COPPERBROOK LABS, INC.

 

TERMS & CONDITIONS

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These Terms and Conditions are incorporated into and made a part of any  proposed purchase order, service order, Equipment order, estimate, invoice or any other document referencing either these Terms and Conditions or the  provision of Equipment and services from CopperBrook Labs Inc.  (“CopperBrook”) to Customer (the “Proposal”). ANY AGREEMENT,  WHETHER WRITTEN OR ORAL, MADE BY AND BETWEEN COPPERBROOK AND A CUSTOMER AND PURSUANT TO A PROPOSAL  IS EXPRESSLY CONDITIONED UPON THESE TERMS AND  CONDITIONS, WHICH ARE INCORPORATED INTO SUCH AGREEMENT.  Any terms and conditions in any Proposal or other writing relating to the  transaction between CopperBrook and Customer, which are in conflict or  inconsistent with or added to the Terms and Conditions hereof, will not be  acceptable or become part of the Parties’ agreement without CopperBrook’s  express written consent.1 

  1. ACCEPTANCE. Unless otherwise agreed upon by the Parties in writing,  Customer has thirty () days from the date of a Proposal to accept the  Proposal and notify CopperBrook in writing. Upon confirmation by  CopperBrook of Customer’s acceptance of the Proposal, these Terms and  Conditions shall become a binding and enforceable agreement between the  Parties. 
  2. PRICE AND PAYMENT TERMS. CopperBrook will fulfill its Proposal,  whether for the provision of Equipment or services, for the price specified in  the Proposal. If the price listed in the Proposal is incorrect, Customer must  reject the Proposal and notify CopperBrook of such rejection. The price in  the Proposal shall include all amounts to be charged to Customer unless  additional costs or charges set forth in the Proposal are agreed upon by the  Parties in writing. Customer shall pay all amounts due under the Proposal  within thirty () days from invoice date, unless otherwise agreed in writing. 

If payments due and owing are not received within thirty () days, Customer shall pay interest at the rate of one and one-half percent  (. %) per month (% per annum) on the entire outstanding balance until  paid in full. CopperBrook shall have the right to immediately repossess the  Equipment from Customer in the event of a default in payment terms. In  addition, Customer shall be obligated to pay to CopperBrook all costs to  collect outstanding balances, including reasonable attorneys’ fees.  Customer grants a security interest to CopperBrook for all Equipment purchases from CopperBrook until said Equipment and all related charges  are fully paid. Customer shall cooperate in the execution and filing of any Uniform Commercial Code Financing Statements for all Equipment not fully  paid for in advance or at time of delivery. 

III. FEES AND TAXES. Customer shall pay any taxes or fees for or imposed  by any governmental body on the sale, delivery, use, or other handling of  Equipment sold hereunder, the performance of any Work in connection with  this Proposal or any transactions contemplated hereby. Customer further  agrees to pay all federal, state and local fees, whether for permitting or  otherwise, relating to the installation of any Equipment. If CopperBook is  required to pay any taxes or other fees relating to its provision of goods or  services, Customer shall be required to reimburse CopperBrook for any  such taxes or fees, and any related penalties or costs. 

IV. WARRANTY. Unless otherwise stated in the Proposal, CopperBrook warrants and represents the Equipment will be free from defects in material  and workmanship, will be of the kind and quality herein designated or  described, and will conform to the specifications set forth in the Proposal for  a for a period equal to twelve () months after delivery of the Equipment (the “Warranty Period”). If within the Warranty Period, CopperBrook receives  written notice promptly after the discovery of any non-conformance to the  above warranties, CopperBrook shall correct each such defect, at its election, either by repairing or replacing any defective part(s) of the  Equipment. The liability of CopperBrook to Customer arising out of the  foregoing, whether under warranty, tort, contract, negligence, strict liability or otherwise, shall not in any case 

BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL,  

installed by CopperBrook. “Work” refers to the installation of Equipment

CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER,  INCLUDING WITHOUT LIMITATION THE LOSS OF USE OF  PRODUCTIVE FACILITIES OR EQUIPMENT, LOST PROFITS,  GOVERNMENTAL FINES OR PENALTIES, PROPERTY DAMAGES,  PERSONAL INJURIES OR LOST 

PRODUCTION, WHETHER SUFFERED BY CUSTOMER OR ANY THIRD  PARTY, IRRESPECTIVE OF WHETHER CLAIMS OR ACTIONS FOR SUCH DAMAGES ARE BASED UPON  CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR  OTHERWISE. 

