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Peak UpTime General Terms and Conditions

1.APPLICABILITY:The terms of these general terms and conditions shall apply to any and all contracts, purchase orders, work orders, statements of work, or other agreements whether or not in writing, by the terms of which Peak Methods, Inc. dba Peak UpTime (“Company”) supplies to Client any services or any combination of services and materials and all performances of services and/or supply of materials and equipment (the aforementioned along with these general terms and conditions are herein after referred to as the “Contract”). When Client desires Company to perform any services or supply any materials and equipment, Client shall so advise Company by issuance of written purchase orders, work orders, supplemental agreements (collectively an "Order"). Upon acceptance of any Order by Company and without necessity of further reference therein, this Contract shall become an integral part of the Order. 2.INDEPENDENT CONTRACTOR: Company shall be an independent contractor with respect to the performance of all Orders. Neither Company, its subcontractors, nor anyone used or employed by either, shall be deemed for any purpose to be an employee, agent, “borrowed servant”, joint ventures, principal, partner, or representative of Client in the performance of any service for or on behalf of Client. Client shall have no direction or control of Company, or its employees and agents except in the results to be obtained. 3.PRICING/PAYMENT/TERMS:Company shall be compensated for the services performed and materials and equipment supplied at the prices agreed to in writing at the time of commencement of performance of services or shipment of materials and equipment for the term identified on the quote or agreement. Termination, unless identified otherwise, will be a 90-day written notice prior to the end of the term of the agreement, otherwise the agreement will automatically renew on the anniversary date. Any price increase will be subject to terms within the Order. Absent such terms, any price increase will be communicated in writing and in no event be effective until thirty (30) days after notice to Client. Special pricing as in the case of bids, quotations and discounts will apply upon the subsequent agreement of Company and Client. Invoices submitted in accordance with this Contract shall be due and payable within thirty (30) days after receipt by Client. Any amount not paid by the due date will accrue interest at the lesser of the rate of 1 ½% per month or the maximum rate allowed by Oklahoma law. Client shall pay all sales, use, excise, VAT or other tax payable as result of any sale, license, support, services, use and/or installation, if any. 4.NOTICES: All notices and correspondence pertaining to the administration of this Contract shall be in writing and shall be deemed to have been properly given when received by the office of the party to which the notice is sent to the addresses set forth in the Order. Either party may at any time on ten (10) days' notice, in writing, change the address for notice. 5.MERGER:This Contract and any applicable supplement constitute the full understanding of the parties, and supersedes all other prior or contemporaneous oral or written agreements. This Contract and any applicable supplement constitute a complete allocation of risks between the parties and a complete and exclusive statement of the terms and conditions of their agreement. 6.INCREASES: Notwithstanding any other provision to the contrary, and not more often than once per calendar year, Peak Methods, Inc dba Peak UpTime may increase charges applicable to any Service Order or Agreement (i) for increases in any third-party charges (ii) for an amount not to exceed the amount of such increase from said third party charges. In certain cases, workloads hosted on VMs in Elevate may require an increase in resource allocation to maintain warranty/support or functionality as determined by the manufacturer. Such an increase will be effective upon the date set forth in Peak Methods, Inc.’s written notice to customer. 7.WAIVER:No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver is expressed in writing signed by the party to be bound. Failure of either party to enforce any of these provisions, or to exercise any right accruing through the default of the other party shall not affect or impair either party's rights in case such default continues or in case of any subsequent default of the other party, and such failure shall not constitute a waiver of other such defaults of either party. 8.WARRANTIES. To the extent assignable, Company shall pass through all third-party warranties for equipment or software to Client. COMPANY MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY IN CONNECTION WITH THIS CONTRACT OR ANY ORDER. EXCEPT WITH RESPECT TO COMPANY’S INDEMNIFICATION OBLIGATIONS OR CLAIMS ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF COMPANY, IN THE EVENT OF ANY BREACH OF WARRANTY, COMPANY’S LIABILITY SHALL BE LIMITED TO THE COST OF THE AFFECTED ORDER. 