ALTITUDE CONTROL TECHNOLOGY LLC

EQUIPMENT TERMS OF SALE

These Equipment Terms of Sale (these “Terms”) govern the sale of equipment, software, licenses, and related deliverables (collectively, “Equipment”) by Altitude Control Technology LLC, a Colorado limited liability company (“ACT” or “Seller”), to the buyer identified on the applicable Quote (“Buyer”). These Terms apply to every Quote, Order, and sale unless ACT and Buyer have entered into a signed Master Sales Agreement, in which case these Terms supplement and are incorporated into that agreement.

1. Acceptance; Order of Precedence; Battle of the Forms

1.1 Offer Conditional on These Terms. ACT’s offer to sell Equipment is expressly made conditional on Buyer’s assent to these Terms. Buyer’s issuance of a purchase order in response to a Quote, payment of any invoice issued by ACT, or acceptance of delivery of any Equipment, each independently constitutes Buyer’s acceptance of these Terms.

1.2 Rejection of Buyer Forms. ACT hereby objects to and rejects any additional, different, or conflicting terms, including any preprinted, boilerplate, or referenced terms contained in any purchase order, acknowledgment, invoice, subcontract, contract addendum, web portal, or other document issued by Buyer or any party acting through Buyer (collectively, “Buyer Forms”). No Buyer Form shall modify, supplement, or supersede these Terms, regardless of (a) the order in which documents are exchanged, (b) any reference to such Buyer Form in any document, or (c) ACT’s commencement or completion of performance, even if ACT has not specifically objected to the particular Buyer Form.

1.3 Order of Precedence. The agreement between the parties (the “Sale Agreement”) consists of the following documents, listed in order of precedence: (a) any signed Master Sales Agreement between the parties; (b) the applicable Quote; (c) these Terms; (d) ACT’s Order Acknowledgment, if issued; and (e) the applicable invoice. In the event of a conflict, the document earlier in this list controls.

1.4 No Course-of-Dealing Modification. No course of dealing, course of performance, or trade usage shall modify these Terms.

2. Definitions

Capitalized terms used in these Terms have the meanings set forth below or as defined elsewhere in these Terms.

2.1 “Buyer” means the party identified as “Buyer,” “Customer,” “Contractor,” or similar on the Quote.

2.2 “End User” means the property owner or occupant who ultimately uses the Equipment at the building identified on the Quote, including any person to whom Buyer transfers the Equipment under Section 14.2.

2.3 “Equipment” means the air separation units, gas delivery components, sensors, controllers, electronics, accessories, Software, software licenses, documentation, and other deliverables identified on a Quote, together with all parts, replacements, and substitutions.

2.4 “Installation” means the physical placement, wiring, configuration, calibration, and commissioning of Equipment in a Mechanical Space and connection to a Project Space, performed under a separate written installation agreement and not under these Terms.

2.5 “Mechanical Space” means the room or area within the building (such as a mechanical room, attic, crawl space, basement, closet, or garage) in which the air separation units, controllers, and other Equipment are physically housed and operated.

2.6 “Order” means a purchase order or other written instrument issued by Buyer in response to a Quote.

2.7 “Order Acknowledgment” means a written acknowledgment that ACT may, but is not required to, issue confirming acceptance of an Order.

2.8 “Project Space” means the room(s) or area(s) within the building that the Equipment is intended to supply. The Equipment is physically installed in the Mechanical Space and delivers enriched gas to the Project Space.

2.9 “Quote” means a written quotation issued by ACT identifying Equipment, pricing, and other transaction-specific information.

2.10 “Software” means the firmware, embedded software, mobile and web applications, cloud services, and other software incorporated in, accompanying, or used to operate or monitor the Equipment, including any updates.

3. Quote and Order Process

3.1 Quotes. Each Quote constitutes ACT’s offer to sell the identified Equipment on these Terms and is valid for thirty (30) days from its date unless otherwise stated, after which the Quote expires unless extended in writing by ACT. ACT reserves the right to modify or withdraw a Quote at any time prior to acceptance.

3.2 Acceptance. Buyer accepts a Quote by issuing an Order that references the Quote. Each Order is subject to acceptance by ACT in its sole discretion. ACT may accept an Order by (a) issuing an Order Acknowledgment, (b) issuing the deposit invoice, (c) accepting Buyer’s deposit, or (d) commencing performance. ACT’s acceptance is in every case subject to and conditioned upon these Terms in accordance with Section 1.

