TERMS AND CONDITIONS FOR PRODUCTS AND SERVICES

Empower Airport Systems Inc. (“Empower”) is a provider of airfield electrical solutions (including field electrical systems and airfield lighting systems), which includes selling its own proprietary products, reselling third party products (collectively “Products”), and providing services related to the configuration, design and installation of such solutions, as described in Empower’s quotation provided to Buyer or other Empower documentation (the “Services”). 

These terms and conditions govern any orders and purchases of Products and/or Services made by any person (the “Buyer”).  These terms and conditions, together with the specific terms of the order, quotation, proposal or similar document agreed upon between Buyer and Empower, will be referred to herein as the “Agreement”. By signing and returning Empower’s quotation, by sending a purchase order in response to the quotation, or by providing instructions to Empower to ship the Product or provide the Services, the Buyer accepts the terms of this Agreement and their applicability to the provision of Products and Services to the Buyer (including the company that they represent if they are acting on behalf of such company).

1.     Quotation and Orders. 

All orders are subject to the terms and conditions of this Agreement, and are further subject to acceptance by Empower, which will be provided by means of a sales confirmation, written acceptance of a quotation by both Empower and Buyer, order acknowledgement, or similar written indication of order acceptance (“Sales Confirmation”).  To the extent that Empower has provided Buyer with a quotation to which they are responding with an order, any special terms of such quotation (such as usage restrictions or disclaimers) shall also apply to any order that Buyer places pursuant to such quotation.  The terms and conditions contained in Buyer’s commercial documentation, including such terms as may appear on the face or reverse of pre-printed forms, or the terms and conditions on other transactional documentation, including without limitation, purchase orders, service orders, or shipping contracts shall have no application unless otherwise expressly mutually agreed in writing between Buyer and Empower, and the terms and conditions of this Agreement shall govern in every instance.  Nothing herein shall obligate Empower to comply with any specifications provided by the Buyer to Empower in respect of the product or its usage, and the only specifications applicable to the Products and Services shall be those provided or expressly agreed upon in writing by Empower.  All orders and shipments of Products, and any provision of Services, are subject to Empower approval including, without limitation, Empower credit approval, if applicable.  Empower has the right to notify Buyer and substitute reasonably equivalent Products for those ordered by the Buyer, and the Buyer agrees to accept delivery of such substituted Products unless Buyer notifies Empower to cancel such order prior to shipment.

2.     Cancellation

Cancellation or modifications of all or part of any order, once a Sales Confirmation has been provided by Empower, are subject to Empower’s prior written consent in each instance. If cancellation or modification is allowed, Buyer agrees to pay to Empower all expenses incurred and damage sustained by Empower on account of the cancellation or modification, plus a reasonable administrative fee.

3.     Prices, Fees and Charges

a.     Prices in any quotation from Empower are subject to change upon notice sent to Buyer at any time before an order has been placed by Buyer and a Sales Confirmation has been issued by Empower; provided that rates for Services may be modified over time as set forth in the applicable quotation. Prices for Products and Services covered by this Agreement may be adjusted by Empower, upon notice to Buyer at any time prior to shipment, to reflect any increase in Empower’s cost of raw materials (e.g., steel, aluminum) incurred by Empower after issuance of the applicable quotation.

b.     Unless otherwise specified, Empower shall be reimbursed for all reasonable expenses properly incurred by Empower in connection with the Services, as described in the quotation or Sales Confirmation, which may include, but is not limited to:  vehicle use charges, travelling costs including flight, accommodation and meals, special delivery and express charges, or overtime or off-hour premium costs. Empower reserves the right to charge Buyer for any reasonable additional costs incurred during provision of the Services that were not anticipated at the time the quotation or proposal was prepared.

c.     All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under this Agreement (collectively, “Taxes”). Any Taxes related to the Products purchased and Services provided pursuant to this Agreement are the responsibility of Buyer, unless Buyer presents an exemption certificate acceptable to Empower and the applicable taxing authorities. If possible, Empower will bill Taxes as a separate item on the invoice presented to Buyer. If any exemption certificate presented by Buyer is held to be invalid, then Buyer will pay Empower the amount of the Tax and any penalties and interest related thereto.

d.     Orders after any quotation expiration date are subject to price increases. Any quote or purchase order reflects the spreading of various costs arbitrarily over the entire bill of material listed. Unit prices are for reference only. Prices valid for the purchases of individual items can be supplied upon written request. All monetary amounts are in Canadian Dollars. DISCOUNTS ARE TYPICALLY VALID TOWARDS THE PURCHASE OF THE ENTIRE QUOTED BILL OF MATERIAL (BOM). ANY DELETION OR CANCELLATION OF SPECIFIC BID ITEM(S) OF MATERIAL MAY INVALIDATE THE PRICE OR DISCOUNT AND THE BOM WILL BE SOLD AT THE ORIGINALLY PUBLISHED QUOTE PRICE (LATEST REVISION). IF THE DELETIONS OR DEVIATIONS OF MATERIAL ARE PER THE DESIGN ENGINEER, THIS MAY NOT NEGATE THE DISCOUNT. 

e.     Buyer is solely responsible for any fees and charges related to the transportation and import/export of the Products, as well as any governmental fees respecting the Buyer’s use of the Products and/or Services, including customs duties, brokerage fees, and shipping charges.

4.     Payment

Unless otherwise set forth in the Sales Confirmation, Buyer will pay all invoiced amounts within thirty (30) days following the date of Empower’s invoice. Unpaid or late amounts will accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Empower’s reasonable costs of collection. Any credit card transactions may be subjected to a 4% processing fee.  In addition to all other remedies available to Empower (which Empower does not waive by the exercise of any rights hereunder), Empower may suspend the delivery of any Products or Services if Buyer fails to pay any amounts when due and such failure continues for five (5) days following Buyer’s receipt of notice thereof. Buyer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with Empower, regardless of whether relating to Empower’s breach, bankruptcy, or otherwise. Empower reserves the right to require bank transfer or letter of credit terms on specific Buyer transactions. Empower may, in its sole discretion, request payment out of an irrevocable, negotiable Letter of Credit, confirmed by a major bank with Empower’s prior approval. Empower may, in its sole discretion, request payment out of an irrevocable, negotiable letter of credit confirmed by a major Canadian bank.

