PEAK SCIENTIFIC, INC.

TERMS AND CONDITIONS OF SALE AND SERVICE

PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY

THESE TERMS AND CONDITIONS OF SALE AND SERVICE GOVERN ALL PRODUCTS AND SERVICES SOLD AND/OR PROVIDED BY PEAK SCIENTIFIC, INC. (“PEAK”). ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY YOU (THE “CUSTOMER”) ARE DEEMED TO BE MATERIAL ALTERATIONS AND HEREBY REJECTED BY PEAK, INCLUDING THAT ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED IN ANY PURCHASE ORDER OR QUOTATION ISSUED BY CUSTOMER ARE NULL AND VOID.

BY ACCEPTING DELIVERY OF THE PRODUCTS OR BY ENGAGING PEAK TO PERFORM ANY SERVICES, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS OF SALE AND SERVICE.

 

THESE TERMS AND CONDITIONS OF SALE AND SERVICE CONSTITUTE A BINDING AGREEMENT BETWEEN CUSTOMER AND PEAK AND ARE REFERRED TO HEREIN AS “TERMS AND CONDITIONS” OR THIS “AGREEMENT”. THE CUSTOMER ACCEPTS THESE TERMS AND CONDITIONS BY MAKING A PURCHASE FROM OR PLACING AN ORDER WITH PEAK OR OTHERWISE REQUESTING ANY PRODUCT (INDIVIDUALLY REFERRED TO AS A “PRODUCT” AND COLLECTIVELY, “PRODUCTS”) FROM PEAK OR ENGAGING PEAK TO PERFORM ANY SERVICES (“SERVICES”).

 

ANY GENERAL DESCRIPTION OF THE TYPES OF PRODUCTS OR SERVICES AND RESULTS THEREOF POSTED ON ANY PEAK WEBSITE DO NOT CONSITUTE PART OF THE AGREEMENT BETWEEN PEAK AND CUSTOMER.

 

Payment: Ordersissued by the Customer are not binding on Peak until accepted by Peak in writing. The Customer shall pay Peak for Products and Services by paying all invoiced amounts (the “Contract Price”) in U.S. dollars within thirty (30) days from the invoice date. For each calendar month, or fraction thereof, that payment is late, the Customer shall pay a late payment charge computed at the rate of 1.5% per month on the overdue balance, or the maximum rate permitted by law, whichever is less.

Credit Approval: Peak’s obligations under this Agreement and any orders placed by the Customer are subject to Peak’s credit approval of the Customer. If, following Peak’s initial credit approval of the Customer, an adverse change occurs in the Customer’s creditworthiness, financial condition or prospects, as reasonably determined by Peak, Peak may, without cost or penalty, cease production and delivery of Products and/or performance of Services until Peak has received from the Customer a monetary deposit or other satisfactory assurances of payment to Peak.

Taxes and Duties: Peak shall be responsible for all corporate taxes measured by net income to Peak from payment by the Customer for Products and Services (“Seller Taxes”). The Customer shall be responsible for (“Buyer Taxes”) all other taxes, duties, fees or other charges of any nature (including consumption, gross receipts, import, property, sales, stamp, use or value-added taxes) and all items of withholding, deficiency penalty, addition to tax, interest or assessment related thereto, imposed by any governmental authority on Peak or the Customer in relation to the Agreement, and/or the delivery of Products and/or the performance of Services, excluding Seller Taxes. The Contract Price does not include the amount of any Buyer Taxes. If the Customer deducts or withholds Buyer Taxes, the Customer shall pay additional amounts to Peak so that Peak receives the full Contract Price without reduction for Buyer Taxes. The Customer shall provide to Peak within one month of payment, official receipts from the applicable governmental authority for deducted or withheld taxes.