3.3 Changes. Once an Order is accepted, no change to scope, specifications, quantities, schedule, or other Order terms is binding on ACT unless agreed in a written change order signed by an authorized officer of ACT. ACT may adjust pricing and lead times in any change order.

3.4 Cancellation. Buyer may cancel an Order subject to Section 5.4.

4. Equipment

4.1 Specifications. Equipment is sold per the descriptions and configurations set forth in the applicable Quote. ACT reserves the right to substitute components of equivalent or better functionality and to make engineering or manufacturing changes that do not materially reduce performance.

4.2 Manufactured-to-Order. Buyer acknowledges that Equipment is engineered and configured to the specific Mechanical Space and Project Space identified on the Quote and is not held in finished inventory. Production typically commences upon receipt of Buyer’s deposit.

4.3 Lead Times. Stated lead times are estimates only and are subject to component availability, supply-chain conditions, and other factors. Time is not of the essence with respect to delivery.

4.4 Reliance on Information Provided by Buyer. If a Quote is prepared based on plans, measurements, photographs, or other information provided by Buyer or its agents in lieu of an on-site inspection by ACT, the Quote and Order are subject to adjustment via change order if such information proves inaccurate or incomplete.

5. Price; Payment Terms; Taxes

5.1 Price. The price for Equipment is set forth on the Quote. Prices are exclusive of all taxes, shipping, freight, insurance, duties, customs, permit fees, inspection fees, code-compliance costs, and similar charges, all of which are Buyer’s responsibility.

5.2 Payment Schedule. Unless otherwise stated on the Quote, Buyer shall pay the Equipment price as follows: (a) a fifty percent (50%) deposit due upon ACT’s acceptance of the Order; and (b) the remaining balance (including all software licenses, engineering fees, taxes, freight, and other charges) due, as specified on the Quote, either (i) prior to shipment or delivery of the Equipment or (ii) on a cash-on-delivery (“C.O.D.”) basis at the time of delivery. Where the balance is due C.O.D., ACT will not unload, leave, or relinquish possession of the Equipment at the delivery site unless and until the C.O.D. payment is collected in cleared funds; if Buyer fails to make the C.O.D. payment at delivery, ACT may, at its option, retain the Equipment, return the Equipment to its facility (with redelivery and storage charges to Buyer’s account), or pursue any other remedy. ACT may withhold shipment, delivery, or installation until all amounts due are received in cleared funds.

5.3 Deposit Non-Refundable. The deposit is non-refundable upon the earlier of (a) thirty (30) days after the date of the deposit invoice or (b) the commencement of assembly or shipment of any Equipment under the Order.

5.4 Cancellation. If Buyer cancels an Order more than thirty (30) days after the date of the deposit invoice, Buyer’s deposit shall be forfeited as ACT’s sole and exclusive remedy for such cancellation, and no additional cancellation, restocking, or similar fees apply. Notwithstanding the foregoing, where the Quote identifies any Equipment as custom, special-order, or built-to-specification (“Custom Equipment”), the full price for such Custom Equipment is non-cancellable and payable in full regardless of when Buyer cancels, because Custom Equipment cannot be readily transferred or resold by ACT to another customer.

5.5 Method; Currency. All payments shall be made in U.S. dollars by ACH, wire transfer, or check. ACT also accepts credit and debit cards, except where the Quote reflects a cash discount, in which case Buyer shall pay by ACH, wire transfer, or check (and any payment by credit or debit card will forfeit the cash discount). Payments shall be made in accordance with the remittance instructions on the invoice. Buyer is responsible for all bank and processing fees on its side of the transaction.

5.6 Late Payments. Past-due amounts shall accrue interest at the lesser of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, computed from the original due date until paid in full. Buyer shall reimburse ACT for all costs of collection, including reasonable attorneys’ fees and arbitration costs. ACT may, without limiting any other remedy, suspend performance, withhold delivery, deactivate or remotely disable Equipment functions, withhold software-license rights, and withhold warranty support during any period in which any payment is past due. Discounts and warranty rights are contingent on timely payment and may be forfeited for past-due accounts.

