TERMS AND CONDITIONS OF PEAK FISHING SERVICES, LLC*
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE VIEWING THIS WEBSITE OR DOWNLOADING ANY MEDIA AND INFORMATION FROM THIS WEBSITE. VIEWING AND/OR DOWNLOADING THIS WEBSITE OR ANY MEDIA AND INFORMATION FROM THIS WEBSITE MEANS THAT YOU ACCEPT THESE TERMS AND CONDITIONS AND THAT YOU UNDERSTAND THEY WILL BE LEGALLY BINDING ON YOU, ANY END USER, AND THE COMPANY. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, OR DO NOT WANT THEM TO BE BINDING ON YOU, YOU MUST REFRAIN FROM VIEWING THE WEBSITE OR USING MEDIA AND INFORMATION FROM THE WEBSITE IN ANY MANNER WHATSOEVER.
THESE TERMS AND CONDITIONS CONTAIN DISCLAIMERS OF ALL WARRANTIES AND REPRESENTATIONS AND LIMITATIONS OF LIABILITY. BY YOUR USE OF THE WEBSITE AND/OR THE MEDIA AND INFORMATION, YOU AGREE TO EACH AND EVERY SUCH DISCLAIMER AND LIMITATION.
Certain words in these Terms and Conditions have specific definitions which are contained in Section 14. Generally, such words are capitalized throughout this document, though the definition in Paragraph 14 applies to each instance of the defined word, regardless of capitalization.
1. TERM AND TERMINATION
A. Term of Agreement. These Terms and Conditions shall be effective as of the date that you first accessed the Web Site or viewed the Media and Information contained within the Website and shall remain in force as long as you continue to access the Website or maintain Media and Information from the Website in any tangible or intangible form.
B. Termination of Access. COMPANY may, at any time in its sole option, terminate your right to access the Website or to use the Media and Information from the Website. Should Company terminate such rights, you agree to return or destroy all copies of the Website or Media and Information in your possession immediately. Further, you agree to retrieve all copies of the Media and Information that you provided to third parties upon such termination.
C. Survival. In the event of any termination of these Terms and Conditions, all of your obligations and responsibilities shall survive and continue in effect and shall inure to the benefit of and be binding upon the parties and their legal representative, heirs, successors, and assigns. The termination of these Terms and Conditions or of any provision of these Terms and Conditions shall not excuse a prior breach of the Agreement or of the terminated provision.
You understand and agree that, COMPANY, Peak Fishing Services, LLC., is the owner of all right title and interest to the Website and all Media and Information, including any subsequent copies of the Website and/or Media and Information regardless of the form in which such copies may exist. You do not acquire any ownership rights by viewing, using, accessing, subscribing to, or otherwise coming into possession of the Website or Media and Information. Any copies of the Website or Media and Information, in whole or in part, are provided or permitted solely under the License granted in Paragraph 3, below. The COMPANY retains ownership of all copies of the Website and the Media and Information.
In consideration of your agreement to these Terms and Conditions, COMPANY hereby grants You a non-exclusive right to view the Website and to use and copy the Media and Information from the Website for your internal, personal, or non-commercial use. Electronic or printed copies of portions of the Media and Information may be made provided that Peak Fishing Services, LLC. is acknowledged as the owner of such Media and Information on the face of all such copies and that no copy is modified in any way. No other license or right is granted to you and all other rights in and to the Website and the Media and Information are strictly reserved by Company.
4. RESTRICTIONS ON TRANSFER
You may not transfer the Website, Media and Information and/or the license contained herein to another party regardless of whether or not the other party agrees to accept the terms and conditions of these Terms and Conditions. Any other person seeking access to the Website, Media, or Information must separately agree to these terms through the Website.
5. AVAILABILITY OF OR MODIFICATIONS TO WEBSITE, MEDIA AND INFORMATION
Company does not guarantee the availability of any portion of the Website, Information of Media at any time, whether same appears on the Website at USERS acceptance of these Terms and Conditions, or prior or subsequent to such acceptance.
6. DISCLAIMERS AND LIMITATIONS OF LIABILITY
A. THE WEBSITE, MEDIA AND INFORMATION IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WAR¬RANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
B. The inclusion of any product or services on the Website or the inclusion of any products or services as part of the Media and Information is not a warranty that such products are services are currently or in the future will be made available by Peak Fishing Services, LLC., or by any other person or entity.