9.CONFIDENTIALITY. Both parties may provide information relating to existing business operations and/or areas of interest to each other’s business. “Confidential Information” means data in any form belonging to each party and its affiliates including but not limited to: financial reports, computer software and designs, documentation and all other software technology (whether owned or licensed by the disclosing party), some of which may be represented in presently pending and future patent applications, software listings, derivatives, documentation, specifications, flow charts, trade secrets, object code, source code, pricing information, pricing strategies, technical data, market surveys, client lists, business plans and data concerning inventions, developments and discoveries, whether or not patentable, whether or not it was disclosed to the other party prior to or after the date of this Contract. Any Confidential Information of a third-party licensor shall be protected as set forth in the applicable party’s license with third party licensor. Neither party (the “Receiving Party”) shall disclose any aspect of the other party’s (the “Disclosing Party”) Confidential Information except to an employee or contractor of the Receiving Party and only upon the condition that such person: (i) has a need to know and obtain access thereto in order to give effect to the rights granted to the Receiving Party under this Contract, or (ii) agrees to maintain the proprietary and confidential nature of such material and to limit the use and copying thereof and access thereto as required by the terms of this Contract. A Disclosing Party’s Confidential Information will be maintained under secure conditions by the Receiving Party, using reasonable security measures, and in any event, not less than the same security procedures used by the Receiving Party for the protection of its own Confidential Information of a similar kind. The Receiving Party shall not copy, duplicate, reverse engineer, reverse compile, dissemble, record, “unlock” (as the term is generally used in the industry), or otherwise reproduce any part of the Confidential Information, or attempt to do any of the foregoing, without the prior written consent of the Disclosing Party. Any tangible embodiments of Confidential Information that may be generated by the Receiving Party, either pursuant to or in violation of this Contract, will be deemed to be the sole property of the Disclosing Party and fully subject to the obligations of confidentiality set forth in this Section 8. The Receiving Party shall not remove, obscure, or deface any proprietary legend or copyright notice relating to the Disclosing Party’s rights, on or from any tangible embodiment of any Confidential Information, without the Disclosing Party’s prior written consent. The Receiving Party shall immediately report to the Disclosing Party any attempt by any person, of which the Receiving Party has knowledge, to use or disclose the Disclosing Party’s Confidential Information without authorization from the Disclosing Party. In the event of the Receiving Party’s breach of any of the provisions of this Section 8, the Disclosing Party shall be presumed not have an adequate remedy in money or damages and shall, therefore, be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. The Disclosing Party’s right to obtain injunctive relief shall not limit its right to seek further remedies with respect to any breach of the Receiving Party’s obligations to not disclose any aspects of the Confidential Information. The provisions of this Paragraph shall survive any termination of this Agreement for any reason for a period of five (5) years from such termination. 10.NON-SOLICITATION. During the term of this Contract and for a period of two (2) years following, neither party shall solicit for employment or offer a contract for services to any employee or representative of the other without written consent of the other party. In the event of such hiring, contrary to the terms of this agreement, then as liquidated damages and not as a penalty, the hiring party shall pay the other an amount equal to six (6) month’s salary of such employee. The parties agree that the liquidated damages set forth above shall be the sole remedy for a breach of this provision. This provision shall not restrict the right of either party to engage in general public solicitation or recruitment efforts, nor shall it prohibit either party from hiring an employee of the other who responds to such public solicitations or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the hiring party. 11.TITLE. Title to each third-party product (other than software) to be sold by Company hereunder shall pass to Client upon payment in full of the purchase price stated in the applicable Order. Title to software is not being transferred and the right to use software included in the products shall be governed by a separate license agreement between Client and the software vendor. Company reserves title to the products sold hereunder as security for the performance of Client’s obligations until Company receives payment in full for such product. Should Client fail to perform any of its obligations within ten (10) days after receipt of notice of default, including default in payment of any charges hereunder when due, Company shall be entitled to exercise all rights and remedies as may be conferred on it by law. Title to all inventions, improvements, trade secrets, concepts or ideas, programming, source code, works of authorship, materials, information, and other intellectual property, whether or not patentable or copyrightable (collectively, “Technology”) created independently of the performance of this Contract, or created by Company or its subcontractors as a tool for its use in performing services, plus any modifications or enhancements thereto and derivative works based thereon (the “Company Technology”) shall vest with Company. With respect to Technology commissioned by Client (the “Deliverables”), except to the extent that the Deliverables contain Company Technology, Client requires, and Company agrees, that all Deliverables shall be considered a “work made for hire” as that phrase is defined