5.7 No Set-Off; No Pay-If-Paid; No Pay-When-Paid. Buyer’s payment obligations are absolute and unconditional. Buyer shall not withhold, set off, recoup, or condition any payment on (a) Buyer’s receipt of payment from any third party, including any owner, developer, lender, or upstream contractor; (b) the status, completion, or performance of any other contract, including any installation subcontract; or (c) any claim, dispute, defense, or counterclaim Buyer may have, all of which Buyer waives for purposes of payment under the Sale Agreement (without prejudice to Buyer’s right to assert such claims separately). Any “pay-if-paid,” “pay-when-paid,” contingent-payment, retainage, or similar provision in any Buyer Form is expressly rejected and shall have no effect on Buyer’s obligation to pay for Equipment under these Terms.

5.8 Taxes. Buyer is responsible for all sales, use, transfer, excise, value-added, customs, and similar taxes, duties, and governmental charges imposed in connection with the Sale Agreement, except for taxes imposed on ACT’s net income. If Buyer claims an exemption from any tax, Buyer shall provide ACT with a valid resale or exemption certificate prior to invoicing; absent such certificate, ACT shall invoice and Buyer shall pay applicable taxes.

5.9 Invoicing; Notice. ACT issues invoices electronically from [email protected] (or such other address as ACT designates). Buyer is responsible for ensuring that its accounts-payable systems accept and process invoices from that address and for maintaining current billing-contact information with ACT. Failure to receive an invoice does not extend any payment due date or relieve Buyer of any payment obligation.

5.10 Order of Application. Payments received apply first to taxes, then to shipping and freight, then to other charges, then to services, then to Equipment, and last to software licenses, in each case oldest invoice first.

6. Delivery; Risk of Loss

6.1 Delivery Method. Equipment is delivered as specified on the Quote. ACT typically delivers Equipment directly to the site identified on the Quote in conjunction with Installation; alternatively, ACT may ship Equipment to Buyer for receipt at a designated location.

(a) ACT-Delivered Equipment. Where ACT delivers Equipment directly to the site, ACT bears the cost and risk of loss in transit until physical delivery to the site. Risk of loss passes to Buyer upon delivery to the site, or, if Buyer (or End User) is not ready to receive at the agreed time, upon ACT’s tender of delivery. Buyer is responsible for site readiness and unobstructed access to the Mechanical Space at the agreed delivery time; if delivery is delayed or aborted due to site conditions or other causes attributable to Buyer or End User, Buyer shall reimburse ACT for the resulting remobilization costs, including labor, travel, return freight, and storage.

(b) Shipped Equipment. Where the Quote specifies that Equipment is shipped to Buyer rather than delivered by ACT, Equipment is shipped FCA (Incoterms 2020) ACT’s facility in Edwards, Colorado (or such other point of origin designated by ACT). Title (subject to Section 7) and risk of loss pass to Buyer upon ACT’s tender of Equipment to the carrier.

6.2 Freight; Insurance (Shipped Equipment). This Section 6.2 applies only to Equipment shipped to Buyer under Section 6.1(b). Buyer is responsible for all freight, insurance, handling, and similar charges. ACT may, as an accommodation to Buyer, arrange shipping and add the actual cost (plus a reasonable handling charge) to the invoice; in such case, ACT acts solely as Buyer’s agent for arranging carriage and Buyer remains responsible for any loss or damage occurring after tender to the carrier.

6.3 Inspection. Buyer shall inspect Equipment promptly upon receipt and notify ACT in writing of any visible damage, shortage, or non-conformity within ten (10) days of delivery. Failure to notify within such period constitutes acceptance and waiver of claims for visible defects, damage, and shortages.

6.4 Storage. If Buyer is unable to take delivery on the agreed date, ACT may, at its option, deliver Equipment into storage at Buyer’s risk and expense, including reasonable storage charges and continued insurance, and the storage shall be deemed delivery for purposes of risk of loss and payment timing.

7. Title; Security Interest

7.1 Title. Title to Equipment passes to Buyer upon ACT’s receipt, in cleared funds, of full payment of all amounts due for the Equipment, including all taxes, shipping, freight, software licenses, and other charges.

7.2 Purchase-Money Security Interest. Until title passes, Buyer grants ACT a purchase-money security interest in the Equipment under Article 9 of the Uniform Commercial Code as in effect in Colorado. Buyer authorizes ACT to file UCC-1 financing statements and any continuation or amendment statements without further authorization or signature, and to take such other actions as ACT deems necessary to perfect and maintain its security interest. Buyer shall execute and deliver such documents as ACT reasonably requests in furtherance of the foregoing.

7.3 Liens. Buyer shall keep Equipment free of all liens, attachments, and encumbrances created by or through Buyer (other than ACT’s security interest).

