PEAK ROOTS INC.
STANDARD TERMS AND CONDITIONS OF SALE
Unless defined elsewhere in these Terms, capitalized terms used in these Terms will have the meanings ascribed to them below:
1.1 “Agreement” means the Quote, these Terms, and any other addenda, exhibits, schedules or other attachments attached to the Quote or these Terms, and incorporated by reference.
1.2 “Confidential Information” means all information that Peak Roots discloses to Customer, including, without limitation, any of the following and any information resulting from or directly related to any of the following: (i) patents, patent applications, trade secrets, proprietary information, ideas, samples, techniques, sketches, designs, drawings, works of authorship, models, inventions, know-how; programs, systems, formulae, patterns, devices and processes; (ii) proprietary software, program flowcharts, file layouts, source code, diagnostic testing methodologies, processes, techniques, technical “know-how,” inventions, and other information related thereto; (iii) business models, practices, plans, marketing and sales plans, customer and supplier lists, pricing information, forecasts, new product plans, research and product development efforts and relationships; (iv) financial information; (v) the methods, materials, specifications, techniques, and processes that Peak Roots uses in the development and performance of its services and in the development and manufacture of its products; (vi) any other information, products, technology, methodologies, samples, or material and other proprietary information related to the current, future and proposed products or services of Peak Roots; and (vii) any information that is subject to a duty on the part of Peak Roots to maintain in confidence or to use only for certain limited purposes.
1.3 “Creative Work” means any work that Peak Roots creates or has created in connection with the Products, Software, or services, including without limitation, all registered and unregistered trademarks, copyrights, patents, plans, designs, specifications, models, drawings, processes, object code, source code, programs, data, and written materials, together with all derivative works, improvements, and modifications related to or arising therefrom, provided by Peak Roots pursuant to or during the term of this Agreement.
1.4 “Customer” means Peak Roots’ customer or account as identified in the Quote.
1.5 “Products” means any and all items sold by Peak Roots pursuant to this Agreement, including without limitation, its vertical farm systems, and items for use with its vertical farm systems, including but not limited to hardware, racks, electrical systems, LED lights, nutrient and irrigation systems, remote power systems, nutrients and other accessories.
1.6 “Quote” refers to the quote to which these Terms are attached.
1.7 “Representatives” means directors, officers, managers, employees, subcontractors, agents, consultants, advisors, and other authorized representatives.
1.8 “Restricted Period” means the period beginning on the effective date of this Agreement and ending five (5) years after the termination of this Agreement. Notwithstanding the foregoing, the Restricted Period for any trade secret will continue in perpetuity for so long as such information constitutes a trade secret.
1.9 “Peak Roots” means Peak Roots, Inc., an Oregon corporation granted authority to transact business in Arizona.
1.10 “Software” means one or more computer programs, whether stand-alone or bundled with other products and related documentation, licensed by Peak Roots for use with its systems, including but not limited to the proprietary digital controls and data systems provided by Peak Roots.
1.11 “Terms” means these terms and conditions attached to the Quote as Exhibit 1.
Section 2 PURCHASE AND SALE OF PRODUCTS, SOFTWARE, AND CREATIVE WORK
2.1 Purchase and Sale. This Agreement contains: (a) a description and specifications of the Products, Software, and Creative Work to be sold or licensed by Peak Roots to Customer; (b) the purchase price for the Products, and Software and Creative Work licenses; (c) the quantity of the Products, Software, and Creative Work to be sold or licensed by Peak Roots to Customer; and (d) the estimated delivery date. Subject to the terms of this Agreement, Customer shall purchase the Products, and Software and Creative Work licenses from Peak Roots, and Peak Roots shall sell the Products and license the Software and Creative Work to Customer at the prices and in the quantities set forth in this Agreement.
2.2 Quote.
(a) Quote. Customer will. deliver the executed Quote to Peak Roots at sales@peakroots.com
(b) Availability. The Quote, and Peak Roots’ obligations under this Agreement, are subject to the availability of Products, Software, and Creative Work. Peak Roots reserves the sole and absolute right to make adjustments to pricing, shipping dates, Products, Software, and Creative Work for any reason, including, but not limited to, change in market conditions, Product or Software or Creative Work discontinuation, Product or Software or Creative Work unavailability, manufacturer price changes, and supplier price changes. Peak Roots will provide Customer written notice of any such changes, which changes will be binding on Customer.
(c) Estimated Shipping Date. All shipping dates and completion dates in this Agreement are estimates. Peak Roots will use commercially reasonable means to perform within the time frame(s) in this Agreement, but will be under no legal or contractual duty to perform within any specific time frame(s).
