MacLean Terms and Conditions of Sale and Supply

1 Definitions. For the purposes of these Terms and Conditions of Sale and Supply (these “Conditions”):

“Affiliate” means any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with a Party, but only for so long as such control exists.

“Aftermarket Products” means replacement parts, components or subassemblies, or any consumables, that are Products intended for use in association with Capital Products.

“Buyer” means the person, firm or company which places a purchase order or enters a Proposal for the purchase of Products and/or Services.

“Capital Products” means capital equipment Products.

“MacLean” means MacLean Engineering & Marketing Co. Limited or any of its Affiliates as named in the applicable quotation or Proposal.

“MacLean’s Factory” means: (i) for Capital Products, MacLean’s corresponding manufacturing facility, (ii) for aftermarket parts and consumables, MacLean’s originating warehouse, or (iii) if specified in MacLean’s quotation for particular Products, MacLean’s field office.

“Party” means MacLean or Buyer, and “Parties” means both.

“Personal Information” means any information about an identifiable individual or that is subject to applicable privacy laws, including the Personal Information Protection and Electronic Documents Act (Canada) and substantively similar provincial legislation.

“Products” means any goods, materials, supplies and/or equipment expressly agreed to be supplied by MacLean to Buyer under any Contract including, where applicable, capital equipment (including associated Software), aftermarket parts and consumables, and any Works (as defined in Section 11.2), including those described in the relevant Proposal (if applicable).

“Proposal” means a proposal or statement-of-work document signed by MacLean and Buyer describing the corresponding Products and/or Services.

“Services” means any services agreed to be supplied by MacLean to Buyer under any Contract: (i) as part of Product commissioning, (ii) on an hourly basis, including supplementary commissioning, maintenance and/or training services, or (iii) as described in the relevant Proposal.

Other capitalized terms defined in any part of the Contract will have their indicated meaning throughout the Contract.

2 Basis of Sale.

2.1 Quotations. Prices, specifications, and delivery dates referenced in MacLean’s quotations and/or Proposals (if applicable) are for information purposes only and will not be binding on MacLean until all technical requirements have been agreed and MacLean has accepted the corresponding Order. Any MacLean quotation terminates if an Order has not been completed within 30 days of the quotation date.

2.2 Orders. An “Order” means an order for the purchase of one or more Products or Services which may take the form of: (i) a Buyer-issued purchase order; (ii) an electronic order submitted via Buyer’s or MacLean’s online portal which facilitates transactions over the Internet; or (iii) a Proposal duly signed by each Party. Each Order represents a bona fide commitment of Buyer and must include definite prices and quantities and mutually agreed estimated delivery dates. In the case of Proposal-based Orders, the Product and Services will be more fully described in the Proposal.

2.3 Contract. A separate “Contract” will be formed when an Order is accepted by MacLean. An Order is deemed accepted by MacLean where MacLean issues an Order acknowledgment (which includes delivering a corresponding invoice or a confirmation email from MacLean’s Commercial department), or starts to perform or deliver, whichever comes first. Each Contract will be deemed to incorporate and be governed by these Conditions and any associated quotation, purchase order and/or Proposal.

2.4 Contract Terms and Conditions. THESE CONDITIONS WILL TAKE PRECEDENCE OVER ANY TERMS OR CONDITIONS WHICH APPEAR IN, OR ARE INCORPORATED BY REFERENCE INTO, BUYER’S PURCHASE ORDER OR ELECTRONIC ORDERING PORTAL. Any such terms or conditions that are additional to or different from these Conditions, MacLean’s quotation, and/or the Proposal (if applicable) will not become part of any Contract unless specifically identified and agreed to in writing by MacLean. MacLean’s failure to object to any provision contained in any communication from Buyer will not be construed as a waiver of the terms or conditions of any Contract, nor as an acceptance of any such provision.

