Stark Tech Operating Company, LLC and Stark Tech Services, LLC is herein referred to as the “Seller.” The customer purchasing services (“Services”) from Seller is referred to as the “Buyer.” These Terms and Conditions and any price list, price schedule, quotation, acknowledgment, Seller’s scope or statement of work, or invoice from Seller relevant to the provision of services by Seller, and all associated terms, conditions, and documents are incorporated by specific reference herein or therein, constitute the complete and exclusive statement of the terms of the agreement (the “Agreement”). Any discrepancies between the terms of the foregoing referenced documents shall be resolved by Seller, in Seller’s complete and absolute discretion. These Terms and Conditions may be updated or changed, from time to time, and it is the Buyer’s responsibility to periodically review these Terms and Conditions to be aware of updates or changes.   

Any Seller acceptance of a Buyer’s purchase order or service request is expressly conditioned on Buyer’s assent to the herein Terms and Conditions of Sale, including terms and conditions that are different from or additional to the terms and conditions of Buyer’s purchase order and/or terms and conditions of purchase. Buyer’s payment of any of the price, including tendering any down payment or deposit and/or acceptance of any of the Services expressly manifests Buyer’s assent to these Terms and Conditions. Seller reserves the right in its sole discretion to refuse orders or decline requests for service.  

1. Price. Unless otherwise specified in writing by Seller, the price quoted or specified by Seller for Services shall remain in effect for thirty (30) days after the date of Seller’s quotation, or Seller’s acknowledgment of Buyer’s order for the Services, whichever occurs first, provided that an unconditional authorization from Buyer, for performance of the Services, is received and accepted by Seller within such time period. If such unconditional authorization is not received by Seller within the thirty (30) day period, Seller shall have the right to change the price for the Services at the time of Seller’s performance thereof. Unless otherwise stated, all prices and licensee fees are exclusive of sales or use taxes, transportation, and insurance, which are to be borne by Buyer. Seller reserves the right to correct any obvious errors in specifications or prices, and in the event of a force majeure event to make equitable adjustments in Seller’s price for Services prior to Seller’s performance thereof. Unless otherwise specified by Seller, any parts that are required for the performance of Services will be furnished at Seller’s then prevailing prices.
2. Taxes. Any current or future tax (exclusive of income taxes), duty, tariff, or governmental charge (or increase in same) affecting Seller’s costs of sale, services, delivery, or shipment of any parts, and/or which Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, performance, and/or performance of the Services shall be for Buyer’s account and shall be added to the price or billed to Buyer separately at Seller’s election unless Buyer provides evidence of an applicable exemption from any such tax. 
3. Terms of Payment. Unless the Seller and Buyer enter into a purchase agreement, purchase order, or similar agreement that expressly provides terms of payment, the Buyer shall pay the total cost of the order net thirty (30) days from the date of possession of Services by Seller. Seller shall have the right, among other remedies, either to terminate the sale or to suspend further performance under this and/or other agreements with Buyer, in the event Buyer fails to make any payment when due. Buyer shall be liable for any and all expenses, including attorneys’ fees, relating to the collection of past due amounts. If any payment owed to Seller is not paid when due, it shall bear interest at the rate of one percent (1%) per month not to exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Seller may preserve its payment rights by enforcing any applicable mechanic’s, labor, construction, or similar lien rights. Should Buyer’s financial responsibility become unsatisfactory to Seller, payment in advance, cash payments or security satisfactory to Seller may be required by Seller for future deliveries or performance of Services. If such cash payment or security is not provided, in addition to Seller’s other rights and remedies, Seller may discontinue deliveries or performance.
4. Cancellation. Buyer may cancel orders only upon reasonable advance written notice. If Buyer cancels an order, Buyer will be subject to Seller’s cancellation charges, which may include among other things, all costs and expenses incurred and any cancellation charges in connection with the procurement of any parts or other materials by Seller in connection with the Services. Seller’s determination of such cancellation charges shall be conclusive. 
5. Performance. All performance dates are approximate and not guaranteed. Seller will use reasonable commercial efforts to maintain the Services performance dates acknowledged or quoted by Seller. Performance of the Services is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other reasonable additional expenses resulting therefrom. 
6. Limited Warranty. Subject to the limitations of Section 7, the herein provided warranty is the only warranty provided by Seller applicable to the Services. Seller warrants that it will perform the services to be provided and will exercise all commercially reasonable skill, care, and due diligence in the performance of the services. Seller warrants that Services shall be free from faulty workmanship for a period of twelve (12) months after completion of the services (the “Warranty Period”). If any part of the Services fails to conform to the warranty during the Warranty Period, Seller at its option will repair or replace the failed portion. Any new repair or replacement does not extend or restart the original Warranty Period. This warranty extends only to the original Buyer, and it is not transferable or assignable without the prior written consent of the Seller. The warranty does not include possible shipping costs, product removal, external resetting of circuit breakers or other equipment, or loss of refrigerant.

