images that appear on packaging or collateral materials, that are owned or licensed by Vivreau and used in connection with the marketing, promotion and/or distribution of Products (collectively, the “Trademarks”) are the sole and exclusive property of Vivreau. Vivreau grants to Buyer a limited, non-exclusive, non-transferable and non-sublicensable license to use the Trademarks solely in connection with its distribution and sale of the Products, and only in a manner (i) consistent with the maintenance of the Trademarks and (ii) that preserves and protects the Trademarks under applicable state and federal law. Buyer will market and distribute the Products using only the Trademarks.

16. Software: Buyer understands that there is operating software installed on Products and delivered or made available on a hosted or cloud basis (collectively, with any updates provided by Vivreau, the “Software”) and such Software is designed to enable the monitoring, configurations, service and management of the Products. Vivreau may from time to time push Software updates and patches directly to Products for installation and Buyer will not prevent Vivreau from doing so. Buyer acknowledges that Products must be installed in a location where the Products may communicate with the cellular network. If Buyer purchases a Service plan, Buyer will grant Vivreau or its Service agent access to maintain the Software, as appropriate. Vivreau may store and use certain data, such as anonymized Product and software performance data, and other metadata and performance data based on Buyer’s use of the Products (“Performance Data”) to identify common patterns, to anticipate service and maintenance needs, track volumes, and improve Vivreau’s Products and Services. Vivreau will own all right, title and interest in such Performance Data. For clarity, Performance Data does not include any data associated with Buyer, except as related to location of Product.

17. Confidential Information. All non-public, confidential or proprietary information of Vivreau, including, but not limited to, documents, new Products, designs, plans, distribution strategies, know-how, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Vivreau to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked,

designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, and shall not be disclosed or copied by Buyer without the prior written consent of Vivreau. Buyer shall use at least the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use or disclosure of Vivreau’s Confidential Information. Buyer shall promptly return to Vivreau all Confidential Information upon Vivreau’s written request. All of the obligations of Buyer under this Section shall survive the expiration or termination of this Agreement.

18. Force Majeure. With the exception of payment obligations hereunder, the obligations of either Vivreau or Buyer under these T&Cs shall be excused for any delay or failure to perform due to circumstances beyond its control including, without limitation, supplier delay; acts of civil or military authority; acts of terrorism; acts of nature, fire, or other catastrophes; labor disputes, strikes; inability to secure materials and transportation facilities; transportation delays; governmental acts or orders including quarantines, pandemics or epidemics; and reasonably unavoidable accident or similar causes beyond its control.

19. Termination. Buyer shall be in default if Buyer : (i) fails to make any payment to Vivreau when due; (ii) makes an assignment for the benefit of creditors or consents to or acquiesces to the appointment of a receiver, liquidator, fiscal agent, or trustee; (iii) becomes insolvent or enters into a voluntary or involuntary bankruptcy or receivership; or (iv) fails to fully and faithfully perform and observe all covenants and obligations under these T&Cs (each, a “Default”). If Buyer is in Default, Vivreau may terminate or suspend Vivreau’s performance under this Order, in whole or in part, effective immediately upon Buyer’s receipt of Vivreau’s notice of termination.

20. Governing Law; Venue; Attorney’s Fees. These T&Cs shall be governed by the laws of the State of New York without regard to its choice of law provisions. Any controversy or claim arising out of or relating to these T&Cs, or the breach thereof, or any rights granted hereunder, shall be settled by binding arbitration in New York, New York and each party waives all defenses of lack of personal jurisdiction and forum non conveniens. The arbitration shall be conducted by, and in accordance with the rules of JAMS (f/k/a Judicial Arbitration and Mediation Service), before a single arbitrator. The arbitration shall be the exclusive forum for resolving any such dispute, controversy or claim. The decision of the arbitrator shall be binding upon the parties hereto, and the expense of the arbitration (including, without limitation, the award of attorneys’ fees to the prevailing party) shall be paid as the arbitrator determines. The decision of the arbitrator shall be final, and judgment upon the award of the arbitration may be entered in any court where the arbitration takes place or any court having jurisdiction thereof, and application may be made to any court for a judicial acceptance of the award or order of enforcement.

21. Insurance. Buyer shall, at its sole cost and expense, maintain in force (i) commercial general liability in the amount of at least $1,000,000 per occurrence, and $2,000,000 in the aggregate, (ii) automobile liability with coverage of at least $1,000,000 per occurrence, (iii) and workers’ compensation . All insurance except worker’s comp shall name Vivreau as an additional insured. Buyer shall provide Vivreau with certificates of insurance and evidence of payment of premiums verifying Buyer’s compliance on the request of Vivreau.

22. Miscellaneous. The relationship between Buyer and Vivreau is that of vendor and vendee, as independent contractors. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party will be liable for performance delays or for non-performance due to causes beyond its reasonable control, except for payment obligations. There is no relationship of partnership, joint venture, employment, franchise or agency between the parties and Buyer will not have the power to bind Vivreau or incur obligations on

Vivreau’s behalf without Vivreau’s prior written consent. If any provision of these T&Cs shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in these T&Cs . None of the provisions of these T&Cs shall be (a) deemed to have been waived unless such waiver shall be set forth in writing signed by Vivreau, or (b) subject to modification or waiver by course of performance, course of dealing, or usage of trade.