5.     Delivery and Shipping

a.     Empower will arrange for delivery of the Products within a reasonable time after receiving Buyer’s purchase order, subject to Product availability. The delivery date provided by Empower for the Products is only an estimate and is based upon prompt receipt of all necessary information from Buyer. If Buyer causes Empower to delay shipment or completion of the Products, Empower will be entitled to any and all extra costs and expenses resulting from the delay. Packaging of the Products shall be completed by Empower in a reasonable fashion based on Empower's experience in packaging the Products.  Fulfilment of orders are dependent upon Empower’s ability to deliver such Products, including without limitation, availability of any third-party products or materials.  Empower shall be under no liability to the Buyer or anyone else, nor shall Empower be responsible for any penalty whatsoever, relating to any failure to make delivery of Products in any estimated timeframe or at all, for any reason, including, without limitation, non-availability of supply, existing or new government legislation or regulations, strikes, lockouts or other labour disturbances.

b.     All shipments shall be made FCA Empower’s facilities (Incoterms 2020)(the “Delivery Location”). Risk of loss for Products shall pass to Buyer at the Delivery Location regardless of whether Buyer has personally taken delivery of the Products or whether Empower has arranged for shipping and delivery beyond the Delivery Location; Empower will not be liable for any non-delivery of the Products to the Buyer’s location or for any delays, loss, or damage in transit, and Buyer is responsible for pursuing the carrier for any loss or damage occurring in transit.

c.     Buyer is responsible for all freight charges and shall pay all shipment and carriage costs from the Delivery Location unless agreed otherwise by the parties in writing. Prepaid shipping charges and insurance paid by Empower for destinations beyond the Delivery Location shall be the responsibility of the Buyer and may be invoiced by Empower on the invoice for the Products or separately.  Unless the Buyer takes delivery at the Delivery Location, Empower shall be entitled to choose the method of shipping the product and the carrier.  For any purchase, all costs of transportation, duties, taxes, imposts or assessments of any kind from the Delivery Location shall be the Buyer’s responsibility and shall be invoiced to the Buyer if paid by Empower. 

d.     Empower may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer will pay for the units shipped whether the shipment is in whole or partial fulfillment of Buyer’s purchase order.  The quantity of Products in a shipment, as recorded by Empower on the dispatch from the Delivery Location, is conclusive evidence of the quantity received by Buyer upon delivery.  For export orders, Buyer is responsible for obtaining any import licenses and other consents required for a Product shipment at its own expense and will provide the licenses and consents to the Empower before shipment.

e.     If Buyer has failed to provide appropriate instructions, documents, licenses, or authorizations, then: (i) the Products will be deemed to have been delivered to Buyer, and risk of loss to the Products will pass to Buyer, as of the delivery date on the Sales Confirmation; and (ii) Empower, at its option, may store the Products until Buyer takes delivery of them, at which time Buyer will be liable for all costs and expenses resulting from the failure (including but not limited to the cost of storage and insurance).

f.       Regardless of when risk of loss passes to the Buyer with respect to the shipped product, Empower reserves title to all Products shipped under the purchase order until such time as payment in full is received by Empower for the shipped Products.  By signing the purchase order (or the bill of lading under which the Products are shipped) or otherwise, in any way, taking delivery of the Products, the Buyer creates a purchase money security interest in favour of Empower in all Products shipped under the purchase order.  NOTWITHSTANDING THE FOREGOING, TITLE TO ANY SOFTWARE CONTAINED IN THE PRODUCTS SHALL NOT PASS TO THE BUYER OR ANY THIRD PARTY, AND THE BUYER IS HEREBY PUT ON NOTICE THAT THE BUYER’S USE OF ANY SOFTWARE SUPPLIED UNDER THIS AGREEMENT IS GOVERNED BY AND SUBJECT TO THE APPLICABLE SOFTWARE LICENSE TERMS.

6.     Inspection and Shipment Acceptance

a.     Buyer will inspect the Products within five (5) days following receipt thereof (the “Inspection Period”). The Products will be deemed accepted at the end of the Inspection Period unless Buyer notifies Empower in writing of any Nonconforming Products and furnishes Empower with written evidence or other documentation reasonably required by Empower.  “Nonconforming Products” means the following: (i) the items shipped are different from those identified in the Sales Confirmation and Buyer’s corresponding purchase order; or (ii) the labels or packaging of the items incorrectly identifies them.  For greater certainty, this Section 6 will not apply to any Product warranty returns, which are addressed in Section 7 below.

b.     If Buyer notifies Empower of any Nonconforming Products within the Inspection Period, then Empower will, in its sole discretion, (i) replace the Nonconforming Products with conforming Products or (ii) credit or refund the purchase price for the Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer. At Empower’s request, Buyer will dispose of the Nonconforming Products or return the Nonconforming Products to Empower at Empower’s expense. Upon receipt of the Nonconforming Products, Empower will promptly refund the monies owed or ship the replacement Products to the Delivery Location at Empower’s expense, with Empower retaining the risk of loss until delivery.

c.     Buyer acknowledges and agrees that the remedies set forth in this Section 6 are Buyer’s exclusive remedies for the delivery of Nonconforming Products, and except as set forth in this Section 6, Buyer has no right to return the Products to Empower without Empower’s written authorization, as described in Sections 7 and 8 below.

