​TERMS, WARRANTY, AND DELIVERY AGREEMENT

Please read all the terms of this terms, warranty, and delivery agreement (these “Terms”) with Hurex Tool & Rental Ltd. (“Hurex”) carefully. By signing a document that refers to these Terms, by agreeing to these Terms by telephone, email, or through some other communication, or by placing an order for any goods sold by Hurex (“Goods”), you (the “Buyer”) agree to be bound by these Terms even if you have not read them. It is important to read this entire document. In particular, these Terms contains provisions that may limit your rights. Please especially review the Sections entitled “EXCLUSION OF LIABILITY”, “LIMITATION OF LIABILITY”, and “INDEMNIFICATION”.

1. Estimate, Sales Order, and Invoice for Goods: The Buyer shall send all requested information to Hurex for the purpose of requesting Goods from Hurex. Hurex shall then review such information and provide a quote to the Buyer in the form of an “Estimate”, which shall detail the Goods to be sold, the Goods’ quantity, the estimated price of the Goods, and any other applicable terms. All prices stated on the Estimate are subject to change without notice.
   Upon Hurex’s receipt and review of the Buyer’s acceptance of the Estimate, Hurex may then accept the Estimate and send the Buyer a “Sales Order”, which will finalize the Goods to be sold, the Goods’ quantity, the Goods’ price, and any other applicable terms. Any Sales Order is non-cancelable by the Buyer. Subsequently, once the Goods are ready for delivery or pick up, an “Invoice” is created by Hurex, which will re-iterate the finalized terms contained on the Sales Order.
   Hurex will issue an Invoice and, subject to Buyer’s compliance with Section 2, provide to the Buyer the Goods in accordance with the descriptions and specifications set forth in the Sales Order. All descriptions and specifications relating to the Goods are subject to variation within reasonable tolerances. In the event of any conflict between these Terms, the Sales Order, and the Invoice, the following order of precedence shall be as follows: (a) these Terms; (b) the applicable Sales Order; and (c) the applicable Invoice. Any other terms proposed in any other document that add to, vary from, or conflict with these Terms, the Sales Order, or the Invoice are excluded, except for any references solely intended to incorporate the descriptions and specifications of the Goods to the extent that such descriptions and specifications do not conflict with same on the face of the Sales Order.

2. Terms of Payment: All terms related to payment including, but not limited to, the currency, the time and place, and the payment plan (if applicable), shall be described on the Invoice. Unless otherwise specified on the Invoice, the purchase price shall be in Canadian dollars, excludes all applicable taxes, and is to be paid, at the sole discretion of Hurex, (a) prior to the Buyer taking possession of the Goods; or (b) if Hurex permits the Buyer to take possession of the Goods prior to payment, NET 30 commencing on the date of the Invoice. The Buyer is responsible for all applicable taxes. Interest will be charged on the outstanding amounts at the simple interest rate of 2% per month (25% per annum). The failure of the Buyer to pay any portion of the purchase price constitutes a waiver of the Buyer’s right to demand Hurex's performance under these Terms.

3. Title and Security Interest: Title to all Goods will vest to the Buyer upon full payment of the purchase price. Hurex reserves the right to take possession of the Goods, including the right to reclaim any Goods in transit, if the Buyer defaults in its obligation to pay any portion of the purchase price when due. The Buyer hereby grants, and Hurex hereby retains, a purchase money security interest in the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, until the full purchase price shall have been paid.
   The Buyer agrees that Hurex will have the right to file financing statements pursuant to evidence its security interest. The Buyer will join Hurex in executing such financing statements or other instruments as Hurex may reasonably request to perfect such interest and hereby authorizes Hurex to execute and file or record such financing statements and instruments on the Buyer’s behalf and in the Buyer’s name. The Buyer hereby irrevocably waives its rights to receive a copy of any financing statement, financing change statement, verification statement, or other similar instruments filed or issued at any time in respect of these Terms or any amendment hereto.

4. Requests to Redirect Payments: Hurex is unlikely to change bank details and will only do so after written and verbal confirmation with the Buyer. The Buyer agrees s/he will not accept any changes to bank details, unless the Buyer has verified such changes by contacting Hurex by both phone and email, using contact details that the Buyer is familiar with. Hurex will not be responsible for any amount paid by the Buyer to a wrong account.

