TERMS OF USE

SCHEDULE “A”

PURCHASE AND SERVICES TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS ARE BINDING TERMS AND CONDITIONS GOVERNING ALL QUOTATIONS OR SALES ORDERS PROVIDED BY THE SELLER TO THE CLIENT UNLESS OTHERWISE STATED TO THE CONTRARY. IT IS IMPORTANT FOR THE CLIENT TO CAREFULLY REVIEW AND UNDERSTAND THE PROVISIONS STATED HEREIN AS BY PURCHASING MATERIALS FROM THE SELLER OR ENGAGING THE SELLER’S SERVICES, THE CLIENT ACCEPTS AND CONSENTS TO BE BOUND BY THESE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS PREVAIL OVER ANY OF THE CLIENT’S GENERAL TERMS AND CONDITIONS OF PURCHASE, REGARDLESS OF WHETHER OR WHEN THE CLIENT HAS SUBMITTED ITS PURCHASE ORDER OR SUCH TERMS. FULFILMENT OF THE CLIENT’S ORDER DOES NOT CONSTITUTE ACCEPTANCE OF ANY OF THE CLIENT’S TERMS AND CONDITIONS AND DOES NOT SERVE TO MODIFY OR AMEND THESE TERMS AND CONDITIONS.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, upon the terms and the conditions set forth in these Terms and Conditions and intending to be legally bound, the Parties agree as follows:

ARTICLE 1 – DEFINITIONS

1.1 “Affiliate” has the meaning ascribed to such term in the Business Corporations Act (British Columbia).

1.2 “Agreement” means each Quotation and/or sales order, including any exhibits attached thereto, and these Terms and Conditions.

1.3 “Applicable Laws” means the common law and any and all laws, statutes, enactments, by-laws, regulations, rules, orders, directives, policies, permits, licenses, codes, and rulings of any government, and any ministries, agencies, board, commission, or tribunal of any government.

1.4 “Business Day” means any day that is not a Saturday, Sunday, or statutory holiday observed in the Province of British Columbia.

1.5 “Client” means the Person that purchases from the Seller the Materials and/or engages the Seller to perform the Services, as stated on the Quotation or sales order.

1.6 “Effective Date” means the date set out in the Agreement.

1.7 “Engineering and Design” means a Service provided by the Seller that may include contracting with third-party engineers that perform pallet racking design, structural engineering, concrete slab and geotechnical, racking inspections, and pallet rack permitting, or other engineering and design services.

1.8 “F.O.B. Shipping Point Designation” means such address provided by the Seller as the F.O.B. Shipping Point Designation in the Agreement, which will be considered the point at which the title and risk of loss of the Materials transfers from the Seller to the Client.

1.9 “Installation” means a Service provided by the Seller for the Client, to install the Materials at the Worksite subject to these Terms and Conditions.

1.10 “Machinery” means machinery purchased by the Client as set out in the Agreement. Such machinery may include forklifts, lift trucks, and other material handling equipment.

1.11 “Materials” means the products purchased by the Client as set out in the Agreement. Such products may include Machinery, pallet racking, antilever racking, high density shelving systems, safety equipment, material handling products, and any other materials required to complete the Project.

1.12 “Parties” means the Seller and the Client, and “Party” means either of them.

1.13 “Person” includes an individual, a firm, a corporation, a syndicate, a partnership, a trust, an association, a joint venture, an incorporated organization, or other entity;

1.14 “Personnel” means individuals, employees, subcontractors, Affiliates, or other persons involved with the fulfillment of the obligations of the Seller and the Client under the Agreement.

1.15 “Plans and Specifications” means the documents that provide a comprehensive outline of the Project’s requirements, design, and Installation specifications.

1.16 “Prime Rate” means, at any time, the annual rate of interest at such time by the main branch in Vancouver, British Columbia of the Seller’s primary financial institution as a reference rate of interest for Canadian dollar loans made by it in Canada to customers of varying degrees of creditworthiness and designated by it as its “prime rate”.

1.17 “Project” means the Client’s specific undertaking or endeavor that involves the supply of the Materials and/or the engagement of the Seller to perform the Services.

