Everest Carbon, Inc. (“we,” “us,” or “our”, or “Everest”) provides measurement devices, software, and related services (“Products”) to you (“Customer” or “you”). These Terms and Conditions (these “Terms”) govern your purchase and use of our Products. By placing an order for Products (an “Order”), you agree to these Terms. These Terms are binding and supersede any prior agreements or representations.

1. Contract Formation: All orders are subject to our written confirmation. An order becomes binding upon written acceptance by Everest or upon shipment of the Products. The Order and these Terms are the entire agreement between Everest and you with respect to its subject matter and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written. Any conflicting or additional terms are expressly rejected unless agreed to in writing by Everest.

2. Pricing and Payment: Customer will pay Everest the prices specified in the Order in accordance with the terms therein. Order and invoice prices do not include sales, VAT, withholding, use, property, excise, service, transportation, or similar taxes and charges (“Taxes”) now or hereafter levied, all of which shall be the Customer’s responsibility. If Everest is required to prepay transportation costs or Taxes on behalf of the Customer, the Customer agrees to reimburse Everest for such amounts upon receipt of an invoice. Unless otherwise specified, all fees and payments are non-refundable. Unless explicitly stated otherwise on the invoice, payment for all accounts are due within 30 days from the invoice date.

3. Products and Software: Our Products include sensors, hardware, embedded software (“Software”) and related online services. The Software is licensed, not sold, and is provided solely for use with the purchased Products. Everest grants you a non-exclusive, non-transferable, limited license to use the Software solely as necessary for the normal operation of the Products, subject to these Terms. As part of the Products you will gain access to Everest’s online customer platform, which you may use in accordance with these Terms for the term of your Order. You are prohibited from reverse-engineering, modifying, or redistributing the Products. Everest Carbon reserves the right to update or modify the Software and services to maintain or enhance functionality, and such updates to the Software may be mandatory. Everest Carbon will provide implementation support only as agreed by the parties in writing (email to suffice). Everest Carbon reserves all rights not expressly granted to you in these Terms.

4. Data Rights and Usage: Customer owns the raw data generated by the Products in their possession (“Device Data”) and the output of the Products provided to Customer (other than any Everest Carbon background technology included therein) (“Output”). Everest may use the Device Data and Output to provide the services described in the Order and these Terms. You also agree that Everest may process Device Data and Output to improve our Products, services, and technologies and that Everest may use anonymized and aggregated Device Data for benchmarking, research, and commercial purposes. Everest will not disclose identifiable Device Data to third parties without your explicit consent, except as required by law. Everest is free to use, at its option and without further obligation any feedback about the Products provided by you.

5. Warranty: Everest provides a one-year limited warranty covering manufacturing defects in materials and workmanship under normal use. This warranty is effective from the date of delivery and applies only to the original purchaser of the Products. The warranty covers defects from faulty materials or assembly issues that prevent the Products from functioning as intended. The warranty does not cover any costs incurred by the Customer for installing, removing, or transporting the Equipment, or any other incidental expenses associated with replacing the unit. This warranty excludes damages arising from misuse, unauthorized modifications, or failure to follow operating instructions or install required updates. If a defect covered by this warranty is found within the warranty period, Everest will, at its discretion, repair or replace the defective Product or issue a refund of the purchase price. Everest reserves the right to inspect and verify the defect before processing any warranty claim. Everest does not guarantee that the Products will operate without interruption, meet all Customer requirements, or be error-free. Everest disclaims all other warranties, express or implied.

6. Limitation of Liability: Everest’s total liability for any claim is capped at the purchase price of the affected Products. Everest is not liable for indirect, incidental, consequential, or punitive damages, including but not limited to loss of data, business interruptions, or environmental impacts. These limitations apply to the fullest extent permitted by law and regardless of the legal or equitable theory involved.

7. Delivery and Risk of Loss: The Products will be delivered to the Customer using the method deemed most appropriate by Everest, unless specific shipping instructions are provided and agreed upon. Delivery timelines are estimates and are not guaranteed. Everest is not responsible for delays caused by factors beyond its control. Risk of loss transfers to the Customer upon delivery, and ownership transfers upon receipt of full payment.

8. Third-Party Components: Our Products may include third-party components or software (“Third-Party Components”), which are provided “AS IS” without warranties of any kind. Except as otherwise expressly identified by Everest, all Third Party Components are redistributed to Customer under the terms and conditions under which they were made available to Everest and, accordingly, any warranties, indemnities, and liabilities relating to the use of such Third Party Components run directly from the licensor of such Third Party Components to Customer.

9. Returns and Cancellations: Returns are accepted only for manufacturing defects covered under the warranty. Customers must initiate returns within 30 days of delivery by providing written notice to Everest. Everest reserves the right to inspect the returned Products to verify the defect before processing any repair, replacement, or refund, as determined at our sole discretion. Orders cannot be canceled once confirmed. Customers are responsible for accepting delivery of the Products.

‍10. Governing Law and Dispute Resolution: These Terms are governed by the laws of the State of California, excluding its conflict of law principles. All disputes arising out of or relating to these Terms shall be resolved through binding arbitration in San Francisco, California, as governed by the rules of American Arbitration Association. Each party shall bear its own costs, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Nothing herein prevents Everest from seeking injunctive relief in any court of competent jurisdiction to protect its intellectual property rights or confidential information. 

‍11. Changes to Terms: We may update these Terms from time to time with notice to you. Any changes will apply to future orders and not retroactively unless explicitly agreed upon. All other changes to the Order must be through an amendment signed by both parties. 

‍12. Severability: If any provision of these Terms is determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction or other relevant authority, that provision will be enforced to the fullest extent permitted by applicable law, and the remaining provisions will remain in full force and effect. The invalidity or unenforceability of any provision will not terminate or otherwise affect the business relationship, which will continue to be governed by the remaining valid terms.

‍13. Export Controls: The Products may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Products to any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation, in each case without Everest’s prior written consent. 

‍14. U.S. Government Restricted Rights: The Products are commercial within the meaning of the applicable civilian and military Federal Acquisition Regulations and any supplement thereto. If Customer or any user of the Products is an agency, department, employee, or other representative of the United States Government, the use, duplication, modification, disclosure, or transfer of the Products is restricted by the terms, conditions, and covenants contained in these Terms and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14(ALT III), as applicable.