Terms and Conditions

Ska Fabricating Standard Terms and Conditions

ARTICLE I

Terms and Conditions of Purchase

Purchaser hereby agrees to purchase from the Seller the items described below, upon the terms and conditions contained herein. These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the applicable goods and/or services ("Goods") between Seller and Purchaser. These Terms prevail over any of Purchaser's general terms and conditions of purchase regardless of whether or when Purchaser has submitted its purchase order. Fulfillment of Purchaser's order does not constitute acceptance of any of Purchaser's terms and conditions and does not serve to modify or amend these Terms.

ARTICLE II

Price and Description of Goods

The price and description for the goods are included in the Quote provided, attached to and incorporated into this Agreement by this reference. All ESTIMATED prices related to freight and installation will be adjusted to ACTUAL costs when those amounts become known to Seller. Any modification or change in an order may be subject to adjustments in price or other terms, but all changes remain subject to these Standard Terms and Conditions unless otherwise agreed to in writing.

ARTICLE III

Payment Terms

Payment terms for the Goods are specifically described below the itemized listing of goods and services on your order, attached to and incorporated into this Agreement by this reference.

ARTICLE IV

Freight, Duties, and Taxes

All prices are exclusive of all use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Purchaser. Purchaser shall be responsible for all such charges, costs and taxes; provided, that, Purchaser shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel, real or personal property or other assets.

ARTICLE V

Conditions of Sale

Section 1. Payment and Closing. Seller's obligations hereunder are expressly made contingent upon Seller's receipt from Purchaser of payment, in cash, wire (ACH) transfer, or in the form of a cashier's check, in the amount set forth in Article III of this document.

Section 2. Place of Delivery. Purchaser agrees to take delivery of the Goods by FOB Shipping Point, which may be the location of the Seller, or any other vendor providing any component of the Goods set forth in Article II of this document. In the event of damage caused by a freight carrier, Seller agrees to facilitate the claims process for any shipments it arranges on Purchaser's behalf.

Section 3. Time of Delivery. Purchaser acknowledges that the Goods will be available for immediate delivery on or about the date estimated by the Seller. The Goods may ship at various times and from various locations. Purchaser will take delivery of the Goods on the date specified by the Seller upon the Seller giving not less than 10 days’ notice to the Purchaser. Any shipping dates given in advance of actual shipment are only estimates by the Seller. Seller is not liable for any delay in delivery or installation. If Purchaser requires Seller to store Goods beyond the ship date specified by the Seller, Purchaser may be charged storage fees of up to $2,500/week at the Seller's discretion.

Section 4. Inspection and Rejection. Purchaser is responsible for all aspects of unloading equipment upon delivery. Purchaser shall inspect the Goods within two (2) days of receipt ("Inspection Period"). Purchaser will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods" means product shipped that is different than the Goods identified in Schedule A.

If Purchaser timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Purchaser in connection therewith. Purchaser shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller's facility. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Purchaser's shipment of Nonconforming Goods, ship to Purchaser, at Seller's expense and Purchaser's risk of loss, the replaced Goods.

Purchaser acknowledges and agrees that the remedies set forth in this Section 4 are Purchaser's exclusive remedies for the delivery of Nonconforming Goods. All sales of Goods to Purchaser are final and, except as provided under this Section 4, Purchaser has no right to return Goods purchased under this Agreement to Seller.

Section 5. Suitable Building and Access. Purchaser is responsible for providing a building and services suitable for receiving, installing, and maintaining the product. Any problems with the building where the product shall be installed are not the fault of the Seller. Purchaser is responsible for any costs associated with the failure to provide a suitable building or services.

Section 6. Risk. Title and risk of loss passes to Purchaser at the Place of Delivery as set forth in Article V, Section 2 of this Agreement. As collateral security for the payment of the purchase price of the Goods, Purchaser hereby grants to Seller a Purchase Money Security Interest in and to all of the right, title and interest of Purchaser in, to and under the Goods, wherever located, and whether now existing or hereafter arising from time-to-time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. Seller's interest in the Goods shall be released upon receipt of final payment from the Purchaser.