1.18 “Quotation” means the quotation or sales order prepared by the Seller and provided to the Client for acceptance, setting out the Materials to be purchased and/or the Services to be provided, and the details thereof, including the Purchase Price, and includes any exhibits attached thereto.

1.19 “Seller” means RACKSTEEL, a company incorporated under the laws of the Province of British Columbia.

1.20 “Services” means all elements of the activities to be performed by or on behalf of the Seller as set out in the Agreement, whether or not specifically described herein, and may include, as applicable: Installation of the Materials; tear down, relocation, and disposal of the Materials; repair of the Materials; project management; contract installations; Engineering and Design; inspections, services performed on material handling equipment, and any other service provided by the Seller for the Client from time to time.

1.21 “Standby Charge” means the standard and/or overtime hourly rate per worker scheduled to attend the Worksite on the Services Date.

1.22 “Subcontractor” means any Person engaged by the Seller or another Subcontractor to perform any part of the Services.

1.23 “Taxes” means goods and services tax, harmonized sales tax, provincial sales tax, service, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, state or local governmental entity or regulatory authority from time to time.

1.24 “Worksite” means any location at which the Materials are delivered, or the Services are performed.

ARTICLE 2 – SCOPE

2.1 Scope. The Agreement sets forth the terms and conditions for the Client’s purchase of and entitlement to the Materials and/or the Services.

2.2 Term. The term (the “Term“) of the Agreement commences on the Effective Date and continues until, as applicable, the Materials are delivered or collected and/or the Services are completed, unless earlier terminated pursuant to these Terms and Conditions.

ARTICLE 3- PROVISION OF MATERIALS

3.1 Shipment. Unless expressly agreed to between the Parties in writing, the Seller will select the method of shipment of, and the carrier for the Materials. The Seller may, in its sole discretion, without liability or penalty, make partial shipments of the Materials to the Client.

3.2 Delivery. Unless expressly agreed to between the Parties in writing, the Seller will deliver the Materials to the Worksite, using the Seller’s (or the manufacturer’s, as the case may be) standard methods for packaging and shipping; and the Client is responsible for receiving and unloading the Materials, including ensuring the delivery vehicle has access to the Worksite (i.e. receiving bays and loading docks), and the supply of adequate forklift equipment. Equipment rentals, such as forklift and scissor lift equipment, will be billed extra, unless otherwise specified/quoted.

3.3 Freight Lead Times. The Seller will use commercially reasonable efforts to monitor freight lead times. The Client acknowledges and agrees that any freight lead times communicated by the Seller to the Client is an estimate and is subject to change at no penalty to the Seller.

3.4 Late Delivery. Any delivery date (the “Delivery Date“) quoted by the Seller is an estimate only. The Seller is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver, or delay in delivery. No delay in delivery relieves the Client of its obligations under the Agreement, including accepting delivery of the Materials. Delivery Date targets are based on timely Client approval of layout and elevation drawings, and may be affected by delays in this process. If the Client requests a delayed Delivery Date, the Client will be obligated to pay to the Seller the Purchase Price as if the Materials were delivered on the Delivery Date. Any expenses incurred by the Seller resulting from a delay under this Section 3.4 will be payable by the Client, and the Materials shall be at the Client’s risk and subject to reasonable storage charges.

3.5 Title & Risk of Loss. Unless otherwise specified in the Agreement, title to the Materials will pass to the Client, and the Client will bear the risk of loss of damage to the Materials when the Materials are passed from the Seller to the carrier of the Materials for delivery in accordance with the F.O.B. Shipping Point Designation.

ARTICLE 4 – WORKSITE AND LICENSE

4.1 Worksite Requirements. If the Agreement includes the performance of Services, the Client agrees to provide to the Seller access to a receiving area or loading dock during regular business hours; sufficient power, heating, and lighting to safely perform the Services; if applicable, level concrete floor slab that is capable of bearing the load of the Materials and which is free of gas, electric, and/or other in-ground obstacles that may be affected by anchoring pallet rack to the floor; and an area free and clear of all debris and other hazards for the safe and efficient performance of the Services. The Seller will not be held responsible if it drills into any water pipes, electrical conduit, or any other obstructions in or below the slab that may be damaged by concrete drilling.