(d) Order of Precedence. This Agreement exclusively governs and controls with respect to each of the party’s respective rights and obligations regarding the manufacture, purchase, and sale of the Products, and the licensure of the Software and Creative Work. The parties intend for these Terms and the remainder of the Agreement to be consistent. Any term or condition contained elsewhere in this Agreement that conflicts with these Terms is superseded by these Terms. Any attempt by Customer or any third-party to modify, supersede, supplement or otherwise alter these Terms without Peak Roots’ separate written agreement, are and will be deemed rejected by Peak Roots and are not, and will not be, binding.
2.3 Payment. Notwithstanding any other provision of this Agreement, on Customer’s delivery of this Agreement to Peak Roots fully executed (by both parties), Customer shall pay any initial payment required by the Quote as a condition of this Agreement becoming binding on Peak Roots. Customer shall pay Peak Roots the total cost of all Products, Software, and Creative Work pursuant to the payment schedule outlined in the Quote prior to shipment. Customer’s failure to timely make any such payment will or may result in a delay in shipping.
(a) Payment Methods. All payments must be made by check or electronic funds transfer.
(b) Shipping and Taxes. Unless otherwise agreed to by the parties in writing, Customer is and will be solely responsible for all costs and expenses for or relating to packing, crating, boxing, transporting, loading and unloading, customs, taxes, tariffs and duties, insurance and any other similar financial contributions or obligations relating to the production, manufacture, sale, licensing, or delivery of the Products, Software, and Creative Work.
(c) Late Payments. Customer agrees to pay interest on all past-due amounts at a rate of 1.5% per month, or the highest rate allowed by law, whichever is less.
2.4 Security Interest. Customer grants Peak Roots a purchase money security interest in all Products sold to Customer, and authorizes the filing of a UCC-1 financing statement or similar lien filing by Peak Roots. Such security interest with respect to a Product will continue until full and final payment for that Product is received and acknowledged by Peak Roots. Customer shall perform all acts and execute all documents necessary to perfect Peak Roots’ security interests.
2.5 Failure To Make Timely Payment. If Customer fails to pay when due any amount Customer owes to Peak Roots, Peak Roots may, in addition to any and all other remedies available to Peak Roots, on not less than ten (10) days advance written notice and failure to cure by Customer, terminate this Agreement on written notice to Customer.
2.6 Cancellation By Customer and Fees. Customer may cancel any order under this Agreement by written notice to Peak Roots that is received by Peak Roots at any time prior to two weeks before the scheduled shipment date, but only if Customer pays Peak Roots a restocking fee equal to, as applicable: (i) 25% of the total order price for any order cancelled within fourteen (14) days of Peak Roots’ receipt of this Agreement executed by Customer; or (ii) 50% of the total order price for any cancellation received more than (14) days after Peak Roots’ receipt of this Agreement executed by Customer.
Section 3 DELIVERY, RISK OF LOSS, AND INSPECTION
3.1 Shipment and Delivery Requirements. Delivery to Customer of Products and Software will be FOB Origin, Freight Collect. Unless otherwise expressly agreed to by the parties in writing, Peak Roots: (i) may make partial shipments of Products, Creative Work, or Software to Customer; and (ii) will determine the best method for shipment of the Products, Creative Work, or Software. Customer shall be responsible for confirming that the address for delivery is accurate, and informing Peak Roots whether the address is a business or residence. Customer shall be responsible for all additional charges related to incorrect or inaccurate shipping information.
3.2 Transfer of Title. Title to Products shipped under this Agreement passes to Customer on delivery of the Products to the shipping agent. Title will transfer to Customer even if Peak Roots has not been paid for such Products. Transfer of title to Customer will: (i) not relieve Customer of Customer’s obligation to pay for Products in accordance with the terms of this Agreement; and (ii) be subject to Peak Roots’ security interest pursuant to Section 2.4 above.
3.3 Inspection. Customer shall inspect the packaging and the Products immediately on delivery and report any damage to Peak Roots within forty eight (48) hours of delivery. Customer will have a period of seven (14) days following delivery of Products to Customer (“Inspection Period”) in which to inspect such Products and inform Peak Roots in writing of Customer’s rejection of any nonconforming Products. With respect to any such nonconforming Products, Peak Roots may either: (1) replace nonconforming Products with conforming Products; (2) modify nonconforming Products to correct the nonconformity; or (3) refund the amounts paid by Customer for the nonconforming Products, in which event Peak Roots may, at its election on written notice to Customer, elect to terminate this Agreement effective immediately on the delivery of such notice. On Peak Roots’ written request, Customer shall return nonconforming Products to Peak Roots. All returns of nonconforming Products to Peak Roots are at Customer’s sole risk and expense. Products that are not rejected within the Inspection Period will be deemed to have been irrevocably accepted by Customer.