2.5 Cancellation or Delay. Once accepted by MacLean, Orders are non-cancellable and may not be revised except as expressly provided herein or by agreement in writing of the Parties. If Buyer requests and MacLean agrees to cancellation, then Buyer will be charged: (i) fifteen percent (15%) of the total purchase order or Proposal price to cover sales administration and handling costs, and (ii) the cost of all unfinished Products that cannot be repurposed, material, shop labour (with overhead), component cancellation charges from MacLean’s suppliers (if any), engineering costs incurred (with overhead), and MacLean’s profit (in proportion to the state of completion of the Products at the time of cancellation). If Buyer requests and MacLean agrees to delay delivery dates, or delivery is delayed because of late or incomplete information, materials, access or approvals required from Buyer, then: (a) the dates or time periods for MacLean’s performance will be extended for the delay period plus any additional time required for resource and/or production rescheduling, and (b) MacLean reserves the right to charge for any costs incurred. All such cancellation or delay charges will be promptly invoiced by MacLean and will be paid by Buyer in accordance with Section 8 (Terms of Payment). All deposits are non-refundable but will be applied by MacLean to any cancellation charges.

3 Prices and Fees.

3.1 The prices for Products and fees for Services will be the prices and fees: (i) quoted by MacLean to Buyer, (ii) agreed by the Parties in the Proposal (if applicable), or (iii) as otherwise specifically agreed to in writing by the Parties. Unless otherwise expressly provided in MacLean’s quote, prices and fees do not include any taxes (including sales, goods and services, value added, use or excise taxes), or charges relating to transport, insurance, export and/or import fees, tariffs or duties, permits, certifications, or to any required advance payment bonds or guarantees (collectively, “Taxes and Other Charges”). Taxes and Other Charges may, in MacLean’s sole discretion, be added by MacLean to the sale price and/or fees or be billed separately. All Taxes and Other Charges will be paid by Buyer in accordance with Section 8 (Terms of Payment) unless Buyer provides to MacLean in advance appropriate exemption certificate(s).

3.2 Price Adjustment. If: (i) any quoted exchange rates fluctuate, or (ii) any tariffs or duties are levied on, or any supplier prices increase for, any materials, parts, components or subassemblies required by MacLean to provide the Products, and such fluctuations, levies or increases impact the price for the Products stipulated in the Contract (“Pre-adjusted Price”) by 3% or more of the Pre-adjusted Price, then Buyer and MacLean will negotiate in good faith an adjustment to the Pre-adjusted Price to take into account MacLean’s increased costs. If the Parties cannot mutually agree on the new adjusted price for the Products within thirty (30) days, then either Party may cancel the affected purchase order(s), in whole or in part, and the terms of Section 2.5 (Cancellation or Delay) will apply.

4 Delivery.

4.1 Unless otherwise expressly agreed to in writing by the Parties, MacLean will deliver Products EX WORKS Incoterms 2020 (“Ex Works”), MacLean’s Factory, to a common carrier. Any dates quoted or agreed to by MacLean for delivery of Products are estimates only. MacLean will not be liable for any delay in delivery of Products howsoever caused, and Buyer acknowledges that time for delivery is not of the essence. Product purchase prices include ordinary packing for shipment, but not costs relating to any special packing, or tie-down and blocking to anchor Products to transport vehicles. Buyer will be liable to pay any costs incurred by MacLean for Product transportation, special packing, tie-down/blocking, insurance, and export and/or import clearances.

4.2 Unless otherwise agreed in writing by the Parties, MacLean reserves the right to make delivery of Products by instalments and to tender a separate invoice in respect of each instalment.

5 Risk, Title, and Acceptance.

5.1 Risk of damage to or loss of Products will pass to Buyer upon delivery in accordance with Section 4 (Delivery). MacLean will retain title to and ownership of Products until receipt of payment of the price in full, including all Taxes and Other Charges, as stipulated in Section 3 (Prices and Fees). Buyer authorizes MacLean to take all action necessary to register, evidence and perfect this reservation of title and ownership and Buyer agrees to provide MacLean with all information required to do so.

5.2 Any claims for damage, loss or mis-delivery must be filed with the carrier and notified to MacLean within five (5) days of the date of delivery under Section 4 (Delivery). In the absence of written notice of rejection, Products will be deemed finally inspected and accepted: (i) within 10 days after delivery in accordance with Section 4, or (ii) in the case of Capital Product or Proposal deliverables to be commissioned by MacLean, upon completion of commissioning. Any Capital Product or Proposal deliverables to be commissioned by MacLean will be scheduled by Buyer for commissioning at the designated site within thirty (30) days of delivery, unless otherwise agreed in writing by the Parties. Any other inspection or testing required by Buyer must be agreed to in writing by the Parties at the time of order and will be at Buyer’s expense. Acceptance will constitute acknowledgement of full performance by MacLean of all obligations under the Contract, except as stated in Section 10 (Warranties).