Section 7. Modifications. The parties will create drawings and agree to a design of the product and layout of the product in Purchaser's location (the "Design"). Once the Design is agreed upon, the Purchaser will agree in writing that the Design is complete. Once the Purchaser has agreed in writing that the Design is complete, Purchaser will be responsible for any costs and delays due to any and all modifications or changes to the Design. Seller will only be responsible for costs arising from errors that Seller made in the Design as originally agreed to by the parties.

Section 8. Submittals and Shop Drawings. Purchaser is fully responsible for the accuracy and appropriateness of all submittals, shop drawings, or other such communications with Seller. Seller shall have no liability or responsibility for any inaccuracies in information provided to it by Purchaser.

Section 9. Warranties. For equipment that requires a professional installation; (a) Seller has a 90-day warranty from date of shipment on wear parts for the depalletizer and/or repalletizer and associated conveyor and rinse cage as long as Seller or an approved partner installs those products. Seller has a one year warranty from date of shipment on electronics as long as the Seller or an approved partner installs those products. If Seller or an approved partner does not install a product, the product is purchased AS IS with no warranties. Purchaser grants to Seller a right to inspect any claimed defects to determine if they were caused by misuse of the product or unauthorized modification of the product. Except for the foregoing warranty above, seller makes no warranty whatsoever with respect to the goods, including but not limited to any warranty of merchantability; warranty of fitness for a particular purpose; or warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise.

(b) The Seller shall not be liable for a breach of the warranty set forth in this Section 9 unless: (i) Purchaser gives written notice of the defect, reasonably described, to Seller within ten (10) days of the time when Purchaser discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Purchaser (if requested to do so by Seller) returns such Goods to Seller's place of business at Seller's cost for the examination to take place there; and (iii) Seller reasonably verifies Purchaser's claim that the Goods are defective.

(c) The Seller shall not be liable for a breach of the warranty set forth in this Section 9 if: (i) Purchaser makes any further use of such Goods after giving such notice; (ii) the defect arises because Purchaser failed to follow Seller's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Purchaser alters or repairs such Goods without the prior written consent of Seller.

(d) Subject to this Section 9 above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Purchaser shall, at Seller's expense, return such Goods to Seller.

(e) Extended Warranty Option – Purchaser has the option to buy an extended warranty from Seller. An extended warranty shall include a two-year warranty period on all mechanical and electrical parts. An extended warranty shall also include unlimited technical support by phone for the two-year period, and if a problem cannot be resolved over the phone, Seller shall send out a technician and charge to the Purchaser the Seller’s standard service rate less 10%. An extended warranty SHALL NOT cover wear parts, that may need replacement due to normal wear and tear.

Section 10. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE PRICE PAID BY PURCHASER FOR GOODS DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Section 11. Default Cancellation. If the Purchaser fails to make any payment required to be made to the Seller, under this Agreement, and such default continues for thirty (30) days past the required due date, then the Seller may cancel this Agreement with immediate effect upon written notice to Purchaser, and Seller may retain all payments made by the Purchaser as liquidated damages and not as penalty. The foregoing shall in no way be deemed to preclude or be in lieu of any other remedies that may be available to Seller, whether expressly set forth herein or otherwise arising by operation of common law or statute.

Section 12. Default Interest. Purchaser shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Purchaser shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Purchaser fails to pay any amounts when due hereunder. Purchaser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy or otherwise.

Section 13. Storage. If the Purchaser does not take delivery of the Goods at the time the Goods are due and ready for delivery, the Seller may, but is not required to, store the Goods until their actual delivery and, in that event, the Purchaser shall be liable to the Seller for all reasonable fees and costs of such storage (including insurance, if any).

Section 14. Waiver. The waiver by the Seller of strict compliance of performance of any of the terms of this Agreement or of any breach thereof on the part of the Purchaser, shall not be held or deemed to be a waiver of any subsequent failure to comply strictly with or perform the same or any other term or condition of this Agreement or any breach thereof.

Section 15. Unavoidable Delay. It is mutually agreed by the parties, that neither party shall be held responsible for any losses resulting from the non-fulfillment of any terms or conditions if performance under this Agreement (excluding Purchaser's payment obligations) is delayed or prevented by wars, acts of enemies, strikes or lockouts, fires, floods, acts of God, or without limiting the foregoing, by any other cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence, said party is unable to prevent, whether of the class of causes before enumerated or not. The Purchaser acknowledges that the estimate of days for delivery of goods referred to in Section 3 is given and intended as an estimate only, and the Seller shall not be liable to make good any damages or losses, whether arising directly or indirectly out of delay in delivery.