Section 4 CUSTOMER RESPONSIBILITIES
4.1 Customer Duties. In addition to any other duties set forth in this Agreement, Customer shall cooperate with Peak Roots in the performance of Peak Roots’ duties by: (i) providing timely responses to Peak Roots inquiries and requests for information, approvals, and authorizations; (ii) informing Peak Roots of any changes to building layouts, floor plans, designs or drawings; (iii) providing access to any information, site, or materials requested by Peak Roots which are necessary or useful to Peak Roots in completing its duties under this Agreement, including, but not limited to, physical access to Customer’s facilities and floor plans; and (iv) providing all required consents necessary for Peak Roots to perform its obligations.
4.2 Governmental Authorizations. Customer shall obtain and maintain all of the licenses, permits, registrations, and other governmental authorizations required to conduct Customer’s business.
4.3 Acknowledgement. Customer acknowledges and agrees that Peak Roots ’s performance under this Agreement is contingent on Customer promptly fulfilling its duties under Section 4.1 above, the information supplied by Customer being accurate and complete, and Customer’s, included Customer’s Representatives’, full cooperation with Peak Roots.
Section 5 SITE PREPARATION AND INSTALLATION
5.1 Site Preparation. Customer is solely responsible for the installation site(s), provision of all utilities and similar services, and for meeting any regulatory, structural, or any and all other legal requirements. Unless otherwise specifically agreed to by the parties in a separate written agreement, Customer shall obtain any permits, approvals, licenses, and certifications, local or otherwise, that may be required for installation or operation of the Products. Validation and assessment of such prerequisites will be at Customer’s sole expense.
5.2 Installation. If Peak Roots provides any services related to the purchase or installation of any Products or Software, the provision of such services will be pursuant to a separate services agreement entered into between the parties. Unless otherwise agreed to by the parties in an applicable services agreement, Customer is solely responsible for providing all installation services at Customer’s sole expense.
Section 6 LIMITED CREATIVE WORK AND SOFTWARE LICENSE
6.1 Creative Work License. All rights, title, and interest in and to all Creative Work and work product, including, without limitation, Documentation (as that term is defined below), provided by Peak Roots pursuant to this Agreement, including without limitation, all registered and unregistered trademarks, copyrights, patents, plans, designs, specifications, models, drawings, object code, source code, programs, data, and written materials, together with all derivative works, improvements, and modifications related to or arising therefrom, will at all times remain Peak Roots’ sole and exclusive property (collectively “Peak Roots Creative Products”). Subject to the terms and conditions of this Agreement, Peak Roots hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable right and license to use the Peak Roots Creative Products as permitted by this Agreement.
6.2 Software License. Subject to the other terms of this Agreement, Peak Roots hereby grants to Customer a limited, nonexclusive, non-transferable, non-sublicensable, revocable license to access and use the Software solely by Customer’s authorized users, and solely for internal business purposes permitted by this Agreement and applicable law. All rights not expressly granted to Customer in writing are reserved by Peak Roots. Customer shall comply with all official documentation, technical manuals, functional manuals, operator and user guides and other manuals that Peak Roots may provide from time to time (collectively, the “Documentation”).
6.3 Customer Data. Peak Roots acknowledges and agrees that Customer will own the Customer Data (as defined below), and that Peak Roots will have the right to use Customer Data in connection with Peak Roots’ performance under this Agreement, and as expressly granted to Peak Roots under this Agreement. As used in this Agreement, “Customer Data” means any proprietary raw data owned by Customer independent of this Agreement that Customer may input into the Software, including without limitation, any and all other information Customer inputs, uploads, transfers, integrates or otherwise shares via the Software. Customer Data expressly excludes any data to the extent processed by, or resulting as an output of, the Software, which will be considered Peak Roots Data (as defined below in this Agreement). Customer hereby grants Peak Roots a non-exclusive, irrevocable, worldwide, perpetual, royalty-free, fully paid, sublicensable and transferrable right and license to use, reproduce, transmit, broadcast, display, exhibit, distribute, index, comment on, modify, create derivative works, perform, or otherwise exploit Customer Data, in whole or in part, in any format or manner and for any purpose, whether now known or hereafter devised or invented, without further notice to Customer and with or without attribution.
6.4 Peak Roots Technology. Customer acknowledges and agrees that, subject only to the limited rights expressly granted to Customer under this paragraph, Peak Roots owns and shall at all times retain all right, title, and interest in and to: the Software, including without limitation, all trade secrets, copyrights, patents, trademarks, trade names, and other intellectual and proprietary rights in the Software; in all software, source code, object code; the Documentation; the Creative Work; all Peak Roots Data (as defined below in this Agreement); and in all technology embodied in or reflected by the foregoing (in each case including any extensions, derivatives, versions, updates, translations, reformulations and developments of the foregoing) (collectively, “Peak Roots Technology”). Subject only to Section 6.3 above, Peak Roots will own all rights to any data in or derived from the Software, including all data and technology described in this Agreement that Peak Roots incorporated or incorporates in the Software, and all usage data, statistical data and aggregated data collected (collectively, “Peak Roots Data”). Nothing contained in this Agreement or in the parties’ performance or failure to perform this Agreement, or in any Software provided Peak Roots, will be construed as granting or conferring to Customer, by implication, estoppel, or otherwise, any rights in or to any Peak Roots Technology or the Peak Roots Data except as expressly stated in this Agreement.