6 Security Interest.

Buyer hereby grants to MacLean a security interest, purchase money security interest, or any other equivalent security interest in all Products sold to Buyer as security for the due and punctual performance by Buyer of its obligations related to the payment of the price, including all Taxes and Other Charges, as stipulated in Section 3 (Prices and Fees). Buyer authorizes MacLean to take any action(s) necessary to register, evidence and perfect such security interest, including the filing of any financing statements, and Buyer agrees to provide MacLean with all information required to make any such filing(s).

7 Services.

7.1 MacLean will provide Services in a professional and workmanlike manner, and in accordance with these Conditions and the terms specified in any applicable Proposal. MacLean will be under no obligation after Delivery of Products to assemble, erect or test any machinery unless otherwise expressly stated in the Contract.

7.2 Buyer will, upon MacLean’s reasonable request and otherwise as required, provide MacLean with all necessary information, materials, access, and approvals to enable MacLean to provide Services in accordance with the terms of any relevant Contract. This includes providing any Process Hazard Reviews and/or Job Hazard Analysis reports to identify to MacLean the site-specific hazards and risk controls required to prevent harm to people, assets, environment, and community. Buyer will be responsible for the completeness and accuracy of all such information and materials provided and will ensure that it is and remains entitled to provide the same to MacLean for use in connection with provision of the Services.

7.3 Buyer will provide at its own cost all on-Site supervision that is required by applicable mining laws and regulations (“Mining Laws”) to be provided for the Services, including but not limited to all supervision required under applicable occupational health and safety, employment and mining acts and regulations. Buyer will indemnify and hold harmless MacLean against any liability, damage, loss, cost or expense (including legal fees on an attorney/client basis) incurred or suffered by MacLean as a result of any failure to provide on-Site supervision required by Mining Laws.

7.4 Impact And Benefit Agreements. Where Buyer enters into an impact and benefit agreement, or any other similar agreement, with any First Nation, Indigenous or Aboriginal group or community (each an “IBA”), and where MacLean incurs any additional, new or increased cost, expense, charge, duty, tax, commission, royalty or other amount including, but not limited to, administrative and governance costs, cultural training costs, handling fees, community liaising costs, employee recruitment costs, employee training costs, and preferred business status costs relating to its performance of its obligations under any applicable Contract(s) in conjunction with such IBA (collectively, “IBA Costs”), Buyer will reimburse MacLean for any such IBA Costs which amounts will be invoiced by MacLean to Buyer on a monthly basis without any reduction or other set-off in regard to amounts payable to MacLean under the applicable Contract(s).

8 Terms of Payment.

8.1 Credit Approval. Buyer may apply for credit terms by following MacLean’s credit application process. Credit terms will only be available to Buyer after receipt of MacLean’s written approval, which may be withheld for any reason. Buyer must not assume credit terms have been established unless specifically approved in writing by MacLean. In all other cases MacLean must receive payment in full for all Products prior to their delivery date and for all Services in advance.

8.2 Invoicing and Payment. Each shipment of Products will be a separate transaction and payment therefore will be made accordingly. Buyer will be invoiced: (i) for deposits under Section 8.3 (Deposits), upon acceptance of purchase order, (ii) for other Products, or remaining Product balances, upon delivery, and (ii) for Services, including pre-approved travel time, and travel and living expenses, monthly in arrears (subject to pre-payments required under Section 8.1 (Credit Approval)). If credit terms are approved, then payments will be due net thirty (30) days from date of invoice. If Buyer fails to make any payment when due then, without prejudice to any other rights and remedies available to MacLean, MacLean will be entitled to: (a) suspend without any liability to Buyer the manufacture or delivery of Products, and/or the performance of Services, until paid in full (b) recover interest on unpaid amounts at the prime rate published by the Royal Bank of Canada plus 3% per annum, until paid in full, and/or (c) revoke further credit, whereupon MacLean will have the right to receive payment in full before any further delivery.

8.3 Deposits and Release for Shipping. All purchase orders delivered to MacLean for Capital Products must be accompanied by a twenty percent (20%) non-refundable deposit of the total purchase price. The balance of the total price must be paid to MacLean upon delivery of such Products for shipping. In both cases, the amounts paid will be applied to the invoiced cost.