7.4 Lien Rights. Nothing in these Terms waives ACT’s rights under any applicable mechanic’s lien, materialman’s lien, stop-notice, payment-bond, or similar statute, all of which ACT expressly reserves.

8. Software License

8.1 License Grant. Subject to these Terms and Buyer’s timely payment of all amounts due, ACT grants Buyer a non-exclusive, non-sublicensable, non-transferable (except as part of a permitted transfer of the Equipment to an End User under Section 14.2) license to use the Software solely for the operation, monitoring, and authorized end use of the Equipment in the Mechanical Space and Project Space identified on the Quote.

8.2 Restrictions. Buyer shall not, and shall not permit any third party (including any End User) to: (a) copy, modify, translate, or create derivative works of the Software; (b) reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, or underlying ideas of the Software, except to the extent such restriction is prohibited by applicable law; (c) remove or alter any proprietary markings or notices; (d) sublicense, sell, lease, rent, distribute, or otherwise transfer the Software except as expressly permitted; (e) use the Software in any manner not expressly authorized; or (f) circumvent or disable any technical protections, license-management, or telemetry features.

8.3 Updates. ACT may, but is not obligated to, provide Software updates, upgrades, or patches. ACT supports the Software only while the Equipment is under the Limited Warranty and Buyer’s account is current.

8.4 Ownership. ACT (and its licensors) retains all right, title, and interest in and to the Software and all related intellectual property rights. No rights are granted to Buyer except as expressly set forth herein. All rights not expressly granted are reserved.

8.5 Open-Source Components. The Software may include third-party or open-source components subject to their own license terms; nothing in these Terms is intended to override such terms with respect to those components.

9. Data License

9.1 License Grant. Buyer grants ACT (and its successors and assigns) a perpetual, irrevocable, worldwide, royalty-free, fully paid-up license to access, store, transmit, use, analyze, and process data generated by or arising from operation of the Equipment, including telemetry, performance, usage, environmental, and diagnostic data (collectively, “Equipment Data”), for any lawful purpose, including: (a) evaluating Equipment performance; (b) providing service, support, and maintenance; (c) research and development; (d) improving and developing products and services; and (e) marketing, provided that ACT will not use Equipment Data publicly other than in aggregated, de-identified form.

9.2 Survival. ACT may continue to use Equipment Data for the purposes set forth above after termination, expiration, or transfer of the Sale Agreement.

9.3 Remote Access. Buyer authorizes ACT (and after transfer to an End User, the End User authorizes ACT) to remotely access the Equipment and Software for purposes of troubleshooting, diagnostics, support, maintenance, telemetry, and Software updates.

9.4 End User Pass-Through. Buyer represents and warrants that it has the authority to grant the licenses and authorizations in this Section 9 with respect to operation of the Equipment by any End User. In connection with any transfer of the Equipment under Section 14.2, Buyer shall provide the End User with a copy of, or notice of and access to, these Terms (which may include directing the End User to ACT’s then-current end-user terms posted at a URL designated by ACT). The End User’s installation, registration, activation, or operation of the Equipment shall constitute the End User’s acceptance of, and consent to, this Section 9.

10. Limited Warranty

10.1 Warranty. ACT warrants to Buyer that, for the period ending on the earlier of (a) two (2) years from the date of delivery of the Equipment or (b) the accumulation of six thousand (6,000) hours of individual runtime per unit (the “Warranty Period”), the Equipment will be free from defects in material and workmanship under normal use and service.

10.2 Sole and Exclusive Remedy; Return Logistics. Buyer’s sole and exclusive remedy, and ACT’s sole obligation, for breach of this warranty is, at ACT’s option, repair or replacement of the defective Equipment. Logistics for warranty service depend on the original delivery method:

(a) Shipped Equipment. Where Equipment was shipped to Buyer under Section 6.1(b), Buyer is responsible, at Buyer’s cost, for shipping defective Equipment to ACT’s designated facility and for receiving repaired or replacement Equipment. Replacement is FCA that facility.

(b) ACT-Delivered Equipment. Where Equipment was delivered to the site by ACT under Section 6.1(a), ACT will retrieve defective Equipment from, and deliver repaired or replacement Equipment to, the site, provided that Buyer (or End User) facilitates timely access to the Mechanical Space and otherwise reasonably cooperates with ACT to enable retrieval and redelivery. Buyer (or End User) is responsible for site access; ACT bears the cost of transportation between the site and ACT’s service facility.