Section 16. Entire Agreement. This Agreement contains the whole agreement between the Seller and the Purchaser, in respect to the purchase and sale of the Goods covered by this Agreement, and there are no warranties, representations, terms conditions or collateral agreements expressed, implied or statutory other than as expressly set out in this Agreement.

Section 17. Amendments. Neither party shall be bound by an amendment or modification to this Agreement unless it is in writing and signed by each party. Delays in delivery may occur and additional costs and fees may be incurred by Seller and charged to Purchaser in the event of an amendment or modification to this Agreement.

Section 18. Cancellation. This Agreement cannot be canceled or terminated by either party except as expressly provided by this Agreement.

Section 19. Proprietary Rights. The Seller retains exclusively all proprietary rights (including manufacturing rights) in and to all designs, engineering details, software/operating system and other data pertaining to the goods covered by this Agreement.

Section 20. Software License. Seller grants to Purchaser a perpetual, royalty free license for the sole purpose of operating the equipment at the Purchaser’s location. The license is non-exclusive, non-transferable, and non-sublicensable. Purchaser may not modify the software without the express written approval by Seller in the form of a separate Software Licensing Agreement. Purchaser acknowledges and agrees that the Software and any modifications to Software are licensed and not sold. Purchaser does not require any ownership interest in the software under this Agreement, or any other rights thereto, other than the limited license express granted above. Seller shall retain ownership, title, and interest in the Software, and any modifications to the Software, and all intellectual property rights in the Software and any modifications to the Software.

Section 21. Time of the Essence. Time is of the essence with respect to the obligations of the Seller and Purchaser under this Agreement.

Section 22. Governing Law. This Agreement shall be exclusively governed by and interpreted in accordance with the laws of the State of Colorado (without regard to its conflict of law principles).

Section 23. Attorneys' Fees and Costs. In the event of a conflict or alleged breach arising under, out of, or in relation to this Agreement, the non-prevailing party shall pay the reasonable costs and fees of the prevailing party, including the prevailing party's attorneys' fees, whether incurred as a result of or in connection with litigation, alternative methods of dispute resolution, or otherwise.

Section 24. Assignment. This Agreement may not be assigned by either party without the written consent of the other party, except that the Seller may assign this Agreement to its successor or any entity acquiring all or substantially all of the assets of the Seller.

Section 25. Binding Effects. This Agreement is binding and shall insure the benefit of the parties within this agreement and their respective permitted successors and assigns.

Section 26. Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

Section 27. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

Section 28. Data Privacy. By clicking through the Purchase Order Terms and Conditions you are consenting to the use of your personal data by Ska Fabricating. We will use your personal data, including but not limited to: name, physical address, and email address to fulfill our contractual obligations under this purchase order as a legitimate interest. In addition, Ska Fabricating will use this personal data to keep you informed on any new products or product improvements to enhance your customer experience with your purchased equipment, to potentially conduct customer satisfaction surveys, or to provide you notice of tradeshow or other marketing events where you can stay connected with Ska Fabricating as your supplier. All email communications associated with new products or enhancements or questionnaires related to your recent purchase will have simple and prominent opt-out capability to prevent further use of your personal data outside the delivery of the contracted purchased products and services, as reflected in our global privacy policy.

Ska Fabricating Terms and Conditions for Service Contracts

1. Applicability of these Terms and Conditions.

a. Except as otherwise mutually agreed in writing, these “Ska Fabricating Terms and Conditions for Service Contracts” together with the terms and conditions of any applicable Service Description as described in Exhibit A (collectively, the "Terms and Conditions") set forth the terms and conditions pursuant to which Ska Fabricating will provide Services to Customer.

b. By receiving Services from Ska Fabricating, Customer agrees to be bound by these Terms and Conditions. All Services are subject to these Terms and Conditions and Ska Fabricating hereby expressly rejects any inconsistent, conflicting, different or additional terms in a Customer purchase order or any other document and such terms shall have no force or effect, either through acceptance of such purchase order by Ska Fabricating in writing or by performance.