Delivery: Peak shall deliver Products to the Customer FCA Peak’s facility or warehouse (Incoterms 2010). Customer shall pay all delivery costs and charges. Partial deliveries are permitted. Peak may delivery Products in advance of the delivery schedule. Delivery times are approximate and are dependent upon prompt receipt by Peak of all information necessary to proceed with the work without interruption. Delayed delivery of Products due to an event of Force Majeure (as defined below) shall be without penalty or cost to Peak. If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, the Customer must so notify Peak within ten (10) days of receipt. At Customer’s request, or if, for whatever reason, Customer does not accept delivery of Products, such Products shall be put into storage and all delivery costs into and out of storage and all storage charges shall be for the Customer’s account. Costs to ship Products outside of the United States, and all taxes, customs, duties and other charges related thereto, shall be for the Customer’s account.

Force Majeure: An event of “Force Majeure” shall include any strikes, lockouts or other labor disturbances; shortages or late delivery of material; unavailability, interruptions or inadequacy of fuel or other critical supplies; acts of God; war, preparation for war or other acts or interventions of naval or military personnel or other agencies of government; governmental rules or regulations (or interpretation of or changes to the existing rules or regulations); priorities given to defense orders; riot, embargoes, sabotage, act of terrorism, vandalism, malicious mischief, landslides, floods, hurricanes, earthquakes, collisions, fires or other calamities; delays of subcontractors or of carriers; shortages of labor; delays due to specification or order changes by the Customer or any circumstance or cause beyond the reasonable control of Peak in the conduct of its business.

Title Transfer: Title to Products sold to the Customer shall pass to the Customer upon delivery in accordance with the Delivery section (FCA Peak’s facility or warehouse (Incoterms 2010)). Notwithstanding the foregoing, Peak grants to the Customer only a license, and does not pass title, for any software provided by Peak under this Agreement, and title to any leased equipment remains with Peak.

Risk of Loss: All Products, regardless of mode of shipment, shall be delivered FCA (Incoterms 2010) at Peak’s facility or warehouse, and risk of loss passes to the Customer upon loading of such Product at Peak’s facility or warehouse. Notwithstanding the foregoing, Peak shall not be responsible for any loss or damages to property (including the Products) or injury to or death of any person arising out of or in connection with any Products (including any inspection of such Product) prior to the transfer of title date when such loss, damage or death is caused by the actions of the Customer's or any of the Customer's affiliated corporation's officers, directors, employees, inspectors, representatives or agents.

Warranties:

Warranty of Products Sold:  Peak warrants that Products sold by Peak shall be delivered free from defects in material and workmanship under normal use and service for a period that expires upon the earlier to occur of (i) thirteen months from shipment by Peak of such Product and (ii) twelve (12) months from initial installation by Peak of such Product. The Customer shall register all Products, on line at warranty@peakscientific.com, within thirty (30) days of installation. If Customer fails to so register any Product, the warranty for such Product shall expire twelve (12) months from shipment by Peak of such Product.

With respect to air compressors and/or generators not bearing the Peak brand (“Non-Branded Components”) that are sold by Peak, such Non-Branded Components shall be covered only by the warranty, if any, of the manufacturer of such Non-Branded Components, and Peak shall assign to the Customer any such warranty, to the extent assignable by Peak, and Peak shall not provide any other relief or warranty with respect to such Non-Branded Components. The foregoing warranty of Non-Branded Components shall not apply to Non-Branded Components that are incorporated by Peak into a Peak-branded generator.

Warranty of Service: Peak warrants that Services shall be performed in a competent, diligent manner for a period that expires (i) with respect to labor, on the 30th day following the performance of such Service and (ii) with respect to parts, six (6) months from the installation of such part by Peak, provided that Non-Branded Components not incorporated by Peak into a Peak-branded generator shall be covered only by the warranty, if any, of the manufacturer of such Non-Branded Components, and Peak shall assign to the Customer any such warranty, to the extent assignable by Peak, and Peak shall not provide any other relief or warranty with respect to such Non-Branded Components.  