7.     Third Party Products

As part of the solutions offered by Empower, Buyer may, under this Agreement, purchase or license certain products that are manufactured, developed and (in the case of licensed items) owned by a third party entity that has authorized Empower to act as a reseller or distributor for such products (such third party entity being hereinafter referred to as the “Manufacturer”, and such products being referred to as the “Third Party Products”).  The Third Party Products are subject to the terms and conditions imposed by the Manufacturer, including disclaimers, license terms and liability limitations (the “Third Party Ts and Cs”).  Empower is acting solely as a reseller or distributor of the Third Party Products, and is only authorized to market, promote, distribute and (as applicable) sell licenses to the Third Party Products to Buyer, pursuant to its agreement with the Manufacturer.  Accordingly, the following terms will apply to Third Party Products:

a.     Any rights and remedies that Buyer may have respecting the Third Party Products are governed by the Third Party Ts and Cs, and shall be as against the Manufacturer, including any warranty claims or operational issues.  Empower’s sole responsibility is to provide Buyer with the Third Party Ts and Cs, and to make reasonable efforts to facilitate communications between Buyer and the Manufacturer in relation to any issues Buyer may have respecting the Third Party Products. 

b.     Buyer is responsible for reading, understanding and complying with the Third Party Ts and Cs in relation to their use of the Third Party Products, and it is solely Buyer’s responsibility to ensure their compliance with the version of the applicable Third Party Ts and Cs in effect as of the date of Buye’sr use of the Third Party Products.  For Third Party Products consisting of software, any instruction or authorization by Buyer to Empower to click on “I agree” or similar electronic acknowledgements in the course of the performance of installation services on Buyer’s behalf shall be deemed to be Buyer’s agreement to the Third Party Ts and Cs, and shall in no way mitigate or remove Buyer’s liability under such Third Party Ts and Cs.  In no event shall Empower be liable for any breach of the Third Party Ts and Cs by Buyer, and Buyer will indemnify, defend and hold harmless Empower from any claim, demand, costs, expenses and damages arising from Buyer’s breach of the Third Party Ts and Cs or Buyer’s usage of the Third Party Products.

c.     If the Third Party Products consist of or contain software, all right, title and ownership of the software (including source code) remains with the Manufacturer, and Buyer only has the rights licensed to them as set forth in the applicable Third Party Ts and Cs, and subject to the restrictions therein.  Nothing herein shall be deemed to transfer any intellectual property rights (including copyrights, trade secrets, trademarks, patents and other proprietary rights) in and to the Third Party Products to Buyer, and Buyer acknowledges that the Manufacturer retains all such rights.

d.     All warranties respecting Third Party Products (including any refund or return rights) are the responsibility of the Manufacturer and are subject to the terms of the Third Party Ts and Cs; Empower makes no representations or warranties whatsoever respecting Third Party Products, whether express or implied, and specifically disclaims any express or implied representations, warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, non-infringement, or any other warranty or condition arising by statute, custom or usage of trade. Empower shall reasonably assist Buyer and facilitate such requests between Buyer and the Manufacturer, including any refunds and returns permitted by the Manufacturer.  All requests for returns and/or refunds must be submitted to Empower within any timeframe and subject to all requirements as dictated by the Manufacturer in the Third Party Ts and Cs or Manufacturer policies.  Buyer acknowledges that Manufacturer may not accept any returns or provide any refunds, in their sole discretion.  Returns of Third Party Products may also be subject to a restocking fee from Manufacturer and/or Empower, and freight charges.  Any Services, support and maintenance relating to Third Party Products provided by Empower shall be solely to the extent set forth in the quotation or other document addressing Services agreed upon between Buyer and Empower, and Buyer acknowledges that such Services, support and maintenance are provided on an “AS-IS” basis, subject to information and training provided by the Manufacturer, and may be subject to change.

e.     Buyer hereby authorizes Empower to disclose information related to Buyer and their purchase or license of Third Party Products to the Manufacturer and to any third party as necessary to support Buyer’s purchase or license of Third Party Products, and to give effect to the rights and responsibilities of Buyer, the Manufacturer and Empower.  To the extent necessary to give effect to the Manufacturer’s rights, the Manufacturer shall be a third-party beneficiary of this Agreement and shall be entitled to directly enforce the provisions of this Agreement.

8.     Empower Products, Returns and Warranty

a.     Buyer may, under this Agreement, purchase or license proprietary products developed and manufactured by Empower (“Empower Products”), both as a standalone purchase and as part of solutions provided as part of the Services.  Empower Products must only be used for the specific purposes, and in accordance with the instructions, expressly set forth in Empower’s quotation and/or the Empower Product user documentation provided by Empower.  Buyer agrees to fully indemnify Empower for damages resulting from use in contravention of the instructions or specific purposes set forth by Empower in its quotation and/or the Empower Product user documentation. Buyer is solely responsible for the selection, implementation, and performance of any and all third-party equipment and software used in connection with the Empower product, and for compliance with any licenses, conditions, laws, rules and/or regulations respecting the use of the Empower Product and any equipment, services or software used in conjunction with the Empower Product.

b.     Buyer agrees that it will not:

i.    copy, reproduce, modify, enhance, improve, alter, reverse engineer, disassemble, deconstruct, translate, decrypt, reverse compile or convert into human readable form the Empower Products or any part thereof;

ii.    distribute, assign, license, sublicense, lease, rent, transfer, sell or otherwise provide access to the Empower Products, in whole or in part, to any third party, unless the Empower Products are sold in their entirety to a third party who has agreed in writing to comply with the terms of this Agreement;

iii.    remove, deface, cover or otherwise obscure any proprietary rights notice or identification on the Empower Products (including without limitation any safety or copyright notice);

iv.    copy any written or electronic materials accompanying any portion of the Empower Products unless specifically authorized in writing to do so by Empower; or

v.    authorize, permit or otherwise acquiesce in any other party engaging in the activities set forth in (i), (ii) (iii) or (iv) above, or attempting to do so. 