4.2 License. Subject to any limitations set out in the Agreement, the Client grants to the Seller a license to enter and be upon the Worksite during the Term to perform the Services required to be performed at the Worksite.

ARTICLE 5- PURCHASE PRICE & PAYMENT

5.1 Purchase Price. The Purchase Price for the Materials and/or the Services is set out in the Agreement (the “Purchase Price“). If the Client does not accept the Purchase Price within 10 days of the Effective Date, the Purchase Price will be null and void. The Purchase Price for all Services and Materials required for the Project is an estimate only, formulated on a best endeavors basis, and may be subject to change. In particular, on engineering extra anchors, special (epoxy) anchors and/or hold down clamps, frame and beam thickness may be required / adjusted to meet safety and capacity requirements and billed extra. The estimated Purchase Price for the Services assumes that the Client has complied with Section 4.1 of these Terms and Conditions. If the Worksite is deficient, additional charges to the Client will apply.  THE PURCHASE PRICE IS EXCLUSIVE OF ALL TAXES. THE TAXES ARE IN ADDITION TO, AND ARE PAYABLE BY, THE CLIENT.

5.2 Shipping. Seller’s prices are F.O.B. shipping point, freight to destination is extra, unless otherwise specified. The Client agrees to pay to the Seller all shipping and delivery charges including applicable insurance unless otherwise provided in the Agreement.

5.3 Payment Terms. The Seller will issue to the Client an invoice (the “Invoice“) outlining the Purchase Price for any Materials, Services, applicable Taxes, and any other amounts payable pursuant to the Agreement. The Client will make all payments in Canadian dollars by cheque, direct deposit, or wire transfer.

5.4 Payment Schedule. Unless otherwise set out in the Agreement, the Client will pay the Seller a sum equal to 100% of the Purchase Price of Materials within 7 days of the date of the Invoice; a sum equal to 50% of the Services within 7 days of the date of the Invoice (the “Services Deposit“). Once the Services Deposit is received by the Seller, the Client may reserve a date for performance of the Services (the “Services Date“); and the balance of the Purchase Price, without any rights of set-off whatsoever, will be paid within 7 days of the Seller notifying the Client of completion of the Services.

5.5 Invoice Disputes. The Client must notify the Seller in writing of any dispute with any amount in the Invoice (the “Dispute“). The Dispute must set out or include, as applicable, substantiating documentation supporting the Dispute; and be delivered to the Seller within 7 days of the date of the Invoice. The Client is deemed to have accepted the Invoice if the Seller does not receive timely notification of the Dispute and will pay to the Seller all amounts due and owing pursuant to the Invoice within the period set forth in Section 5.4. The Parties will seek to resolve any Dispute expeditiously and in good faith.

5.6 Late Payments. Except for any amounts the Client has successfully disputed pursuant to Section 5.5, the Client will pay interest on all late payments, calculated daily and compounded monthly at the Prime Rate plus 3% applied thereon. The Client will reimburse the Seller for all costs incurred in collecting any late payments including legal fees. In addition to all other remedies available under these Terms and Conditions or at law, IF THE CLIENT FAILS TO PAY THE PURCHASE PRICE WHEN DUE, THE SELLER MAY IMMEDIATELY SUSPEND DELIVERY OF THE MATERIALS OR PERFORMANCE OF THE SERVICES AS APPLICABLE; AND TERMINATE THE AGREEMENT.

5.7 Security Interest. The Client hereby grants to the Seller a security interest in all Materials purchased hereunder to secure the Client’s payment obligations under the Agreement. The Client acknowledges that the security interest granted under this Section 5.7 is a purchase money security interest under applicable British Columbia law. The Client hereby authorizes the Seller to file or record any document necessary to perfect, continue, amend, or terminate its security interest in the Materials, including, but not limited to, any financing statements, including amendments, authorized to be filed under the Personal Property Security Act then in effect in British Columbia. To the extent permitted by law, the Client hereby waives its right to receive a copy of any financing statement, financing change statement, or verification statement filed or received by or on behalf of the Seller in connection with the Seller’s security interest in the Materials.