8.4 No Deductions. All amounts due under a Contract will be paid in full by Buyer without deduction, withholding, set-off or counterclaim for any reason whatsoever, save as may be required by law. If any taxes or any other amounts are required to be withheld by Buyer from any amounts otherwise due under any Contract, then Buyer will in each case: (a) pay an additional amount to MacLean such that the net amount actually received by MacLean will, after all such withholdings, equal the full amount of the payment then due; (b) pay, or cause to be paid, to the relevant tax authorities the full amount of such withholdings in accordance with applicable law; and (c) promptly furnish MacLean with an official receipt (or certified copy) or such other documentation that is reasonably acceptable to MacLean to evidence payment of such withholdings to the relevant authorities.

9 Products.

9.1 The design and improvement of Products is a continuous process. MacLean may modify Product specifications from time to time provided the modifications do not adversely affect the performance of the Products. In addition, MacLean may furnish suitable substitutes for materials, parts, components, or subassemblies because of priorities or regulations established by government authorities, or because of supply-chain issues.

9.2 All descriptions, illustrations, images, and other information relating to the Products or Services contained in MacLean advertisements, brochures, catalogues, websites, or other marketing or sales materials or presentations, are made by way of general description, for general guidance, illustration, and information purposes and should be considered approximate only. They will not constitute representations or warranties of MacLean and will not form part of any Contract.

10 Warranties

10.1 Limited Warranties. MacLean warrants, from delivery until the end of the applicable Product-specific warranty period, that Products will be free from defects in material, workmanship and makeup that would cause them to not materially conform to: (i) corresponding MacLean-published specifications or user documentation; or (ii) the express Contract requirements ((i) and (ii) each, a “Defect” or a “Defective Product”)). Product warranty periods vary based on Product type and are published in corresponding operator manuals (also available upon request from parts@macleanengineering.com) or are included in the Proposal (as applicable). In the absence of a published period, the Product warranty period will be thirty (30) days from delivery. Product warranty periods apply without regard to whether any claimed Defects were discoverable or latent on delivery. Buyer will be responsible for determining that Products are suitable for Buyer’s use and that such use complies with any applicable laws. In the case of Software, MacLean does not warrant that operation of the Software (as defined in Section 12 (Software)) will be uninterrupted or error free or that all program errors will be corrected. The foregoing warranties apply only to Buyer, as the original purchaser.

10.2 Warranty Claims. Buyer is required to comply with the following steps to make any Defective Product claim: (i) obtain in advance a claim authorization number (“Warranty Claim Number”) by completing a Warranty Claim Form (available in MacLean’s parts manuals or upon request from MacLean’s Inside Sales Department), and (ii) deliver the completed form within the applicable Product warranty period by email to parts@macleanengineering.com. A MacLean Inside Sales Representative will acknowledge receipt of Buyer’s claim and will provide a Warranty Claim Number for future reference. MacLean will review the completed Warranty Claim form and will follow-up in an appropriate manner.

10.3 Exclusive Remedy. MacLean’s sole obligation, and Buyer’s exclusive remedy, for any Defective Product is limited to repair or equivalent replacement, as MacLean may elect in its sole discretion, of any such Products (or defective parts or components thereof) provided: (i) the Defect claim is reported promptly upon discovery and within the applicable Product warranty period, as provided Section 10.2 (Warranty Claims), and (ii) the Product is determined by MacLean, acting reasonably, to have a Defect. MacLean is not responsible for any Product or component removal, shipping, or installation costs. MacLean will have a reasonable time to repair or replace Defective Products. Any repair or replacement will not extend the Product warrant period.

10.4 Warranty Exclusions. MacLean will not be liable under this Section 10 (Warranties) for any: (a) repair or replacement required because of normal wear and tear; (b) normal maintenance services (such as engine tune-ups); (c) normal replacement parts or consumables (such as service filters); (d) Products which, in MacLean’s reasonable judgement, have been altered, modified or damaged by Buyer or a third party after initial delivery so as to affect their operation; (e) exacerbation caused by further use of the Products after giving notice under Section 10.2 (Warranty Claims), or (e) Products which have been: (1) improperly assembled, misused, mishandled, neglected or stored, (2) improperly or inadequately maintained, serviced, repaired or adjusted, or (3) improperly charged (as indicated by Product documentation, including use of a power supply that does not meet MacLean’s battery electric vehicle power quality requirements).