c.     All returns of Products, including Empower Product, must be authorized in advance.  Empower will authorize a Product return only if the Product is not the Product which was ordered by the Buyer (in accordance with Section 6 above) or if the Product is a warranty return and meets all applicable warranty requirements.  Empower Products shipped as ordered may not be returned without Empower’s prior written permission, which may be withheld in Empower’s sole discretion.  All freight charges on returned Empower Products shall be the Buyer’s responsibility and shall be invoiced to the Buyer if paid by Empower.  All requests for authorization of return and all returns must include sufficient information to identify the Empower Products and the applicable order, such as reference to Empower’s invoice number. Any return of Empower Products from Buyer to Empower may be subject to a 25% restocking charge.

d.     Empower warrants to Buyer that Empower Products will be free from material defects in material and workmanship, in accordance with Empower specifications, for a period of twelve (12) months following installation or twenty-four (24) months following the date of shipment from Empower’s facilities whichever occurs first (the “Warranty Period”).  This is the only warranty which Empower makes relating to the Empower Products. Empower makes no other warranty, express or implied, and specifically no warranty of merchantability or fitness for a particular purpose.  If the Buyer notifies Empower of any such material defects or non-conformance with the specifications within the Warranty Period, Empower will, at its option, repair or replace the products, or, in Empower’s sole and exclusive discretion, refund the amounts that Buyer paid for the Empower Products.  This warranty is conditional upon the following:

i.     Empower Products covered by this warranty must be accessed or received by Empower within the Warranty Period.  Buyer will bear the costs of any access, de-installation, re-installation and transportation of the Empower Products to Empower and back to Buyer.  No allowances will be made for labour, material, time, damage or transportation claims.

ii.     Buyer must: (a) have paid for the Empower Products in full, (b) give written notice of the defect, reasonably described, to Empower within ten (10) days of the time when Buyer discovers or ought to have discovered the defect, (c) have complied with all Empower instructions regarding storage, installation, operation, use, and maintenance of the Empower Products, (d) provide Empower with complete and accurate records of Buyer’s operation and maintenance of the Empower Products during the Warranty Period, (e) provide Empower with the reasonable opportunity to examine the Empower Products, and (f) not have performed any tests to evaluate the Empower Products without first providing Empower with reasonable written notification of the test, receiving Empower’s consent to the conditions of the test (which consent will not be unreasonably withheld), and allowing Empower to be present during the test; any non-compliance with the foregoing requirements will void this limited warranty.

iii.     This warranty shall not apply to defects or non-conformities resulting from: (a) improper or inadequate installation of the Empower Product by anyone other than Empower, (b) use of the Empower Product in combination with software, interfaces, or other materials that are not supplied or specifically authorized by Empower, (c) unauthorized or improper use or modification of the Empower Product (including without limitation the removal or alternation of any serial numbers or warranty date decals), (d) abuse, negligence, accident, or other damage from external sources, including accidents, riots, labour disputes, acts of God and power interruptions, (e) improper preparation of the Buyer’s facilities for Empower Product installation and use, including inadequate power sources, use with hazardous or explosive chemicals and/or materials and unfit or inadequate environmental control, or (f) unauthorized, improper or inadequate maintenance or repair of the Empower product, or (g) Buyer’s or any third party’s equipment, software and services used in conjunction with the Empower Product. 

THE WARRANTY SET FORTH IN THIS SECTION 8 IS THE EXCLUSIVE WARRANTY MADE BY EMPOWER RESPECTING THE EMPOWER PRODUCT.  EMPOWER DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, NON-INFRINGEMENT, OR ANY OTHER WARRANTY OR CONDITION ARISING BY STATUTE, CUSTOM OR USAGE OF TRADE RELATED TO THE EMPOWER PRODUCT PROVIDED HEREUNDER. Some jurisdictions may not allow the exclusion or limitation of implied warranties and conditions.  To the extent permitted by law, any implied warranties or conditions relating to the product to the extent that they cannot be excluded as set out above are limited to one (1) year from the shipment date of such product. The foregoing warranty additionally does not cover Empower Products marked as "sample" or sold "AS IS".

9.     Empower Services

a.     Buyer may, under this Agreement, purchase certain Services from Empower, as set forth in an agreed-upon quotation or in a Sales Confirmation.  The Services may include material to be delivered to Buyer by Empower under this Agreement in the course of, or as a result of, performing the Services, such as solution descriptions, designs, plans or custom configuration specifications for Empower Products (“Deliverables”). 

b.     Empower shall perform the Services as described in the applicable quotation or Sales Confirmation, subject to the terms and conditions set forth in this Agreement.  Any Deliverables and specific conditions respecting the Services shall be as set forth in the applicable quotation or Sales Confirmation; by way of example, such Services may consist of development, installation, commissioning, support and/or training services, and each type of services will be subject to the applicable conditions in the quotation or Sales Confirmation, as well as any applicable Empower policies.  Specific materials or information required from Buyer for Empower’s performance of the Services are as set out in the Sales Confirmation or quotation, provided to Buyer by Empower in writing, or as may be otherwise agreed upon from time to time in writing.  Changes to the Services must be agreed to by both parties, and will not be considered effective unless and until both parties agree as to the impact of the requested change on the cost, timing or any other aspect of the Services or this Agreement.

c.     Delays in Services that are not caused solely by Empower may result in additional costs or rescheduling of delivery dates and timelines, as mutually agreed upon by the parties acting in good faith.  Additionally, any alterations in timelines and delivery dates arising from such delays are dependent upon the availability of Empower resources, both human and equipment, and are also dependent on Buyer’s availability to provide input and to perform Buyer responsibilities, and Buyer acknowledge that the altered timelines and delivery dates may therefore not proportionally correspond with the length of the original delay.  Empower shall not be liable in any way for any delay or damage arising from Empower’s failure to meet Buyer’s requirements or any deadlines.  Empower reserves the right to terminate any Services where Buyer unduly delays performance, requests timeline changes, or otherwise requests material changes in the scope of Services.

