Definitions

In these Terms, the following definitions apply:

“Additional Charges” shall have the meaning set forth in Section 12.1.
“Business Day” means a day (other than a Saturday, Sunday or public holiday) on which banks are open for business in Luxembourg.
“Terms” means the terms and conditions set forth herein.
“Contract” means the contract between Q-LEAP and Customer for the rental of the Equipment.
“Contract” means the same as the Contract.
“Customer” means the person, firm or corporation that leases the Equipment from Q-LEAP.
“Equipment” means any device, material or equipment (including all accessories provided either as part of a kit or as standard with the main unit) as defined in the Order.
“Q-LEAP” means Q-Leap S.A., having its registered office at L-1717 Luxembourg, 10 rue Mathias Hardt and registered with the Luxembourg Trade and Companies Register under number B.167.970.
“Order” means Customer’s order for the Equipment, as defined in Customer’s order form or Customer’s written acceptance of Q-LEAP’s quotation, as applicable.
“Rental Payment(s)” means the payment(s) made by or on behalf of Customer for the rental of the Equipment and as defined in the Order.
“Rental Period” means the rental period defined in Section 3.
“Risk Period” has the meaning set forth in Section 5.3.

Acceptance

The Conditions apply to the Contract to the exclusion of any other conditions which the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

The Order constitutes an offer by Customer to lease the Equipment in accordance with these Terms. Customer is responsible for ensuring that the terms of the Order are complete and accurate.

The Order shall not be deemed accepted until Q-LEAP issues a written acceptance of the Order, at which time the Agreement shall become effective.

The Agreement constitutes the entire agreement between the parties. Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Q-LEAP that is not set forth in the Agreement.

All samples, drawings, descriptive matter or advertisements produced by Q-LEAP and all descriptions or illustrations contained in Q-LEAP’s catalogs or brochures are produced for the sole purpose of approximating the Equipment described therein. They are not part of the Contract and have no contractual value.

The suitability for use is to be determined by the Customer, no performance targets are expressed or implied by Q-LEAP. The equipment may appear to offer comparable or similar specifications to other manufacturers’ products, but its performance will not necessarily be identical to that of other manufacturers’ products.

A quotation for Equipment given by Q-LEAP does not constitute a bid. A quotation is valid only for a period of thirty (30) days from the date of issuance and is subject to the availability of the Equipment.

Rental period

The rental period shall be as set forth in the Order, unless the Agreement is terminated earlier in accordance with these Terms.

The Lease Period may be renewed either by mutual written agreement of both parties or by tacit renewal after each Renewal Period. The monthly rate set forth in the Order shall apply to any renewal rental period.

If the rental period has not been renewed in accordance with clause 3.2 and the Equipment is not returned to Q-LEAP within 7 working days, Customer will be charged the monthly rate indicated in the order until the Equipment is returned to Q-LEAP.

Delivery

Q-LEAP shall deliver the Equipment to the location specified in the Order or such other location as may be agreed upon by the parties at any time after Q-LEAP has notified Customer that the Equipment is ready for delivery.

The delivery dates indicated by Q-LEAP are only approximate and the delivery time is not essential. It is expressly agreed that Q-LEAP shall not be liable to Customer for any delay in delivery or condition of the Equipment or otherwise.

Title of ownership

The Equipment shall at all times remain the property of Q-LEAP, and Customer shall have no right, title or interest in or to the Equipment (other than the right to possession and use of the Equipment subject to these Terms).

Customer shall immediately notify Q-LEAP if the Equipment is lost, stolen or damaged as a result of Customer’s possession or use of the Equipment or if there is any claim or, for any reason, threat of seizure of the Equipment.

The risk of loss, theft, damage or destruction of the equipment shall pass to the customer upon delivery of the equipment to the customer or, if applicable, to the customer’s designated agent. The Equipment shall remain at Customer’s sole risk during the Rental Period and any other period during which the Equipment is in Customer’s possession, custody or control (“Risk Period”) until Customer is in possession of the Equipment.

Training

The Customer represents and acknowledges that it has the knowledge and experience required to operate the Equipment.

Q-LEAP representatives may be called upon to provide start-up training for Customer, if necessary and at Customer’s request. For the avoidance of doubt, the cost of operator training at start-up is not included in the Order and will be quoted separately upon request.

