LSI Terms & Conditions of Sale and Warranty

1. Interpretation

1.1. Definitions. The definitions and rules of interpretation in this clause apply in these Terms and Conditions of Sale.

Acknowledgement: an acknowledgement from LiquidStack that a Customer’s Order has been received.

Conditions: the terms and conditions set out in this document, as amended from time to time.

Contract: the contract between LiquidStack and the Customer for the sale and purchase of Equipment and/or Services in accordance with these Conditions and the respective Order.

Customer: the person, firm, or company who purchases Equipment from LiquidStack. 

Equipment: the equipment as set out in each Order.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighboring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

LiquidStack: LiquidStack Holding B.V., a private limited company incorporated under the laws of the Netherlands and its subsidiaries, which include LiquidStack Inc., a Delaware corporation having a place of business in Carrollton, Texas, and LiquidStack Limited, a limited liability company in Hong Kong. 

Order: a signed purchase order from Customer to LiquidStack for LiquidStack to supply Equipment and/or Services to Customer in accordance with these Conditions and any Confidentiality Agreement with the Customer.

Order Confirmation: a written confirmation provided by LiquidStack by countersigning the Customer’s Order after reviewing and agreeing to all commercial, technical, and legal terms and conditions.

Services: the Services as set out in each Order.

Start-UpServices: on-site or remote support provided by a LiquidStack Technician and purchased for each unit sold, with the services provided after the Equipment has been installed, wired, and plumbed, where the LiquidStack Technician follows a prescribed checklist to ensure the purchased Equipment, including all electrical components, mechanical components, sensors and controls, functions according to operational parameters defined in the LiquidStack operational manual for the Equipment. The Start-Up Services shall be purchased from LiquidStack before the Equipment is commissioned or becomes fully operational at the Customer Site.

Taxes: sales, use, withholding, value-added or other taxes in connection with the sale and delivery of the Equipment.

Technician: a LiquidStack Field Service Technician.

1.2. (a) Headings shall not affect the interpretation of the Contract; (b) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (c) a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established; (d) a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established; (e) unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular; (f) unless the context otherwise requires, words in the singular shall include the plural and, in the plural, include the singular; (g) a reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Contract under that statute or statutory provision; and (h) references to clauses are to the clauses of this Contract.

2. Basis of Contract

2.1. These Conditions apply to the Contract, to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2. Each Order constitutes an offer by the Customer to purchase Equipment and Services in accordance with these Conditions.

2.3. A Contract shall come into existence upon LiquidStack delivering a signed Order Confirmation to the Customer.

2.4. The Contract constitutes the entire agreement between the parties in relation to the subject matter of each Order. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of LiquidStack which is not set out in this Contract. To the extent that the terms of an Order contradict these Conditions, the terms of this Contract shall control.

2.5. Any samples, drawings, descriptive matter, or advertising produced by LiquidStack, and any descriptions or illustrations contained in LiquidStack’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Equipment or Services described in them. They shall not form part of the Contract or have any contractual force.

3. Quantity and Description

3.1. The quantity and description of the Equipment and Services shall be as set out in each Order.

3.2. Any typographical, clerical, or other error or omission in any sales literature, quotation, price list, acceptance of offer, Order Confirmation, invoice or other document or information issued by LiquidStack shall be subject to correction without any liability on the part of LiquidStack.

3.3. LiquidStack reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment or Services which are required to conform with any applicable laws and regulations, or which do not materially affect quality or performance of the Equipment or Services.

3.4. LiquidStack’s employees, contractors and agents are not authorized to make any representations or contractually binding statements concerning these Conditions.

4. Prices

All prices shall be as stated in each Order Confirmation. All prices are exclusive of Taxes unless otherwise specified in the Order Confirmation. The Customer is responsible for payment of all applicable Taxes. Both parties are responsible and liable for their own respective corporate and income taxes. Quoted prices exclude delivery, packaging, packing, shipping, carriage, storage, insurance and other charges and duties and importation costs unless otherwise a cost for any of the above is specified in the Order Confirmation. The Customer is responsible for the above costs.

5. Payment

5.1. The Customer shall pay the invoiced price specified for the Equipment and Services in cleared funds (or in another manner mutually agreed between the parties) at the time of payment as stated in each Order Confirmation. Payment shall be made according to the instructions supplied in writing by LiquidStack or as stated in each Order Confirmation. Timely payment by Customer is of the essence.

