Proto3000 Inc. or Proto3000 (US) Inc., as identified in the Quote (the specific contracting entity being the “Company”) and the undersigned customer, by and through its affiliates, (“Customer”) on a pay-per-incident basis for Customer’s specified hardware (individually, the “Product” and collectively, the “Products”) that is not covered by an active service plan or warranty. This agreement (“Agreement”) is entered into upon Customer’s acceptance of a Service Quote provided by the Company (the “Quote”) for the Services. Coverage hereunder is strictly limited to the Services, Products, and location(s) identified in the Quote; this Agreement is not a maintenance contract and provides no ongoing coverage or obligation.

1.Service Scope and Features

1.1 Billable Services: Company offers technical and repair services, which shall be provided at Company’s then-current repair rates following Customer’s acceptance of a Quote, and may include the following:

1.1.1 Repair or Replacement: Correcting, repairing, and/or replacing, as applicable, a non-conforming or defective Product that is not covered by an active Company warranty or service plan. The decision to repair or replace the Product, including any embedded software or parts thereof (excluding Consumables, as specified in Section 2 herein), shall be determined by Company in its sole and unfettered discretion.

1.1.2 Preventive Maintenance (“PM”): Performance of billable Preventive Maintenance procedures by the Company’s authorized technical representatives (“Technical Representative”), if requested by Customer and included in the Quote.

1.1.3 Technical Support: Billable technical phone and email support available during Business Hours, which shall mean any day other than a Saturday, a Sunday, and/or statutory holiday in Ontario, between the hours of 9:00 a.m. and 5:00 p.m., Eastern Time (“Business Hours”).

1.1.4 On-Site Services: Billable on-site service visits where Company determines, in its sole and unfettered discretion, that remote support cannot resolve the problem, and the Customer agrees to the associated charges in the Quote.

1.1.5 Service Scheduling: Scheduling of a Technical Representative to perform Services will be determined by Company based on availability and Customer’s acceptance of the Quote.

2. Billable Repairs, Consumables and Spare Parts

2.1 Customer shall be solely responsible for the cost and replacement of Consumables and disposable materials, including without limitation, thermoplastics, resins, printing heads, light engines, projectors, build trays, milling tools, material discs, spindles, tool holders, timing belts, cleaning fluid, wiping cloths, gloves and other similar items (collectively, the “Consumables“), which Consumables Customer may purchase separately at Company’s then-current rates. In addition to any rights of the Company hereunder, the use of any unapproved Consumables will void the application of this Agreement to any subsequent service or repair requests, and Company shall not be obligated to perform Services on the damaged Product.

2.2 Spare parts that have been certified by, but not manufactured by, the Supplier are provided by Company to Customer in “as is” and “where is” condition. Company’s liability in respect of such spare parts shall be limited only to amounts that are recovered by Company from the Supplier, under warranties provided by the Supplier, if any such warranties or amounts exist. All spare parts provided and installed hereunder are charged to Customer at Company’s then-current rates.

2.3 Customer acknowledges that use of parts and/or Consumables not manufactured or certified by the Supplier may result in damage to Products. In the event that Company, acting reasonably, determines that damage to a Product has been caused by the use of parts and/or Consumables not manufactured by, and/or not certified by, the Supplier, Customer acknowledges and agrees that Company shall have the right to diagnose and repair the Product, or its components, at Company’s then-current maintenance restoration rates, to be borne by the Customer.

3. Optional Products

​3.1 Occasionally, the Company may, in its sole and unfettered discretion, recommend or provide third-party products to the Customer which the Company neither monitors nor has any control nor input. The Customer acknowledges and agrees that the Company provides access to such products ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement.

3.2 The Company shall have no liability whatsoever arising from or relating to the Customer’s use of optional third-party products. Any use by the Customer of optional products recommended or provided by the Company is entirely at the Customer’s own risk and discretion and the Customer acknowledges and agrees to the terms on which products are provided by the relevant third-party provider(s).

4. Customer Responsibilities

4.1 Customer, at its sole expense, and except as otherwise provided herein, shall

(ii) promptly install and maintain all Software Releases and procure any additional equipment or software that may be required for, or as a result of, such installation or maintenance, all in accordance with the User Instructions;

(iii) provide Company with access to the Product during Business Hours;

(iv) provide assistance, information, services, Consumables, and facilities as may be requested by Company to perform the Services; and

(v) return to Company at Customer’s sole cost and expense, within thirty (30) days of Company’s request, all replaced spare parts.