Liability and equipment failure

In the event that the equipment fails due to a defect in material or workmanship, Q-LEAP’s liability shall be limited to the cost of repair, including parts and labor, to restore the equipment to full working order.

Q-LEAP may, at its sole discretion, extend the rental period at no cost to Customer for the time necessary to replace or repair the Equipment. Q-LEAP shall not be responsible for the cost of Customer’s labor or uptime in connection with any failure, nor shall Q-LEAP be responsible for any costs associated with delaying Customer’s projects.

Without prejudice to Section 7.4, Q-LEAP’s maximum aggregate liability for breach of the Contract (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no event exceed the cost of performing its obligation under Section 7.1.

Nothing in these conditions shall exclude or limit in any way Q-LEAP’s liability for:

• death or personal injury caused by its own negligence or the negligence of its employees, agents or subcontractors (as applicable);
• or fraud or fraudulent misrepresentation.

These terms and conditions define the full extent of Q-LEAP’s obligations and responsibilities with respect to the Equipment and its rental to Customer. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or otherwise, that bind Q-LEAP, except as specifically set forth in these Terms. Any conditions, warranties or other terms with respect to the Equipment that might otherwise be implied or incorporated into the Agreement, whether by statute, common law or otherwise, are expressly excluded.

Q-LEAP shall not be liable to Customer for any :

• loss of profit ;
• loss of income ;
• loss of business;
• indirect or consequential loss or damage, in each case, however caused, even if foreseeable.

Customer’s obligations

Customer shall, during the term of the Agreement:

• at its expense at any time during the Term, maintain and care for the Equipment in good repair, condition and appearance so as to keep it in as good working order as it was on the date of commencement of the Agreement (normal wear and tear only is accepted);
• use all Equipment only for its intended purpose and operate it in a careful and prudent manner and in accordance with the operating instructions;
• comply with all laws, regulations, rules or orders of legally constituted authorities regarding the possession, use, storage and transportation of the Material;
• Maintain effective control of the equipment and keep it in a safe and appropriate environment when not in use;
• ensure that the equipment is used only by competent persons who have been trained in its safe use in accordance with the manufacturer’s operating manuals, instructions and safety warnings;
• Obtain all necessary licenses or other authorizations for the use, registration or handling of specific equipment or technology, and ensure that it is in full compliance with all relevant legal requirements. Q-LEAP reserves the right to request proof of these authorizations before the start of the rental period;
• (if applicable) obtain all necessary licenses or other authorizations for the export, re-export and return of the Equipment;
• ensure that no unauthorized transfer or detour of the Materials occurs;
• if the Equipment is transferred to countries where a regulatory authority requires details of the intended use of the Equipment, Customer shall, upon request, provide Q-LEAP with an “End User Statement”.
• end user statement”;
• if applicable, not to allow the transfer of the equipment to countries prohibited by the Ministry of Commerce or the Ministry of Foreign Trade of Luxembourg;
• do not remove, alter, deface or cover any numbers, letters or insignia displayed on the equipment or on any warnings or literature contained therein;
• do not copy or reproduce in any way the equipment or any part or component of the equipment;
• not perform, or allow any person to perform, any work in or on the Equipment or make any modifications, changes, alterations or repairs other than routine daily maintenance;
• permit Q-LEAP or its representatives to inspect the Equipment at any reasonable time and, for such purpose, to enter the site or any premises where the Equipment may be located, and provide reasonable access and facilities for such inspections;
• maintain the Equipment free of all liens, claims, encumbrances and obligations during the
• rental period ;
• keep Q-LEAP fully informed of all material matters relating to the Equipment;
• return the Equipment at the end of the Rental Period or upon early termination of the Agreement to the address requested by Q-LEAP or, if necessary, allow Q-LEAP or its representatives access to the site or premises where the Equipment is located in order to remove the Equipment. Customer shall package the Equipment using standard packaging materials, if any; and
• not to do or permit to be done anything that would invalidate the assurances set forth in clause 10.

Compensation

Customer agrees to indemnify and hold Q-LEAP and its directors, officers, employees and agents harmless from any and all liability and expenses (including legal fees on a full indemnity basis), however arising or incurred, with respect to:

loss of or damage to the Customer’s property, whether owned, leased or rented, arising out of or in connection with the performance or non-performance of the Agreement; or

injury to or death of any person employed or engaged by the Customer arising out of or in connection with the performance or non-performance of the Contract.