5.2. LiquidStack may also invoice the Customer for (a) Taxes and Duties which LiquidStack has pre-paid, (b) freight and delivery costs of the Equipment; (c) insurance costs to deliver the Equipment; and (d) any other costs associated in delivering the Equipment. The Customer shall pay the invoice in full in cleared funds within thirty (30) calendar days of the invoice or as otherwise indicated in the Order Confirmation.

5.3. If the Customer fails to make payment in full on or before the due date, the whole of the balance of the price of the Equipment and Services then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to LiquidStack, LiquidStack shall be entitled to: (a) terminate the Contract or suspend the delivery of Equipment and Services to the Customer; (b) charge interest on the amount outstanding from the due date to the date of receipt by LiquidStack (whether or not after judgment), at the annual rate of 18%, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; (c) suspend all further manufacture, delivery, installation or warranty service until payment has been made in full; and (d) make a storage charge for any undelivered Equipment at its current rates.

5.4. All sums payable to LiquidStack under the Contract shall become due immediately on its termination, despite any other provision of the Contract. This Condition is without prejudice to any right to claim for interest under the law, or any right under the Contract.

5.5. LiquidStack may, without prejudice to any other rights it may have, set off any liability of the Customer to LiquidStack against any liability of LiquidStack to the Customer.

6. Delivery of Equipment and Acceptance

6.1. LiquidStack shall not be under any obligation to supply all or any of the Equipment ordered by the Customer until an Order Confirmation which corresponds to the Customer Order has been sent to the Customer. LiquidStack shall use reasonable endeavors to promptly notify the Customer in writing after receipt of an Order as to whether LiquidStack confirms or does not confirm the Order. Upon Confirmation of the Order, the Customer shall be bound by the terms and conditions thereof. LiquidStack shall use its reasonable endeavors to deliver the Equipment and Services on the date(s) and location(s) specified in the Order Confirmation.

6.2. The Customer shall be responsible (at the Customer’s cost) for preparing the delivery location (“Site”) for the delivery of the Equipment and for the provision of all necessary access and facilities (including but not limited to secured site, unobstructed access, water, heat, power, data communications, structural support for the Equipment, and protective housing if needed, at the Customer’s Site), reasonably required to deliver Services safely, install and perform Start-Up Services on the Equipment. If LiquidStack is prevented from carrying out delivery, installation, or Start-Up Services on the specified date because no such Site preparation has been carried out, LiquidStack may levy additional charges to recover its loss arising from this event.

6.3. The Customer shall be deemed to have accepted the Equipment when the Customer has had seven days to inspect the Equipment after delivery.

6.4. LiquidStack may take out insurance for the delivery of the Equipment, with the cost to be invoiced to the Customer, upon an executed Contract between the Parties.

6.5. Shipping terms are Freight-On-Board (FOB) Shipping Point as listed on the Order Confirmation.

6.6. Buyer is solely responsible for shipping, carriage, insurance costs and other charges and duties including importation costs. Buyer shall arrange for and shall pre-pay these costs prior to Seller packaging for shipment to Buyer location.

7. Limitation of Liability

7.1. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, LIQUIDSTACK WILL NOT BE LIABLE TO CUSTOMER UNDER ANY CIRCUMSTANCES FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROFIT LOSSES) IN ANY WAY RELATED TO CUSTOMER’S USE OF A NON-APPROVED FLUID IN THE EQUIPMENT, REGARDLESS OF THE LIABILITY THEORY. 

7.2. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, LIQUIDSTACK WILL NOT BE LIABLE TO CUSTOMER UNDER ANY CIRCUMSTANCES FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROFIT LOSSES) IN ANY WAY RELATED TO A DISRUPTION OF POWER (INCLUDING, BUT NOT LIMITED TO, ELECTRICAL SURGE, ELECTRICAL SPIKE, LINE NOISE, BROWNOUT, UNDERVOLTAGE, SAG, SWELL, OVERVOLTAGE, BLACKOUT, OR POWER OUTAGE) AT CUSTOMER’S FACILITY, REGARDLESS OF THE LIABILITY THEORY.

