TERMS OF USE

Last updated 06/24/2020

AGREEMENT TO TERMS

1. INTERPRETATION

1.1. All references to “we” herein mean Diversitech Equipment and Sales (1984) Ltd.

1.2. All references to “you” herein mean:

(a) the “Customer” referred to herein and in the Sales Order joining these presents (such Sales Order together with any amendments, supplements and additional agreements related thereto and all annexes and schedules in respect thereof, collectively the “Sales Order”); and (b) any affiliates and any party related, whether directly or indirectly, to such “Customer”.

2. LIMITED WARRANTY AND LIABILITY

2.1. All units and equipment sold by us to you (collectively “Units”) pursuant to the Sales Order are warranted to be free from defects in material for a period of 2 years from the date of purchase (the “Warranty Period”).

2.2. We will repair or replace, at our discretion, any defective parts that fail during the Warranty Period, returned to the manufacturer’s plant with freight prepaid. This warranty is limited to replacement parts ONLY, subject to on-site or in- house evaluation of defective materials and does not apply to any personal liability or property loss that occurs due to the use or installation of this equipment.

2.3. We expressly exclude all warranties whatsoever, other than those included in Section 2.1 hereof, express or implied, legal or conventional, including, without limitation, any and all warranties of quality, merchantability and fitness for a particular purpose.

2.4. To the extent that any Units are integrated with any products, equipment, units, connections and/or systems of a third-party (“Third-Party Products”), we hereby expressly exclude all of the following warranties, express or implied, namely:

(a) warranty against defects of any kind (latent or apparent), fitness for purpose, merchantability or functionality to the extent of any such Third-Party

Products; and (b) any warranty against any defects or problems of any kind, whether latent or apparent, in respect of Units or a Third-Party Product, caused or arising directly or indirectly as a result of the integration with or use of Units in connection with any Third-Party Product.

2.5. You hereby expressly waive and renounce to any and all claims against us relating to loss of profits, loss of business or goodwill, interruption of business and all indirect, special, incidental or consequential damages of any kind whether arising from or in connection with the Sales Order or from the use of Units, however caused, and whether in the nature of breach of obligations, breach of warranty, repudiation of contract, tort, negligence (save in the event of gross negligence or intentional fault) or otherwise. Accordingly, save in the event of gross negligence or intentional fault, we shall have no liability whatsoever towards you under this agreement for any losses or damages, direct or indirect, consequential, exemplary, incidental or otherwise, regardless of whether we received advanced notice or were advised of the possibility of such claim, loss or damage.

2.6. You are solely responsible for determining if Units fit your particular purpose and are suitable for your designated process, application, fitment, tooling, set-up and uses(s).

3. FREIGHT CLAIMS

3.1. Shipments must be inspected by you upon arrival. All Units are sold ex-plant. Therefore, it is the receiver’s responsibility to file any freight claims with the carrier for obvious or concealed damages. Damaged shipments must be refused at the time of receipt.

4. RETURN MATERIAL POLICY

4.1. Prior to the return of material, for whatever reason, a return merchandise authorization number (“RMA#”) is required from our customer service department. This procedure is necessary for proper control and handling of returned materials. Call 1-800-361-3733 or email support@diversitech.ca to obtain a RMA #. All material must be returned prepaid. Credit will be given for returns for warranty repair or replacement. Freight collect shipments will not be accepted. It is the shipper’s responsibility to ensure that material being returned to us is adequately packaged for shipment in order to prevent damages.

5. FEES AND CANCELLATION CHARGES

5.1. You will be responsible for any additional charges and fees not expressly included in the Sales Order, including, without limitation, any fees or charges relating to installation, service calls, consulting, installation, customization, “right-sizing”, engineering, maintenance and/or repair. For greater certainty, unless expressly provided in the Sales Order, we do not provide you with any form of service with respect to Units, including, without limitation, installation, repair and maintenance services.

5.2. In the event that you:

(a) cancel the Sales Order at any time whatsoever, including, without limitation, prior to shipment; (b) refuse to honor the Sales Order; or (c) fail to take possession of any Units for any reason whatsoever, you will be responsible for reimbursement to us of any and all costs, expenses and charges we have incurred to date.

5.3. In the event that:

(a) the Sales Order is for a customized product, including, without limitation, any custom engineered product; and (b) an event set forth in Section 5.2 hereof occurs, you will be responsible for payment of the entire amount of the Sales Order in addition to the reimbursement set forth in Section 5.2 hereof.

6. JURISDICTION AND ATTORNMENT

6.1. The interpretation, validity and enforcement of these presents and the Sales Order shall be subject to and governed by the laws of the Province of Quebec and the laws of Canada applicable therein.

6.2. The parties hereto expressly submit, attorn and consent to the exclusive jurisdiction of the appropriate Court for the District of Montreal, Province of Quebec, with respect to any controversy arising out of or relating to these presents and the Sales Order, or any supplement hereto or to any transactions in connection therewith. To the extent permitted by applicable law, you irrevocably waive any objection (including any claim of inconvenient forum) that you may now or hereafter have to the venue of any legal proceeding arising out of or relating to these presents and the Sales Order in such courts.

7. GENERAL

7.1. If any provision of these presents or the Sales Order shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.

7.2. These presents and the Sales Order shall be binding upon and inure to the benefit of the parties’ respective successors and assigns.

7.3. The parties hereto acknowledge that they have requested and are satisfied that the foregoing as well as the Sales Order and all notices, actions and legal proceedings be drawn up in the English language. / Les parties à cette convention reconnaissent qu’elles ont exigé que ce qui précède ainsi que le « Sales Order » et tous avis, actions ou procédures légales soient rédigés et exécutés en anglais et s’en déclarent satisfaites.

MISCELLANEOUS

These Terms of Use and any policies or operating rules posted by us on the Site or in respect to the Marketplace Offerings constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms of Use or use of the Marketplace Offerings. You agree that these Terms of Use will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.

CONTACT US

In order to resolve a complaint regarding the Site or the Marketplace Offerings or to receive further information regarding use of the Site or the Marketplace Offerings, please contact us at: sales@universalairsys.com