ACT is not responsible for the cost of removal, reinstallation, on-site labor (other than retrieval and redelivery as set forth in Section 10.2(b)), or any other field-service work, except where ACT has agreed in writing to perform such work.

10.3 Conditions. To maintain warranty coverage, Buyer (or, if applicable, the End User) must: (a) schedule and complete annual service visits performed by ACT or its authorized representatives at least once during each twelve-month period of the Warranty Period (which include filter replacement and other routine maintenance items as part of the service scope); (b) operate the Equipment within the recommended environmental parameters (40–103°F, less than 70% relative humidity, free of dust, contaminants, radon, and pollutants); and (c) promptly report any defect or malfunction in writing to ACT during the Warranty Period.

10.4 Exclusions. The warranty does not cover, and ACT shall have no liability for: (a) ordinary maintenance, consumables, filters, and wear items; (b) damage caused by abuse, misuse, neglect, accident, modification, water, power surge, environmental conditions, dust, dirt, heat, humidity, acts of God, or operation outside recommended parameters; (c) damage caused by installation, repair, modification, or service performed by parties other than ACT or its authorized representatives; (d) failure resulting from the condition of the Project Space (including its insulation, airtightness, doors, windows, fireplaces, HVAC, ERV, HRV, electrical, plumbing, structural, or sound-attenuation systems) or the Mechanical Space (including its temperature, humidity, ventilation, and cleanliness); (e) tampering with or alteration of Equipment or system configuration; (f) issues arising from inadequate gas containment in the Project Space (see Section 12); or (g) any non-ACT components, parts, or accessories.

10.5 Voiding. Tampering with, modifying, or altering the Equipment or its system configuration; failure to perform required maintenance and service; operating Equipment outside the recommended parameters; or unauthorized installation, repair, or service voids the warranty.

10.6 No Other Warranties; Authority. No employee, agent, contractor, distributor, or other representative of ACT has authority to bind ACT to any representation, warranty, or guarantee concerning the Equipment or any service other than those expressly set forth in these Terms.

10.7 Room Sharing Systems. If the Equipment includes a Room Sharing System or Alternating Valve(s), the Equipment is engineered exclusively for sequential gas delivery of one (1) designated Project Space at a time. Simultaneous operation of multiple Project Spaces is outside the system’s specified operating parameters; ACT provides no performance guarantee under such operation, and such operation accelerates runtime-hour consumption and shortens the chronological warranty period proportionally. Exhaustion of runtime hours under simultaneous operation terminates warranty coverage.

10.8 Pass-Through. If Buyer transfers Equipment to an End User under Section 14.2, Buyer shall pass through the obligations of this Section 10 (including the conditions and exclusions) to the End User as a condition of warranty pass-through. ACT’s warranty obligations run only to the original Buyer and any expressly permitted End User.

11. Disclaimers

11.1 EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH IN SECTION 10, ACT MAKES NO, AND DISCLAIMS ALL OTHER, WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. BUYER ASSUMES ALL RISKS OF THE USE, QUALITY, AND PERFORMANCE OF THE EQUIPMENT.

11.2 BUYER ACKNOWLEDGES AND AGREES THAT (A) THE EQUIPMENT IS A COMFORT SYSTEM AND IS NOT A MEDICAL DEVICE; (B) THE EQUIPMENT HAS NOT BEEN EVALUATED OR APPROVED BY THE U.S. FOOD AND DRUG ADMINISTRATION OR ANY EQUIVALENT FOREIGN REGULATORY AUTHORITY; (C) THE EQUIPMENT IS NOT INTENDED OR LICENSED TO DIAGNOSE, TREAT, CURE, MITIGATE, OR PREVENT ANY DISEASE OR MEDICAL CONDITION; AND (D) ACT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE EQUIPMENT WILL PRODUCE ANY PHYSIOLOGICAL, MEDICAL, OR HEALTH OUTCOME. BUYER SHALL NOT MARKET, RESELL, OR USE THE EQUIPMENT IN ANY MANNER INCONSISTENT WITH THIS SECTION 11.2.

11.3 BUYER ACKNOWLEDGES THAT ESTIMATED EFFECTIVE ALTITUDE, TIME-TO-ALTITUDE, DUTY CYCLE, AND OTHER PERFORMANCE INDICATIONS IN ANY QUOTE, PROPOSAL, MODELING OUTPUT, OR MARKETING MATERIAL ARE ESTIMATES ONLY, BASED ON ASSUMED CONDITIONS, AND WILL FLUCTUATE WITH ROOM LEAKAGE, HVAC PERFORMANCE, BAROMETRIC PRESSURE, WEATHER, AND OTHER FACTORS OUTSIDE ACT’S CONTROL. ACT MAKES NO WARRANTY OR GUARANTEE THAT ANY SPECIFIC ALTITUDE, GAS SATURATION, OR PERFORMANCE LEVEL WILL BE ACHIEVED OR MAINTAINED.