8. Compliance with Law

8.1. The Customer shall be responsible for complying with any applicable laws and regions governing: (a) the importation of the Equipment into the country of destination; and (b) the export and re-export of the Equipment and shall be responsible for the payment of any duties on it.

8.2. The Customer warrants, represents and covenants to LiquidStack that it: (a) shall not import, distribute, deploy and use the Equipment in any non-member state of the United Nations or any country subject to any sanctions program of the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury; (b) shall import, distribute, deploy and use the Equipment solely in compliance with all applicable laws and regulations; and (c) shall not (and shall not permit any person to) modify the Equipment, or reverse assemble, reverse compile or reverse engineer the Equipment, or otherwise attempt to discover any underlying proprietary information.

9. Warranty

9.1. The Equipment Limited Warranty is one (1) year from date of completion of Equipment Start-up (“Start-up Service”), not to exceed eighteen (18) months from date of Equipment shipment, whichever period is shorter. If Customer does not purchase Start-up Service from LiquidStack, the Limited Warranty period is six (6) months from date of shipment. This limited warranty applies only to the original purchaser of the Equipment. Repair or replacement of a defective part does not extend the warranty period of the Equipment.

9.2. Limited Warranty. This Limited Warranty is parts only. LiquidStack shall not pay for any parts, service, labor, or related costs and expenses performed by another party or not authorized in writing in advance by LiquidStack to Customer. In the event of a Failure or Mechanical Breakdown of a Covered Part, it is subject to the terms, conditions, and limitations herein. LiquidStack will replace the Covered Part with a new part whenever possible, however, in the event a new part is not available, LiquidStack reserves the right to: (i) repair the existing defective or broken part, (ii) replace it with one of like kind and quality, or (iii) refund the cost of the part indicated on a Return Materials Authorization (“RMA”) between LiquidStack and Customer. Parts replaced under this Limited Warranty are covered by a ninety (90) day Limited Warranty, which does not extend the warranty of the purchased Equipment. This Limited Warranty becomes null and void if the warranted part is modified or affected by any other person(s) or facility other than LiquidStack or its authorized Party. A Failure or Mechanical Breakdown means the failure of a Covered Part due to a manufacturers defect or faulty workmanship but does not include cosmetic blemishes or damage or misuse by Customer not following LiquidStack’s instructions for installation or operation (refer to Section 9.3). A Covered Part has failed when it can no longer perform the function for which it was designed. In a case where the Customer did not purchase Start-Up Service prior to installation of the delivered Equipment, the Covered Part Warranty is limited to thirty (30) days from date of shipping as listed in an Order Confirmation.

9.3. EXCEPTIONS TO LIMITED WARRANTY: This Limited Warranty shall not apply nor will LiquidStack assume responsibility for mechanical breakdown, damage, or Covered Part failure due to: (i) failure to comply with LiquidStack’s Equipment installation recommendations or instructions, including the use of non-approved fluids with the Equipment, (ii) tampering or alteration of the Equipment or Covered Part, (iii) failure of a non-warrantied part, (iv) the modification of any part or change of Equipment system configuration, (v) the integration of Equipment (excluding power or utility services) with third party equipment which does not meet LiquidStack’s operational requirements as advised in writing by LiquidStack, (vii) incorrect or inadequate electrical voltage or connection to Equipment, (viii) incorrect or inadequate mechanical connections to Equipment, including primary fluid flow or fluid control, (ix) inappropriate on-site conditions, (x) Acts of God, (xi) unapproved exposure to outside environment, (xii) theft, damage, or abuse, (xii) removed or defaced serial number, or (xiii) which the Equipment has been subjected to abuse, inadequate shelter or inappropriate storage of Equipment, lack of required maintenance, or service. Improper or incorrectly performed maintenance or repair voids this warranty. Customer is responsible for any costs not covered by this Limited Warranty.

9.4. Covered Parts: Any of the parts or components used in the Equipment purchased from LiquidStack and installed by LiquidStack or its authorized party for the Equipment listed on an Order Confirmation, or a Spare Part, unless otherwise excluded in writing to Customer, are Covered Parts for the period of the warranty plan.

9.5. Software Warranty. LiquidStack only warranties the media or component delivered software with the Equipment or updated on the Equipment according to Customer warranty type. Software delivered or updated is provided “as is” with the Equipment.