6.5 Customer Use Of Software. The Software may be used only by Customer: (i) for its internal business purposes and only for the direct benefit of Customer; (ii) only at the sites authorized by Peak Roots in this Agreement, with all such use limited solely to those persons using the Software for the benefit of Customer and subject to the terms of this Agreement; (iii) only in its original form without alteration or combination with other products, services or software except as expressly authorized in any applicable Documentation; and (iv) in compliance with all applicable laws, rule, and regulations, and in compliance with all Documentation and instructions provided by Peak Roots.
6.6 License Restrictions. Customer shall not and shall not attempt to: (i) display or make available the Software to any other entity; (ii) download or otherwise obtain a copy of the Software in any form; (iii) decompile, disassemble or reverse engineer the Software or attempt to learn its source code, object code, structure, or algorithms; (iv) modify, translate or create derivative works based on the Software; (v) use the Software on behalf of any third party or for any purpose other than as described in or allowed pursuant to this Agreement; (vi) sell, lease, license, sublicense, distribute or otherwise transfer, in whole or in part, the Software or use it as a service bureau; (vii) post, send, process or store material containing software viruses, worms, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (viii) interfere with or disrupt the integrity or performance of the Software or attempt to gain unauthorized access to the Software or related systems or networks; or (ix) use the Software outside the scope defined in this Agreement or as expressly permitted or authorized by Peak Roots in writing.
6.7 Revocation Of License. Peak Roots may revoke all or any part of the licenses granted in Sections 6.1 and 6.2 on written notice if Customer is in breach of Section 6.6 and such breach cannot be or is not cured by Customer within a commercially reasonable time, but in to event longer than fifteen (15) days after written notice from Peak Roots to Customer specifying the breach with reasonable particularity and demanding its cure. On revocation: Customer shall promptly: (i) discontinue all use of the Software, Creative Work, and Documentation; (ii) erase or destroy any electronic copies or partial copies of the Creative Work and Documentation, and return to Peak Roots or destroy any tangible copies or partial copies of the Creative Work and Documentation, in Customer’s possession or control; and (iii) certify in writing to Peak Roots that Customer has complied with these requirements. In addition, Peak Roots may disengage Customer’s access to the Software.
Section 7 TERM AND TERMINATION
7.1 Term. The term of this Agreement commences on Peak Roots’ receipt of a fully executed (by both parties) Agreement, and will continue until the last to occur of: (i) termination of this Agreement pursuant to Section 7.2, 7.3, or 7.4 below; (ii) revocation of the Software and Creative Work Licenses under Section 6 of this Agreement; or (iii) the delivery of the Products and payment by Customer of all amounts owed to Peak Roots.
7.2 Peak Roots’ Right To Terminate for Convenience. Peak Roots may terminate all or any part of this Agreement, including the revocation of the Software and Creative Work licenses, at any time and for any reason or no reason on not less than thirty (30) days’ advance written notice to Customer. Under no circumstances will Peak Roots be liable to Customer for any loss of anticipated profit, product development, engineering costs, or any other loss, cost, or expense by reason of Peak Roots’ termination of this Agreement.
7.3 Peak Roots’ Right to Terminate for Cause. Peak Roots may terminate all or any part of this Agreement, including revocation of the Software and Creative Work licenses, on written notice to Customer if: (a) Customer is in breach of this Agreement and such breach cannot be or is not cured by Customer within a commercially reasonable time, but in to event longer than thirty (30) days after written notice from Peak Roots to Customer specifying the breach with reasonable particularity and demanding its cure; or (b) if Customer (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
7.4 Customer’s Right to Terminate for Cause. Customer may terminate this Agreement, including revocation of the Software and Creative Work licenses, on written notice to Peak Roots if: (a) Peak Roots is in breach of this Agreement and such breach is not cured by Peak Roots within thirty (30) days after written notice from Customer to Peak Roots specifying the breach with reasonable particularity and demanding its cure. For purposes of this paragraph, a breach is deemed to include Peak Roots: (i) becoming insolvent or generally unable to pay, or failing to pay, its debts as they become due, (ii) filing a petition for voluntary or involuntary bankruptcy, or has a petition filed against it, or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, (iii) making or seeking to make a general assignment for the benefit of its creditors, or (iv) applying for, or having appointed, a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
7.5 Effects of Termination. A termination of this Agreement pursuant to Sections 7.2, 7.3, or 7.4 above, will simultaneously revoke Customer’s licenses pursuant to the provisions of Section 6.7. All provisions of this Agreement that would reasonably be expected to survive its termination will do so, including but not limited to, Sections 6.3, 6.4, 6.7, 8.7, 8.8, 9, 10, 11, 12.2, and 13 of these Terms. If Peak Roots terminates this Agreement pursuant to Sections 7.2 or 7.3 above, Peak Roots shall, within thirty (30) of the effective date of the termination, refund any amounts paid by Customer pursuant to this Agreement that have not been earned by Peak Roots, minus the cancellation fees under Section 2.6 above.