in the U.S. Copyright Laws and shall be the sole and exclusive property of Client, Company agrees and does hereby assign to Client all right, title, and interest in and to the Deliverables. In the event it should be established that the Deliverables do not qualify as a work made for hire, Company agrees and does hereby assign to Client all right, title, and interest in the Deliverables, including but not limited to all patents, trademarks, copyrights, and trade secrets, without any claim or right by Company to additional compensation. To the extent that the Deliverables contain Company Technology, Company does hereby grant to Client the unrestricted right to use any Company Technology included in the Deliverables in connection with Client’s use of the Deliverables. Except for the foregoing grant, Company and its licensors retain all rights in and to all Company Technology. Nothing herein shall restrict either party from independently developing or further developing (without reliance on the other party’s Technology or such party’s confidential or proprietary information) technology, products, processes, software or other information or intellectual property that serves the same or a substantially similar purpose as the other party’s Technology. The ownership of and copyright to such developments shall vest with the developing party. 12.INDEMNIFICATION: TO THE FULLEST EXTENT OF THE LAW AND NO FURTHER, EACH PARTY AGREES TO INDEMNIFY THE OTHER AS FOLLOWS: COMPANY AGREES TO PROTECT, DEFEND, INDEMNIFY, AND SAVE CLIENT, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER, WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF OR THE NEGLIGENCE OF ANY PARTY OR PARTIES, (i) ARISING IN CONNECTION HEREWITH IN FAVOR OF COMPANY’S EMPLOYEES OR SUB-CONTRACTORS OR THEIR EMPLOYEES, OR (ii) ARISING FROM WORK PERFORMED BY THE COMPANY INFRINGING ANY PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT HELD BY ANY THIRD PARTY . CLIENT AGREES TO PROTECT, DEFEND, INDEMNIFY, AND SAVE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER, WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF OR THE NEGLIGENCE OF ANY PARTY OR PARTIES, ARISING IN CONNECTION HEREWITH IN FAVOR OF CLIENT’S EMPLOYEES OR SUB-CONTRACTORS OR THEIR EMPLOYEES. NEITHER COMPANY NOR ANY OF ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS SHALL BE ENTITLED TO, OR ELIGIBLE TO, PARTICIPATE IN ANY BENEFITS OR PRIVILEGES GIVEN OR EXTENDED BY CLIENT TO ITS EMPLOYEES. COMPANY SHALL BE SOLELY RESPONSIBLE FOR (I) HOURS, HIRING, DISCIPLINE, TERMINATION, AND WORK ASSIGNMENTS OF ITS EMPLOYEES AND SUBCONTRACTORS; AND (II) THE PAYMENT OF ALL WAGES, SALARY, OR OTHER COMPENSATION; ALL INCOME, DISABILITY, WITHHOLDING, SOCIAL SECURITY AND OTHER EMPLOYMENT TAXES; ALL MEDICAL BENEFIT PREMIUMS, VACATION PAY, SICK PAY, AND ALL OTHER FRINGE BENEFITS DUE ON ACCOUNT OF COMPANY'S PROVISION OF SERVICES HEREUNDER. COMPANY SHALL INDEMNIFY AND HOLD CLIENT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, INSURERS, AND THE ADMINISTRATORS OF CLIENT’S BENEFITS PLANS, HARMLESS FROM ANY CLAIMS, DEMANDS, LOSSES, LIABILITIES OR EXPENSES, INCLUDING REASONABLE ATTORNEY'S FEES AND IN-HOUSE COUNSEL FEES, RESULTING FROM COMPANY'S FAILURE TO MAKE ANY SUCH REQUIRED PAYMENTS. THE FOREGOING INDEMNIFICATION SHALL SURVIVE ANY TERMINATION OF THE CONTRACT FOR A PERIOD OF TWO (2) YEARS. 13. LIMITATION OF LIABILITY; INFRINGEMENT. UNDER NO CIRCUMSTANCES SHALL COMPANY OR CLIENT BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES (INCLUDING LOSS OF GOODWILL OR BUSINESS PROFITS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 14.ASSIGNMENT: Company may subcontract all or substantially all of Company's services prescribed by an Order. In such an event, Company shall remain the primary contact with Client. Company shall also retain primary liability for the performance of such an Order. 15.APPLICABLE LAW; COSTS: The Contract and shall be construed according to the laws of the State of Oklahoma, without regard to its choice of law provisions. In the event a dispute arises with regard to the Contract, the prevailing party shall be entitled to recover all costs of enforcement thereof, including a reasonable attorney's fee. 16.SEVERABILITY: If any provision herein is or becomes invalid or illegal in whole or part, such provision shall be deemed amended as nearly as possible, to be consistent with the intent expressed in this Contract, and if such is impossible, that provision shall fail by itself without invalidity any of the remaining provisions not otherwise invalid or illegal. 17.CHANGES: The terms of this Contract, the description or quantities of any services or materials provided under this Contract, the conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to change, alter, modify, vary, explain or supplement the terms or conditions of this Contract shall not be binding upon Client unless hereafter made in writing and signed by an authorized representative of Client. NO MODIFICATION SHALL BE AFFECTED BY THE ACKNOWLEDGMENT OR ACCEPTANCE OF PURCHASE ORDER OR SHIPPING INSTRUCTION FORMS OR ANY OTHER SIMILAR DOCUMENT CONTAINING TERMS OR CONDITIONS AT VARIANCE WITH OR IN ADDITION TO THOSE SET FORTH HEREIN. 18.FLSA and EEO: Company warrants compliance with all applicable Federal, State and local laws, regulations and orders, including, the Fair Labor Standards Act of 1938, as amended (Federal Wage and Hour Law) and paragraphs (1) through (7) of Section 202 of Executive Order No. 11246, as amended, pertaining to Equal Employment Opportunity and Company shall, upon request furnish to Client certificates to such effect.

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