Definitions. As used hereinafter :

The “Buyer” means the individual, enterprise, partnership, corporation, or entity to whom this Agreement is addressed;

The “Seller” means 11723634 CANADA INC. c.o.b. as “Hyperflo”, its successors and assignees ;

The “Parties” means the Buyer and the Seller;

The “Agreement” means the agreement resulting from the acceptance by the Buyer of the quotation of the Seller or the acceptance by the Seller of the purchase order of the Buyer, including the present terms and conditions;

The “Products” means the equipment, spare parts, related accessories and other goods sold by the Seller to the Buyer;

1. Generalities. The Agreement is subject to the present terms and conditions and, where applicable, to those mentioned or referred to in the Seller’s quote or proposal, which shall prevail over any other terms and conditions not expressly accepted by the Seller. Thus, any conflicting or additional terms or conditions submitted by Buyer in any request for quotation, purchase order or other document shall not form part of the Agreement and shall not, under any circumstances, be binding on Seller, unless expressly accepted in writing by the Seller. This Agreement contains the entire agreement between the Buyer and the Seller with respect to the subjects contained herein. Any other oral agreement between the Parties regarding the subjects contained herein shall be null and void.
2. Performance. The performance indicators submitted by the Seller in relation to the Products are based on the information and data previously provided by the Buyer to the Seller. The Seller is not responsible for any performance defects of the Products if they are used by the Buyer in conditions and/or environments different from those disclosed by the Buyer to the Seller.
3. Inspection and testing. The Products sold by the Seller are carefully inspected and, where applicable, subject to quality tests by the Seller before delivery. If tests other than those specified in the Seller’s quotation or if tests in the presence of the Buyer or a representative of the Buyer are required, the costs of such tests shall be borne by the Buyer. If the Buyer delays such tests or inspections after receiving forty-eight (48) hours notice that Seller is ready to conduct them, such tests and/or inspections may be carried without the presence of the Buyer and shall be deemed to have taken place in the presence of the Buyer and their results accepted by Buyer.
4. Payment. The price of the Product sis payable by the Buyer according to the terms and within the timeframes specified in the Seller’s quotation accepted by the Buyer.
5. Delivery and installation. Seller will select a carrier to deliver any Products delivered under this Agreement. Delivery dates or shipping schedules are approximate and based on the most recent information available to the Seller and may be adjusted from time to time. Any installation, assembly or connection of the Products shall be entirely at the Buyer’s expense.
6. Risk of loss / damage in transit. The risk of loss or damage for all Products shall be transferred to the Buyer once the Products leave the Seller’s shipping point. Upon delivery by the Seller to a carrier for shipment of the Products to the Buyer, risk of loss shall be transferred to the Buyer upon receipt of the Products by the carrier, who shall be deemed to be acting for and on behalf of the Buyer, and the terms of payment for the Products shall not be affected by any damage to or destruction of the Products.
7. Cancellation. This Agreement may not be cancelled at the sole discretion of either Party. If the Buyer repudiates acquiring Products after acceptance of the quotation of the Seller, the Buyer agrees to pay the Seller the highest of the following amounts : (i) TWENTY PERCENT (20 %) of the Product price; (ii) total costs incurred by the Seller at the time the Buyer repudiated acquiring the Products.
8. Non-waiver. In case of default by the Buyer under this Agreement or any other agreement between the Seller and the Buyer, the Seller may refuse to make further deliveries without affecting its rights or performance under this Agreement, any other agreement or the law. Failure of the Seller to enforce any term, covenant or condition of this Agreement, or to exercise any right provided for herein, shall not be construed as a waiver or relinquishment of (i) any right, term or condition of this Agreement, (ii) the future enforcement of any term, covenant or condition, or (iii) all remedies of the Seller hereunder.
9. Reservation of ownership. Notwithstanding any provision to the contrary, the Seller reserves the ownership of the property of the Products until full receipt of the purchase price. Consequently, the Buyer agrees to complete any required formalities requested by the Seller, as needed, to make the appropriate entries or registrations in public registries necessary for rendering the Seller’s title set up against third persons.
10. Assignment. Subject to the restrictions in paragraph 11 below, this Agreement shall be binding upon the successors and assignees of the Seller and the Buyer. However, the Buyer may not assign this Agreement without the prior written consent of the Seller.