Warranty Claim and Administration: If Products or Services do not meet the applicable warranty, Customer shall promptly notify Peak in writing, by email to: usasupport@peakscientific.com, prior to expiration of the applicable warranty period, and such written notification shall include (a) the name, title, address, telephone number and email address of the person filing the warranty claim, (b) a description of the Product, including its serial number, or Service regarding the warranty claim, (c) the invoice number for such Product or Service, (d) description of the failure or claim, and (e) such other information and documentation as requested by Peak. Peak shall (i) at its option, repair or replace defective Products and (ii) re-perform defective Services. If despite Peak's reasonable efforts, a non-conforming Product cannot be repaired or replaced, or non-conforming Services cannot be re-performed, Peak shall refund or credit monies paid by Customer for such non-conforming Products or Services. Warranty repair, replacement or re-performance by Peak shall not extend or renew the applicable warranty period. Peak’sagreement set forth above to refund, credit, repair or replace any Product or Service (other than with respect to Non-Branded Components, the remedy for which is provided for above) shall be the Customer's sole and exclusive remedy with respect to Products or Services that are defective in any respect or to any express or implied warranty, and Peak will not in any event be liable for any special, indirect, incidental or consequential damages. All warranty repairs shall be arranged by Peak to be performed by a service provider authorized by Peak (a “Peak Engineer”); if the Customer causes any warranty repairs to be made to a Product by any other party, Peak’s warranties, set forth in this Warranties section, shall be void and of no force.

THE WARRANTY OF PRODUCTS SOLD AND WARRANTY OF SERVICE ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE CUSTOMER ACKNOWLEDGES THAT THEIR SOLE REMEDY FOR BREACH OF THE RESPECTIVE WARRANTY OF PRODUCTS SOLD OR WARRANTY OF SERVICE BY PEAK IS AS PROVIDED ABOVE AND PEAK SHALL NOT BE LIABLE IN TORT, FOR NEGLIGENCE OR STRICT LIABILITY OR FOR LOSS OR INTERRUPTION OF USE, PROFIT OR BUSINESS OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL INJURY OR DAMAGE, including progressive damage, ALL OF WHICH ARE EXPRESSLY WAIVED AND RELEASED BY CUSTOMER. WITH RESPECT TO EACH PRODUCT SOLD OR SERVICE PERFORMED BY PEAK FOR WHICH A WARRANTY CLAIM IS MADE BY CUSTOMER, PEAK’S MAXIMUM LIABILITY UNDER THESE TERMS AND CONDITIONS FOR SUCH WARRANTY CLAIM SHALL NOT, IN ANY EVENT, EXCEED THE AMOUNT PAID BY CUSTOMER TO PEAKS FOR SUCH PRODUCT OR SERVICE.

PEAK’S OBLIGATIONS UNDER THE APPLICABLE WARRANTY OF PRODUCTS SOLD AND WARRANTY OF SERVICE ARE CONDITIONED UPON (A) INSTALLATION OF THE PRODUCT BY A PEAK ENGINEER, (B) PROPER OPERATION, USE, HANDLING, MAINTENANCE AND STORAGE OF THE PRODUCT, INCLUDING IN COMPLIANCE WITH PEAK’S INSTALLATION AND PRODUCT MANUALS, (C) CUSTOMER KEEPING ACCURATE AND COMPLETE RECORDS OF OPERATION AND MAINTENANCE DURING THE WARRANTY PERIOD AND PROVIDING PEAK ACCESS TO THOSE RECORDS, AND (D) MODIFICATION OR REPAIR OF PRODUCT OR SERVICE PERFORMED ONLY BY A PEAK ENGINEER. PEAK SHALL NOT BE RESPONSIBLE FOR FAILURES CAUSED BY OVERHEATING, IMPROPER CLEANING, PHYSICAL ABUSE, ACCIDENT, OR FOR OTHER DAMAGE CAUSED BY ACTS OF GOD OR OTHER EXTERNAL CONDITIONS UNRELATED TO THE MANUFACTURE OF THE PRODUCT, OR FOR NORMAL WEAR AND TEAR.

Customer’s Expense: Notwithstanding anything in this Warranties section to the contrary, the Customer shall bear the costs of access for Peak’s remedial warranty efforts (including without limitation removal and replacement of systems, structures or other parts of the Customer’s facility), de-installation, re-installation and transportation of defective parts and replacement parts to and from the Customer’s facility.