2. Ordering Extended Service.

a. Customer shall provide Ska Fabricating with a Purchase Order which shall constitute a firm offer to purchase the Extended Service Contract, and shall contain the following information:

i. PO Number, PO date, billing-to address, and signature by authorized signatory; and

ii. The full company name and address of the Customer for who Service is intended; and

iii. The Part number and short description of the Ska Fabricating Service Contract ordered; and

iv. The applicable purchase price of the Ska Fabricating Extended Service Contract as per the most current Ska Fabricating Price List or as agreed to between the Parties in writing; and

v. Any other particulars as may have been agreed between the Parties.

Ska Fabricating shall confirm receipt of the Purchase Order within two business days of receipt of order.

3. Extended Service Period. Extended service will commence upon Ska Fabricating receipt of all total due payments of the Purchase Order value. The Extended Service Period will expire per the period as defined in Exhibit A.

4. Payment Terms. Payment terms are specifically described on your order, per Article III of these Terms and Conditions.

5. Availability of Services.

a. Services will be scheduled during Ska Fabricating’s normal business hours Monday through Friday, exclusive of Ska Fabricating holidays.

b. Date and time of Ska Fabricating services visit to Customer shall be mutually agreed by Customer and Ska Fabricating. Ska Fabricating will use commercially reasonable efforts to schedule service technicians in response to requested service date by customer.

6. Scope of Services. Ska Fabricating will provide the Services only for those Products:

a. For which Ska Fabricating has been paid all applicable fees in full and;

b. For Ska Fabricating products which were originally purchased from Ska Fabricating or a Ska Fabricating authorized reseller and;

c. For products and services that fall within the service description as shown in Exhibit A

7. Remote Technical Services. As described in the Service Description shown in Exhibit A, Ska Fabricating may offer remote Technical Services as part of the Extended Services Agreement. Those services will typically be provided during Ska Fabricating normal business hours, but may be scheduled at an alternate time mutually agreed between the Customer and Ska Fabricating.

8. Software Support. As described in the Service Description shown in Exhibit A, Ska Fabricating may offer remote Software Support, including access to the Product Software via remote data connection. Customer will be responsible for all data security at the customer site, including providing network security to prevent unauthorized access to the Product Software.

9. Termination of Extended Services. Customer agrees that all Purchase Orders for Extended Services are non-cancellable. Ska Fabricating may terminate any Services, in whole or in part, if any person other than a Ska Fabricating employee, or a Ska Fabricating-designated service representative, alters a Product without Ska Fabricating’s prior written consent, or in any way renders a Product unsafe. If the Customer fails to make any payment required to be made to Ska Fabricating, under this Agreement, and such default continues for thirty (30) days past the required due date, then the Ska Fabricating may cancel this Agreement with immediate effect upon written notice to the Reseller, and Ska Fabricating may retain all payments made by the Reseller as liquidated damages and not as penalty. The foregoing shall in no way be deemed to preclude or be in lieu of any other remedies that may be available to Ska Fabricating, whether expressly set forth herein or otherwise arising by operation of common law or statute.

10. Customer Obligations

a. Customer must provide Ska Fabricating personnel with free and full access to the Ska Fabricating Products and adequate working space within a reasonable distance from the Product (including heat, light, ventilation, electric current and outlets, compressed air).

b. All environments where Ska Fabricating personnel will provide on-site Services must be free from all risks to health and safety.

c. Customer is responsible for all aspects of unloading equipment upon delivery.

11. Out of Scope Services and Exclusions to Service Coverage. For Out of Scope and Excluded Services Ska Fabricating may offer Time and Material pricing for customer service requests. The Out of Scope service request would be ordered through a separate purchase order, with mutually agreed on pricing terms and schedule. Specific Out of Scope and Excluded Services include:

a. Ska Fabricating equipment, not purchased directly from Ska Fabricating or an authorized Ska Fabricating reseller. This exclusion includes both used equipment and new equipment.

b. Damages to or defects in the Product resulting from causes external to the Product, including without limitation: disaster, fire, accident, neglect, misuse, vandalism, water, power surges, lightning.

c. Attempted Repair or Modification of the Product by persons other than Ska Fabricating employees or persons authorized by Ska Fabricating.

d. Use of the Product with third party items, products, components or software not provided or approved by Ska Fabricating

e. Viruses or third party software not introduced by Ska Fabricating

f. Cosmetic damage to the Product including scratches, rust, or other visible defects not affecting the normal operation of the Product.

g. Installation Services for new additional equipment purchased from Ska Fabricating. The Extended Services agreement is intended for support of existing Products purchased from Ska Fabricating, and is not intended for installation or support of additional new Products purchased from Ska Fabricating. Installation services for new additional equipment purchased from Ska Fabricating must be purchased separately at time the additional new product is purchased.