Insurance

During the Rental Period and the Risk Period, Customer shall, at its own expense, provide and maintain the following insurance:

All insurance policies purchased by Customer shall be endorsed to provide Q-LEAP with at least twenty (20) business days prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall, at Q-LEAP’s request, name Q-LEAP on the policies as a loss payee in the event of a loss

related to the equipment. Customer is responsible for payment of all deductibles due on any claims under such insurance policies.

Customer shall give immediate written notice to Q-LEAP of any loss, accident or damage to the Equipment arising out of or in connection with Customer’s possession or use of the Equipment.

Customer shall, upon request by Q-LEAP, provide Q-LEAP with certificates of insurance evidencing the coverage required in Section 10.1. If Customer fails to obtain or maintain insurance or provide satisfactory evidence thereof, Q-LEAP may refuse to provide the Equipment. If Customer is self-insured, Customer shall provide written proof of such upon request to the satisfaction of Q-LEAP. The provision of any insurance required herein shall not relieve Customer of any liability or obligation described in the Agreement or for which Customer may be liable by law or otherwise.

Terms of payment

Q-LEAP will invoice Customer for the rental payment(s) in accordance with the Order.

Customer shall make payment within thirty (30) days of the date of the invoice received from Q-LEAP, unless credit terms are made available to Customer by Q-LEAP.

The final invoice amount will be based on the actual date the Equipment is returned. If the Equipment is returned after the return date specified in the Order, Customer will be billed at the monthly rate set forth in the Order until the Equipment has been returned to Q-LEAP.

In case of late payment, Q-LEAP is entitled to:

• suspend, after written notification, all deliveries, warranty, services and equipment supply.
• charge without notice late payment interest from the day following the due date of the invoice at the statutory rate as provided for in the Act of 29 March 2013 (hereinafter “2013 Act”) on late payment without prejudice to the statutory flat-rate collection costs.

In addition to the statutory lump sum collection fee, Q-LEAP shall be entitled to reasonable compensation for all other collection costs beyond said lump sum incurred as a result of the late payment, such as, but not limited to, attorney’s fees under Section 5 of the 2013 Act.

If an invoice is disputed in any way, Customer must notify Q-LEAP in writing within fifteen (15) days of the invoice date of the reasons for the dispute. Any undisputed invoice will be considered as an “accepted invoice” in accordance with Article 109 of the Commercial Code.

Upon return of the Equipment, the final invoice will be prepared and submitted and will represent the outstanding charges for the entire rental period, as well as any applicable fees.

All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any tax deduction or withholding required by law).

All costs of disassembly, packaging, transportation and/or shipping not included in the Agreement shall be borne by the Customer.

Additional fees

In addition to the rental payment(s) specified in the Order, Q-LEAP shall have the right, in relevant circumstances, to apply additional charges:

• for loss or damage to the Equipment resulting from any breach by the Customer of these Terms;
• if the equipment is damaged and can be repaired, for loss of rental income during the period the equipment is being repaired, provided that such additional expense ceases when the equipment is restored to full working order;
• if the Equipment is damaged and cannot be repaired (i.e., it is written off) or if the Equipment is lost or stolen, for loss of rental income during the period from the date the Equipment is damaged, lost or stolen to the date Q-LEAP receives an amount equal to the full replacement value of the Equipment ;
• for delivery and/or collection of the Equipment off-site, including disassembly, packaging, transportation and shipping costs; and
• for Q-LEAP’s packaging materials if such materials are not returned to Q-LEAP at the end of the lease period or upon early termination of the Agreement;

Q-LEAP will charge Customer for any Additional Charges in accordance with clause 11 and VAT (and any other applicable taxes) will be applied to all Additional Charges.

Cancellation

Without affecting any other right or remedy available to it, Q-LEAP may terminate the Agreement effective immediately by written notice to Customer if:

the Customer fails to pay any amount due under the Agreement by the due date for payment and remains in default for at least five (5) business days after being notified to make such payment;

Customer commits a material breach of any other term of the Agreement and either such breach cannot be cured or (if such breach can be cured) Customer fails to cure such breach within five (5) business days after being notified to do so;

the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they become due or admits its inability to pay its debts or (in the case of a corporation or limited liability company) is deemed unable to pay its debts;

the client enters into negotiations with all or a class of creditors to reschedule debts, or makes a proposal or enters into a compromise or arrangement with creditors;

a petition is filed, notice is given, a resolution is passed or an order is made, for or in connection with the winding up of the client (if a corporation);

an application is made to the court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given, or if an administrator is appointed, on the client (being a corporation);

the holder of a qualified floating charge over the client’s assets (being a corporation) has the right to appoint or has appointed a receiver; or

the client suspends or ceases, or threatens to suspend or cease, the conduct of all or a substantial part of its business; or

any event analogous to (c) through (g) inclusive, occurs in connection with any other legal jurisdiction.