9.6. LiquidStack warrants its Services to be free from defects in material and workmanship for a period of ninety (90) days from the date of Service completion provided Customer purchased Start-Up Service from LiquidStack. LiquidStack’s warranty obligation after Services are completed is remote access to correct a Service, or at LiquidStack’s sole option, an on-site visit. In the event LiquidStack determines Customer actions caused the defect, then LiquidStack may invoice Customer for its time and travel to Customer Site during the warranty period. If Customer did not purchase Start-Up Services from LiquidStack, this Service Warranty is limited to thirty (30) days from the date of Service completion and Customer shall be invoiced for travel expense and invoiced for LiquidStack’s time if the defect was due to Customer’s actions, even during the warranty periods herein. LiquidStack’s remedy of the defect does not extend the original warranty period of the Service or Equipment.

9.7. EXCEPT AS SET FORTH ABOVE, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, APPLCIABLE TO PRODUCTS, SERVICES OR SPARE PARTS SOLD, SERVICED OR FURNISHED UNDER THIS AGREEMENT OR IN CONNECTION HEREWITH. LIQUIDSTACK DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTION AND FITNESS FOR A PARTICULAR PURPOSE. LIQUIDSTACK EXPRESS WARRANTIES WILL NOT BE ENLARGED, DIMINISHED, OR AFFECTED BY AND NO OBLIGATION OR LIABILITY WILL ARISE OUT OF LIQUIDSTACK’S RENDERING OF TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE PRODUCTS, SERVICES OR SPARE PARTS. THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES. THE WARRANTIES SET FORTH ABOVE CONSTITUTE LIQUIDSTACK’S SOLE LIABILITY AND PURCHASER’S EXCLUSIVE REMEDY FOR ANY BREACH OF SUCH WARRANTIES. LIQUIDSTACK’S WARRANTIES RUN ONLY TO ORIGINAL PURCHASER AND ARE NOT EXTENDED TO ANY THIRD PARTIES. IN NO EVENT SHALL LIQUIDSTACK, ITS OFFICERS, DIRECTORS, AFFILIATES OR EMPLOYEES BE LIABLE FOR ANY FORM OF INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, ARISING OUT OF THE USE, SERVICE OR INSTALLATION, OF THE PRODUCTS, SERVICES OR SPARE PARTS WHETHER SUCH DAMAGES ARISE IN CONTRACT OR TORT, IRRESPECTIVE OF FAULT, NEGLIGENCE OR STRICT LIABILITY OR WHETHER LIQUIDSTACK HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. SPECIFICALLY, LIQUIDSTACK IS NOT LIABLE FOR ANY COSTS, SUCH AS LOST PROFITS OR REVENUE (WHETHER DIRECT OR INDIRECT), LOSS OF EQUIPMENT, LOSS OF USE OF EQUIPMENT, LOSS OF SOFTWARE, LOSS OF DATA, COSTS OF SUBSTITUANTS, CLAIMS BY THIRD PARTIES, OR OTHERWISE. NO EMPLOYEE OR AGENT OF LIQUIDSTACK IS AUTHORIZED TO ADD TO OR VARY THE TERMS OF THIS WARRANTY. NOTHING IN THIS LIMITED WARRANTY SHALL SEEK TO EXCLUDE OR LIMIT LIQUIDSTACK’S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR ITS FRAUDULENT MISREPRESENTATION OR TO THE EXTENT THAT IT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. 

10. Remedies

10.1. Any liability of LiquidStack for non-delivery of the Equipment or non-performance of the Services shall in all circumstances be limited to the unit price paid by Customer for the affected Equipment or Services, respectively as found on the Order Confirmation.

10.2. Any liability of LiquidStack for failure to provide warranty services shall be limited to the cost of repair or replacement of the Covered Part.

10.3. If LiquidStack’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (other than by reason of a Force Majeure Event), the Customer shall in all circumstances be liable to pay to LiquidStack all reasonable costs, charges or losses sustained by it as a result, subject to LiquidStack notifying the Customer in writing of any such claim it might have against the Customer in this respect.

11. Limitation of Liability

11.1. The following provisions set out the entire financial liability of LiquidStack (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of: (a) any breach of the Contract howsoever arising; and (b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation, negligence) arising out of or in connection with the Contract.