  1. PROPRIETARY MATERIAL. All drawing, patterns, specifications and  information included in the Proposal, and all information otherwise supplied  by CopperBrook relating to the design, erection, operation, and  maintenance of the Equipment is the proprietary and/or confidential or  information of CopperBrook. Customer shall not disclose such material or 

information to others or allow others to use such material or information  except as required for Customer to obtain service for the Equipment. 

  1. LICENSES AND PERMITS. CopperBrook and/or its subcontractors shall  obtain any required contractors’ licenses. All other licenses and/or permits  shall be supplied by Customer. 

XII. INSURANCE. CopperBrook and/or its subcontractors shall maintain the  following insurance coverage during the erection schedule: Workmen’s  compensation as required by statute; and Employer’s Liability with a limit of  liability of $,. Comprehensive General Liability including Completed  Operations with the following limits: 

Bodily Injury 

$,, Each Occurrence $,, Aggregate 

$,, Each Occurrence $,, Aggregate

Property  

Damage 

CopperBrook’s responsibility under its insurance shall cease and such coverage shall be canceled upon Copperbrook’s decision, in its sole  discretion, the Work in the Proposal is complete. A Certificate of Insurance  shall be furnished upon request. 

XIII. WAIVER OF SUBROGATION. CopperBrook and Customer waive their  rights and their respective insurance carriers’ subrogation rights against  each other with respect to any property damage. In the event the Customer is not the Owner of the facilities where the Equipment is being erected or  installed the Customer agrees to include a provision in its contract with the  Owner of such facilities requiring the Owner to supply CopperBrook with a  written waiver of its rights of recovery and its insurance carrier’s right of  subrogation against CopperBrook as specified herein. 

XIV. ASSIGNMENT/SUBCONTRACT. CopperBrook may  assign/subcontract all or any portion of the contract included in the Proposal. 

XV. INTERPRETATION AND ENFORCEMENT. Any agreement between

exceed the cost of correcting defects in  the goods and services and upon the expiration of said warranty, all such  

1 CopperBrook and Customer are collectively referred to as the “Parties”.  “Equipment” refers to the equipment referenced in the Proposal to be  

liability shall terminate. Except as otherwise expressly set  forth herein, THERE ARE NO OTHER WARRANTIES,  EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES  OF MERCHANTABILITY OR FITNESS FOR A  PARTICULAR PURPOSE. Liability of CopperBrook under  this warranty is conditioned upon the Equipment being  handled, operated, and maintained in accordance with the  written instructions provided or approved in writing by  CopperBrook The warranties specified above do not cover,  and CopperBrook makes no warranties which extend to  damage due to deterioration or wear or failure occasioned  by chemicals, abrasion, corrosion or erosion; Customer’s  misapplication; abnormal conditions of temperature or dirt; or operation of  

Equipment other than as instructed in writing. CopperBrook’s sole  responsibility, and Customer’s exclusive remedy hereunder, shall be limited  to such repair or replacement as above provided. 

  1. FORCE MAJEURE. CopperBrook shall not be responsible for any losses  or damages to Customer (or any third person) occasioned by delays in the  performance or the nonperformance of any of CopperBrook’s obligations  under any Proposed or these Terms and Conditions, or by loss of or damage  to any of the Equipment specified in the Proposal when caused directly or  indirectly by acts of God, acts of government or military authority, casualty,  riot, pandemic, acts of Customer, strikes or other labor difficulties, shortages  of labor, supplies, and transportation facilities or any other cause beyond  CopperBrook’s control. The schedule shall be adjusted in accordance with  the impact of any such delay or postponement and the price shall be  equitably adjusted to include all additional costs, including overheads, plus  a reasonable profit thereon. 
  2. CANCELLATION. Customer may cancel any contract resulting from a Proposal only upon written notice to CopperBrook and only upon such terms  as will indemnify and reimburse CopperBrook for all loss or damage  resulting there from including, without limitation, CopperBrook’s direct costs incurred, overhead, reasonable contract profits, costs, and expenses to  which CopperBrook has become committed for fulfillment of the contract  prior to cancellation, plus reasonable settlement expenses. 