12. Supply and Containment

12.1 ACT’s Responsibility. ACT is responsible for the supply of enriched gas volumes by the Equipment in accordance with the Equipment specifications.

12.2 Buyer’s and End User’s Responsibility. Buyer (and, ultimately, the End User of the Project Space) is solely responsible for the containment of the gas volumes within the Project Space. Containment is affected by numerous factors outside ACT’s control, including but not limited to: (a) expansion, contraction, settling, and aging of building materials; (b) construction quality and air-tightness of doors, windows, walls, ceilings, and floors; (c) HVAC, ERV, HRV, forced-air heating/cooling, exhaust fans, and humidification systems and the integrity of their seals and dampers; (d) unsealed light fixtures, recessed cans, electrical outlets, switches, and other penetrations; (e) pressure differentials with adjacent areas and the building exterior; (f) fireplaces, vents, and chimneys; (g) external weather and barometric conditions; and (h) modifications to the Project Space after installation.

12.3 No Liability for Containment. ACT shall have no liability for, and the warranty does not cover, system performance issues, altitude shortfalls, duty-cycle variances, or efficiency reductions arising from inadequate containment, regardless of cause. Diagnostic assistance ACT may provide regarding containment issues does not constitute an admission of responsibility, expand the warranty, or extend ACT’s obligations.

12.4 Site Conditions. Buyer is responsible for ensuring that the Project Space, the Mechanical Space, and the supporting building systems (HVAC, electrical, mechanical-room temperature and humidity, sealing, insulation, and the like) meet the conditions described in ACT’s preparation materials. Equipment performance is not warranted in Project Spaces or Mechanical Spaces that fail to meet such conditions.

13. Limitation of Liability

13.1 EXCLUDED DAMAGES. IN NO EVENT SHALL ACT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOSS OF USE, BUSINESS INTERRUPTION, COST OF SUBSTITUTE GOODS, PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH, ARISING OUT OF OR RELATING TO THE SALE AGREEMENT OR THE EQUIPMENT, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE) AND EVEN IF ACT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13.2 LIABILITY CAP. ACT’S TOTAL CUMULATIVE LIABILITY TO BUYER AND ANY THIRD PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE SALE AGREEMENT OR THE EQUIPMENT, REGARDLESS OF THE THEORY OF LIABILITY, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY BUYER TO ACT FOR THE EQUIPMENT GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM.

13.3 ESSENTIAL BASIS. BUYER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 13, TOGETHER WITH THE DISCLAIMERS IN SECTION 11 AND THE SUPPLY/CONTAINMENT ALLOCATION IN SECTION 12, ARE A FUNDAMENTAL AND ESSENTIAL PART OF THE BARGAIN, AND THAT THE PRICE FOR THE EQUIPMENT REFLECTS, AND HAS BEEN AGREED IN CONSIDERATION OF, THESE ALLOCATIONS OF RISK. THESE LIMITATIONS APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

13.4 Carve-Outs. The limitations of liability in this Section 13 do not apply to (a) Buyer’s payment obligations; (b) Buyer’s breach of the Software License (Section 8); (c) Buyer’s breach of confidentiality (Section 16); or (d) Buyer’s indemnification obligations (Section 15).

14. Use Restrictions; Transfer; Compliance

14.1 Permitted Use. Equipment is installed by ACT or its authorized installer in the Mechanical Space at the building identified on the Quote and is intended to supply the Project Space at that building. Equipment may be used only at such location and only for the purposes for which the Equipment is engineered.

14.2 Transfer to End User. The Equipment is sold for installation and operation at the building identified on the Quote. Buyer may transfer ownership of the Equipment to the End User as part of completing the project for which the Equipment was purchased, and such transfer does not require ACT’s consent; provided, that Buyer shall provide ACT with the End User’s name, contact information, and effective date of transfer at the time of transfer so that ACT can administer warranty, support, and Software-license obligations. Buyer shall provide the End User with a copy of, or notice of and access to, these Terms as part of the transfer. The provisions of these Terms intended to survive (including Sections 8, 9, 10, 11, 12, 13, 14, 15, and 18) bind the End User following such transfer, and the End User’s installation, registration, activation, or continued operation of the Equipment shall constitute the End User’s acceptance of those terms.