11.2. All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.

11.3. Nothing in these Conditions excludes or limits the liability of LiquidStack for: (a) death or personal injury caused by LiquidStack’s negligence; or (b) fraud or fraudulent misrepresentation.

11.4. Subject to Condition 11.3: (a) LiquidStack shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for: loss of profits, loss of business, depletion of goodwill or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information, or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses. (b) LiquidStack’s total liability in contract, tort (including without limitation negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the amount paid by the Customer for the Equipment or Services.

12. Intellectual Property Rights

12.1. In accordance with Section 287(a) of Title 35 of the United States Code, the Customer is hereby placed on notice of LiquidStack’s rights in the United States Patents listed on LiquidStack’s website at www.liquidstack.com/patents. Customer is also placed on notice of LiquidStack’s rights in the non-US patents listed on the same website.  

12.2. The Customer agrees that all Intellectual Property Rights used by or existing in the Equipment or Services (“Deliverables”) are and shall remain the sole property of LiquidStack or (as the case may be) owned by a third party. This Quotation does not provide any license to Customer from LiquidStack to reproduce, create derivative technology from, distribute, sell, offer for sale or sublicense the same to third parties any foregoing rights, including the right to sublicense to other third parties.

12.3. LiquidStack shall retain all intellectual property rights, including copyright, in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of LiquidStack. Customer shall not post or distribute LiquidStack documents electronically without LiquidStack approval.

12.4. LiquidStack’s Intellectual Property Rights in and relating to the Equipment shall remain the exclusive property of LiquidStack, and the Customer shall not at any time make any unauthorized use of such Intellectual Property Rights, nor authorize or permit any of its agents or contractors or any other person to do so.

12.5. Improvements or changes to Equipment are owned by LiquidStack and automatically assigned to LiquidStack as part of any service performed by LiquidStack on behalf of Customer. In the event Customer cannot assign ownership of a change or improvement, then Customer grants LiquidStack a global, royalty-free, and perpetual license with full use including the right to make, have made, distribute, copy, reproduce, sublicense, or assign the intellectual property rights resulting from this section 12.5.

12.6. Customer License is solely limited to its personal use of the purchased Equipment and Services related to a Customer Order as confirmed by an Order Confirmation, as described in the LiquidStack provided product manuals, documentation or as instructed by LiquidStack.

13. Confidentiality

13.1. The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by LiquidStack or its agents, and any other confidential information concerning LiquidStack’s business or its products which the Customer may obtain.

13.2. Reverse Engineering. Parties agree not to use or permit any third party to, engage in any of the following activities without the express prior written permission from LiquidStack for a party to: (i) disassemble, reverse- engineer, reverse-compile, or reverse-assemble any part, component of subassembly of Equipment delivered under this Agreement, (ii) separate, extract, or isolate components of the parts or the Equipment or subject the parts and/or Equipment or components thereof to any analysis not expressly authorized in writing, or (iii) otherwise gain access to or determine the methods of operation of the parts, software or subassembly of the Equipment. Furthermore, the Parties agree neither shall not reverse engineer any software of a Party’s product or try to overcome any anti-circumvention protections provided as part of a Party’s product.

14. Termination and Survival

14.1. Without prejudice to any other right or remedy available to LiquidStack, LiquidStack may terminate the Contract or suspend any further deliveries under the Contract without liability to the Customer if: (a) the ability of the Customer to accept delivery of the Equipment is delayed, hindered or prevented by circumstances beyond the Customer’s reasonable control; (b) the Customer becomes insolvent; (c) the Customer enters into any arrangement with its creditors; (d) any filings in relation to the winding up of the Customer; (e) if an administrator or receiver is appointed to manage the affairs of the Customer; (f) a creditor takes possession of any of the Customer’s property; (g) the Customer stops trading.

14.2. Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.

14.3. Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

14.4. Sections 12, 13, and 17 shall survive expiration or termination of this Agreement for a period of five years from the date of such expiration or termination. 

15. Termination for Convenience

15.1. Customer may terminate the Contract for convenience by providing written notice to LiquidStack within ten (10) days of the Order Confirmation date. 