4.2 Customer shall not, without Company’s prior written authorization, permit any person, other than an operator trained pursuant to the User Instructions, to operate the Product.

4.3 Unless otherwise permitted in accordance with the User Instructions, Customer shall not: (i) permit any unqualified person (certified by the original supplier) to perform the Maintenance Services or other support or maintenance of the Product; or (ii) attempt any repair to, or replacement of, the Product.

4.4. Customer shall be solely responsible for Product failures, as well as for the necessary remedies therefor, caused either directly or indirectly by:

(i) acts or omissions of the Customer, its operators, employees, agents, or anyone for whom Customer, by law, is responsible, that are inconsistent with Customer’s obligations contemplated herein or in the User Instructions; or

(ii) modification or replacement of, or repair to, the Product or any part thereof without Company’s prior written authorization.

4.5 Nothing in this Agreement shall require Company to provide any external electrical work; equipment reconditioning or refurbishing; repairs or adjustments due to abuse, modification, or alteration; equipment operation or maintenance, to the Products, such work being contrary to Company’s User Instructions. Company shall not be required to perform any services or repairs due to external causes, including without limitation, fire, electrical damage, power surges, flood or other intervening catastrophic causes (collectively, the “Extraordinary Repairs”).

4.6 Customer shall make at least one (1) of its employees fully available to Company for purposes of assisting Company with any telephone or on-site Maintenance Services to be provided hereunder. Customer shall remain solely liable for ensuring that its data and files are adequately documented for backup purposes and Customer acknowledges and agrees that Company will not be liable for any lost data or any data reconstruction costs.

4.7 Any services provided by Company and determined by Company, in its sole and unfettered discretion to be:

(i) a regular service or repair;

(ii) Extraordinary Repairs; and/or

(iii) repairs required to be performed after Business Hours, shall be charged on a time and materials basis, in accordance with Company’s then-current repair rates. Customer acknowledges that information as respects Company’s repair rates is available through Company’s call center, and Customer further acknowledges and agrees that such rates shall be due and payable by Customer within thirty (30) days of receipt of Company’s invoice, and are non-refundable once the Service has been accepted.

5. Limitation of Liability

5.1 EXCEPT AS MAY BE EXPRESSLY STATED IN THE APPLICABLE QUOTE, Company makes no further warranties of any kind, either express or implied, collateral or direct, as respects the spare parts, software, equipment, and/or any services performed and specifically disclaims all implied warranties including the implied warranty of merchantability or fitness for a particular purpose.

5.2 Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the Company’s liability shall be limited to the maximum extent permitted by law.

5.3 Customer acknowledges and agrees that its remedies herein, as well as the maximum liability of Company, or any third party engaged by Company to provide services in accordance with this Agreement, are strictly limited as expressly stated in this Section.

5.4 Customer agrees to indemnify and hold harmless Company from and against any claims, demands, losses, costs, damages, actions, suits or proceedings which may be brought or commenced by Customer or its affiliates.

5.5 The term “Company”, as used in this Agreement, so far as covenants or obligations on the part of Company are concerned, shall be limited to mean and include only the specific entity identified as “Company” in the Quote, its affiliates and its authorized representatives at the time in question of the Products and Maintenance Services, and in the event of any transfer or assignment by Company of this Agreement, the Company, herein named, shall be automatically freed and relieved from and after the date of such transfer or assignment, of all liability as respects the performance of any covenants or obligations on the part of the Company contained in this Agreement thereafter to be performed, it being intended hereby that the covenants and obligations contained in this Agreement on the part of the Company shall, subject as aforesaid, be binding on Company only during and in respect of its period prior to any transfer or assignment of this Agreement.

5.6 The contents of this Section 4 shall survive the expiration, termination or surrender of this Agreement, notwithstanding anything in this Agreement to the contrary.

6. Governing Law

6.1 This Agreement shall be governed by the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein. With respect to any dispute, controversy or claim arising out of or relating to this Agreement, the parties agree and consent to the jurisdiction of an exclusive venue in the federal or provincial courts located in Toronto, Ontario.