Any parts, and/or other materials purchased by Seller from a third party for resale to Buyer (“Resale Products”) shall carry only the warranty extended by the original manufacturer. To the extent assignable, Seller assigns to Buyer any warranties that are made by manufacturers and suppliers of such Resale Products. Seller makes NO REPRESENTATIONS as to the effectiveness or extent of such warranties, assumes NO RESPONSIBILITY for any matters which may be warranted by such manufacturers or suppliers and extends no coverage under this warranty to such Resale Products. 

EXCEPT AS SPECIFIED ABOVE, RESALE PRODUCTS FURNISHED HEREUNDER ARE FURNISHED AS IS, WHERE-IS, WITH NO WARRANTY WHATSOEVER. THE WARRANTY SET FORTH IN THIS SECTION 6 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT ANY AND ALL PARTS AND/OR SERVICES SELLER MAY PROVIDE AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS, OR OTHERWISE, AND WHETHER OR NOT SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE. SELLER’S WARRANTY EXTENDS ONLY TO PURCHASERS WHO BUY FOR INDUSTRIAL OR COMMERCIAL USE. This warranty does not extend to any losses or damages due to misuse, accident, abuse, neglect, normal wear and tear, negligence (other than Seller’s), unauthorized modification or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions, improper installation, repair, handling, maintenance, or application or any other cause not the fault of Seller. To the extent that Buyer or its agents have supplied specifications, information, representation of operating conditions, or other data to Seller for Seller to utilize for the selection or design of parts, and the preparation of Seller’s quotation and/or scope of work, in the event that actual operating conditions or any other information or data differs from that represented or provided by Buyer and relied upon by Seller, any warranties or other provisions contained herein that are affected by such differing conditions, information, or data shall be null and void. Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Goods, Parts, and/or Software, either alone or in combination with other products/components. 

7. Limitation of Remedy and Liability. THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER SHALL BE LIMITED TO REPAIR, REPLACEMENT, OR REFUND OF THE PURCHASE PRICE. SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND THE REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC SERVICES PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS SHALL NOT EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES. The term “consequential damages” shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use, revenue, reputation and data, costs incurred, including without limitation, for capital, fuel, power and loss or damage to property or equipment. It is expressly understood that any technical advice furnished by Seller with respect to the use of the Goods, Parts, and/or Software is given without charge, and Seller assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Buyer’s risk. 
8. Insurance. Seller may maintain the following insurance or self-insurance coverage: Worker’s Compensation, Employer’s Liability, Commercial General Liability, and Automobile Liability insurance. Buyer expressly acknowledges and agrees that Seller has set its prices and entered into this Agreement in reliance upon the limitations of liability for its insurance coverage, and other terms and conditions herein, which allocate the risk between Seller and Buyer and form a basis of this bargain between the parties. 
9. Excuse of Performance. Seller shall not be liable for delays in performance or for non-performance due to acts of God; acts of Buyer; war; viral outbreaks, disease, pandemic, widespread sickness or epidemic; fire; flood; weather; sabotage; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; unavailability of or delays in the supply of materials, components, parts or labor or the performance by Seller hereunder; default of suppliers; or unforeseen circumstances, acts or omissions of Buyer, or any events or causes beyond Seller’s reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of any of the foregoing, but the balance of the sale shall otherwise remain unaffected as a result of the foregoing.
10. Changes. Buyer may request changes or additions to the Services. In the event such changes or additions are accepted by Seller, Seller may revise the price, and dates of delivery and/or performance dates. 
11. Assignment. Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Seller, and any such assignment, without such consent shall be void, as if having never been made.  
12. Documentation. Seller shall provide Buyer with the data/documentation which is specifically identified in Seller’s quotation. If additional copies of data/documentation are to be provided by Seller, it shall be provided to Buyer at Seller’s applicable prices then in effect. 
13. Billable Services. Additional charges will be billed to Buyer at Seller’s then prevailing labor rates and part prices for any of the following: (a) any services not specified in Seller’s quotation, Seller’s order acknowledgement, Seller’s scope of work, or other documents referenced herein and therein; (b) any services performed at times other than Seller’s normal service hours; (c) if timely and reasonable site and/or equipment access is denied the Seller service representative; (d) if it is necessary, due to local circumstances, to use union labor or hire an outside contractor, Seller service personnel will provide supervision only and the cost of such union or contract labor will be charged to Buyer; (e) if service or repair is necessary to return equipment to proper operating condition as a result of Buyer’s (i) modification, or faulty repair or maintenance, (ii) misuse or neglect, (including, without limitation, failure to maintain facilities and equipment in a reasonable manner), and (iii) failure to operate equipment in accordance with applicable specifications; (f) Seller’s performance is made more burdensome or costly as a result of Buyer’s failure to comply with its obligations herein, or (g) any additional obligations or requirements, including but not limited to those related to insurance requirements, service delivery, building entry, or technical training. 
14. Non-Solicitation. Buyer shall not solicit, directly or indirectly, or employ any employee of Seller during the period any Services are being provided to Buyer and for a period of one (1) year after the last provision of Goods. 
15. General Provisions. These Terms and Conditions supersede all other communications, negotiations, and prior oral or written statements regarding the subject matter of this Agreement. No change, modification, rescission, discharge, abandonment, or waiver of these Terms and Conditions shall be binding upon the Seller unless made in writing and signed on its behalf by a duly authorized representative of Seller. No conditions, usage of trade, course of dealing or performance, understanding, or agreement purporting to modify, vary, explain, or supplement this Agreement shall be binding unless hereafter made in writing and signed by the party to be bound. No modification or additional terms shall be applicable to this Agreement by Seller’s receipt, acknowledgment, or acceptance of Buyer’s purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms of Buyer’s purchase orders are specifically rejected and deemed a material alteration hereof. If this document shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any additional or different terms set forth herein. Seller reserves the right to subcontract performance of Services to others. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgment, or publication are subject to correction. 

