General Terms & Conditions

The sale of products and services (“Products”) by HighVail Systems Inc. (“HighVail”) are subject to these terms and conditions (“Agreement”) regardless of other or additional terms or conditions that conflict with or contradict this Agreement in any purchase order, document, or other communication (“Order”), even if such Order with conflicting or contradictory terms is signed by a representative of HighVail. Preprinted terms and conditions on any document of customer (“Customer”) and/or HighVail’s failure to object to conflicting or additional terms will not change or add to the terms of this Agreement.

1. Orders: Quotes from HighVail (“Quotes”) are invitations to tender and are subject to change at any time without notice. Each Quote will expire 30 days from its date and may be modified or withdrawn by HighVail before receipt of Customer’s acceptance of same. All Orders are subject to acknowledgement/acceptance by HighVail, and Orders received are subject to Product availability and prior sale. Contracts between Customer and HighVail are formed upon HighVail’s written acknowledgement/acceptance or execution of Customer’s Order and are subject to this Agreement. Customer is responsible for ensuring that the Order itemizes all Products and any miscellaneous parts required. All Orders including, but not limited to, electronic purchase orders, for Products identified by HighVail as non-standard are non-cancelable and non-returnable. HighVail may identify Products as non-standard by various means including, without limitation, in a Quote, a Statement of Work, a Product list, attachment or exhibit, or on an applicable invoice. Customer may not change, cancel or reschedule Orders for standard Products without HighVail’s consent. All cancelled Orders and Products being returned as “Ordered incorrectly” or “No longer required by customer” will be subject to a re-stocking fee. HighVail reserves the right to allocate the sale of Products among its Customers.

2. Prices: The prices for any Products will be as specified in a Quote and/or a Statement of Work. Unless otherwise specified, all prices are in Canadian dollars and all charges will be processed in Canadian dollars. Prices are for Products only and do not include taxes, shipping charges, freight, duties, and other charges or fees, such as fees for special packaging and labeling of the Products, permits, certificates, customs declarations and registrations (collectively, “Additional Fees”). Customer is responsible for any Additional Fees.

3. Terms of Payment: Payment of the total invoice amount, without offset or deduction, is due 30 days from the invoice date or as otherwise approved in writing by HighVail. HighVail may charge interest on any past due invoice from the payment due date to the date of payment of: (i) 18% per annum, or (ii) the maximum amount that is allowed under the applicable law if HighVail’s interest rate is deemed invalid; plus reasonable legal fees and collection costs. At any time an invoice is past due, HighVail may change the terms of Customer’s credit, require financial data from Customer for verification of Customer’s creditworthiness, require a bank guarantee or other security, or suspend any outstanding Orders of Customer. HighVail may apply payments to any of Customer’s accounts. If Customer defaults on any payment under this Agreement, HighVail may reschedule or cancel any outstanding delivery and declare all outstanding invoices due and payable immediately.

4. Delivery and Title: Unless otherwise specified by HighVail in writing, all deliveries of Products are FOB the manufacturer’s warehouse. Title will pass to Customer upon delivery of the Products to the carrier. HighVail does not guarantee delivery by certain time or date and is not responsible for delays in delivery. HighVail reserves the right to make partial deliveries and Customer will accept delivery and pay for the Products delivered. A delayed delivery of any part of an Order does not entitle Customer to cancel other deliveries.

5. Limited Warranty: HighVail will pass through to Customer any transferable Product warranties, indemnities, and remedies provided to HighVail by the manufacturer. HighVail warrants that for a period of 90 days after delivery of the Products to Customer, value-added work performed by HighVail on Products will conform to Customer’s specifications that are in writing and accepted by HighVail, and Customer will be deemed the manufacturer of such value-added Products. To the extent permitted by law, HighVail makes no other warranty, express or implied, such as warranty of merchantability, fitness for purpose or non-infringement. Customer’s sole remedies for breach of HighVail’s warranty are, at HighVail’s choice: (i) repair the Products; (ii) replace the Products at no cost to Customer; or (iii) refund Customer the purchase price of the Products.

6. Product Return: Customer may return the Products to HighVail only with a return material authorization (RMA”) number issued by HighVail. Customer must notify HighVail in writing of any damage to the outer packaging or the Products, shortage, or other discrepancy (“Visual Defect”) upon receipt of shipment; otherwise, Customer is deemed to have accepted the Products and may not revoke acceptance. Unless allowed by the original manufacturer, RMA numbers will not be granted for damage, shortage, or other discrepancy created by Customer, the carrier or freight provider, or any other third party. All returned Products with an RMA number must be packaged in accordance with HighVail’s specifications and returned according to instructions provided by HighVail at the time the RMA number is issued. Any Product returned pursuant to a warranty requires written notice from Customer to HighVail within the warranty period detailing the Product defect. Customer must return the Products to the shipping address as instructed by the original manufacturer, freight prepaid in original manufacturer’s shipping cartons or equivalent, along with acceptable proof of purchase, within the warranty period. At HighVail’s discretion, HighVail will return all Products not eligible for return to Customer, freight collect, or hold Products for Customer’s account at Customer’s expense.