Order Cancellation: TheCustomer's purchase commitment is non-cancelable. Notwithstanding the foregoing, if the Customer, for whatever reason, cancels its order, it shall upon demand pay to Peak, as liquidated damages and not as a penalty, all costs theretofore incurred by Peak in the manufacture of the Products, including labor costs, and the costs of material, components and supplies ordered by Peaks to fulfill this Agreement (net of the fair market salvage value of such material, components or partially manufactured Products), together with Peak’s lost profits attributable to the cancellation of the Customer's purchase commitment, all as reasonably calculated by Peak.

Patents: Peak will indemnify the Customer against any judgment for damages and costs which may be rendered against the Customer in any suit brought as a result of the alleged infringement of any U.S. patent by any Product supplied by Peak, unless made in accordance with materials, designs or specifications furnished or designated by the Customer (in which case the Customer will indemnify Peak against any judgment for damages and costs which may be rendered against Peak in any suit brought as a result of the alleged infringement of any U.S. patent by such Product as a consequence of such materials, designs or specifications); provided that prompt written notice be given by the Customer to Peak and that an opportunity be given to Peak to settle or defend such action as Peak may see fit and that the Customer renders to Peak every reasonable assistance in settling or defending such action. Peak shall not be liable to the Customer other for special, indirect, incidental or consequential damages arising out of or resulting from infringement of patents. In the event a Product is held to constitute infringement for which Peak has agreed to indemnify the Customer hereunder and the use of the Product, or any part thereof, is enjoined, Peak shall, at its option and expense, either procure for the Customer the right to continue using said Product, replace same with non-infringing equipment of like kind and quality, modify said Product so that it becomes non-infringing or refund the purchase price of said Product (following the return of such Product by the Customer to Peak's facility as instructed by Peak).

Assignment: Any or all of the obligations of Peak under this Agreement may be assigned by Peak to any of its subsidiaries or affiliated companies, and any or all of the rights of Peak under this Agreement, including the right to receive any or all payments due hereunder, may be assigned by Peak to any of its subsidiaries or affiliates or to any third party. The Customer may not assign all or any portion of its rights or obligations under this Agreement without the prior written approval of Peak.

Binding Effect: This Agreement shall be binding upon and inure to the benefit of Peak and the Customer and to their respective successors and permitted assigns. This Agreement contains the entire agreement between Peak and the Customer with respect to the subject matter hereof and supersedes all prior written or oral agreements of the parties. None of the terms of this Agreement may be waived or modified except in writing signed by both Peak and the Customer. Any additional or different terms or conditions proposed by the Customer are rejected unless expressly assented to in writing by Peak.

Jurisdiction and Governing Law: This Agreement shall be governed by, and construed according to, the laws of the Commonwealth of Massachusetts without regard to its conflict of laws doctrine. Peak and the Customer hereby submit to the exclusive jurisdiction of, and waive any venue objections against, the U.S. District Court for the District of Massachusetts (or any court of the Commonwealth of Massachusetts located in Boston, Massachusetts) in any litigation arising out of this Agreement.

Counterparts: This Agreement may be executed by the parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. This Agreement may be executed by a party and delivered to the other party by facsimile or other electronic transmission, and such signature shall have the same force and effect as an original signature on such document. Upon the request of the receiving party, the other party will follow such facsimile or electronically transmitted signed copy with an original signature.

Miscellaneous: Except as provided in the Assignment Section, this Agreement is solely for the benefit of Peak and the Customer, and no third party shall have a right to enforce any provision of this Agreement. The term “including” used in this Agreement shall be construed to mean “including, but not limited to,” whether or not such full phrase is used.

ACCEPTANCE:

With respect to Products, upon delivery of such Product to the Customer, and with respect to Services, upon performance by Peak of such Services, Peak and the Customer hereby acknowledge their acceptance of, and agree to be bound by, the above Terms and Conditions.

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