VII. LAWS AND REGULATIONS. CopperBrook does not assume and  expressly disclaims any responsibility or liability for compliance with any  federal, state, and local laws and regulations unless expressly set forth in the Proposal. If Customer desires a modification to the Equipment as a result  of a revision or change in any applicable laws or regulations, such  modification shall be treated as a Change Order.  

VIII. CHANGE ORDERS. Customer may make changes to the general  scope of Work, or to the plans or Equipment specifications in the Proposal  by giving CopperBrook written notification of such change in a Change  Order. (“Change Order”). CopperBrook shall submit to the Customer in  writing the changes required to the Price in the Proposal and to the  fabrication and revision of any Work schedule resulting from a Change  Order. CopperBrook shall have no obligation to proceed with a Change  Order until CopperBrook and Customer agree in writing to any changes to  the Price and Work schedule based on a Change Order.  

IX. LIMITATION ON LIABILITY. Whether based upon contract, tort,  warranty, negligence, strict liability or otherwise, CopperBrook’s  responsibility for any claims, damages losses or liabilities arising out of or  related to its performance of this Proposal or the Equipment covered  hereunder, including but not limited to any correction of Equipment defects  under the Warranty or any applicable performance guarantees, shall not  exceed the Price in the Proposal. IN NO EVENT, SHALL COPPERBROOK

and  all other services provided by CopperBrook to Customer under the Proposal.

the Parties shall be construed according to the laws of the State of  Wisconsin without giving effect to the conflict of law provisions thereof and  suit may be instituted for the enforcement thereof in any state or federal  court situated in Wisconsin. 

XVI. OSHA. Customer represents and warrants it is familiar with,  responsible for, and insures that the setup, construction or installation facility  for all Equipment complies with all federal and state occupational safety and  health standards and regulations, including without limitation the  Occupational Safety and Health Act of , as amended, and all regulations  thereunder (“OSHA”). Customer agrees to indemnify and hold CopperBrook,  its employees, agents and subcontractors harmless from any and all  violations under all applicable federal and state occupational safety and  health standards and regulations, including without limitation OSHA. 

XVII. EXTENSION OF CONTRACT TIME. If CopperBrook is delayed at any time in progress of the Work by changes  ordered by Customer, by acts of the Customer, or for any  other reason, including without limitation labor disputes,  fire, a delay in deliveries, unavoidable casualties or other  causes beyond CopperBrook’s control, the time for  CopperBrook’s completion of the Work in the Proposal  shall be extended and the Price shall be equitably  increased by a change order for such reasonable time and  amount as the Customer and CopperBrook shall mutual  agree, which consent shall not be unreasonably withheld. 

XVIII. HAZARDOUS CONDITIONS. CopperBrook shall not be responsible  for hazardous materials or a hazardous condition (a “Hazard”) in the Work  environment. If CopperBrook encounters a Hazard, the Parties agree as  follows: (a) CopperBrook shall, upon recognizing the Hazard, immediately  stop Work and report to Customer; (b) CopperBrook shall not continue Work 

in the area until the Hazard has been appropriately abated and CopperBrook has received written direction and approval from the Customer to continue  the Work; (c) CopperBrook and Customer agree to appropriately extend any  deadline for the completion of the Work and equitably amend the Price in  the Proposal to account for the additional costs and delays associated with  the Hazard; (d) to the fullest extent permitted by law, the Customer shall  indemnify and hold harmless CopperBrook and its subcontractors, agents  and employees from and against claims, damages, losses and expenses,  including but not limited to attorneys’ fees and costs, arising out of or  resulting from performance of the Work; and (d) If CopperBrook is held liable 

by a local, state or federal agency for the cost of remediation of a Hazard  solely by reason of performing Work as required by the Proposal then  Customer shall defend and indemnify CopperBrook for all cost and expense  thereby incurred, including without limitation all attorneys’ fees and costs.  

XIV. INDEMNIFICATION. To the fullest extent permitted by law, Customer  agrees to protect, defend, indemnify, and hold harmless CopperBrook, and  each of its shareholders, directors, officers, employees, agents,  representatives, subcontractors, insurers and affiliates from and against any  loss, costs, damages or expense, including attorneys’ fees and costs, and 

any injuries to persons or damage to property (including loss of use), arising  from or relating to the Equipment or Work provided by CopperBrook to  Customer under the Proposal as well as any failure by Customer to comply  with its obligations under these Terms and Conditions.