Section 8 WARRANTY AND LIMITED LIABILITY
8.1 Limited Warranty. Except for the express warranties in this Agreement, Peak Roots expressly excludes and disclaims all warranties with respect to the Products, Software, and Creative Work, express and implied, including but not limited to the warranty of merchantability, the warranty of fitness for particular purpose, commercial practice, use or application, and any warranties that may arise from course of dealing or usage of trade. Subject to the other provisions of this Agreement, Peak Roots makes the following limited warranties with respect to the Products and Software provided by Peak Roots:
(a) Products. Peak Roots warrants that the Products Peak Roots manufactures are free from defects and will perform substantially in accordance with their intended use and specifications for a period of three (3) year from the date of delivery. This warranty covers only parts and labor, is non-transferable, and only applies to Customer. The LED arrays in its Luminaire(s) will be considered defective in material or workmanship only if a total of 15% or more of the individual light emitting diodes in the Luminaire(s) fail to illuminate.
(b) Software. Peak Roots warrants that the Software: (i) may be legally licensed by Peak Roots to Customer; and (ii) will perform substantially in accordance with the Software’s intended use and specifications for a period of ninety (90) days from the date of delivery. Peak Roots does not warrant that the Software will be error-free or bug-free or that the use of the Software will be uninterrupted.
8.2 Manufacturer and Third Party Warranties. Customer acknowledges that Peak Roots is not the manufacturer of all of the Products. For Products not manufactured by Peak Roots, the manufacturer’s terms and conditions, including but not limited to, usage guidelines and restrictions, and warranties are solely applicable. Customer shall look solely to the manufacturer to warranty those Products, and nothing in this Agreement, including the warranties in Section 8.1, supplements or replaces the manufacturer’s warranty on such products. Peak Roots may assist Customer with regard to making warranty claims to the manufacturer in Peak Roots sole discretion.
8.3 Warranty Claims. If any potential warranty claim under Section 8.1 occurs, Customer shall immediately inform Peak Roots, in a detailed writing, of the warranty claim, and immediately cease using the affected Product(s). Peak Roots will at its option, (a) work with the Customer to schedule a mutually acceptable time for Peak Roots to service the Products or Software to the extent covered by Peak Roots’ warranty, or (b) provide Customer RMA documentation and shipping labels. For any onsite service call, Customer shall provide Peak Roots free access to the Products and Software, including by remote online access, if available, and provide a safe, suitable work environment for the service to be performed. Peak Roots is not obligated fulfill any warranty claim if the Customer is in default under this Agreement or any other agreement between Peak Roots and Customer, and Peak Roots will incur no liability for declining to process any warranty claim in such circumstance.
8.4 Remedies. On Customer’s compliance with Section 8.3 above, Peak Roots will, at its option: (i) repair, adjust, or replace the defective Product(s); (ii) correct the defect or replace the Software; or (iii) refund the amounts paid for the Software or Products. These remedies are Customer’s sole and exclusive remedies, and Peak Roots’ sole and exclusive obligations, for any defect in or failure of the Products or Software to perform properly.
8.5 Exclusions. Peak Roots has no obligation to Customer for any warranty claim if Customer uses the Software or Products: (a) in combination with software, hardware, or services not recommended in writing by Peak Roots; (b) in a manner or environment for which Peak Roots did not design or license the Products or Software; or (c) in violation of Peak Roots’ recommendations or instructions. Peak Roots’ warranties do not cover: (i) general wear and tear; (ii) a defect or deficiency from improper use, storage or handling, inadequate backup or virus protection, cyber-attacks, government interference, failure to maintain within Peak Roots’ specifications for power quality, grounding, temperature, humidity, contact with corrosive substances, repairs due to power anomalies, or any cause external to the Software and Products or beyond Peak Roots’ reasonable control; (iii) any adjustment, alignment, calibration, or planned maintenance; (iv) lost or stolen Products; (v) modification of the Software or Product that has not been approved by Peak Roots in writing; (vi) maintenance or repair of the Software and Products not performed or approved by Peak Roots; (vii) faults, failures or damages caused by intentional or negligent behavior; or (v) consumable or replaceable items.