Consequences of termination

In the event of termination of the contract for any reason:

Q-LEAP’s consent to Customer’s possession of the Equipment shall terminate and Q-LEAP may, through its authorized representatives, without notice and at Customer’s expense, repossess the Equipment and, for such purpose, may enter the site or any premises where the Equipment is located; and

Customer shall pay to Q-LEAP, upon request :

• all Rent and other sums due but unpaid at the date of such demand together with interest accrued in accordance with clause 11.4 ;
• all costs and expenses incurred by Q-LEAP to recover the Equipment and/or to collect amounts due under the Agreement (including storage, insurance, repair, transportation, legal and remarketing costs).

In the event of termination of the Agreement pursuant to clause 13.1 or any other repudiation of the Agreement by Customer accepted by Q-LEAP, without prejudice to any other right or remedy of Q-LEAP, Customer shall pay to Q-LEAP, upon demand, a sum equal to the aggregate of the Rentals which (but for the termination) would have been due if the Agreement had continued from the date of such demand to the end of the Rental Period.

Termination or expiration of the Agreement shall not affect any rights, remedies or obligations of Q-LEAP that have accrued up to the date of termination or expiration, including the right to claim damages for any breach of the Agreement that existed on or before the date of termination or expiration.

Privacy

When a party (the receiving party) obtains Confidential Information from the other party (the disclosing party) in connection with this Agreement, it shall take all reasonable steps:

• keep the Confidential Information and the terms of this Agreement in strict confidence,
• use such Confidential Information solely for the purpose of performing its obligations under this Agreement,
• not disclose them to any third party without the prior written consent of the disclosing Party, whether before or after the date of this Agreement.

Any Proposal or information marked as confidential must be treated as such.

The receiving party may disclose the disclosing party’s confidential information on a “need to know” basis:

legal advisors and auditors hired by the Company,

any regulatory body with regulatory or supervisory authority over its activities,

any director, officer or employee of the Receiving Party, provided that in each case the Receiving Party has first informed such person of the obligations with respect to the Confidential Information and has satisfied itself that such person is bound by obligations of confidentiality with respect to the Confidential Information that are no less restrictive than those set forth in this clause, and

where the Receiving Party is Q-LEAP, to one of its subcontractors.

Each party shall ensure that its employees, agents and representatives comply with the obligation set out in clause 15.

Exceptions

The provisions of clauses 15.1. and 15.2 do not apply to Confidential Information that :

• are legitimately in the possession of, or known to, the Receiving Party prior to receipt of such information from the Disclosing Party and which had been received by the Receiving Party without an obligation of confidentiality or disclosure ;
• has been lawfully disclosed to the Receiving Party by another Person who has lawfully acquired it and is not under any obligation restricting its disclosure ;
• becomes part of or enters the public domain without improper action or inaction on the part of the receiving party; and
• is developed independently by the receiving party,
• is required by law or by any regulatory authority.

General

Disposal and other transactions

Q-LEAP may at any time assign, transfer, mortgage, charge, subcontract or otherwise deal with all or any of its rights or obligations under the Agreement.

Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust or otherwise deal with any of its rights or obligations under the Agreement without the prior written consent of Q-LEAP.

Notice

Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if a company) or principal place of business (in any other case) or such other address as that party may have specified in writing to the other party in accordance with this clause, and shall be delivered by hand, sent by prepaid first class mail or other next business day delivery service, commercial mail or e-mail.

A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 15.2 (a); if sent by prepaid first class mail or other delivery service on the next business day, at 9:00 a.m. on the second business day after mailing; if delivered by commercial courier, on the date and time the courier’s delivery receipt is signed; or, if sent by e-mail, one business day after transmission.

The provisions of this clause shall not apply to service of process or other documents in any legal action.

Data Protection Act

Q-LEAP must comply with all applicable legislation regarding the protection of personal data, including the protection of data under Luxembourg law.