15.2. After ten (10) days of the Order Confirmation date, Customer may terminate the Contract by providing written notice to LiquidStack and upon payment of reasonable and proper termination charges based on the price of the terminated Order and reimbursement of all costs and expenses associated with the Order caused by the termination and shall include a reasonable profit for LiquidStack. Special or custom ordered Equipment is not cancelable after final acceptance of drawings for the commencement of manufacturing.

16. Return of Equipment

No Equipment may be returned without first obtaining written permission and an RMA from LiquidStack. If the Customer obtains written permission and an RMA from LiquidStack and returns Equipment for any reason other than LiquidStack’s breach of warranty, the Customer shall pay a restocking fee of twenty-five (25) percent of the price of the returned Equipment, as reflected in the Order Confirmation, and any reasonable costs of refurbishing (if damaged) the returned Equipment. The Customer shall be responsible for all costs associated with delivering the returned Equipment to LiquidStack’s facility in Carrollton, Texas, including delivery, packaging, packing, shipping, carriage, storage, insurance, and any other charges, duties, and importation costs. 

The restocking fee is cumulative and not exclusive, and the exercise by LiquidStack of this right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise.

17. Force Majeure

LiquidStack reserves the right to defer the date of delivery, or to cancel the Contract or reduce the amount of Equipment and Services ordered, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation: third-party disruption and delay; supply shortage, delay in supply not caused by LiquidStack, strikes, lock-outs or other industrial disputes (whether involving the workforce of LiquidStack or any affiliated party), failure of a utility service (including power outages, power curtailments and planned or unplanned maintenance) or transport, telecommunications, internet or other network, acts of God or nature, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, breakdown of plant or machinery, fire, explosion, flood, storm, lightening, earthquake, subsidence, epidemic, pandemic or other natural disaster, or default of suppliers or sub-contractors (“Force Majeure Event”).

18. Indemnification

Customer agrees to indemnify, defend and hold LiquidStack, its officers, directors, employees and agents, harmless from all loss, liability, claims or expenses (including reasonable attorneys’ fees) arising out of (a) any breach of the Contract by Customer or (b) any use, condition or operation of the Equipment, regardless of where, how and by whom operated, including but not limited to liabilities arising from bodily injury, including death, or property damage to any person.

19. Non-disparagement

The Customer agrees to take no action which is intended, or would reasonably be expected, to harm LiquidStack or its reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to LiquidStack. Such actions include disparaging remarks, comments or statements that impugn the character, honesty, integrity, morality or business acumen or abilities in connection with any aspect of the operation of LiquidStack business. The Customer’s non-disparagement obligations extend to LiquidStack’s affiliates and their respective shareholders, directors, officers, employees, representatives and agents.

20. Waiver

No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

21. Severance

21.1. If any provision or part-provision of this Contract is or becomes invalid, illegal, or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part- provision under this clause shall not affect the validity and enforceability of the rest of this Contract.

21.2. If any provision or part-provision of this Contract is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid, and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

22. Entire Agreement

22.1. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.

22.2. Each party acknowledges that in entering into this Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract.

22.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Contract.

23. Assignment

23.1. The Customer shall not assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under the Contract.

23.2. LiquidStack may at any time assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under the Contract.

24. Third Party Rights

A person who is not a party to this Contract has no right to enforce or to enjoy the benefit of any term of this Contract and, consequently, no one other than a party to this Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.

25. Notices

25.1. Any notice or other communication given to a party under or in connection with this Contract shall be in writing and shall be delivered by hand, by pre-paid first-class post, or via e-mail.

25.2. Any notice or communication shall be deemed to have been received: (a) if delivered by hand, on signature of a delivery receipt; or (b) if sent by pre-paid first-class post or other next working day delivery service, at 9:00 am on the second calendar day after posting; or (c) if sent via email, on the day sent.

25.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include e-mail as per 25.1 and 25.2.

26. Governing Law and Jurisdiction

26.1. The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation disputes or claims) are governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of law rules.

26.2. The parties hereby irrevocably and unconditionally consent to the exclusive subject matter and personal jurisdiction of the federal and state courts located in the State of Texas for any action, suit or proceeding arising out of or relating to this Contract, and agree not to commence any action, suit or proceeding related thereto except in such courts of the State of Texas.

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