7. Limitation of Liability: To the extent permitted by law, neither HighVail nor its employees or agents are liable for, and Customer is not entitled to, any indirect, special, incidental or consequential damages (including without limitation loss of profits or revenue, loss of data, loss of use, rework or manufacturing expense, injury to reputation, or loss of customers). To the extent permitted by applicable law, HighVail’s total liability in any event will not exceed the value of the Order in question. Customer will indemnify, defend and hold HighVail harmless from any claims based on: (i) HighVail’s compliance with Customer’s designs, specifications, or instructions; (ii) modification of any Product by anyone other than HighVail; or (iii) use of Product in combination with other products or in violation of clause 9 below.

8. Force Majeure: HighVail is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (including without limitation acts of nature, acts or omissions of the Customer, operational disruptions, man-made or natural disasters, epidemic medical crises, materials shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labour or materials through its regular sources).

9. Use of Products: Customer will comply with the manufacturer’s Product specifications. Products are not authorized for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or serious property damage. If Customer uses or sells the Products for use in any such applications or fails to comply with the manufacturer’s Product specifications, Customer acknowledges that such use, sale, or non-compliance is at Customer’s sole risk.

10. Product Information: Product information (including without limitation statement or advice – technical or otherwise – advertisement content, and information related to a Product’s specifications, features, uses or conformance with legal or other requirements) is provided by HighVail on an “AS IS” basis and does not form a part of the properties of the Product. HighVail makes no representation as to the accuracy or completeness of the Product information, and disclaims all representations, warranties and liabilities under any theory with respect to the Product information. HighVail recommends that Customer validate any Product information before using or acting on such information. All Product information is subject to change without notice. HighVail is not responsible for typographical or other errors or omissions in Product information.

11. Electronic Orders: In the event that any part of the purchase and sale of Products, including non-standard Product acknowledgements, utilizes electronic data interchange, Customer’s internal portal or third party portal, or any other electronic means (“Electronic Purchase Order”), this Agreement will continue to apply to the purchase and sale of Products between Customer and HighVail. Customer’s acceptance of HighVail’s Quote or Statement of Work with respect to Electronic Purchase Orders via writing, email or othr electronic data interchange will be binding on Customer.

12. Confidential Information: All non-public information (including personal information), documents, reports, data, records, forms and other materials obtained by or disclosed to Customer in the course of the purchase and sale of Products, including without limitation the prices of Products, are the proprietary, confidential and trade secret information of HighVail. Customer agrees not to use or disclose such information to any person and to take all commercially reasonable steps to hold such information confidential. Customer will notify HighVail immediately of any breach of confidentiality of which Customer becomes aware, and will promptly take all necessary and advisable corrective actions, and will cooperate fully with HighVail in all reasonable and lawful efforts to prevent, mitigate or rectify such confidentiality breach.

13. General: A. This Agreement will be governed, construed, and enforced in accordance with the laws of the Province of Ontario, without regard to the conflict of laws provisions thereof, and the parties hereby submit to the exclusive jurisdiction of the courts located in Ontario. The United Nations Convention for the International Sale of Goods shall not apply. B. Customer may not assign this Agreement without the prior written consent of HighVail. This Agreement is binding on successors and assigns. C. This Agreement may only be modified in writing signed by authorized representatives of both HighVail and Customer. D. HighVail and Customer are independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership. E. HighVail’s failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions. F. The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions. G. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses, and Customer will comply with such rights. H. Customer and HighVail will comply with applicable laws and regulations. I. The parties agree to use electronic signatures and agree that any electronic signatures will be legally valid, effective and enforceable. J. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.

14. Intellectual Property Ownership: For all Professional Services delivered by HighVail personnel, representatives and contractors, unless otherwise specified; the parties acknowledge that HighVail has developed, is developing, or will develop certain intellectual property, including but not limited to automation, infrastructure, applications, and other integrations including documentation, architecture, design, process and custom development of any form (the “Technology”) as part of the services provided under this Agreement.

Notwithstanding any financial contribution made by Client/Customer, including but not limited to payments for services, personnel time, or project-related costs, all right, title, and interest, including all intellectual property rights, in and to the Technology shall remain solely and exclusively the property of HighVail. Nothing in this Agreement shall be construed as granting Client/Customer any ownership rights, title, license, or interest in the Technology, whether in whole or in part, unless otherwise expressly agreed in a separate written agreement executed by both Parties.

Client/Customer retains the unrestricted right to use, modify, enhance, license, assign, or otherwise exploit the Technology in any manner, without obligation to HighVail, except as otherwise expressly agreed.

This clause shall survive the termination or expiration of this Agreement.