12. Third Party Equipment. Third Party Equipment, whether purchased from Ska Fabricating or directly from a Third Party Equipment supplier, is Out of Scope and Excluded from the Extended Service Agreement. For Third Party Equipment purchased from Ska Fabricating, upon Customer’s request, Ska Fabricating will contact the Third Party to facilitate Customer’s warranty or service claims. The Customer will be responsible directly to the Third Party for any charges associated with service requests not covered by the Third Party warranty.

13. Warranty. Ska Fabricating warranty on purchased products is separate from the Extended Service Contract. Customer may refer to the terms and conditions for warranty in their original Ska Fabricating product purchase. Ska Fabricating has a 30-day warranty on all services provided under the Extended Service description as shown in Exhibit A. Customer must give written notice of a Service defect within that 30-day period from date of providing the Extended Service.

14. Confidentiality. As used herein, the term “Confidential Information” means (i) proprietary information of the Party (“disclosing party”), including without limitation all trade secrets, inventions, designs, software, know-how, strategies, customer lists, supplier lists, financial information and all information related to the business, activities and customers of the disclosing party; (ii) information marked or designated as confidential; and (iii) information, whether or not in written form and whether or not designated as confidential, that the Party receiving the Confidential Information (the “receiving party”) knows or should know is treated as confidential. Confidential Information shall not include (a) information about the disclosing party which is or becomes generally available to the public through no fault of the receiving party, (b) information independently known to the receiving party without any obligation of confidentiality, or (c) information about the disclosing party which the receiving party receives from a third party not under an obligation of confidentiality to the disclosing party; (d) control drawings, elevations drawings or other drawings or information containing the product layout, dimensions and specifications. The Parties agree to only use or disclose the Confidential Information for their own benefit without the express written consent of the other Party. The Parties warrant that each of their employees and independent contractors and agents privy to this Agreement or involved in any way with this Agreement shall comply with the obligations of confidentiality imposed by this section. If either Party receiving Confidential Information is served with any subpoena or other compulsory judicial or administrative process calling for production of Confidential Information, such Party will, to the extent legally permissible, immediately notify the disclosing party and provide it with such information as may be necessary for the disclosing party to take such action as it deems necessary to protect its interests. Disclosure of Confidential Information pursuant to a judicial or administrative process shall not be deemed a breach of this Section provided the terms of the previous sentence are complied with. Confidential Information shall remain confidential under these terms for five years after the termination of this Agreement.

15. Intellectual Property. Nothing in this agreement will function to transfer any of either party’s Intellectual Property rights to the other party, and each party will retain exclusive interest in and ownership of its Intellectual Property, including all proprietary rights (including manufacturing rights) in and to all designs, engineering details, software/operating system and other data pertaining to the goods covered by this Agreement.

16. Insurance. Both Parties agree to maintain adequate insurance in accordance with industry standards but not less than $1 Million per occurrence and $2 Million in the aggregate including adequate coverage to cover the loss of any products in transit, in its possession or during installation at the Customer site.

17. Taxes. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs, and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Ska Fabricating’s income, revenues, gross receipts, personnel, real or personal property or other assets.

18. Indemnity. To the fullest extent permitted by applicable law, each Party shall indemnify, defend, and hold harmless the other, its affiliates, and their respective officers, directors, employees, agents, and representatives, from and against any and all losses, damages or costs (collectively, “Losses”) incurred by the other Party from a claim of a third party resulting from , related to or arising out of (a) the negligence or willful misconduct of each Party or its agents, managers, employees, successors and assigns in the performance of the Agreement, or (b) a breach of its obligations under this Agreement.