10.5 Warranty Consideration. If MacLean requires any Product (or component thereof) to be returned for assessment, then Buyer will return the required part(s) in accordance with MacLean’s Parts Return Policy (available upon request from parts@macleanengineering.com). All required Product (or component) disassembly, transportation, and reassembly will be at Buyer’s risk and expense. To minimize delays Buyer may issue to MacLean a purchase order for immediate delivery of replacement parts, which MacLean will use to immediately ship repaired or equivalent replacement parts to Buyer’s site. In such cases, Buyer will be invoiced for the full amount of the parts, and any applicable transportation and insurance. Approval of any Warranty Claim will not be made until requested parts are returned to and assessed by MacLean after a reasonable inspection period. If MacLean determines, acting reasonably, that there is a Defect, then Buyer’s account will be credited for the replacement part(s). If the Warranty Claim is not approved, then one of MacLean’s Inside Sales Representatives will contact Buyer to determine disposition of the returned parts (i.e., return collect, repair with charges, or disposal).

10.6 Warranty Disclaimer. EXCEPT AS EXPRESSLY STATED IN THESE CONDITIONS, THE PRODUCTS AND SERVICES ARE IS PROVIDED “AS IS”, AND MACLEAN AND ITS AFFILIATES, AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS, DISCLAIM ANY AND ALL REPRESENTATIONS, CONDITIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES IMPLIED BY STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OR TRADE.

11 Intellectual Property Rights.

11.1 Any intellectual property rights of a Party or its Affiliates conceived, created, developed, or reduced to practice prior to, or independently of, any Services provided under the Contract (“Background IP”) will be and remain the exclusive property of such Party or its Affiliate. Buyer grants to MacLean a non-exclusive, non-transferable, royalty-free, worldwide license for the term of the applicable Contract to make, use, copy and modify any Buyer Background IP that it discloses to MacLean, but solely to the extent necessary for MacLean to provide the Products and Services to Buyer pursuant to the Contract.

11.2 MacLean deliverables under any Contract, including those resulting from the creation, development or modification of any Products and/or the performance of any Services (“Works”), are not “works for hire”, and all right, title and interest (including intellectual property rights) in and to all such deliverables will be and remain the exclusive property of MacLean and its suppliers (“MacLean IP”).

11.3 Except as provided in Section 12 (Software), MacLean grants to Buyer a non-exclusive, non-transferable (except in association with the sale of the corresponding Product(s)), royalty-free, worldwide, perpetual license to any MacLean IP incorporated into or required to use a Product, but solely to the extent necessary to use, maintain and repair the Product for its intended purpose and only so long as such MacLean IP is embedded in the Product and not separated therefrom. For clarity, all Software license rights are provided for in Section 12 (Software), and all license rights not expressly granted in either Section 12 or this Section 11 are reserved and no other licenses, immunity, or rights, express or implied are granted, by implication, estoppel, or otherwise.

12 Software.

All right, title and interest (including intellectual property rights) in and to all software, firmware, programming routines and associated documentation and data relating thereto provided by MacLean for use with the Products, and, notwithstanding Section 5.1, all copies thereof delivered by MacLean or made by Buyer (collectively “Software”) will be and remain the exclusive property of MacLean and its suppliers. MacLean grants to Buyer a non-exclusive, non-transferable (except in association with the sale of the corresponding Product(s)), royalty-free, worldwide, perpetual license to use the Software, but solely to the extent necessary to use, maintain and support the associated Product(s) for its intended purpose and only so long as the Software is embedded in the Product and not separated therefrom. Except to the extent permitted by applicable law, Buyer will not directly or indirectly reverse engineer, disassemble, or decompile any Software or Product design.

13 Confidential Information and Privacy.

13.1 A Party (“Discloser”) may disclose, transfer, or otherwise make available to the other Party (“Recipient”) information that Discloser considers to be confidential (“Confidential Information”). Confidential Information includes: (i) the existence and Purpose of the Contract, (ii) all prototype products or designs, engineering drawings, detailed specifications, test results, and Software, and (iii) all pricing, financial records, and data. Confidential Information does not include information that: (a) was known to Recipient without restriction before receipt from Discloser; (b) is publicly available through no fault of Recipient; (c) is rightfully received by Recipient from a third party without a duty of confidentiality; or (d) is independently developed by Recipient.