5.8 Lien Holdback. If the Client engages the Seller only for the supply and/or purchase of Materials, the Client may not withhold any part of the Purchase Price from the Seller for the purpose of a lien holdback pursuant to the Builders Lien Act then in effect in British Columbia. If the Client engages the Seller to perform the Services, it may not holdback from the Purchase Price an amount that is greater than the minimum holdback amount required pursuant to the Builders Lien Act then in effect in British Columbia.

5.9 Standby Charge. A Standby Charge will be charged by the Seller to the Client if the Client fails to provide to the Seller a minimum of 3 Business Days of a delay in the Services Date; or the Worksite is unsuitable or unavailable for the performance of the Services on the Services Date.

ARTICLE 6- RETURNS, CANCELLATIONS & CHANGE ORDERS

6.1 Returns & Exchanges. All Materials purchased by the Client from the Seller pursuant to the Agreement will become the sole property of the Client and will not be accepted by the Seller for return. The Seller may, in its sole and absolute discretion, accept exchanges of Materials within 3 days from the date of delivery or collection, as applicable, provided the Materials are in the original packaging and in their original condition. The Client is solely responsible for all shipping and handling charges on any returned Materials.

6.2 Cancellation. The Client may cancel any order of Materials or engagement of Services prior to executing the Agreement. Once the Agreement is executed or any Plans and Specifications have been approved, cancellation will be subject to a cancellation fee of 50% of the total Purchase Price. The Seller may, without liability or penalty, cancel any order of Materials or engagement of Services if the Seller determines that the Client is in violation of its payment obligations or has breached or is in breach of the Agreement; or pursuant to the Seller’s rights under Section 9.1.

6.3 Change Orders. If the Client wishes to amend the Materials and/or the Services set out in the Agreement, the Seller will prepare a change order amending the terms of the Agreement, for review and approval by the Client and the Seller, in writing.

ARTICLE 7- DISCLAIMER

7.1 Disclaimer. THE SELLER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE MATERIALS OR THE SERVICES, INCLUDING ANY CONDITION OR WARRANTY OF MERCHANTABILITY, CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, CONDITION OR WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

7.2 Third-Party Products. Products manufactured by a third-party (the “Third-Party Product“) may be, may contain, be contained in, incorporated into, attached to, or packaged together with, the Materials. For the avoidance of doubt, THE SELLER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY CONDITION OR WARRANTY OF MERCHANTABILITY, CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, CONDITION OR WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

ARTICLE 8 – LIMITATION OF LIABILITY

8.1 Limited Liability.

(a)  THE SELLER WILL NOT BE LIABLE FOR ANY LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST REVENUE, LOST SAVINGS, LOSS OF GOODWILL OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER SPECIAL DAMAGES SUFFERED BY THE CLIENT, ITS CUSTOMERS, OR OTHERS ARISING OUT OF OR RELATED TO THE AGREEMENT, FOR ALL CAUSES OF ACTION OF ANY KIND (INCLUDING TORT (INCLUDING NEGLIGENCE), CONTRACT, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, AND BREACH OR FAILURE OF WARRANTY) EVEN IF THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b) IN NO EVENT WILL THE SELLER’S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH THE AGREEMENT, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT (INCLUDING NEGLIGENCE), CONTRACT, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, AND BREACH OF WARRANTY, CONDITION REPRESENTATION, OR OTHER TERM, EXCEED THE TOTAL AMOUNT PAID BY THE CLIENT PURSUANT TO THE APPLICABLE QUOTATION(S) GIVING RISE TO SUCH CAUSE(S) OF ACTION.

(c)  THE CLIENT ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY MATERIALS IN THE PRACTISE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS, OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY THE SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE MATERIALS.

8.2 Survival. The Client agrees that the limitations of liability and disclaimers of warranty set forth in these Terms and Conditions will apply regardless of whether the Seller has tendered delivery of the Materials or whether the Services are complete, and will survive the expiration or termination of the Agreement.

ARTICLE 9- TERMINATION

9.1 Seller’s Right of Termination. The Seller may terminate the Agreement upon written notice to the Client if the Client fails to pay any amount when due under the Agreement and such failure continues for 5 days; if the Client breaches any provision of the Agreement (other than its payment obligations) and either the breach cannot be cured or, if the breach can be cured, it is not cured by the Client within 10 days after notice of such breach; if the Client becomes insolvent or admits its inability to pay its debts generally as they become due; or upon the occurrence of a Force Majeure Event pursuant to Section 13.5 of these Terms and Conditions.

