LSI Terms & Conditions of Sale and Warranty

1. Interpretation

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

Acceptance: LiquidStack, Inc.’s acceptance of the Customer’s Order by countersigning the Order.
Conditions: the terms and conditions set out in this document (as amended and varied from time to time).
Contract: the contract between LiquidStack, Inc. and the Customer for the sale and purchase of Equipment and Services inaccordance with these Conditions and each Order.
Customer: the person, firm or company who purchases Equipment from LiquidStack, Inc.
Equipment: the equipment as set out in each Order.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks andservice 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 similaror equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
LSI means LiquidStack, Inc.
Order: a signed purchase order from Customer to LSI for LSI to supply Equipment and Services to Customer in accordance with theseConditions.
Services: means the Services as set out in each Order.
Taxes: sales, use, withholding, value-added or other taxes in connection with the sale and delivery of the Equipment.

1.2. (a) Clause, Schedule and paragraph headings shall not affect the interpretation of this 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, according to Section 2.3, 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 Confirmation of an Order by LSI.

2.4. This 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 LSI which is not set out in this Contract. To the extent that the terms of an Order expressly contradict these Conditions, the terms of this Contract shall control.

2.5. Any samples, drawings, descriptive matter, or advertising produced by LSI and any descriptions or illustrations contained in LSI’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 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, invoice or other document or information issued by LSI shall be subject to correction without any liability on the part of LSI.

3.3. LSI 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 their quality or performance.

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

4. Prices

4.1. All prices shall be as stated in each Order Confirmation. All prices are exclusive of Taxes unless otherwise specified in the LSI Order Confirmation. The Customer is responsible for payment of all applicable Taxes regardless. Both parties are responsible and liable for their own respective corporate and income taxes. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance and other charges and duties and importation costs unless otherwise specified in the LSI 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 LSI or as stated in each Order Confirmation. Timely payment by Customer is of the essence.

5.2. LSI may also invoice the Customer for (a) Taxes and Duties which LSI 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 30 calendar days of the invoice.

5.3. If the Customer fails to make payment in full on 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 LSI, LSI 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 LSI (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 LSI 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. LSI may, without prejudice to any other rights it may have, set off any liability of the Customer to LSI against any liability of LSI to the Customer.

6. Delivery of Equipment and Acceptance

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

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 reasonably required to deliver Services and install the Equipment. If LSI is prevented from carrying out delivery or installation on the specified date because no such Site preparation has been carried out, LSI 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 it after delivery according to Section 6.2.

6.4. LSI may take out insurance for the delivery of the Equipment, with the cost to be invoiced to the Customer only upon written agreement between the Parties.

6.5. Shipping terms are Free-On-Board (FOB) Shipping point as listed on LSI Confirmation.

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

7. Not Used

8. Not Used

9. Compliance with Law

9.1. The Customer shall be responsible for complying with any applicable laws and regulations 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.

9.2. The Customer warrants, represents and covenants to LSI 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.

10. No Warranty

10.1. The Equipment Limited Warranty is one (1) year from data of successful 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 Equipment Start-up Service from LSI, the Limited Warranty period is reduced by six (6) months. Start-up Service must be purchased by Customer before the Equipment on each Order is installed at Customer Site.

10.2. Limited Warranty. This Limited Warranty is parts only. LSI shall not pay for any parts, service, labor, or related costs and expenses performed by another Party or not authorized in writing by LSI to Customer. In the event of a Failure or Mechanical Breakdown of Covered Part (defined as being provided by LSI at Section 10.4), is subject to the terms, conditions, and limitations herein. LSI will replace the Covered Part(s) with a new part whenever possible, however, in the event a new part is not available, LSI 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”) with 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 LSI 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 LSI instructions for installation or operation (refer to Section 10.3). A Covered Part has failed when it can no longer perform the function for which it was designed.

10.3. EXCEPTIONS TO LIMITED WARRANTY: This Limited Warranty shall not apply nor will LSI assume responsibility for mechanical breakdown, damage, or Covered Part Failure due to: (i) failure to comply with LSI’s installation recommendations or instructions, (ii) tampering or alteration (except as directed by LSI) the Covered Part, (iii) failure of a non-warrantied part, (iv) the modification of any part or change of system configuration, (v) the integration of Equipment (excluding power or utility services) with third party equipment which does not meet LSI’s operational requirements as advised in writing by LSI, or (vi) which the Equipment has been subjected to abuse, 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.

10.4. COVERED PARTS: Any of the parts or components used in the Equipment purchased from LSI and installed by LSI or its authorized party for the Equipment listed on an Order, unless otherwise excluded in writing to Customer, are Covered Parts for the period of the warranty plan – Limited Warranty.

10.5. Software Warranty. LSI 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.

11. Remedies

11.1. Any liability of LSI for non-delivery of the Equipment or non-performance of the Services shall in all circumstances be limited to the amount paid by Customer for the affected Equipment or Services, respectively.

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

11.3. If LSI’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 under Condition 16), the Customer shall in all circumstances be liable to pay to LSI all reasonable costs, charges or losses sustained by it as a result, subject to LSI notifying the Customer in writing of any such claim it might have against the Customer in this respect.

12. Limitation of Liability

12.1. The following provisions set out the entire financial liability of LSI (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.

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

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

12.4. Subject to Condition 12.3.:
(a) LSI 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 or 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) LSI’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 and Services.

13. Intellectual Property Rights

13.1. The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Equipment are and shall remain the sole property of LSI or its affiliates or (as the case may be) third party rights, owner.

13.2. LSI or its affiliates 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 LSI. Customer shall not post or distribute LSI documents electronically without LSI approval.

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

13.4. Customer Improvements in Equipment are licensed to LSI on a global, royalty-free and perpetual basis with full use including the right to make, have made, distribute, sublicense or assign the intellectual property rights in the Improvements.

14. Confidentiality

14.1. 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 LSI or its agents, and any other confidential information concerning LSI’s business or its products which the Customer may obtain.

14.2. Reverse Engineering. Customer shall not reverse engineer the Equipment or decompile and reverse engineer any software delivered or updated with the Equipment.

15. Termination

15.1. Without prejudice to any other right or remedy available to LSI, LSI 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.

15.2. 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.

15.3. 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.

15.4. Conditions 10, 11, 13, 14, 15, 17 and 18 shall survive termination of the Contract, however arising.

16. Force Majeure

LSI 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: strikes, lock-outs or other industrial disputes (whether involving the workforce of LSI 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).

17. Indemnification

17.1. The Customer agrees to indemnify, defend and hold LSI, 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 the 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.

18. Non-disparagement

18.1. The Customer agrees to take no action which is intended, or would reasonably be expected, to harm LSI or its reputation or which would reasonably be expected to lead to unwanted or unfavourable publicity to LSI. 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 LSI business. The Customer’s non- disparagement obligations extend to LSI’s affiliates and their respective shareholders, directors, officers, employees, representatives and agents.

19. Waiver

19.1. 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.

20. Severance

20.1. 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.

20.2. 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.

21. Entire Agreement

21.1. 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.

21.2. 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.

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

22. Assignment

22.1. 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.

22.2. LSI 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.

23. Third Party Rights

23.1. 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.

24. Notices

24.1. 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, other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or via e-mail sent Read-Receipt.

24.2. 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 ) proof of e-mail Read-Receipt.

24.3. 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 24.1 and 24.2.

25. Governing Law & Jurisdiction

25.1. 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 Commonwealth of Massachusetts without regard to its conflict of law rules.

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