13.2 Recipient may use Confidential Information only to perform its obligations under the Contract and to use, maintain and support the Products for their intended purpose (“Purpose”). Recipient will apply at least the same level of protection to Discloser’s Confidential Information as it uses to protect and to prevent any unauthorized use or disclosure of its own Confidential Information, but in no event less than a reasonable degree of care. Recipient may share Confidential Information with its employees, directors, agents or third party contractors (or those of Recipient’s wholly owned subsidiaries) who need to know it, provided: (a) they are bound by confidentiality obligations at least as restrictive as these Conditions, and (b) Recipient remains responsible for their compliance with the terms of these Conditions. Recipient may disclose Discloser Confidential Information when compelled to do so by law if it provides reasonable prior notice to Discloser unless a court orders that the other Party not be given notice.

13.3 Confidential Information will be and remain the property of the Discloser and Recipient will return it promptly upon Discloser’s request at any time. No Party acquires any intellectual property right, title or interest under these Conditions, or any other Contract part, in the Discloser’s Confidential Information, except the limited rights necessary to use such Confidential Information for the Purpose.

13.4 Discloser may disclose, transfer, or otherwise make Personal Information available to Recipient. Recipient will comply with all laws applicable to such Personal Information. Recipient will apply at least the same level of protection to Discloser’s Personal Information as it uses to protect and to prevent any unauthorized use or disclosure of its own Personal Information, but in no event less than a reasonable degree of care. To the extent Discloser permits Recipient to access, process or store Discloser’s Personal Information outside of Canada, Recipient will ensure that such Personal Information receives at least the same level of protection as required by Canadian privacy laws applicable to Discloser.

14 Indemnities.

14.1 Indemnification of Buyer. Subject to the provisions of this Section 14 (Indemnities), MacLean will defend at its expense (including court costs and reasonable attorney’s fees) Buyer against any claims by third parties that any Products furnished by MacLean and used by Buyer within the scope of any Contract infringe upon or misappropriate a patent, trademark, copyright, trade secret or other intellectual or proprietary right (an “IP Claim”), and will pay any (i) amounts finally awarded against Buyer by a court or arbitrator in any proceeding related to such IP Claim, or (ii) settlement amounts approved in accordance with this Section 14, provided that: (a) MacLean is promptly notified by Buyer, in writing, of any threats, claims and proceedings related thereto, (b) MacLean has sole control of the defense and any settlement thereof, (c) Buyer does not make any admission of liability nor settle or otherwise compromise any such claim without MacLean’s prior written consent, (d) Buyer furnishes to MacLean, upon request, any information reasonably available to Buyer relating to the defense of such claim, (e) Buyer provides reasonable assistance to MacLean in the defense of such claim, and (f) Buyer ceases use of Products which are the subject of the infringement claim upon receipt from MacLean of any non-infringing replacement.

14.2 Mitigation. If: (i) MacLean becomes aware of an actual or potential IP Claim, or (ii) Buyer provides MacLean with notice of an actual or potential IP Claim, MacLean may (or in the case of an injunction against Buyer, will), at MacLean’s sole option and expense: (i) procure for Buyer the right to continue to use the affected portion of the Product; (ii) modify or replace the affected portion of the Products with functionally equivalent or superior products so that Buyer’s use is non-infringing; or (iii) if (i) or (ii) are not commercially reasonable, terminate the Contract with respect to the affected Product(s) and refund to Buyer the amount paid to MacLean for the Product(s) under the terminated Contract, depreciated over a five (5) year period from the date of delivery on a straight line basis.

THE PROVISIONS OF SUBSECTIONS 14.1 AND 14.2 ARE SUBJECT TO SECTION 15 (LIMITATION OF LIABILITY) AND STATE THE SOLE AND EXCLUSIVE LIABILITY OF MACLEAN AND ITS AFFILIATES AND THE SOLE AND EXCLUSIVE REMEDY OF BUYER WITH RESPECT TO ANY CLAIM OF THE NATURE THEREIN.

14.3 Exceptions. MacLean will have no liability for any IP Claim in respect of any Product to the extent that: (i) such Product is used by Buyer outside the scope of the rights granted in these Conditions or the applicable Contract, or in a manner or for a purpose other than that for which it was supplied, as contemplated by the applicable MacLean-published user documentation; (ii) such Product is modified by Buyer; (iii) such Product is used by Buyer in combination with other equipment, software or services not provided by MacLean and the infringement arises from such combination or the use thereof; (iv) the IP Claim arises from components of the Product that were not developed, manufactured or performed by MacLean; or (v) the IP Claim arises from components information, data or specifications provided by Buyer.