d.     If Empower reviews drawings and documents prepared by Buyer or others in connection with the Services, including Manufacturers, Empower’s review of such drawings and documents shall be only to confirm general compliance with the intent of the design and information given, and shall not constitute acceptance by Empower of any responsibility for correctness of dimensions, specifications or details of such drawings and documentation. Empower shall be entitled to rely on all information, specifications and documentation provided by, and decisions and approvals of, Buyer in connection with the Services and Deliverables.  Buyer hereby releases Empower and its personnel from any liability and costs relating to the Services or Deliverables hereunder to the extent such liability and costs are attributable to decisions and approvals made by Buyer, or any information, specifications and documentation provided by Buyer or any third party that are not complete, accurate or current in all material respects.

e.     Buyer is solely responsible for establishing and maintaining record keeping, management, decision-making and other management functions.  Empower’s Services performed under this Agreement do not guarantee that errors or irregularities will not occur or that errors or irregularities will be detected should they occur. Buyer shall be fully and solely responsible for applying independent business judgment with respect to the Services and the Deliverables provided by Empower, to make implementation decisions, if any, and to determine further courses of action with respect to any matters addressed in any advice, recommendations, services, reports or other Deliverables provided by Empower to Buyer.

f.       For all Services requiring on-site visits, Buyer will provide reasonable workspace for Empower at their work sites, as well as occasional administrative support services as necessary for the provision of Services.  Buyer shall provide Empower with any necessary safety orientation and security access for work on Buyer’s premises, or the premises of any third party at which Buyer are requesting Services, and during onsite Services, Buyer is responsible for providing a safe workplace environment for all Empower personnel.  Each party will comply with the applicable provisions of occupational health and safety legislation in relation to their performance of obligations under this Agreement, including compliance with workplace safety codes and prompt notification and resolution of any hazards to health and safety of which such party becomes aware.

g.     Where Services entail installation or commissioning of any Products at Buyer’s premises, or the premises of any third party at which Buyer are requesting Services, Empower will provide documentation detailing tasks performed, and time spent. At the end of such on-site visit, an authorized signee with authority to bind Buyer must sign off the applicable documentation. All requests to change any scheduled appointment for on-site Services must be made at least one (1) complete business day in advance.

h.     For on-site Services, in the event that Empower provides recommendations of hardware specifications or other required resources and pre-requisites for the on-site Services that Buyer does not adhere to, and Empower subsequently determines it is unable to complete the Services as a result, Buyer shall be billed for any additional travel and time spent on site required to implement the necessary pre-requisites for the Services, including all subsequent visits necessary to complete the Services.  Additionally, in the event that Empower personnel arrives onsite at Buyer’s location to provide Services as arranged, and Buyer is unable to proceed with the scheduled appointment, then travel expenses for the entire trip will be charged to Buyer.  Any fees incurred by Empower related to rescheduling (e.g. flights, accommodations, car rentals, etc.) will be charged to Buyer in addition to the new booking charges, unless such rescheduling is initiated by Empower due to delays relating solely to Empower’s fault.

i.       Where Services are being performed in relation to any third party products, including Third Party Products, Buyer is responsible for obtaining all applicable third party consents and clearances (if any) required for Empower to perform the Services relating to such third party products, and for ensuring all system recommendations, specifications and other technical requirements respecting such third party products are properly met and in a state enabling Empower to perform the Services.  Empower shall not be responsible for any failure of, or inability to perform, the Services arising from incorrect site or equipment preparation, insufficient or inaccurate information, or changes or updates made by Buyer or any third party respecting the third-party products.

j.       Buyer may suspend or terminate the Services or any portion thereof, by providing notice in writing to Empower at any time.  Upon receipt of such written notice, Empower shall perform no further Services other than those reasonably necessary to close out the Services.  In such an event, Empower shall be entitled to payment in accordance with the quotation for all work in progress relating to the Services (including time spent by Empower personnel and Deliverables in progress), together with such additional expenses as specified in the quotation. Empower will not reimburse any deposits held or waive any committed future fees that were not specified in the quotation as being refundable.

k.     In performing the Services, Empower will perform its obligations hereunder in a professional and competent manner, and in good faith.  Except to the limited extent otherwise expressly stated herein, the Services (including support, maintenance and training services) and Deliverables are provided “AS IS”, without any warranty whatsoever, express or implied, and Empower shall have no obligation or liability to Buyer or any other party whatsoever in respect of the Services or Deliverables, or Buyer’s use thereof, including without limitation any indemnity or support obligations. Empower specifically does not warrant that the provision of the Services and Deliverables will be uninterrupted or error-free. THE WARRANTY SET FORTH IN THIS SECTION 9(k) IS THE EXCLUSIVE WARRANTY MADE BY EMPOWER RESPECTING THE SERVICES AND DELIVERABLES.  EMPOWER DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, NON-INFRINGEMENT, OR ANY OTHER WARRANTY OR CONDITION ARISING BY STATUTE, CUSTOM OR USAGE OF TRADE RELATED TO THE EMPOWER SERVICES AND DELIVERABLES PROVIDED HEREUNDER. Some jurisdictions may not allow the exclusion or limitation of implied warranties and conditions; the limitations, exclusions, and disclaimers set forth in this Agreement shall not apply only if and to the extent that the laws of a competent jurisdiction requires liabilities beyond and despite these limitations, exclusions, and disclaimers.