19. Limitation on Liability. IN NO EVENT SHALL SKA FABRICATING BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SKA FABRICATING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SKA FABRICATING’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE PRICE PAID BY CUSTOMER FOR GOODS DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

20. Governing Law. This Agreement shall be exclusively governed by and interpreted in accordance with the laws of the State of Colorado (without regard to its conflict of law principles).

21. Attorneys’ Fees and Costs. In the event of a conflict or alleged breach arising under, or out of, or in relation to this Agreement, the non-prevailing party shall pay the reasonable costs and fees of the prevailing party, including the prevailing party attorney’s fees, whether incurred as a result of or in connection with litigation, alternative methods of dispute resolution, or otherwise.

22. Assignment. This Agreement may not be assigned by either party without the written consent of the other party, except that Ska Fabricating may assign this Agreement to its successor or any entity acquiring all or substantially all of the assets or equity of the Ska Fabricating.

23. Force Majeure. Except for the obligation to make timely payments, neither party hereto will be liable to the other for delays or failures to perform occasioned by causes beyond its reasonable control. Such acts or events shall include, without limitation, acts of God, civil or military authority, civil disturbance, riot, fire, strikes, lockouts or slowdowns, factory or labor conditions, inability to obtain necessary labor, materials or manufacturing facilities, delayed issuance of export control licenses. In the event of such delays or failures to perform, any dates or times by which Ska Fabricating is otherwise scheduled to perform Extended Services shall be extended automatically for a period of time equal in duration to the additional time required because of the delay or failure to perform. Each of the parties shall promptly inform the other of any event of force majeure, its expected duration and cessation, respectively.

24. Non-Solicitation of Ska Fabricating Employees. Customer acknowledges that Ska Fabricating. has trained personnel who perform Services and has made an investment in such personnel. Therefore, at no time during the term of any Services or for one year thereafter, will Customer directly solicit for employment any Ska Fabricating employees who perform Services on behalf of Ska Fabricating without Ska Fabricating’s express prior written consent. In the event that Customer is in breach of this provision, Ska Fabricating shall have the right to invoice Customer, and Customer agrees to pay, a sum equal to 12 month’s salary in respect of the hired individual.

25. Severability. If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, that provision shall be severed and shall not affect the validity or enforceability of the remaining provisions.

26. Waiver. The waiver by Ska Fabricating of strict compliance of performance of any of the terms of this Agreement or of any breach thereof on the part of the Reseller, shall not be held or deemed to be a waiver of any subsequent failure to comply strictly with or perform the same or any other term or condition of this Agreement or any breach thereof.

27. Independent Contractor. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract or bind the other party in any manner whatsoever.

28. Binding Effects. This Agreement is binding and shall insure the benefit of the parties within this agreement and their respective permitted successors and assigns.

Exhibit A Ska Fabricating Extended Service Contract Offerings

1. “Single” Service Contract: Single Piece of Ska Fabricating Equipment at a Single Customer Location

a. Scope of Services. This Service Contract covers services for customer who has purchased a single piece of major equipment, such as a depalletizer, or a repalletizer, or a conveyance system, and equipment is operating at a Single Customer Location.

b. Term of Service Agreement. This Agreement covers 3 years of services, from date of initial contract purchase and payment.

c. Number of Service Visits. The Extended Service Agreement covers up to three site visits per year. One of the three annual visits will be scheduled by Ska Fabricating for overall health check and performance audit of the purchased equipment. Two remaining of the three annual visits may be scheduled by customer if there are additional service items on Ska Fabricating Products to be addressed.

d. Each of the three visits per year is for that specific year only. Service visits cannot be rolled forward into the following year.

e. Duration of Service Visit. Each site visit is for a maximum of 3 days on-site. If additional days are required, then you will be charged at the discounted daily rate in force at the time of service for each additional day.

f. Remote Services: Up to 40 hours per year of remote services including remote technical troubleshooting and remote software support.

g. Discounts on additional spare parts, wearable items, and service visits include:

i. 30% discount on spare parts list prices in force at time of purchase order

ii. 25% discount on service pricing in force at time of service for additional service visits beyond three site visits within each year of agreement.

iii. 25% discount on remote service pricing in force at time of service for additional remote services required beyond 40 hours per year.

h. Excluded Service Types

i. Installation service for newly purchased Ska Fabricating equipment is excluded. These installation services should be quoted separately and ordered at time of new equipment purchase order.

ii. Ska Fabricating new or used equipment that was not purchased from Ska Fabricating or an authorized Ska Fabricating reseller.

iii. Third party equipment sold by Ska Fabricating to Customer, or third party equipment purchased by customer directly from third party equipment vendor.