14.4 Indemnification of MacLean. Buyer will defend, indemnify, and hold MacLean, its Affiliates and their respective suppliers, licensors, distributors, subcontractors, directors, officers, and personnel from and against any and all claims, demands, suits, proceedings, fines, costs, damages, losses, settlement fees, and expenses (including investigation costs and attorney fees and disbursements) arising out of or related to any injury to or death of persons, and/or any loss of or damage to property, relating to the Products or the assembly, erection, operation, or use thereof. Buyer’s liability to indemnify under this Section 14.4 will be reduced proportionally to the extent that any negligent or unlawful act or omission of MacLean, its Affiliates, or their respective suppliers, licensors, distributors, subcontractors, directors, officers, or personnel, contributes to the loss or liability.

15 Limitation of Liability.

15.1 In this Section 15 (Limitation of Liability), “MacLean” will be deemed to mean MacLean Engineering & Marketing Co. Limited, its Affiliates, and their respective suppliers, licensors, distributors, subcontractors, directors, officers, and personnel.

15.2 Exclusion. IN NO EVENT WILL MACLEAN BE LIABLE FOR, AND BUYER WAIVES ANY RIGHT IT MAY HAVE TO, ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF BUSINESS, OPPORTUNITIES, REVENUES, PROFITS, SAVINGS, GOODWILL, REPUTATION, CUSTOMERS, USE, OR DATA, OR FOR COSTS OF RE-PROCUREMENT OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATED TO ANY CONTRACT OR THE USE OR PERFORMANCE OF ANY PRODUCT.

15.3 Cap. IN NO EVENT WILL MACLEAN’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY CONTRACT, OR THE USE OR PERFORMANCE OF ANY PRODUCT, EXCEED THE LESSER OF: (i) THE AMOUNT PAID TO MACLEAN UNDER THE CONTRACT FOR THE PRODUCTS AND SERVICES GIVING RISE TO THE LIABILITY, LESS ANY REFUNDS, CREDITS OR DEDUCTIONS, OR (ii) TWO MILLION DOLLARS.

15.4 Clarifications. The exclusions and limits in this Section 15 (Limitation of Liability) apply: (i) regardless of the form of action, whether in contract (including fundamental breach), tort (including negligence), warranty, indemnity, breach of statutory duty, misrepresentation, strict liability, strict product liability, or otherwise; (ii) on an aggregate basis, regardless of the number of claims; (iii) even if the possibility of the damages in question was known or communicated in advance and even if such damages were foreseeable; and (iv) even if the remedies fail of their essential purpose. Buyer acknowledges that MacLean has set its prices, and entered the Contract, in reliance on the limitations and exclusions in this Section 15, which form an essential basis of the Contract. Notwithstanding anything to the contrary in this Section 15 or elsewhere in the Contract, to the extent required by applicable law MacLean neither excludes nor limits its liability for: (a) death or bodily injury caused by its own negligence; (b) its own fraud or fraudulent misrepresentation; or (c) other matters for which liability cannot be excluded or limited under applicable law.

16 Force Majeure.

Notwithstanding anything to the contrary in these Conditions, MacLean will not be liable to Buyer for any loss or damage which may be suffered by Buyer as a direct or indirect result of the supply of Products or Services being prevented, delayed or rendered uneconomic by reason of circumstances or events beyond MacLean’s reasonable control. If due to such circumstances or events MacLean has insufficient stocks to meet all its commitments MacLean may apportion available stocks between its customers at its sole discretion.

17 Termination.

17.1 Termination for Cause. Either Party may terminate any Contract for the other’s material breach by written notice, effective in 30 days unless the other Party first cures the breach.

17.2 Implications of Termination. The following provisions will survive termination or expiration of any Contract: (a) any obligation of Buyer to pay fees incurred before termination; (b) Sections 10.6 (Warranty Disclaimer), 11 (Intellectual Property Rights), 13 (Confidential Information and Privacy), and 15 (Limitation of Liability); and (c) any other provision of these Conditions or other Contract part that must survive to fulfill its essential purpose. Termination of any Contract in accordance with these Conditions will not affect the accrued rights or liabilities of the Parties at the date of termination.