14.3 Restrictions on Other Transfers. Without ACT’s prior written consent, Buyer shall not (a) install or operate the Equipment at any location other than the building identified on the Quote, (b) sell, lease, or transfer the Equipment to any party other than the End User, or (c) use the Equipment for any project or property other than that identified on the Quote. The Equipment is intended to remain at the building and Project Space identified on the Quote and may otherwise be transferred to a subsequent owner only in connection with a sale of that real property; any such subsequent transfer is subject to the surviving terms of the Sale Agreement.

14.4 Permits; Codes. Buyer is responsible for obtaining and maintaining all permits, inspections, approvals, and authorizations required by applicable building codes and governmental authorities for the installation, operation, and use of the Equipment. The cost of permits, inspections, and code-compliance work is not included in the Equipment price.

14.5 Export and Sanctions. Buyer shall comply with all applicable export-control and economic-sanctions laws, regulations, and orders of the United States and other applicable jurisdictions, and shall not export, re-export, transfer, or release the Equipment or Software to any prohibited destination, person, or end use.

15. Indemnification

15.1 By Buyer. Buyer shall defend, indemnify, and hold harmless ACT and its affiliates, and their respective officers, directors, employees, and agents (collectively, the “ACT Indemnitees”) from and against any and all third-party claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from or relating to: (a) installation, modification, alteration, repair, or service of Equipment by parties other than ACT or its authorized representatives; (b) Buyer’s or any End User’s use, operation, misuse, or non-permitted use of Equipment; (c) the condition of the Project Space or the Mechanical Space, including inadequate containment; (d) Buyer’s breach of the Sale Agreement; (e) Buyer’s negligence or willful misconduct; or (f) any representation Buyer or its agents make about the Equipment that is inconsistent with these Terms.

15.2 By ACT (Intellectual Property). Subject to Section 13, ACT shall defend Buyer against third-party claims that the Equipment, as supplied by ACT and used in accordance with the Sale Agreement, infringes a U.S. patent or copyright, and shall pay damages and costs awarded against Buyer by a court of competent jurisdiction in such claim, provided that Buyer (a) promptly notifies ACT in writing, (b) gives ACT sole control of defense and settlement, and (c) reasonably cooperates. ACT has no obligation under this Section 15.2 for claims based on (i) modification of Equipment by anyone other than ACT, (ii) combination of Equipment with non-ACT products, (iii) compliance with Buyer’s specifications or designs, or (iv) use outside the intended purpose. ACT may, at its option, (x) procure for Buyer the right to continue using the affected Equipment, (y) modify or replace the affected Equipment to be non-infringing, or (z) refund the price paid for the affected Equipment (depreciated on a five-year straight-line basis) and accept its return.

15.3 THIS SECTION 15.2 STATES ACT’S ENTIRE LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY CLAIM OF INTELLECTUAL-PROPERTY INFRINGEMENT.

16. Confidentiality

ACT’s Quotes, pricing, designs, drawings, specifications, Software, technical information, and other non-public information disclosed to Buyer (collectively, “ACT Confidential Information”) is confidential and proprietary to ACT. Buyer shall (a) protect ACT Confidential Information using at least reasonable measures (and in no event less than the measures Buyer uses to protect its own similar information), (b) use ACT Confidential Information solely for purposes of the Sale Agreement, and (c) not disclose ACT Confidential Information to any third party except to its employees, affiliates, and contractors with a need to know who are bound by confidentiality obligations no less protective than those herein. The obligations in this Section 16 do not apply to information that is or becomes publicly available without breach, was rightfully known prior to disclosure, is independently developed without use of ACT Confidential Information, or is rightfully received from a third party without restriction.

17. Force Majeure

ACT shall not be liable for any delay or failure in performance to the extent caused by events outside its reasonable control, including acts of God, war, terrorism, civil unrest, pandemic or epidemic, government action, labor disputes, fire, flood, weather events, supply-chain disruptions, transportation failures, shortages of materials or components, and failures of utilities or telecommunications. ACT shall use commercially reasonable efforts to resume performance as soon as reasonably practicable. Affected delivery and performance dates shall be extended for the duration of the force-majeure event.