2. “Site” Service Contract: Multiple Pieces of Ska Fabricating Equipment at a Single Customer Location

a. Scope of Services. This Service Contract covers services for customer who has purchased multiple pieces of major equipment from Ska Fabricating, such as a combination of depalletizers, repalletizers, labelers, or conveyance system, and equipment is operating at a Single Customer Location.

b. Term of Service Agreement. This Agreement covers 3 years of services, from date of initial contract purchase and payment.

d. Each of the three visits per year is for that specific year only. Service visits cannot be rolled forward into the following year.

f. Remote Services: Up to 40 hours per year of remote services including remote technical troubleshooting and remote software support.

g. Discounts on additional spare parts, wearable items, and service visits include:

i. 30% discount on spare parts list prices in force at time of purchase order

ii. 25% discount on service pricing in force at time of service for additional service visits beyond three site visits within each year of agreement.

iii. 25% discount on remote service pricing in force at time of service for additional remote services required beyond 40 hours per year.

h. Excluded Service Types

i. Installation service for newly purchased Ska Fabricating equipment is excluded. These installation services should be quoted separately and ordered at time of new equipment purchase order.

ii. Ska Fabricating new or used equipment that was not purchased from Ska Fabricating or an authorized Ska Fabricating reseller.

iii. Third party equipment sold by Ska Fabricating to Customer, or third party equipment purchased by customer directly from third party equipment vendor.

3. “Multi-Site” Service Contract: Multiple Pieces of Ska Fabricating Equipment at Multiple Customer Locations

b. Term of Service Agreement. This Agreement covers 3 years of services, from date of initial contract purchase and payment.

d. Each of the three visits per year is for that specific year only. Service visits cannot be rolled forward into the following year.

f. Remote Services: Up to 40 hours per year of remote services including remote technical troubleshooting and remote software support.

g. Discounts on additional spare parts, wearable items, and service visits include:

i. 30% discount on spare parts list prices in force at time of purchase order

ii. 25% discount on service pricing in force at time of service for additional service visits beyond three site visits within each year of agreement.

iii. 25% discount on remote service pricing in force at time of service for additional remote services required beyond 40 hours per year.

h. Excluded Service Types

i. Installation service for newly purchased Ska Fabricating equipment is excluded. These installation services should be quoted separately and ordered at time of new equipment purchase order.

ii. Ska Fabricating new or used equipment that was not purchased from Ska Fabricating or an authorized Ska Fabricating reseller.

iii. Third party equipment sold by Ska Fabricating to Customer, or third party equipment purchased by customer directly from third party equipment vendor.

4. Preventive Maintenance and Training Service Contract:

a. Scope of Services. This Service Contract covers services for customer who has purchased major pieces of equipment from Ska Fabricating such as depalletizers or bulk palletizers. Services may be performed at designated North American customer site.

b. Term of Service Agreement. This Agreement covers 3 years of services, from date of initial contract purchase and payment.

c. Number of Service Visits. The Preventive Maintenance Agreement covers one site visit per year. The annual visit will be scheduled by Ska Fabricating for overall health check and performance audit of the purchased equipment, preventive maintenance, and training of maintenance and operator staff. Customer may request additional services, adjustments, or repairs during this visit.

d. The single visit per year is for that specific year only. Service visits cannot be rolled forward into the following year.

f. Discounts on additional spare parts, wearable items, and service visits include:

i. 30% discount on spare parts list prices in force at time of purchase order

h. Excluded Service Types

i. Installation service for newly purchased Ska Fabricating equipment is excluded. These installation services should be quoted separately and ordered at time of new equipment purchase order.

ii. Ska Fabricating new or used equipment that was not purchased from Ska Fabricating or an authorized Ska Fabricating reseller.

iii. Third party equipment sold by Ska Fabricating to Customer, or third party equipment purchased by customer directly from third party equipment vendor.