18 Insolvency of Buyer.

If: (i) Buyer becomes insolvent, has a receiver, administrative receiver, administrator or manager appointed of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or carries out or undergoes any analogous act or proceedings under an applicable foreign law; or (ii) Buyer ceases, or threatens to cease to carry on business then, without prejudice to any other right or remedy available to MacLean, MacLean may treat any Contract as repudiated and/or withhold any further supply of Products and/or Services without any liability to Buyer and, if any Products and/or Services have been supplied but not paid for, the price or fees will become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

19 General.

19.1 Entire Agreement. These Conditions, together with the other parts of the relevant Contract, constitute the entire agreement and understanding between the Parties with respect to its subject matter and supersedes any prior agreement, understanding or arrangement between the Parties, whether oral or in writing. No representation, undertaking or promise will be taken to have been given or implied from anything said or written in negotiations between the Parties prior to the date of any Contract except as expressly stated in that Contract.

19.2 Amendments. Any modification or amendment to these Conditions, or any other Contract part, must be in writing and signed by authorised representatives of the Parties.

19.3 Applicable Law. These Conditions, and all other Contract parts, will be governed by the laws of the Province of Ontario, without regard to its conflict of laws principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from and will not apply to these Conditions or any other Contract parts.

19.4 Assignment. Neither Party may assign, transfer, novate or otherwise dispose of all or any of its rights or delegate any of its obligations under these Conditions, or any other Contract parts, in whole or in part, without the prior written consent of the other Party, which will not be unreasonably withheld. Except to the extent forbidden, the Contract will be binding upon and inure to the benefit of the Parties’ respective successors and assigns.

19.5 Notice. A Party may send notices here under: (i) by email to the other Party’s contact points provided (which for MacLean includes sales@macleanengineering.com), and such notices will be deemed received 24 hours after sent; or (ii) in writing to the other Party’s office address (which for MacLean will be indicated on the applicable quotation and for Buyer on the corresponding purchase order), and such notices will be deemed received on delivery if sent by hand, 2 days after dispatched if sent by courier, or on confirmation of transmission, if sent by facsimile. A Party may change its address from time to time by giving notice to the other Party in accordance with this Section.

19.6 Waiver. Failure by a Party to exercise or enforce any rights hereunder will not be deemed a waiver of any such right nor operate as a bar to the exercise or enforcement thereof any time thereafter.

19.7 Export. Buyer will not: (a) permit any third party to access or use the Products in violation of any applicable law or regulation; or (b) export any Software provided by MacLean or otherwise remove it from the country where the Products are located except in compliance with all applicable Canadian and US laws and regulations. Without limiting the generality of the foregoing, Buyer will not permit any third party to access or use the Products in, or export such Products to, a country, geopolitical region, entity or individual subject to a Canadian embargo or sanction (as detailed at: https://www.international.gc.ca/world-monde/international_relations-relations_internationales/sanctions/current-actuelles.aspx?lang=eng).

19.8 Interpretation. The Parties agree that these Conditions and any other Contract part will be fairly interpreted in accordance with its terms without any strict construction in favor of or against either Party and that ambiguities will not be interpreted against the Party that drafted the relevant language. If any provision or part of a provision of these Conditions is or is held by any court of competent jurisdiction to be unenforceable or invalid, such unenforceability or invalidity will not affect the enforceability of any other provision. If there is any discrepancy between the English language version of these Conditions, or any other Contract part, and any version in any other language, the English language version will be considered the official version. In the Contract, the words “including”, “include” and “includes” are not exclusive or limiting, “dollars” and the symbol “$” refer to Canadian dollars, and headings in are for ease of reference only and are not to be considered in the construction or interpretation of any provision. Any exhibit, document or schedule referred to in the Contract means such exhibit, document or schedule as amended, supplemented, and modified from time to time to the extent expressly permitted therein or by these Conditions. References to any statute or regulation mean such statute or regulation as amended at the time and includes any successor statute or regulation. Unless otherwise stated, references to recitals, sections, subsections, paragraphs, schedules, and exhibits will be references to the same in the Contract. All dollar amounts in the Contract are in Canadian currency unless otherwise indicated.


19.9 The Parties confirm that it is their wish that these Conditions and all other Contract parts be drawn in English. Les Parties aux présentes ont demandé expressément que les présentes Conditions ainsi que tous les documents s’y rattachant soient rédigés en langue anglaise.