If Q-LEAP acts as a data controller in accordance with Luxembourg law, Q-LEAP undertakes, as a condition of this Agreement, to process personal data only in accordance with Luxembourg law and as required for the provision of the Services and the Equipment as defined in this Agreement, and in particular to

• not to transmit personal data to a third party without the prior written consent of the Customer; and
• keep personal data confidential.

Q-LEAP will act in accordance with all reasonable instructions from Customer with respect to the processing of personal data. Q-LEAP undertakes not to process personal data outside the European Economic Area (or any other country deemed appropriate by the European Commission) without the prior written consent of the Customer.

Q-LEAP undertakes to inform Customer immediately:

• if it cannot comply with its obligations under this section ;
• accidental or unauthorized access; and
• any legally binding request for disclosure of personal data by a law enforcement agency, unless prohibited by law.

At the end of the provision of the Services and Equipment, Q-LEAP shall, at Customer’s option, either return all available personal data transferred and copies thereof; or destroy all available personal data and certify that it has done so.

No partnership

Nothing in this Agreement shall be construed to create a joint venture, partnership or other business association outside the terms of this Agreement.

Q-LEAP personnel providing Services and Equipment to Customer shall not be considered employees of Customer for any purpose. Each party remains an independent contractor. The relationship between the parties is solely that of independent contractors and neither party has the authority to act for or bind the other party.

Subcontracting

Q-LEAP may subcontract all or part of the Services and the supply of Equipment to one or more third parties with Customer’s prior written consent and remains solely responsible for its obligations under this Agreement.

Non-solicitation

During the term of this Agreement and for a period of six (6) months following termination of this Agreement, Customer shall not directly or indirectly solicit the hiring of or engage (whether as an employee, consultant or in any other capacity) any personnel of Q-LEAP, without the prior written consent of Q-LEAP. In the event of non-compliance with this obligation, Customer expressly undertakes to pay financial compensation to Q-LEAP equal to one (1) year’s gross salary (plus employer’s social security contributions) of the relevant employee of Q-LEAP. The penalty is due for each employee approached/hired by the Client in violation of this clause.

Transfer

Neither party may assign, sublicense or otherwise transfer its rights under this Agreement without the prior written consent of the other party, which consent may not be unreasonably withheld or delayed, provided that nothing in this Agreement shall prevent or restrict Q-LEAP from assigning, sublicensing, transferring or otherwise disposing of its rights or obligations under this Agreement to its affiliates.

Force majeure

Neither party shall be liable for delay or failure to perform its obligations under this Agreement if such delay or failure is caused by circumstances beyond its control, including, but not limited to, flood, earthquake, elements of nature or acts of God, riot, civil disturbance, rebellion or revolution in any country, or any other cause beyond a party’s reasonable control such as, but not limited to, the unavailability of a computer utility or logistical service, if the non-performing party was not at fault in failing to prevent or cause the failure or delay, or if the non-performing party was unable to prevent or circumvent it through the use of alternative sources, workarounds or other reasonable precautions.

The dates and times by which Q-LEAP is required to perform its obligations under this Agreement shall be automatically extended to the extent that Q-LEAP is prevented from doing so by such force majeure conditions.

Cancellation

If any provision or portion of a provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such an amendment is not possible, the provision or part of a provision concerned shall be considered deleted. Any modification or

Any modification or deletion of any provision or part thereof under this clause shall not affect the validity and enforceability of the remainder of the Agreement.

If any provision or portion of a provision of this Agreement is invalid, illegal or unenforceable, the parties will negotiate in good faith to modify such provision so that, as modified, it is legal, valid and enforceable and, to the extent possible, achieves the intended business result of the original provision.

Waiver

A waiver of any right or remedy under the contract or by law shall be effective only if in writing and shall not be deemed a waiver of any subsequent breach or default. The failure or delay of a party to exercise any right or remedy provided by the Agreement or by law shall not constitute a waiver of such right or remedy or any other right or remedy, nor shall it preclude or limit the further exercise of such right or remedy or any other right or remedy. No single or partial exercise of any such right or remedy shall preclude or limit the further exercise of that or any other right or remedy.

Variation

Subject to the provisions of these terms and conditions, no modification of the Agreement, including the introduction of additional terms and conditions, shall be effective unless made in writing and signed by Q-LEAP.