8.6 Additional Terms. If Peak Roots replaces a defective Product pursuant to a warranty claim, the replaced Product will become the property of Peak Roots at Peak Roots’ option. If Peak Roots notifies in writing of Peak Roots’ election to own the original Product, Customer shall return the original Product to Peak Roots within five (5) days after the replacement is provided. Customer is solely responsible for the cost of returning the original Product and all damage incurred during the return shipment to Peak Roots. The warranty term for a Product provided to correct a warranty claim is the unexpired term of the warranty for the repaired or replaced Product.
8.7 EXCLUSION OF DAMAGES. IN NO EVENT WILL PEAK ROOTS OR ANY OF ITS REPRESENTATIVES 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, ANY DEFECT OR NONCONFORMITY IN ANY PRODUCT OR SOFTWARE, OR THE USE OF, OR INABILITY TO USE, ANY PRODUCT, SOFTWARE OR CREATIVE WORK, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND (D) NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
8.8 LIMITATIONS ON LIABILITY.
(a) PEAK ROOTS’ ENTIRE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR DAMAGES INCURRED BY CUSTOMER FROM ANY CAUSE, REGARDLESS OF THE FORM OF ACTION, ARISING UNDER THIS AGREEMENT OR OTHERWISE RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER IN ANY WAY, WILL NOT EXCEED THE PRICE ACTUALLY PAID BY CUSTOMER TO PEAK ROOTS FOR THE PRODUCT, CREATIVE WORK, OR SOFTWARE THAT IS THE BASIS FOR OR THE SUBJECT OF THE CLAIM. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE LIMITED REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
(b) UNDER NO CIRCUMSTANCE WILL PEAK ROOTS BE LIABLE FOR ANY DAMAGES CAUSED BY OR RESULTING FROM (I) THE USE, OPERATION, SERVICE OR MODIFICATION OF ANY PRODUCTS, SOFTWARE, OR CREATIVE WORK CONTRARY TO RELEVANT MANUALS, WRITTEN WARNINGS, AUTOMATED WARNINGS, OR INSTRUCTIONS OF PEAK ROOTS OR THE MANUFACTURER; (II) THE USE OF PRODUCTS, SOFTWARE, OR CREATIVE WORKS IN CONJUNCTION WITH THIRD-PARTY PRODUCTS OR SOFTWARE, UNLESS USE HAS BEEN EXPRESSLY AUTHORIZED IN WRITING BY PEAK ROOTS; OR (III) THE USE OF ANY THIRD-PARTY PRODUCT SUPPLIED BY PEAK ROOTS AS A CONVENIENCE TO THE CUSTOMER THAT IS NOT MANUFACTURED BY OR GENERALLY OFFERED BY PEAK ROOTS.
Section 9 INDEMNITY
9.1 Indemnification. Subject to the terms of this Agreement, Customer (as “Indemnifying Party”) shall indemnify, defend and hold harmless Peak Roots and all of Peak Roots’ past, present, and future officers, directors, shareholders, employees, agents, affiliates, successors, insurers, and permitted assigns (collectively, “Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, penalties, fines, costs, and expenses of every kind, including, without limitation, reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by any of the Indemnified Parties, whether suffered directly or from a third-party claim (collectively, “Losses”), relating to, arising out or resulting from any alleged: (a) breach or non-fulfillment of any of Indemnifying Party’s representations, warranties, or covenants set forth in this Agreement; (b) any grossly negligent or more culpable act or omission of or by Indemnifying Party (including any recklessness or willful misconduct) in connection with Indemnifying Party’s performance under this Agreement; (c) any bodily injury, death of any person or damage to real or tangible personal property caused by or resulting from any willful or negligent act or omission of Indemnifying Party; or (d) failure by Indemnifying Party to comply with any applicable law, rule or regulation.
9.2 Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify or defend Peak Roots against any claims or corresponding Losses to the extent directly resulting from Peak Roots’ gross negligence or more culpable act or omission (including recklessness or willful misconduct), or from Peak Roots’ bad faith failure to materially comply with any of its obligations set forth in this Agreement.
Section 10 CONFIDENTIAL INFORMATION
10.1 Use Restrictions and Nondisclosure Obligations. During the Restricted Period:
(a) Customer and its Representatives’ use of any Confidential Information is and will be strictly limited to the specific purposes and uses for which the Confidential Information was disclosed;
(b) Customer shall not disclose Confidential Information to any person without Peak Roots’ specific prior written authorization, except Customer may disclose Confidential Information: (1) on a need-to-know basis, to Representatives of Customer who (i) are informed by Customer of the confidential nature of the Confidential Information and the obligations of Customer under this Section 10; and (ii) have signed nondisclosure agreements with or in favor of Customer and for the benefit of Peak Roots that are at least as comprehensive as this Section 10; or (2) in accordance with a judicial order, but only if Customer promptly notifies Buyer of the order prior to disclosure and complies with any applicable protective or similar order;
(c) Customer agrees not to: (i) reverse engineer any Product, Creative Work, or Software; or (ii) take any Product apart to determine how it works;
(d) Customer shall maintain any Confidential Information in its possession or control with the same degree of care that Customer uses to protect its own confidential and proprietary information of a like nature, but in no event less than a reasonable degree of care; and
(e) Customer shall cause Customer’s Representatives to comply with the provisions of this Section 10.