10.  Empower Deliverables

a.     Except to the limited extent expressly stated in the quotation, ownership of the Deliverables and the intellectual property rights thereto shall remain with Empower.  Where ownership of Deliverables is to be transferred to Buyer, in accordance with the quotation, title to such Deliverables shall pass to Buyer upon full payment by Buyer for such Deliverables, as described herein.

b.     The Deliverables shall be subject to acceptance by Buyer in accordance with the acceptance criteria set forth in the quotation.  Where there is no acceptance criteria set forth in the quotation, acceptance of the Deliverables shall occur upon the earliest of: (a) delivery to Buyer of the final Deliverables as set forth in the quotation, (b) completion of any installation of the Deliverables by Buyer or by a third party on Buyer’s behalf (as applicable), or (c) Buyer’s production or commercial use of the Deliverables.  Notwithstanding the foregoing, if acceptance testing, delivery or installation completion is delayed by thirty (30) days or more for reasons not related to Empower’s performance, Buyer agrees to pay the value of any milestone that is contingent on acceptance.  Such acceptance does not negate any warranty rights that Buyer may have respecting the Deliverables as set forth herein. Buyer is solely responsible for preparing their or the applicable third party’s facilities and equipment for installation of the Deliverables, where applicable.

c.     Empower reserves the right to make changes in the design of Empower Products or Services without the obligation to make equivalent changes to Deliverables or other products or services that have previously been supplied to Buyer.

d.     Except as expressly specified in the quotation, Deliverables are for Buyer’s use and benefit only and not for any other party, including Buyer’s affiliates, shareholders, business partners or advisors (each an “External Party”).  If Buyer wishes to disclose such Deliverables or make reference to Empower to any External Party other than Buyer’s legal counsel and external auditors who need access to such information and who have agreed to keep such information confidential, Buyer must obtain Empower’s prior written approval, which may be withheld in Empower’s sole discretion.  Empower accepts no liability or responsibility to any External Party who benefits from or uses Services, Empower Products or Deliverables hereunder.  Because Empower accepts no liability to any External Party with respect to the Services, Empower Products or Deliverables provided hereunder, Buyer agrees to indemnify, defend and hold Empower harmless against any and all External Party losses, claims, damages or liabilities (including the costs, expenses and reasonable attorney’s fees) to which Empower may become subject arising in any manner out of or in connection with the Services, Empower Products or Deliverables provided by Empower hereunder, except to the extent that it is finally judicially determined that the losses, claims, damages or liabilities were the direct result of Empower’ gross negligence or willful misconduct in the provision of Services Empower Products or Deliverables hereunder.

e.     To the extent expressly set forth in the quotation, the Deliverables may include Empower’s provision of certain customized developments, such as customized configurations of Products.  Empower will perform such customized development in accordance with the specifications and any special terms and conditions set forth in the quotation, and without limiting any other provision of this Agreement:

i.         Regardless of whether ownership of the customized developments is transferred to Buyer, Empower retains the right to use and benefit from the customized developments and/or any portion thereof, provided that nothing herein shall be deemed to permit Empower to utilize any of Buyer’s confidential information for the benefit of any other Empower customer.

ii.         Any customized development is provided to Buyer on an “AS IS” basis, without any warranty whatsoever, including without limitation any warranty respecting timeliness of completion, operation in an uninterrupted or error-free manner, and any other express or implied representations, warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, non-infringement, or any other warranty or condition arising by statute, custom or usage of trade.

11.  Intellectual Property

a.     Buyer does not acquire any intellectual property or other proprietary rights under this Agreement, including without limitation any right, title or interest in and to patents, copyrights, trade-marks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the Products, Services, Deliverables or any part thereof.  Buyer’s only rights to the Products, Services, Deliverables or any part thereof shall be those rights expressly licensed or granted to the Buyer under this Agreement.  Any rights not expressly granted under this Agreement are reserved.

b.     Without limiting the foregoing, Buyer will not, without Empower’s prior written consent, use any trademark or trade name of Empower, other than in connection with internal administrative records or with respect to the resale of the Products pre-marked or packaged by or on behalf of Empower.

c.     If software is provided by Empower hereunder, Buyer agrees that the software may only be used in accordance with the terms and conditions of the software license agreement that accompanies the software. Buyer agrees not to directly or indirectly decompile, disassemble, reverse engineer or otherwise derive the source code for the software.

d.     Each party retains exclusive ownership and right to control all of its intellectual property, including but not limited to its technologies, inventions, technical data, know how, trademarks and patents, and nothing in these Agreement shall constitute a license of any of the same; except that Buyer hereby grants Empower a non-exclusive license to use any such intellectual property provided as part of the information, documentation or other materials provided by Buyer to Empower for the limited purpose of performing the Services for Buyer.

12.  Confidential Information

a.     The terms and conditions of the confidentiality agreement entered into between the parties shall apply to all confidential information disclosed pursuant to this Agreement and are incorporated herein by this reference.  Without limiting the foregoing, each party agrees not to disclose to any third party any information pertaining to or provided by the other party without prior written permission of the other party, to protect all such information disclosed by the other party using no less than reasonable care, and to use such information only to the extent necessary to perform their obligations under this Agreement.  Such information and all copies thereof will be returned to the disclosing party upon request; provided that the receiving party may maintain a copy of the information in its restricted access files for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes, and the receiving party shall not be required to destroy any computer records or files containing such information which have been created pursuant to automatic archiving and back-up procedures.

b.     The foregoing confidentiality obligations shall not apply to information that the receiving party can establish: (a) was lawfully in the receiving party’s possession before receipt from the disclosing party without any confidentiality obligation attached thereto; or (b) is or becomes a matter of public knowledge through no fault of the receiving party; or (c) is rightfully disclosed by a third party to the receiving party without an obligation of confidentiality attached thereto; or  (d) was independently developed or discovered by the receiving party; or (e) is required to be disclosed by applicable law, regulation or governing or regulatory authority. 

c.     All personal information disclosed to Empower shall be handled by Empower in accordance with Empower’s privacy policy on its website.