5. Shipping and Delivery: Unless otherwise specified on the Estimate, Sales Order, or Invoice, (a) Goods will be delivered to Hurex, to be picked up by the Buyer; and (b) Incoterms© 2020 FOB destination will apply to all shipments. Any time or date specified in the Sales Order or Invoice related to the shipment or pickup of the Goods is an estimate. Hurex will not be liable for any penalties or damage of any kind if the estimate cannot be met.

6. Intellectual Property: Hurex and its third-party licensors (where applicable) own and retain all rights, title, and interests in all plans, drawings, designs, specifications, graphic representations, models, prototypes, samples, goods, and other documents of whatever nature related to the Goods and any enhancement requests, feedback, recommendations, or other information that is 6049918 developed, created, authored, conceived, reduced to practice or acquired by Hurex whether provided by the Buyer or others relating to the Goods.

7. Privacy: The Buyer hereby agrees that Hurex may collect, use, and/or disclose the personal information that the Buyer provides or makes available to Hurex for the purpose of rendering all services necessary and/or incidental to Hurex’s performance of these Terms.

8. Exclusive Limited Warranty:
   ​​​(a) Passing On Limited Warranty from Third Parties: Hurex shall pass through to the Buyer all warranties from the original manufacturer to the extent permitted by such manufacturer, which will be described in separate documents or on such manufacturer’s website.
   (b) Limited Warranty Respecting Goods: Hurex solely warrants that, for a period of thirty days commencing on the date of the Invoice, the Goods will be free of defective materials and workmanship; however, such warranty shall not apply to any Good that has been subject to abuse, misuse, neglect, negligence, accident, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Hurex or the applicable manufacturer of the Good.
   (c) Warranty Claim: If Buyer believes that a particular Good is not free of defective materials and workmanship, then the Buyer must provide Hurex notice thereof on a timely basis, and in any case within the warranty period stated in Section 8(b). If the Buyer does not provide such timely notice, then the Buyer will be deemed to have waived such claim for warranty. If, however, the Buyer provides such timely notice to Hurex, then Hurex shall determine, in good faith, whether such Good is defective. If Hurex determines that the Good is defective, then Hurex shall either, in its sole discretion, (i) replace the defective Good with a non-defective Good, or (ii) refund the purchase price for the defective Good upon receiving the defective Good from the Buyer. The Buyer acknowledges and agrees that the remedies set out in this Section 8(c) are the Buyer’s exclusive remedy for defective Goods.
   (d) Limited Right of Return. All sales of Goods to the Buyer are made on a one-way basis and the Buyer has no right to return any Good, except in accordance with any return policy disclosed on www.hurex.ca or on any other applicable website controlled by Hurex.

9. LIMITATION OF WARRANTIES: Excluding the limited warranty stated under Section 8(b), Hurex disclaims all conditions and warranties, either express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, title, non-infringement of third party rights, non-misappropriation of intellectual property rights of a third party, custom, trade, quiet enjoyment, accuracy of informational content or results, or system integration, or any conditions or warranties arising under any other legal requirement. Hurex is not responsible for any delays, delivery failures, or other damage of any nature, kind, or extent resulting from such problems.

10. EXCLUSION OF LIABILITY: In no event will Hurex be liable to the Buyer for any incidental, indirect, special, consequential, moral, punitive, or exemplary damages; loss of profits, loss of revenue; business interruption, regardless of the nature of the claim, even if the Buyer has been advised of the possibility of such damages.

11. LIMITATION OF LIABILITY: The cumulative liability of Hurex for all claims arising from or relating to these Terms or the parties’ relationship, including, without limitation, any cause of action sounding in contract, in tort (including without limitation, negligence or strict liability), in equity, by statute, by other legal theory, or otherwise howsoever arising, will not exceed the fees paid to Hurex by the Buyer under the applicable Invoice.

