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The [Customer] is contracting with HighRES, Inc., a Delaware corporation, doing business as “Company”) for certain services (the “Services”) as outlined in that certain [INVOICE #___ dated ______] (“Invoice”). These Terms and Conditions shall apply to any work product delivered by Company to Customer (“Work Product”) and any training provided by Company to Customer personnel on Company’s products or third party products (any training shall be included in defined term “Services”) under the Invoice.

  1. The Services and Work Product are being provided to Customer “AS IS” without warranty of any kind. The Work Product has not been certified by Company in any way and may contain defects. Company is not warranting the accuracy or precision of the Work Product, which shall be used at Customer’s sole risk. Customer understands, therefore, that no warranties apply (and that Company specifically disclaims all warranties), whether express, implied or arising by operation of law (including, without limitation, the warranty of merchantability or fitness for a particular purpose).

  2. If there are any errors or faults in the Work Product, Company may, in its discretion, agree to correct errors or provide
    workarounds at Customer’s request at Company’s standard time and materials billing rate. The Services and Work Product do not include reports of any kind except as may be specifically agreed to by Company and Customer in writing.

  3. Customer understands that the Work Product is intended to be used by trained professionals and any Services provided, including, without limitation, training, are not a substitute for the exercise by Customer of professional judgment, testing, safety and utility in the use of the Work Product. Company is not guarantying any level of results in connection with the Services and Work Product and Customer is solely responsible for any results obtained in connection with the Services and Work Product. Customer shall be responsible for testing any results and the adequacy of any such testing.

  4. Customer understands that the difficulty of providing the Services or Work Product, as applicable, may not be
    reasonably determinable at the time of execution of the Invoice. Therefore, Customer agrees that any delivery times in the Invoice or otherwise are estimates only and that actual delivery times will depend on circumstances as they develop.

  5. In all events, the total liability of Company arising out of or related to the Services and the Work Product shall not
    exceed the compensation actually paid by Customer for the Services and Work Product pursuant to the Invoice. In no event shall Company have liability for any indirect, incidental, special, or consequential damages (including, without limitation, damages for property loss, physical injury or death, loss of business profits, business interruption, or loss of business information), however caused and on any theory of liability, even if Company has been advised of the possibility of such damages. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.

  6. Customer waives any right of recovery against Company for any claims, demands, actions, liabilities, losses, costs or
    expenses (including, without limitation, attorneys’ fees or costs) (“Claims”) by or due to third parties and suffered by Customer, directly or indirectly relating to or arising from the use of any Work Product as part of any services or products provided by Customer. Customer shall indemnify, defend and hold harmless Company against any and all claims by third parties brought against Company related to any services or products provided by Customer based, in whole or in part, on the Services or Work Product.

  7. Customer consents to the personal jurisdiction and venue of the federal and state courts in San Diego, California, for any court action or proceeding arising or relating to the subject matter of the Invoice or this Agreement. The prevailing party in any arbitration or court action or proceeding shall be awarded its reasonable attorneys’ fees. These Terms and Conditions shall be governed by and construed according to the laws of California. If any provision of these Terms and Conditions is held invalid or unenforceable, it shall be so held to the minimum extent required by law and all other provisions shall remain valid and enforceable. The exercise of any remedy herein shall be without prejudice to any other right or remedy available to either party. No agency, employment agreement, joint venture, or partnership is created between the parties and neither party shall be deemed to be an agent of the other nor shall either party have the right, power or authority to act for the other in any manner or to create any obligations, contracts, or debts binding upon the other party.

  8. The Invoice and these Terms and Conditions constitute the entire agreement between Customer and Company regarding the Services and Work Product and supersede any and all prior negotiations proposed agreements and agreements, whether written or unwritten. No change in, addition to, or waiver of, these Terms and Conditions or the Invoice shall be binding on Company unless approved in writing by an authorized representative of Company.