13.  Termination

Empower may terminate this Agreement and any related quotation, order or Sales Confirmation immediately upon notice to Buyer, and may also stop any Product in transit to the Buyer and suspend the delivery of Product to the Buyer without penalty, if: (a) Buyer materially breaches, fails to comply with, or otherwise contravenes a term or condition of this Agreement, (b) Buyer materially breaches any other agreement that they may have with Empower, or (c) Buyer becomes involved in any legal proceeding concerning their solvency, commences liquidation proceedings, has a receiver or administrator appointed respecting any of their assets, ceases or threatens to cease operations, or otherwise has a serious and reasonable doubt arise respecting their solvency.  Upon termination of this agreement for Buyer’s breach or insolvency: (a) all of Empower’s performance obligations hereunder shall immediately cease, (b) Buyer’s license to use any software hereunder shall immediately cease, and (c) any payments then due to Empower become immediately payable in full. Additionally, Empower may terminate this Agreement if required to do so by any law, regulation, requirement or ruling issued in any form whatsoever by any judicial or other governmental body, or if required by any Manufacturer with respect to any Third Party Product, and may also terminate this Agreement with respect to its provision of Services for any reason upon sixty (60) days’ notice to Buyer or such other timeframe as may be set forth in the quotation.

14.  Mutual Warranties

Each party warrants that:

a.     it has the full power to enter into this Agreement and to perform its obligations hereunder;

b.     it shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including federal, provincial, state, municipal and local governing bodies, of any country having jurisdiction over this Agreement or any part thereof;

c.     if access to the other party’s facilities and computer systems is provided to it, it shall take all necessary precautions to protect the integrity of such party’s facilities and computer systems, including without limitation, complying with any policies applicable thereto provided to it;

d.     its performance of its obligations under this Agreement shall not breach any other agreement entered into by it; and

e.     it shall perform all of its obligations hereunder in a professional and competent manner, and in good faith.

15.  Indemnity

a.     Each party agrees to indemnify, defend and hold the other harmless from and against any and all liability, losses, damages, claims, judgments, fines, penalties, lawsuits, and expenses/costs, including reasonable attorney’s fees, relating to death or personal injuries, property damage, or environmental contamination, resulting from or arising out of the performance of either party under this Agreement, wherein the party seeking indemnity has been charged with liability, joined in a lawsuit, or presented with a claim for which the other party is or should be liable by reason of its intentional tortious acts, substantially greater negligence or culpability, violation of law, breach of an obligation of this Agreement, or breach of legal duty.

b.     Provided Buyer is not in material breach of this Agreement, Empower agrees to defend and indemnify Buyer against any third party claims, and any resulting judgments finally awarded by a court of competent jurisdiction, direct damages, costs (including reasonable lawyers’ fees and disbursements), and settlements agreed to by Empower, where such third party claims that use of the Empower Products, Services or Deliverables in accordance with this Agreement either infringes or misappropriates any patents, copyrights, trademarks, trade names or trade secrets that are enforceable in Canada. Notwithstanding the foregoing, Empower shall have no indemnity obligation in relation to any matter for which Buyer is obligated to indemnify Empower under this Agreement, or for any claim to the extent based on (i) the use or combination of the Empower Products, Services or Deliverables with software, hardware, or other materials not provided or otherwise specifically authorized by Empower, (ii) misuse or unauthorized modification of the Empower Products, Services or Deliverables, (iii) failure of Buyer to implement any update provided by Empower that would have prevented the claim, (iv) Buyer’s instructions, information, specifications or designs in relation to which Empower made, performed, developed or configured the Empower Products, Services or Deliverables, or (v) Buyer’s breach of any of the terms and conditions of this Agreement. If the Empower Products, Services or Deliverables become, or in Empower’s opinion are likely to become, the subject of an infringement claim, Empower may, at its option and expense, either (i) procure for Buyer the right to continue using the Empower Products, Services or Deliverables, (ii) replace or modify the Empower Products, Services or Deliverables so that they become non-infringing, or (iii) accept return of the Empower Products or Deliverables and refund Buyer the amounts actually paid by Buyer to Seller for the affected Empower Products, Services or Deliverables.  This Section 15b. states the entire liability of Empower under this Agreement with respect to indemnification or liability for infringement of third-party patents, copyrights, or other proprietary right by the Products, Services, Deliverables or associated documentation or any part thereof or by their use or operation.

c.     Each party’s indemnity obligations hereunder are contingent upon: (a) the indemnifying party promptly being notified in writing of such claim, (b) the indemnifying party having the sole control of the defense and/or settlement thereof, (c) the indemnified party furnishing to the indemnifying party on request any information in the indemnified party’s possession or control for such defense, (d) the indemnified party not admitting any such claim and/or making any payments with respect to such claim without the prior written consent of the indemnifying party, and (e) the indemnified party, at the indemnifying party’s expense, cooperating with, and providing such assistance to the indemnifying party in the defense of such claims as reasonably requested by the indemnifying party.

16.  Limitation of Liability

a.     The only type of damages that can be recovered against Empower and/or its suppliers, directors, officers, agents, representatives, shareholders or employees arising from or related to this Agreement shall be Buyer’s direct damages, if any, to the limited extent arising from Empower’s gross negligence or wilful misconduct.  In no event shall Empower’s aggregate liability exceed the amount paid by Buyer for the portion of its Services, Products or Deliverables that gave rise to the claim. EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EMPOWER BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE SERVICES, PRODUCTS OR DELIVERABLES EVEN IF EMPOWER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

b.     To the fullest extent allowed by law, and notwithstanding any statute of limitations, statute of repose, or other legal time limit to the contrary, no claim shall be brought by Buyer against Empower after the earliest of the following to occur (the “Claim Time Limit”): (i) the time period for bringing an action under any applicable provincial, state or federal statute of limitations or (ii) one (1) year after the date upon which Buyer discovered, or should have discovered, the facts giving rise to an alleged claim or (iii) two (2) years after the Products or Deliverables were delivered or Services were completed or terminated under this Agreement.  Any claim not brought within the Claim Time Limit is waived.