10.2 Notification and Assistance Obligations. During the Restricted Period, Customer shall: (a) promptly notify Peak Roots in writing of any unauthorized use or disclosure of Confidential Information, or any other breach of this Agreement; and (b) assist Peak Roots in every reasonable way in retrieving any Confidential Information that was used or disclosed by Customer or Customer’s Representatives without Peak Roots’ specific prior written authorization and to mitigate the harm caused by the unauthorized use or disclosure.
10.3 Exceptions. Customer will not breach Section 10.1 above by using or disclosing Confidential Information if Customer proves that the information used or disclosed: (a) is generally available to the public other than as a result of a disclosure by Customer or a Representative of Customer; (b) was received by Customer from another person without any limitations on use or disclosure, but only if Customer had no reason to believe that the other person was prohibited from using or disclosing the information by a contractual or fiduciary obligation; or (c) was independently developed by Customer without using Confidential Information.
10.4 Return of Confidential Information. On the termination of this Agreement, Customer shall promptly return to Peak Roots all materials furnished by Peak Roots containing Confidential Information, together with all copies and summaries of Confidential Information in Customer’s possession or control.
10.5 Injunctive Relief. Customer hereby acknowledges and agrees that any violation of this Section 10 will cause Peak Roots irreparable harm and damage and that damages at law will be an insufficient remedy for any violation of this Section 10. Accordingly, Peak Roots will be entitled, on application to a court of competent jurisdiction, to obtain injunctive relief to enforce the provisions of this Section 10, which injunctive relief will be in addition to any other rights or remedies available to Peak Roots.
10.6 No Transfer. This Section 10 does not transfer any ownership rights to any Confidential Information.
10.7 No Representations or Warranties. Peak Roots makes no representations or warranties, either express or implied, with respect to the accuracy or completeness of any Confidential Information.
Section 11 DISPUTES AND ARBITRATION DISPUTES AND ARBITRATION
Any controversy or claim arising from or related to this Agreement or its subject matter will be exclusively settled by binding arbitration before a single arbitrator in Maricopa County, Arizona. The arbitration will be conducted in the English language. If the parties agree on an arbitrator, the arbitration will be held before the arbitrator selected by the parties. If the parties do not agree on an arbitrator, each party will designate an arbitrator and the arbitration will be held before a third arbitrator selected by the designated arbitrators. Each arbitrator will be an attorney knowledgeable in the area of business or commercial law. Arbitration may be initiated and will be deemed to have commenced on one party’s filing a claim with
JAMS Arizona Mediation, Arbitration and ADR Services, and will be conducted in accordance with the then-current rules of ASP. The resolution of any controversy or claim as determined by the arbitrator will be final and binding on the parties. Judgment on the arbitrator's award may be entered by any party in any court having jurisdiction. A party may seek from a court an order to compel arbitration, or any other interim equitable relief or provisional remedies pending a final arbitration award. Any such action or proceeding must only be brought in a local, state or federal court located in Maricopa County, Oregon, and each party consents and submits to the jurisdiction of any such court. For purposes of this Agreement, the United States District Court for the District of Arizona is deemed located in Maricopa County, Oregon.
Section 12 CUSTOMER ACKNOWLEDGEMENT
12.1 Legal Use. Customer acknowledges and agrees that Peak Roots makes no representations or warranties regarding the applicability or non-applicability of any law, rule or regulation to Customer’s business or use or planned use of the Products, Software, or Creative Work. It is Customer’s sole and exclusive responsibility to determine whether its business meets applicable legal requirements. Customer assumes the entire risk of engaging in any activity that may violate local, state, or federal law, rules or regulations, even if that activity is within the intended use of the Products, Software, or Creative Work.
12.2 Indemnification. In addition to, and not in limitation of, Customer’s other indemnity obligations under this Agreement, Customer shall indemnify, defend and hold harmless Peak Roots and Peak Roots’ past, present, and future officers, directors, shareholders, employees, agents, affiliates, successors, insurers, and permitted assigns (collectively, “Peak Roots Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, penalties, fines, costs, and expenses of every kind, including, without limitation, reasonable attorneys’ fees and the fees and costs of enforcing any right to indemnification under this paragraph, incurred by any of the Peak Roots Parties relating to, arising out of, or resulting from any claim, whether civil or criminal and whether suffered directly or from a third-party claim, alleging that Customer’s use of the Products, Software, or Creative Work violates state or federal law, is part of an illegal enterprise, or is in furtherance of an illegal enterprise.