12. INDEMNIFICATION: The Buyer acknowledges that the Goods may not be specifically designed, tested, manufactured or intended for use in any inherently dangerous, life endangering, or life support applications where any failure of the Goods could lead to death, personal injury, or significant physical or environmental damage (“High-Risk Activities”). The Buyer shall indemnify and hold Hurex harmless from any and all claims for loss, cost, damage, expense, or liability arising out of or in connection with any use of the Goods in High-Risk Activities.

13. General Provisions:
    (a) Governing Law, Dispute, and Venue: These Terms, any Sales Order, and any Invoice will be governed in all respects, including validity, interpretation, and effect by, and will be enforceable in accordance with Ontario law without regard to its conflict of laws principles. Each of the parties irrevocably submit to the jurisdiction of the Ontario courts. A party commencing any proceeding against the other shall bring such proceeding in the applicable Ontario Court in London, Ontario. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms, any Sales Order, and any Invoice.
    (b) Entire Agreement: These Terms sets forth the entire agreement of the parties with regard to the subject matter hereof, and supersedes, replaces, and controls with respect to any and all prior oral or written agreements or understandings 6049918 (c) between the parties as to the subject matter of these Terms. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth in these Terms.
    (c) Amendments: No modification of these Terms will be valid unless it is in writing and signed by authorized representatives of both parties. No previous course of dealing will be admissible to explain, modify, or contradict any provision of these Terms.
    (d) Waivers: Failure on the part of any party to these Terms to complain of any act or failure to act of any party to these Terms or to declare such party in default, irrespective of how long such failure continues, will not constitute a waiver by the non-defaulting party of its rights hereunder. Each and every waiver of any covenant, representation, warranty, or other provision of these Terms must be in writing and signed by each party whose interests are adversely affected by such waiver. No waiver granted in any one instance will be construed as a continuing waiver applicable in any other instance; and without limiting the generality of the foregoing, the waiver by either party of a breach of any provision of these Terms will not operate or be interpreted as a waiver of any other or subsequent breach.
    (e) Severability: If any provision of these Terms is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree that any invalid provision will be deemed to be restated so as to be enforceable to the maximum extent permissible under law consistent with the original intent and economic terms of the invalid provision.
    (f) Assignment: Neither these Terms nor any obligations or rights arising hereunder may be assigned or transferred by the Buyer, by operation of law, merger or otherwise, to any third party without Hurex’s prior written consent, which will not be unreasonably withheld, except that either party may freely assign its rights under these Terms in connection with a merger, amalgamation, acquisition, or sale of all or substantially all of its assets or business.
    (g) Notices: Any notice, payment, demand, or communication required or permitted to be given by these Terms will be in writing and will be delivered personally to the party to whom the same is directed, or sent by electronic mail, registered, or certified mail, or by overnight courier, return receipt requested, to the principal contact of the Buyer identified on the Invoice.
    In the case of any notice to be given to Hurex under these Terms, the notice is to be delivered electronically to Hurex at accounting@hurex.ca. The address given for the delivery of a notice may be changed at any time by either party by written notice in accordance with this Section.
    (h) Counterpart Execution and Delivery: These Terms, any Sales Order, and any Invoice may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. An executed copy of these Terms (or any portion of these Terms) may be delivered by any of the parties by facsimile, digital, or similar capability regardless of the medium of transmission, and such delivery will be effective and binding upon such party, and will not in any way diminish or affect the legal effectiveness, validity or enforceability of these Terms.
    (i) Force Majeure: Hurex will have no liability to the Buyer under these Terms if it is impeded, prevented from, or delayed in performing its obligations under these Terms, or from carrying on its business, by acts of God, acts, events, omissions, accidents, or unavailability of supply beyond its reasonable control, including, by way of example, inability to access the internet, shortage or failure of supply of components or materials war, civil insurrection, public disorder, terrorism including any act of sabotage, riot, fires, floods, perils of the sea, epidemics, or failure of public or private utilities, transportation or communication systems, malicious acts of third parties, including by way of example the installation of malware, DDoS attacks, hacking, or ransomware, compliance with a law or governmental order, embargo, labour or strikes, or other labour trouble, and accident or breakdown of plant or machinery or technical failure not due to the negligence of Hurex. [End of these Terms 6049918]