6.2 Any provision of this Agreement which is, or is deemed to be, unenforceable in any jurisdiction shall be severable from this Agreement in such jurisdiction, without in any way invalidating the remaining provisions of this Agreement, and such unenforceability shall not make that provision unenforceable in any other jurisdiction.

7. Waiver of Breach

7.1 The waiver by Company of any term, covenant or condition shall not be deemed to be a waiver of the balance of the terms, covenants or conditions herein contained. Further, the waiver by Company of any breach of any term, covenant or condition herein contained, shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach of the same or other term, covenant or condition herein contained.

7.2 Customer acknowledges and agrees that no term, covenant or condition of this Agreement shall be deemed to have been waived by Company unless such waiver is in writing and signed by Company.

7.3 No failure or delay by either party, in exercising or enforcing any right hereunder or under any applicable law shall operate as a waiver thereof, or preclude any other exercise or enforcement of rights herein contained, or in accordance with any applicable law.

8. Force Majeure

8.1 Customer acknowledges and agrees that Company may, at its option, engage a third party, in a subcontractor position, to perform the services in accordance with this Agreement, on behalf of Company.

8.2 Neither party shall be liable for any delays in performance of any covenant or obligation herein contained that are due to circumstances beyond either party’s control, including without limitation, acts of nature, acts of the government, delays in transportation, and delays in delivery or inability of the Supplier to deliver materials, goods, equipment, services or labour. In the event of delayed performance due to any such cause, the date of delivery or the time of completion, as applicable, shall be extended by a period of time reasonably necessary to overcome such delay, such period of time to be mutually agreed upon between the parties.

9. Assignment and Transfer

9.1 Customer acknowledges and agrees that it cannot transfer this Agreement, in whole or in part, without the prior written consent of Company, which consent shall not be unreasonably withheld.

9.2 Company may, in its sole and unfettered discretion, assign or transfer this Agreement, in whole or in part, to an affiliate or any other qualified third party, without the consent of Customer.

10. Entire Agreement

10.1 This Agreement, and the Appendices attached hereto and forming a part hereof, set forth all the covenants, promises, agreements, conditions and understandings between Company and Customer, concerning the Products and the Maintenance Services, and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other than are herein set forth.

10.2 Customer acknowledges and agrees that any purchase order, which shall mean any commercial document which has been issued by Customer to Company in accordance with this Agreement which indicates the type of, quantity of, and price for, a Product or service to be provided by Company shall serve only to direct Company as respects the Product or Products to be purchased, and to constitute good and sufficient payment authority as respects said Product(s), and shall not be deemed a counteroffer to the terms of this Agreement. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the parties unless in writing and signed by each of them, or their authorized representatives.

11. Notice

11.1 All notices, consents, approvals, statements, authorizations, documents, or other communications (collectively “Notice”) required or permitted to be given hereunder shall be in writing, and shall be delivered personally, transmitted by electronic mail, or mailed by registered mail, postage prepaid, to the said parties at their respective addresses set forth hereunder, namely:

11.1.1. In the case of Company to: 6260 Highway 7, Unit 8, Vaughan, Ontario, L4H 4G3 or via email to [email protected]; and
In the case of Customer to the address on file with Company or via email on file with Company.
Counterparts

11.1.2. This Agreement may be executed in several counterparts, each of which so executed shall be deemed to be an original and such counterparts together shall constitute one and the same agreement and notwithstanding their date of execution shall be deemed to be executed as of the date set out hereunder.

12. Electronic Records and Signature

12.1. It is agreed by the parties that, notwithstanding the use herein of the words “writing,” “execution,” “signed,” “signature,” or other words of similar import, the parties intend that the use of electronic signatures and the keeping of records in electronic form be granted the same legal effect, validity or enforceability as a signature affixed by hand or the use of a paper-based record keeping system (as the case might be) to the extent and as provided for in any applicable legislation including the Electronic Commerce Act, 2000 (Ontario), or similar other Provincial acts, Personal Information Protection and Electronic Documents Act (Canada).

13. Physical Address or Location of the Products

13.1 Any changes to the location noted in the Quote shall only be effective on 10 days written notice from Customer to Company.

14. Acknowledgement

14.1 In order to be eligible to receive Services, Customer must agree to the terms and conditions of this Agreement. By requesting or accepting the Service Quote provided to Customer by the Company, Customer acknowledges that he/she/it has read this Agreement in its entirety and agrees to be bound by the terms and conditions hereof.