11. Limited warranty. Seller warrants that the Products are free from any defect in manufacture. Additionally, when Seller undertakes to perform or assist in servicing, installation, demonstration, repair or replacement, the Seller warrants that its performance or assistance will be free from defects in material or workmanship. Theses warranties from the Seller are extended only to the original purchaser and may not be assigned to any subsequent buyer. For the enforcement of this warranty, the exclusive remedies in this regard will be (i) the repair of the Product, (ii) the replacement of the Product, or (iii) the return of the purchase price of the Product. The choice among these three remedies will, in each case, be at the sole discretion of the Seller. Any claim by the Buyer under this warranty must be made promptly in writing.

    In no event shall this warranty apply to any Products which have been subject to improper use, negligence, accident, modification(s) or alteration, or any attempt by the Buyer or anyone other than the Seller to repair or replace the Products or any part thereof, nor shall it apply to Seller’s Product components used other than in the Seller’s Products for which they were designed.

    The Buyer will reimburse the Seller for any and all costs of the non-warranted replacement parts paid by the Seller in connection with any repair or services hereunder (including freight and other shipping charges).

    THE SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AS TO THE QUALITY OF ANY GOODS OR SERVICES PROVIDED BY THE SELLER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATIVE, DEALER, AGENT OR EMPLOYEE OF THE SELLER HAS THE AUTHORITY TO EXTEND THE SCOPE OF THIS WARRANTY OR MAKE ANY OTHER RERPESENTATIONS, PROMISES OR WARRANTIES IN CONNECTION WITH THE MANUFACTURE, SALE OR APPLICATION OF THE PRODUCTS. THE PRODUCTS ARE SUBJECT TO CONTINUOUS TECHNICAL DEVELOPMENTS AND THE SELLER RESERVES THE RIGHT TO MODIFY THE DESIGN AND/OR TECHNOLOGY AT ANY TIME.

12. LIMITATION OF LIABILITY. THE LIABILITY OF THE SELLER IS LIMITED TO LOSS OR DAMAGE RELATED TO THE PRODUCTS THEMSELVES. THE REMEDIES AVAILABLE TO THE BUYER SHALL BE LIMITED TO THOSE DESCRIBED IN SECTION 11 ABOVE. NOTWITHSTANDING THE FOREGOING OR ANY PROVISION TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL THE SELLER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES ARISING OUT OR IN CONNECTION WITH THE PRODUCTS OR THEIR INSTALLATION OR USE OF ANY OF THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL, PROFITS OR BUSINESS INTERRUPTION, OR ANY DAMAGES OF A SIMILAR NATURE BASED ON A CLAIM ARISING FROM AN ALLEGED BREACH OF WARRANTY OR AN ALLEGED ERROR IN WORKMANSHIP OR MATERIALS.
13. Choice of law and jurisdiction. This Agreement shall be governed and interpreted in accordance with the laws applicable in the province of Quebec, Canada. The Parties agree, for any claim or legal action for any reason whatsoever relating to the Agreement, to choose the judicial district of Rouyn-Noranda, province of Quebec, Canada, as the appropriate place for the hearing of these claims or legal actions to the exclusion of any other judicial district which may have jurisdiction over such litigation according to the requirements of the law.
14. Superior force. Except for payment obligations, the Parties will not be in default or be liable for any damage or delay if such default, damage or delay is the result of a superior force. For the present Agreement, “superior force” means any event beyond the control of the Parties that could not have been reasonably foreseen and against which they could not have protected themselves, including, without limitation, strike, riot, fire, war, delay or non-delivery by the Seller’s suppliers, lack of transportation space, assertion by third parties of infringement claims, domestic and foreign governmental actions and regulations.
15. Notice. Any notice required or permitted to be given to either Party shall be duly given if delivered personally or sent by registered mail, fax, email or other form of recorded communication to the Party at the address or fax number provided by that Party. A notice delivered to the Party to whom it is addressed shall be deemed to have been given and received on the date it is delivered at that address provided by that Party. If the date is not a business day, then the notice shall be deemed to have been given and received on the third business day following the date of its mailing.
16. Confidential information. The Parties shall maintain the confidentiality of any information (commercial, technical, scientific, financial, legal, personal or other) which, at the time of disclosure, is identified as confidential, is disclosed in confidence or would be understood by the receiving Party, exercising reasonable business judgment, to be confidential, including information regarding its activities, strategies or opportunities, intellectual property, as well as its suppliers, customers, financial situation or employees.