17.  Force Majeure

If either party is delayed in or precluded from complying with any provision of this Agreement by a force majeure event beyond such party’s reasonable control (whether or not foreseeable) including but not limited to fire or explosions, lockouts, strikes, slowdowns, labor shortages or disturbances, acts of God, floods, hurricanes, tornadoes, earthquakes, natural disasters, war, insurrection, terrorism, riots, acts of the public enemy, acts of governmental authority, embargo, epidemics, or quarantine restrictions, such delay in compliance or non-compliance will be excused. Neither party shall be liable to the other for damages by reason of any delay or suspension of performance resulting from the foregoing force majeure events. Where delays or failures are caused by labor difficulties, Empower will not be obligated to seek or obtain any settlement that, in Empower’s sole judgment, is not in Empower’s best interest.

18.  Notices

Any notices hereunder shall be in writing and shall be delivered by hand or sent by registered mail, courier, facsimile or e-mail addressed to a party at their respective addresses appearing in this Agreement, or to such other address as one party advises the other party in writing.  Any such notices shall be deemed to have been received by the party to whom they were addressed: (a) upon delivery by hand, (b) five (5) business days after being sent by registered mail, (c) upon delivery by courier, as evidenced by the courier receipt, or (d) upon successful receipt confirmation report after being sent by facsimile or e-mail.  Notices relating to term or termination, default, bankruptcy (insolvency or reorganization), indemnity, waiver, amendments, claims or disputes must be given by written notice given by methods (a), (b) or (c) or by facsimile, though a courtesy copy may be given by e-mail.  Other notices and communication may be given by e-mail.

19.  Assignment and Subcontracting

Empower may subcontract any of its obligations under this Agreement without first obtaining Buyer’s prior written consent, provided that Empower obligates such subcontractor in writing to comply with all applicable terms and conditions contained herein.  Apart from the foregoing, neither party may assign or subcontract its rights or obligations under this Agreement, in whole or in part, without the other party’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed), provided that either party may assign this Agreement without consent in the context of: (i) an assignment to an affiliate, or (ii) a merger, acquisition, or sale of all or substantially all of its shares or assets, and further provided that such resulting assignee entity is able to and does assume all of the assigning party’s obligations hereunder.  This Agreement shall be binding upon the parties hereto and their respective lawful successors and permitted assigns.

20.  No Waiver

No waiver by either party of a breach or omission by the other party under this Agreement shall be binding on the waiving party unless it is expressly made in writing and signed by the waiving party. Any waiver by a party of a particular breach or omission by the other party shall not affect or impair the rights of the waiving party in respect of any subsequent breach or omission of the same or different kind. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

21.  Severability and Survival

If any one or more of the provisions of this Agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, any such provision shall be severable from this Agreement, in which event this Agreement shall be construed as if such provision had never been contained herein.  Any provision of this Agreement which expressly states that it is to continue in effect after termination or expiration of this Agreement, or which by its nature would survive the termination or expiration of this Agreement, shall do so.

22.  Governing Law; Compliance with Laws

a.     All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Ontario without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario. Any legal suit, action or proceeding arising out of or relating to this Agreement will be instituted in the Federal or Provincial courts located in the City of Toronto, Ontario, Canada. Each party irrevocably submits to the exclusive jurisdiction of such courts in any suit, action or proceeding, subject to the terms of this Agreement.  The parties specifically agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded from application to this Agreement.

b.     Any controversy or claim arising out of or relating to this Agreement including, but not limited to, its breach, existence, validity, legality, enforceability, interpretation, performance, nullity, termination or expiration, (a “Controversy”) will be settled by binding arbitration; and notwithstanding its place of execution or performance, this Agreement will be governed by, and construed under and in accordance with, the laws of the Province of Ontario, irrespective of any laws regarding choice or conflict of laws that direct the application of the laws of another jurisdiction. The place of arbitration will be in the City of Toronto, Ontario, Canada, under the rules prescribed by the Canadian Arbitration Association (“CAA”) in accordance with its Arbitration Rules. Unless the parties agree to a single arbitrator, the arbitration will be heard and determined by three arbitrators, who will be appointed pursuant to the Arbitration Rules. The arbitration proceedings will be conducted in the English language. The award will be rendered in writing with the reasons detailed. The award may consist of monetary damages, injunctive relief, or specific performance as decided by the arbitrator. Either party may initiate arbitration by notifying the other in writing. The arbitrator’s ruling and award from such arbitration is final; the parties consent to judgment upon the award, and the award may be entered in any court of competent jurisdiction.

c.     Empower will have the sole and exclusive right to determine whether any dispute, controversy or claim arising out of or relating to the Agreement, or the breach thereof, will be submitted to a court of law or arbitrated. The venue for any arbitration will be in Toronto, Ontario. The arbitrator’s award may be confirmed and reduced to judgment in any court of competent jurisdiction. In the event the matter is submitted to a court, Empower and Buyer waive their right to trial by jury.

d.     Each party shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies (including import and export laws and regulations), including federal, provincial, state, municipal and local governing bodies, of any country having jurisdiction over its obligations hereunder.  Without limiting the foregoing, Buyer agrees that it is solely responsible for verifying that it is authorized to use the Empower Products, Services and Deliverables in its country, and is responsible for all import and export requirements (including arranging any import and export licenses and permits) relating to shipment of Products and Deliverables to Buyer.  Buyer agrees to indemnify Empower from any loss, claims, liability or damages arising out of its failure to comply with such laws, ordinances, codes and regulations.

23.  Entire Agreement; Language

a.     This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties.  Except as otherwise provided herein, this Agreement may not be altered, amended, or modified except by a written instrument signed by the duly authorized representatives of both parties.  The section headings contained in this Agreement are for convenience only and will not affect the interpretation of any provision.

b.     To the limited extent of any conflict between the provisions of the Sales Confirmation and these Terms, the terms of the Sales Confirmation will govern solely with respect to the Products, Services and Deliverables that are the subject of such Sales Confirmation.

c.     This Agreement may be executed in counterparts, each of which when executed by either of the parties shall be deemed to be an original and such counterparts shall together constitute one and the same Agreement.

d.     It is the express will of the parties that this Agreement and all related documents have been drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.

Terms and Conditions of Sale - Rev 1.1, effective from December 2025