9.2 Client’s Right of Termination. The Client may terminate the Agreement upon written notice to the Seller if the Seller materially breaches any material provision of the Agreement and the breach cannot be cured within 10 days after written notice of such breach is provided to the Seller; or upon the occurrence of a Force Majeure Event pursuant to Section 13.5 of these Terms and Conditions.

9.3 Effect of Termination. Expiration or termination of the Agreement will not affect any rights or obligations of the Parties that come into effect upon or after expiration or termination or otherwise survive the expiration or termination as set out in the Agreement. Termination of the Agreement automatically operates as a cancellation of any deliveries of Materials to the Client that are scheduled to be made after the effective date of termination. With respect to any Materials that are still in transit upon termination of the Agreement, the Client must refuse such delivery and instruct the Materials to be returned to the Seller. Upon termination of the Agreement, the Seller will provide to the Client an invoice outlining all expenses incurred from the Effective Date to and including the effective date of termination (the “Expenses Invoice“). If the Client disputes the sums set forth in the Expenses Invoice, the Client may dispute the Expense Invoice in accordance with Section 5.5 of these Terms and Conditions.

ARTICLE 10- COMPLIANCE WITH LAWS, INSURANCE & PERMITS

10.1 Compliance with Laws. At all times, the Client will comply, and will cause its Personnel to comply, with all Applicable Laws applicable to the Agreement, the Client’s performance of its obligations hereunder, and the Client’s use of the Materials. Without limiting the generality of the foregoing, the Client will, at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Materials; and not engage in any activity or transaction involving the Materials, by way of shipment, use, or otherwise, that violates any Applicable Law.

10.2 Insurance. The Client covenants and agrees with the Seller that, during the Term, it will, at its sole cost and expense, procure and maintain without lapse all forms of insurance as required by Applicable Laws, rules, and regulations, necessary to adequately insure its operations. Such insurance will include but will not be limited to commercial general liability in a sum no less than $5,000,000.00; insurance for any equipment used in the performance of the Services; and automobile insurance in a sum no less than $5,000,000.00. Upon the Seller’s request, the Client will provide to the Seller a certificate of insurance evidencing the insurance coverage required by these Terms and Conditions. The certificate of insurance will, if requested by the Seller, name the Seller as an additional insured. The insurance policies shall provide that such insurance carriers give the Seller at least 30 days’ prior written notice of cancellation or non-renewal of policy coverage, or material change in the Client’s insurance policy.  Except where prohibited by law, the Client will require its insurer to waive all rights of subrogation against the Seller’s insurers and the Seller.

10.3 Engineering & Permits. The following are the responsibility of the Client: any and all costs associated with the application and preparation of engineered drawings, documentation, and obtaining necessary Building, Tenant, and/or Occupancy Permits; as well as building-related fixtures or conditions such as sprinkler equipment, slab, and geotechnical requirements. The Client shall ensure that all Materials are suitable for the Worksite and the Project. The Seller may engage engineers or third-party professionals to assist with permit application services if specified in the Agreement, provided that all required building documentation and information are supplied by the Client. The Client remains fully responsible for any and all costs related to, or arising from, such permit applications, including fees payable to engineering or permitting authorities. All payments related to engineering or permitting services, including deposits and fees, are non-refundable once remitted. The Client agrees to make reasonable and timely efforts to provide all documentation, data, and information necessary to obtain the required permits. If a permit-related project becomes stalled due to the Client’s inaction, delay, or failure to provide required information, and no written communication is received by the Seller for a period exceeding three (3) months, the Seller reserves the right to close the project without refund.

10.4 Any costs incurred by the Seller in making alterations resulting from inaccurate, incomplete, or erroneous dimensions, data, designs, machinery, or equipment supplied by the Client shall be charged to the Client. In the event of any discrepancy between drawings and the list of Materials, the list of Materials shall govern. Capacities are taken as the maximum recommended weight load limit uniformly distributed at 80% occupancy down-aisle.