The validity, performance, and all other matters relating to the interpretation and effect of this Agreement shall be governed by the law of the state of New York without regard to its conflict of laws principles. Buyer and Seller agree that the proper and exclusive jurisdiction and venue for all actions arising in connection herewith shall be only in the State of New York, waiving any and all objections to jurisdiction and venue on the basis of forum non conveniens or otherwise. No action arising out of transactions relating to this contract, may be brought by either party more than two (2) years after the cause of action has accrued. The U.N. Convention on Contracts for the International Sales of Goods shall not apply to this agreement. 

16. Additional Service Conditions. If needed for the scope of work, the Buyer shall furnish to Seller, at no cost, suitable working space, storage space, adequate heat, telephone, light, ventilation, regulated electric power and outlets for testing purposes. Such testing shall take place at the site where the Services are to be performed or at facilities within a reasonable distance. Seller and its representatives shall have full and free access to the site necessary to provide the Services. Buyer authorizes Seller to send a service technician or an authorized agent to access any site requested by Buyer to perform services, including services on different scopes of work as requested by Buyer. Buyer shall provide the means to shut-off and secure electric power to the equipment and provide safe working conditions. Seller is under no obligation to remove or dispose of parts or equipment unless specifically agreed upon in Seller’s scope of work. Buyer shall immediately inform Seller, in writing, at the time of order placement and thereafter, of any unsafe or hazardous substance or condition at the site, including, but not limited to, the presence of asbestos or asbestos-containing materials, and shall provide Seller with any applicable material data safety sheets regarding the same. Any losses, costs, damages, claims, and expenses incurred by Seller as a result of Buyer’s failure to so advise Seller shall be borne by Buyer. Seller, in its sole discretion and without cost or penalty, reserves the right to cancel its performance under this Agreement or any order immediately upon written notice to Buyer following Seller discovery of unsafe or hazardous site substance or condition or any other circumstance altering Seller’s performance hereunder. Buyer shall appoint a representative, familiar with the site and the nature of Seller’s performance, to be accessible at all times that Seller personnel are at the site. Seller shall not be liable for any expenses incurred by Buyer in removing, replacing, or refurbishing any Buyer equipment or any part of Buyer’s building structure that restricts Seller access. Buyer personnel shall cooperate with and provide all necessary assistance to Seller. Seller shall not be liable or responsible for any work performed by Buyer. 

17. Indemnity. Each party shall indemnify and hold the other party harmless from loss, damage, liability, or expense resulting from damage to personal property of a third party, or injuries, including death, to third parties to the extent caused by a negligent act or omission of the party providing indemnification or a party’s subcontractors, agents, or employees during performance of services hereunder. Such indemnification shall be reduced to the extent damage or injuries are attributable to others and in no event shall the indemnifying party be obligated to indemnify or insure the other party for the indemnitee’s own fault or negligence. The indemnifying party shall defend the other party in accordance with and to the extent of the above indemnification, provided that the indemnifying party is: (i) promptly notified by the other party, in writing, of any claims, demands or suits for such damages or injuries; (ii) given all reasonable information and assistance by the other party; (iii) given full control over any resulting negotiation, arbitration or litigation, including the right to choose counsel and settle claims, or the indemnifying party’s obligations herein shall be deemed waived.