Section 13 GENERAL TERMS
13.1 Amendment. Except as otherwise provided in this Agreement, including without limitation, Section 2.2(b) of these Terms, his Agreement may be amended only by a written agreement signed by each party.
13.2 Force Majeure. Peak Roots will not be liable to Customer for any delay in performance which results from or is due to an act or God, or any other cause beyond Peak Roots’ reasonable control, including, without limitation, changes in any law or law enforcement which may impact Customer’s or Peak Roots’ business (each a “Force Majeure Event”). Performance by a party will be deemed suspended during the event causing the delay plus a reasonable period of time after such event, and the Customer will accept such delayed performance. Either party may terminate this Agreement if such performance is delayed more than ninety (90) days due to the occurrence of such Force Majeure Event. A Force Majeure Event does not suspend, delay, or stay the timelines under Section 2.6
13.3 No Assignment. Customer may not assign or delegate any of Customer’s rights or obligations under this Agreement to any person without the prior written consent of Peak Roots, which Peak Roots may grant or withhold in Peak Roots’ sole discretion. If Customer is an entity, an assignment includes, but is not limited to, a transfer of shares or other ownership interests of Customer that results in a change in the party owning more than 50% of the shares or other ownership interests of the Customer, regardless of whether the transfer occurs voluntarily or involuntarily, by operation of law, or because of any act or occurrence.
13.4 Governing Law. This Agreement is governed by the laws of the State of Oregon, the state in which this Agreement is deemed to have been executed and delivered, without giving effect to any conflict-of-law principle that would result in the laws of any other jurisdiction governing this Agreement, including, without limitation, the Convention on Contracts for the International Sale of Goods (CISG), which is specifically disclaimed.
13.5 Waiver, Severability, Binding Effect. No waiver will be binding on a party unless it is in writing and signed by the party making the waiver. A party’s waiver of a breach or a provision of this Agreement will not be a waiver of any other provision or a waiver of a subsequent breach of the same provision. If a provision of this Agreement is determined to be unenforceable in any respect, the enforceability of the provision in any other respect and of the remaining provisions of this Agreement will not be impaired. This Agreement will be binding on the parties and their respective heirs, personal representatives, successors, and permitted assigns, and will inure to their benefit.
13.6 Construction. The language in all parts of this Agreement will in all cases be construed according to its fair meaning and not strictly for or against any of the parties to this Agreement. Without limitation, there will be no presumption against any party on the ground that such party was responsible for drafting this Agreement or any part of it. The headings contained in this Agreement are for convenience of reference only and do not define, limit, or enlarge the scope or meaning of the provisions of this Agreement. For purposes of this Agreement, the term “person” means any natural person, corporation, limited liability company, partnership, joint venture, firm, association, trust, unincorporated organization, government or governmental agency or political subdivision, or any other type of entity. All pronouns contained herein and any variations thereof will be deemed to refer to the masculine, feminine, or neutral, singular or plural, as the identity of the parties may require. The singular includes the plural and the plural includes the singular. The words “include,” “includes,” and “including” are not limiting.
13.7 Notice. All notices or other communications required or permitted by this Agreement must be in writing and are considered delivered: (i) on actual receipt if delivered personally, by electronic mail, or by a nationally recognized overnight delivery service; or (ii) at the end of the third business day after the date of deposit in the United States mail, postage prepaid, return receipt requested. Notices to Peak Roots must be delivered to: Peak Roots, Inc., 3655 W Anthem Way, Ste A-109-387, Anthem AZ 85056, United States; email: sales@peakroots.com. Notices to Customer will be delivered to the address or email identified in the Quote. Either party may designate a new address for notices by written notice to the other party.
13.8 Remedies. Subject to the other provisions of this Agreement, including, without limitation Sections 7.2 and 8 above, the parties will have all remedies available to them at law or in equity. All available remedies are cumulative and may be exercised singularly or concurrently.
13.9 Attorney’s Fees. If any arbitration, action, suit, or proceeding is instituted to interpret, enforce, or rescind this Agreement, or otherwise in connection with the subject matter of this Agreement, including but not limited to any proceeding brought under the United States Bankruptcy Code, the prevailing party on a claim will be entitled to recover with respect to the claim, in addition to any other relief awarded, the prevailing party’s reasonable attorney's fees and other fees, costs, and expenses of every kind, including but not limited to the costs and disbursements specified in ORCP 68 A(2), incurred in connection with the arbitration, action, suit, or proceeding, any appeal or petition for review, the collection of any award, or the enforcement of any order, as determined by the arbitrator or court.
13.10 No Agency Relationship. This Agreement do not create an agency relationship between the parties and do not establish a joint venture or partnership between the parties. Neither party has the authority to bind the other party or represent to any person that the party is an agent of the other party.