10.5 Operating Qualifications. If the Agreement is for the purchase of Machinery, the Client shall confirm that the Machinery is fit for the Client’s intended purpose and that the Client and its Personnel are otherwise able to comply with the safety specifications of the Machinery. The Client represents and warrants to the Seller that each operator of purchased Machinery will be fully qualified and licenced to use such Machinery. The Seller is not under any obligation to provide training or instruction on the operation of the Machinery to the Client or its Personnel.

10.6 Client Obligations. The Client shall (i) cooperate with the Seller in all matters relating to the provision of the Materials and the performance of the Services; and (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for the Seller to provide the Materials or to perform Services in accordance with the requirements of the Agreement.

ARTICLE 11- PROVINCIAL SALES TAX

11.1 Recitals. The following relate to and are integral to this Article 11:

(a)  The Parties hereby agree that the Seller has agreed to supply and affix, or install, affixed machinery or improvements to real property situated in British Columbia for, or at the request of, the Client.

(b) For the purposes of fulfilling its obligations under the Agreement, the Seller has agreed to purchase tangible personal property (the “Tangible Personal Property”) at a sale in British Columbia for the Purchase Price more particularly described in in the Agreement (the “Tangible Personal Property Purchase Price”).

(c)  The Parties anticipate that the Tangible Personal Property will be used by the Client in such a manner that the Tangible Personal Property will cease to be personal property at common law.

(d) The Parties have agreed that the Client will be liable for payment of the tax imposed pursuant to Section 80 of the Provincial Sales Tax Act in respect of the Tangible Personal Property.

(e)  The Parties have further agreed that the Seller will be exempt from tax in respect of the Tangible Personal Property pursuant to Section 79 of the Provincial Sales Tax Act.

11.2 Payment of Provincial Sales Tax.

(a)  The Seller will purchase the Tangible Personal Property at a sale in British Columbia for the Tangible Personal Property Purchase Price.

(b) The Client will be liable for payment of the tax imposed pursuant to Section 80 of the Provincial Sales Tax Act in respect of the purchase by the Seller of the Tangible Personal Property and will remit the same in the manner and within the deadlines set out in the Provincial Sales Tax Act.

(c)  The Client will indemnify and hold harmless the Seller with respect to the full amount of Taxes (including, without limitation, any amounts paid by the Seller) and any liability (including, without limitation, penalties, interest, costs and expenses), suffered by the Seller, directly or indirectly, as a result of or arising out of any breach of representation, warranty, covenant, or agreement of the Client in the Agreement and particularly, this Article 11, including, without limitation, the obligation by the Client to remit the tax imposed pursuant to Section 80 of the Provincial Sales Tax Act in the manner and within the deadlines set out in the Provincial Sales Tax Act. This indemnification will be made within 30 days from the date the Seller makes written demand therefor and will survive the expiration or termination of the Agreement.

11.3 Survival. The representations, warranties, covenants, and agreements of the Client contained in this Article 11 will survive the expiration or termination of the Agreement and will remain in full force and effect notwithstanding any waiver by the Seller.

ARTICLE 12- INTELLECTUAL PROPERTY

12.1 Intellectual Property Rights. All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights“) in and to any Materials and in and to all documents, work product, and other materials that are delivered to the Client or prepared by or on behalf of Seller in the course of performing the Services (collectively, the “Deliverables“) are the sole and exclusive property of the Seller or its licensors, as the case may be. The Client shall not acquire any ownership interest in any Intellectual Property Rights under this Agreement. Any goodwill derived from the use by the Client of such Intellectual Property Rights enures to the benefit of the Seller or its licensors, as the case may be. If the Client acquires any Intellectual Property Rights by operation of Law, or otherwise, such rights are hereby irrevocably assigned to the Seller or its licensors, as the case may be, without further action by either of the Parties. The Client shall use, and is hereby granted a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual license to use, the Intellectual Property Rights solely for purposes of using the Materials and Deliverables under this Agreement, and only in accordance with this Agreement.