C. COMPANY DOES NOT WARRANT OR REPRESENT i) that You will achieve any particular or desired result by using the Media and/or Information; ii) that Your use of the Website, Media and Information does not infringe the rights of any third party, including, without limitation, any copyright, trademark, patent, trade secret or similar rights; iii) that any goods or services received through or advertised on the Website, Media and Information meet any standards or quality and You agree to look only to the applicable provider(s) regarding any claims or other losses you may have in relation to such goods or services; iv) that the Website, Media and Information is free of viruses, malware, spyware or any other form of undesirable or malicious software, code, or other components;
D. You agree that your sole remedy for any dissatisfaction with the Website and/or Media and Information is to immediately stop viewing and/or using the Website, and the Media and Information.
E. You agree that the liability of Company with respect to the use of the Website or the Media and Information shall be limited to no more than $100.00 (one hundred U.S. Dollars).
F. The entire risk as to the quality and performance of the Website, Media and Information is with you. This means you are assuming all risks associated in any way with any use of the Website and/or Media and Information by you or by anyone to whom you provide the Website or any portion of the Media and Information. YOU AGREE TO RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS COMPANY, ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, VENDORS AND REPRESENTATIVES AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, FEES, ASSESSMENTS, LIABILITIES OR OTHER COSTS HOWEVER DENOMINATED (COLLECTIVELY "CLAIMS"), FOR INJURY TO PROPERTY, ILLNESS, BODILY INJURY, OR DEATH WHERE SUCH CLAIMS ARISE FROM OR IN CONNECTION WITH USE OF THE WEBSITE AND/OR THE MEDIA AND INFORMATION BY YOU OR BY ANYONE TO WHOM YOU PROVIDE THE WEBSITE OR ANY PORTION OF THE MEDIA AND INFORMATION.
7. JURISDICTION, ARBITRATION, AND WAIVER OF CLASS ACTION
A. These Terms and Conditions, including, without limitation, the Limited Warranty, Disclaimers and Limitations of Liability shall be governed by the laws of the State of Texas.
B. All disputes hereunder shall be by arbitration to be conducted in Houston, Texas. Such arbitration shall be conducted in proceedings consistent with the Commercial Arbitration Rules of the American Arbitration Association.
C. You and Company each agree to waive any right to bring any dispute against the other as part of class, either as a representative member of the class bringing such suit or as a class participant joining with a claim brought by another.
These Terms and Conditions constitute the entire understanding of the parties regarding access to and use of the Web site and the Media and Information located on the Web site, and revokes and supersedes all prior agreements, oral or written, between the parties, and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to these Terms and Conditions. These Terms and Conditions shall take precedence over any other documents that may be in conflict herewith.
A. Any notice required or permitted under these Terms and Conditions shall be made, unless otherwise specified herein, by Certified Mail to:
Peak Fishing Services, LLC.
Attn: Legal Department
7710 W Hwy 80
Midland, TX 79706
B. Company may change its address for Notices at any time by amendment to the version of these Terms and Conditions available on the Website.
10. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and inure to the benefit of Company, its successors and assigns, as well as to You and any person or persons, natural or otherwise, to whom you transfer copies (whether electronic or "hard") of the Website and/or Media and Information, regardless of whether such transfer is allowed by these Terms and Conditions.
Company may freely assign, sublicense, or otherwise transfer these Terms and Conditions and/or any of its rights hereunder to any party in its sole discretion. You may not assign, sublicense, or otherwise transfer these Terms and Conditions or any rights hereunder without the express written consent of Company in a writing authored by Company, signed by an officer or member of Company, and specifically identifying the rights to be transferred.
No waiver by Company of any provision of these Terms and Conditions or any breach of these Terms and Conditions shall be binding on Company unless such waiver is in a writing signed by an officer or member of Company specifically setting out the provision(s) and/or the breach(es) waived.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
A. "Web site" means, collectively, the documents, code, information, literary works, photographs, pictorial and graphical works, audiovisual works, motion pictures, sound recordings, and all interactive features or other materials made available by Company through any web page that can be accessed by the web address www.peakfishingservices.com, by any web address that begins with www.peakfishingservices.com, or any page or site that links to or displays these Terms and Conditions.