18. Governing Law; Dispute Resolution

18.1 Governing Law. The Sale Agreement is governed by, and construed in accordance with, the laws of the State of Colorado, USA, without regard to its conflict-of-laws principles. The U.N. Convention on Contracts for the International Sale of Goods does not apply.

18.2 Dispute Resolution. All disputes, controversies, and claims arising out of or relating to the Sale Agreement (including any question regarding its existence, validity, scope, or termination) shall be resolved, at ACT’s sole election, by either (a) binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, conducted in Denver, Colorado, before a single arbitrator, with judgment on the award entered in any court having jurisdiction; or (b) litigation in the state or federal courts located in Denver, Colorado.

18.3 Venue; Jurisdiction. Each party irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts located in Denver, Colorado, for any judicial proceeding (including any proceeding to enforce or vacate an arbitration award).

18.4 JURY TRIAL WAIVER. EACH PARTY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE SALE AGREEMENT OR THE EQUIPMENT.

18.5 Costs and Fees. In any dispute, ACT shall be entitled to recover its reasonable attorneys’ fees, costs, and expenses, together with interest at one and one-half percent (1.5%) compounded per month on any unpaid balance owed to ACT.

18.6 Equitable Relief. Either party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property or confidential information, without first resorting to arbitration.

18.7 Limitation Period. Any action arising out of or relating to the Sale Agreement must be commenced within one (1) year after the cause of action accrues, or such action is permanently barred, except for actions to collect unpaid amounts.

18.8 Class Action Waiver. All disputes shall be resolved on an individual basis. Buyer waives any right to participate in any class, collective, or representative action against ACT.

19. General

19.1 Notices. Notices to ACT shall be sent to: Altitude Control Technology LLC, 191 University Blvd., PMB 318, Denver, CO 80206, Attention: Legal/Contracts, with a copy by email to [email protected] (or such other address as ACT designates in writing). Notices to Buyer shall be sent to the address on the Quote. Notices are effective on receipt (or, for email, on confirmation of delivery).

19.2 Assignment. Buyer may not assign or transfer the Sale Agreement or any rights or obligations under it, by operation of law or otherwise, without ACT’s prior written consent; any purported assignment in violation of this Section is void. ACT may assign the Sale Agreement, in whole or in part, including in connection with a merger, acquisition, financing, or sale of all or substantially all of its assets.

19.3 Independent Contractors. The parties are independent contractors. The Sale Agreement does not create any agency, partnership, joint venture, fiduciary, or employment relationship.

19.4 No Third-Party Beneficiaries. Except as expressly stated, the Sale Agreement is for the sole benefit of the parties and their permitted successors and assigns, and confers no rights on any third party.

19.5 Severability. If any provision of these Terms is held invalid or unenforceable, the remaining provisions remain in full force and effect, and the invalid or unenforceable provision shall be reformed to the minimum extent necessary to make it enforceable while preserving the parties’ original intent.

19.6 Waiver. No waiver is effective unless in writing signed by an authorized representative of the waiving party. No failure or delay in enforcing any right is a waiver of that right or any other right.

19.7 Entire Agreement; Amendments. The Sale Agreement constitutes the entire agreement between the parties regarding the sale of Equipment and supersedes all prior or contemporaneous agreements, communications, proposals, marketing materials, and representations regarding the subject matter. Amendments must be in writing and signed by an authorized representative of each party. Buyer’s standard preprinted terms (including any in Buyer Forms) are not effective amendments. The Sale Agreement may not be modified by email exchange unless the email is signed by an authorized representative of each party with express reference to amendment of the Sale Agreement.

19.8 Survival. Provisions that by their nature should survive termination or expiration of the Sale Agreement do so survive, including Sections 5 (as to unpaid amounts), 7, 8, 9, 11, 12, 13, 14, 15, 16, 18, and this Section 19.

19.9 Counterparts; Electronic Signatures. The Sale Agreement may be executed in counterparts and by electronic signature, each of which is deemed an original and all of which together constitute one instrument.

19.10 Headings; Construction. Headings are for convenience only and do not affect interpretation. The Sale Agreement is the joint product of negotiation between sophisticated parties and shall not be construed against either party as drafter. “Including” and similar terms mean “including without limitation.”

19.11 Installation Separately Contracted. Installation services, if any, are provided under a separate written installation agreement and are not part of the sale of Equipment governed by these Terms. Buyer’s payment obligations for Equipment are independent of, and not contingent on, the performance, completion, or status of any installation work.

— End of Equipment Terms of Sale —