General Terms and Conditions of Sale

1.               Terms and Conditions of Sale. These terms and conditions of sale are the only terms which govern the sale by [Air Direct] ("Seller") to the buyer ("Buyer") named on the accompanying invoice (the "Sales Confirmation") of the goods ("Goods") specified in the Sales Confirmation (collectively, this "Agreement"). This Agreement comprises the entire agreement between the parties and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral.

2.               Delivery.

(a)             Unless otherwise agreed in writing by the parties, Seller shall, within a reasonable time after payment of the Purchase Price in accordance with Section 4, deliver the Goods to the location specified by Buyer (the "Delivery Point") using Seller's standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods forthwith upon the delivery of the Goods to the Delivery Point.

(b)             If for any reason Buyer fails to accept delivery of any of the Goods at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

3.               Title and Risk of Loss. Subject to Section 2(b), title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the Purchase Price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Alberta Personal Property Security Act.

4.               Purchase Price.

(a)             Buyer shall purchase the Goods from Seller at the price (the "Purchase Price") set forth in the Sales Confirmation.

(b)             Unless otherwise specified in the Sales Confirmation, the Purchase Price is exclusive of all harmonized sales tax, goods and services tax, provincial sales tax, value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel or real or personal property or other assets.

5.               Limited Warranty.

(a)             Seller warrants to Buyer that, for a period of five years (the "Warranty Period") from the date of delivery, or deemed delivery, as applicable, of the Goods to the Delivery Point (the "Delivery Date"), such Goods will materially conform to the specifications set forth on Seller's website as of the date hereof and will be free from material defects in material and workmanship.

(b)             EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 5, SELLER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) CONDITION OR WARRANTY OF MERCHANTABILITY; (ii) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) CONDITION OR WARRANTY OF TITLE; OR (iv) 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.

(c)              Seller shall not be liable for a breach of the warranty set forth in Section 5(a) unless: (i) Buyer has registered the Goods with Seller within ninety (90) days of the Delivery Date; (ii) the Goods are installed in accordance with good industry practices by a licensed certified contractor; (iii) Buyer gives written notice of the defect, reasonably described, to Seller within five business days of the time when Buyer discovers or ought to have discovered the defect; (iv) Seller is given a reasonable opportunity after receiving the notice to examine such Goods; and (v) Seller reasonably verifies Buyer's claim that the Goods are defective.

(d)             Seller shall not be liable for a breach of the warranty set forth in Section 5(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller's oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.

(e)             NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SELLER RESERVES THE RIGHT TO REJECT, IN ITS SOLE AND ABSOLUTE DISCRETION, ANY CLAIM FOR BREACH OF WARRANTY FOR ANY REASON WHATSOEVER. FOR GREATER CERTAINTY, IN THE EVENT SELLER SO DETERMINES TO REJECT ANY CLAIM FOR BREACH OF WARRANTY, BUYER SHALL NOT BE ENTITLED TO ANY OF THE REMEDIES CONTEMPLATED BY THIS SECTION 5.

(f)               With respect to any Goods that are the subject of a valid warranty claim during the Warranty Period that satisfies all of the terms of this Section 5, Buyer shall repair or arrange for the repair of such Goods (or the applicable components thereof), following which: (i) Seller shall, within five business days of the receipt by Seller from Buyer of all such documents as Seller may reasonably require concerning such repairs, deliver to Buyer all such additional parts as Buyer may reasonably require (as determined by Seller, in its sole discretion) in order to effect such repair ("Replacement Parts"); and (ii) within thirty days of the receipt by Seller from Buyer of all such documents as Seller may reasonably require concerning such repairs, reimburse Buyer for all reasonable expenses incurred in connection therewith (the "Reimbursed Amount"). For greater clarity, the Reimbursed Amount shall not include the value of any additional parts which may have been provided by Seller to Buyer (including any Replacement Parts).

(g)             In the event that the Replacement Parts are not delivered within such five business day period, Buyer shall, in its sole discretion, be entitled to require Seller to either: (i) provide a full and complete replacement of the Goods; provided that, if Buyer so requires such replacement: (A) Buyer shall, at Seller's expense, return such Goods to Seller; (B) in the event of any defect in the replacement Goods, Buyer shall not be entitled to any further replacement thereof; and (C) there shall be no extension of the Warranty Period, meaning that the replacement Goods shall be subject to the limited warranty contemplated by this Section 5 for only the balance of the Warranty Period remaining on the original Goods; or (ii) credit or refund the Purchase Price; provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller.

(h)             THE REMEDIES SET FORTH IN THIS SECTION 5 SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 5(A).

6.               Limitation of Liability.

(a)             IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY SELLER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b)             IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT OF THE PURCHASE PRICE.

(c)              The limitation of liability set forth in Section 6(b) shall not apply to liability resulting from Seller's gross negligence or wilful misconduct.

7.               Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances relating to the Goods. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to purchase the Goods under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Goods.

8.               Termination. In addition to any remedies that may be provided under this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) has not performed or complied with any term of this Agreement, in whole or in part; or (ii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

9.               Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. 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.

10.            Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section 10. This Section 10 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

11.            Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, tsunami, fire, earthquake, 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 this Agreement; (g) national or regional emergency; (h) strikes, lockouts, labour stoppages or slowdowns, labour disputes, or other industrial disturbances; (i) shortage of adequate power or telecommunications or transportation facilities; (j) failure of any governmental or public authority to grant a necessary licence or consent and (k) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within five days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall 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 five consecutive days following written notice given by it under this Section 11, the other party may thereafter terminate this Agreement upon five days' written notice.

12.            Amendments and Modifications. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.

13.            Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section 13 is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

14.            Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

15.            Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the Province of Alberta or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Alberta. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

16.            Choice of Forum. Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement shall be instituted in the courts of the Province of Alberta, and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, litigation or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.

17.            Notices. Each party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement in writing and addressed to the other party at the address set forth on the face of the Sales Confirmation (or to such other address that may be designated by the receiving party from time to time).

18.            Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

19.            Survival. Provisions of This Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Section 6 (Limitation of Liability), Section 7 (Compliance with Law), Section 10 (Confidential Information), Section 15 (Governing Law), Section 16 (Choice of Forum), Section 17 (Notices) and this Section 19 (Survival).