B. "Media and Information" means the documents, code, information, instructions, directions, advice, suggestions, literary works, photographs, pictorial and graphical works, audiovisual works, motion pictures, sound recordings and all interactive features made available by Company through the Website. This definition applies regardless of whether You receive such Media and Information through or separate from the Website and specifically includes Media and Information conveyed by Twitter, Facebook, LinkedIn, other social media outlets, electronic mail, in printed form, on audio or video tape, CD, DVD, or any other format. For clarity, the term "Media and Information" includes, without limitation, any tangible or intangible property, on or accessed through the Website, in which Company has an interest of any type under the laws of the United States, the laws of any State of United States, or the laws of any foreign jurisdiction.
C. "Company" means Peak Fishing Services, LLC., a Limited Liability Company formed and operated under the laws of the State of Texas.
* Between January 1, 2017 and April of 2019, an incorrect version of Terms and Conditions was inadvertently posted at this link. Such Terms and Conditions were posted in error and did not accurately identify that the Terms and Conditions were that of Peak Fishing Services, LLC for that time period. After the error was discovered, the Terms and Conditions located at this link were amended and corrected. These amended and corrected Terms and Conditions are intended to and do apply retroactively to January 1, 2017, and your use of this website is your acceptance of this notice, the amended and corrected Terms and Conditions and their retroactive application as stated herein.
IT IS RECOGNIZED THAT CONDITIONS IN AND ABOUT ANY WELL OR WORK MAY INVOLVE HAZARDS TO LIFE AND PROPERTY AND OBSTACLES TO THE FUNCTIONING OF PRODUCTS AND THE PERFORMANCE OF SERVICES, AND THAT SUCH CONDITIONS ARE NOT AND NEVER HAVE BEEN SUBJECT TO INSPECTION OR CONTROL BY PEAK FISHING SERVICES, LLC “THE COMPANY”.
IT IS THEREFORE AGREED THAT:
1.) The Company warrants only that products or parts therefore, sold or rented to Customers shall be free from defects in materials and workmanship and not that they will accomplish any particular result. Liability under this warranty shall be limited to replacement of or credit for defective equipment or parts.
2.) Services rendered by the Company, in connection with the rental or sale of its products, consist only of technical advice as to make-up, inspection and operation or use. When any such services are rendered, Customer will retain full custody, control and supervision of the work of the well and the conduct of operation thereof, and a representative of Customer shall be present with full authority to direct operations. Company’s total liability with respect to Services will be re-performance of such services or credit for the portion of services that are defective.
3.) The Company will exert its best efforts to render other services offered by it as requested. No guarantee or representation is made as to results, and charges will be made regardless of results obtained. The Company reserves the right to remove equipment and personnel from the well at any time if in its opinion well or other conditions make such action advisable.
4.) Customer agrees to protect, defend, indemnify and hold harmless Company, its officers, directors, employees, agents and invitees (“Company Group”) 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 or fault (active or passive) of any party or parties including the sole, joint or concurrent negligence of Company and any protected and indemnified party under this paragraph, any theory of strict liability and defect of premises, arising in connection herewith in favor of Customer, its customers or contractors, or any of their employees, agents representatives or invitees on account of bodily injury, death or damage to property, real or personal. In support of the foregoing mutual indemnity obligation, Customer will obtain and maintain commercial general liability insurance, on ISO form CG001 or substantial equivalent, with per occurrence limits of at least $2,000,000.
5. Subject to Paragraph 6 below,Company agrees to protect, defend, indemnify and hold harmless Customer, its customers and contractors, and each of their officers, directors, employees, agents and invitees (“Customer Group”) 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 or fault (active or passive) of any party or parties including the sole, joint or concurrent negligence of Customer and any protected and indemnified party under this paragraph, any theory of strict liability and defect of premises, arising in connection herewith in favor of Company, its other customers or subcontractors, or any of their employees, agents representatives or invitees on account of bodily injury, death or damage to property, real or personal. In support of the foregoing mutual indemnity obligation, Company will obtain and maintain commercial general liability insurance on ISO form CG001 or substantial equivalent, with per occurrence limits of at least $2,000,000.