ARTICLE 13- GENERAL

13.1 Notices. Notices and other communications under the Agreement will be in writing and sent by personal delivery, courier, email or registered mail (return receipt requested, postage prepaid), addressed to the other Party at its address or email address as set out in the Agreement provided that either Party may change its address or email address by written notice thereof. Notices sent in accordance with this Section will be conclusively deemed validly and effectively given: (a) on the date of receipt, if delivered by personal delivery or courier; (b) on the date sent, if delivered by email and if a Business Day, or if not a Business Day or after 5:00 p.m. on the date sent, on the next following Business Day; or (c) on the third day after the date mailed by registered mail.

13.2 No Waiver. All rights and remedies, whether conferred hereunder, or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. Failure by either Party to enforce any term will not be deemed a waiver of future enforcement of that or any other term.

13.3 Entire Agreement. The Agreement constitutes the complete and exclusive agreement between the Parties pertaining to the subject matter hereof and supersedes and replaces in its entirety any and all written or oral agreements previously existing between the Parties with respect to such subject matter.

13.4 Jurisdiction. The Agreement is governed by the laws of British Columbia and the federal laws of Canada applicable therein. Each Party irrevocably submits to the exclusive jurisdiction of the courts of British Columbia and waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

13.5 Force Majeure. No Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for any obligations of the Client to make payments to the Seller), when and to the extent such failure or delay is caused by or results from acts beyond the reasonable control of the impacted party’s (the “Impacted Party“) control, including, without limitation, the following force majeure events (“Force Majeure Event(s)“): (a) acts of God; (b) flood, tsunami, fire, earthquake, or explosion; (c) epidemics, pandemics; (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (e) government order, law, or actions; (f) embargoes, or blockades in effect on or after the date of the Agreement; (g) national or regional emergency; (h) strikes, labour stoppages or slowdowns, or other industrial disturbances; (i) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; (j) failure of any governmental or public authority to grant a necessary license or consent; and (k) other events beyond the control of the Impacted Party. The Impacted Party will give notice within 3 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party will resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 days following written notice given by it under this Section 13.5 the other Party may thereafter terminate the Agreement upon 5 days’ written notice.

13.6 Assignment and Subcontracting. Neither Party may assign the Agreement without the prior written consent of the other Party. The Seller reserves the right to engage subcontractors from time to time for the performance of the Services, or any part thereof, without the prior written consent of the Client.

13.7 Independent Contractor. The relationship between the Seller and the Client is that of independent contractor and will not be construed to be one of employment, partnership, joint venture, agency, or similar relationship. Neither Party will have, nor represent that it has, any power, right, or authority to bind the other Party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other Party. Each Party will be entirely responsible for the Personnel it will employ, engage, and/or contract for purposes of the Agreement, including any related labour and/or CPP and other payment matters.

13.8 Headings. The headings provided in these Terms and Conditions are for convenience only and will not be used in interpreting or construing these Terms and Conditions.

13.9 Amendment. No amendment to the Agreement will be valid unless made in writing and signed by all Parties. NOTWITHSTANDING THE PRECEDING SENTENCE, THE SELLER RESERVES THE RIGHT, IN ITS SOLE AND ABSOLUTE DISCRETION, TO MAKE AMENDMENTS TO THE TERMS AND CONDITIONS AT ANY TIME WITHOUT PRIOR WRITTEN NOTICE TO THE CLIENT. THE SUBSEQUENT PURCHASE OF MATERIALS FROM THE SELLER OR SUBSEQUENT ENGAGEMENT OF THE SELLER’S SERVICES WILL CONSTITUTE THE CLIENT’S ACCEPTANCE OF AND AGREEMENT TO ANY SUCH CHANGES.

13.10 Currency. Unless specified otherwise, references to dollar amounts or “$” are to Canadian dollars.

13.11 Time. Time will be of the essence of the Agreement.

13.12 Survival. The Parties agree that their respective rights, obligations, and duties that, by their nature, extend beyond the expiration or termination of the Agreement, will survive the expiration or termination of the Agreement.

13.13 Severability. If any term or provision of the Agreement will be found to be invalid, illegal, or otherwise unenforceable, such finding will not affect the other terms or provisions of the Agreement, or the whole of the Agreement, but such term or provision will be deemed modified to the extent necessary to render such term or provision enforceable, and the rights and obligations of the Parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the Parties set forth in the Agreement.

13.14 Counterparts. The Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement. A signed copy of the Agreement delivered by e-mail or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original signed copy of the Agreement.