6.) Customer will reimburse Company for and release, defend, and indemnify Company from all losses or damages arising from or in relation to any tools, equipment, or other goods of Company Group damaged, lost, or abandoned in any well, wellbore, or other borehole during operations for the benefit of Customer
7.) Product not sold to Customer will remain the property of the Company and may not be repaired or modified without the Company’s consent. If lost or damaged beyond ordinary wear and tear, such products will be charged for as provided in the Company’s current schedule. Any equipment belonging to the Company in Customer’s possession may be repossessed by the Company upon sixty (60) days’ notice.
8.) The entire liability of the Company, including express and implied warranties, in connection with its products or services is set forth above, and no one is authorized to waive or amend the same in particular.
9.) Prices, rates or terms are subject to change without notice. Equipment manufactured by others will be sold, rented or used by the Company under these terms and conditions except where inconsistent with the manufacturer’s terms and conditions, when the latter shall prevail.
10.) The sale of Products shall not, by implication or otherwise convey any license under any patent, trade secret or other intellectual property relating to the Products or compositions thereof.
11.) Customer shall not cause or permit anyone to: (i) analyze, examine, reverse engineer, perform any qualitative or quantitative analysis, or in any other manner seek to discover the contents, composition or make-up of any of the Products (ii) reveal to any third party, any of the specifications or characteristics of the Products; or (iii) communicate any specifications or characteristics of the Products as being specifications or characteristics of any products, materials or work, performed, sold or furnished by the company. Customer agrees to maintain in confidence all of Company’s non-public information, including pricing, technical specifications, designs, operating methods, procedures, and any other information designated “Confidential” either orally or in writing. Customer shall protect such information with at least the same protections as Customer provides its own confidential and trade secret information.
12.) These terms and conditions shall be deemed separable; and if any portion thereof is held to be invalid for any reason, the remainder shall not be deemed invalid but shall remain in full force and effect.
13.) The parties acknowledge that this Agreement shall be deemed (i) to have been made and entered into in, and (ii) to be performed, in whole or in part in, Midland County, Texas, USA. The parties therefore stipulate and agree that (i) this Agreement shall be governed by and construed according to the laws of the State of Texas; (ii) any action related to or arising from this Agreement may be brought only in a local, state or federal court for or in Midland County, Texas. The parties each consent to the jurisdiction of any local, state or federal court of Midland County, Texas, and waive any objection to such jurisdiction over any action related to or arising from this Agreement. Any final judgment of any such courts may then be enforced by appropriate courts elsewhere.
14. Customer agrees that it shall not export from the United States any Product sold hereunder without the express written consent of Company. Any export of the Products from the U.S., whether or not permitted by Company, shall be subject to U.S. law, and Customer shall comply therewith and shall not export, re-export or trans-ship Products in violation of U.S. law. Customer shall release, defend and indemnify Company from any and all damages, losses, or claims of Company, including all costs and attorney fees, arising from or in connection with any breach of this paragraph.
15. All of the preceding terms and conditions shall apply between the Company, or any affiliate of the Company, and any service company, operator, or other party or parties selling, renting, or using the Company’s products, parts thereof, or services furnished hereunder.
16. TERMS OF PAYMENT – Unless otherwise specified, 30 days NET payable to Company’s address in Midland County, Texas. Interest chargeable thereafter at the greater of 1.5% per month (18% per annum) or the highest rate permitted by applicable law.
17. SHIPPING DATES – All statements of date of shipment are estimates. We use our best efforts to ship within the time estimated, but the shipment of any order may be delayed by causes beyond our control.
18. TAXES AND OTHER CHARGES – Any tax based on or measured by the charges or collection for the sale or rental of products or the rendering of services, import duties, documentation charges, freight charges and transfer fees shall be added to the stated price.
19. CANCELLATION AND RETURNS – Orders for products of special design, size or materials are not cancelable after receipt at our factories. Special prices will be charged for altered equipment or products made to customer specifications. Credit will not be allowed for products returned without prior written authority.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY, OF FITNESS FOR A PARTICULAR PURPOSE.