Terms & Conditions

Version August 2024

Article 1: Definitions

In these Terms and Conditions, the capitalised definitions below have the following meanings:

General Terms and Conditions	These Terms and Conditions.
Article	An Article in these General Terms and Conditions.
Clause	A clause within an Article in these General Terms and Conditions.
Tenant	SGL’s Counterparty that has one or more Products leases from SGL and may thereby purchase one or more Services, or purchase stand-alone Services from SGL. Where these General Terms and Conditions refer to “Lease”, the Tenant is also referred to as Lessee.
Quote	A written offer made by SGL to a potential Counterparty.
Order	The Products and/or Services to be delivered by SGL and/or the work to be performed to and for the benefit of the Counterparty, as described in the Agreement.
Agreement	Any Offer accepted in writing by the Counterparty and any other written  agreement between SGL and the Counterparty that comes into effect, as well as any amendment or addition thereto, provided that the amendment or addition is confirmed in writing by both Parties.
Buyer	SGL’s Counterparty that purchases one or more Products from SGL (irrespective of whether purchased by instalments or, for example, by financial lease) and may purchase Services from SGL.
SGL	The private company with limited liability “Stadium Grow Lighting B.V.”, registered with the Chamber of Commerce under Chamber of Commerce number: 34157947, user of these General Terms and Conditions.
Counterparty	Buyer, or Tenant, or any organisation or person who otherwise purchases Services, or Products or goods from SGL.
Products	All items, i.e. (physical) Products and installations that SGL delivers to the Counterparty in the form of purchase, rental and/or (financial) lease. This also includes spare parts to maintain Products.
Services	Maintenance, services, advice and/or software provided by SGL to the Counterparty, either separately or in combination with Products. This includes, for example, but not exclusively, monitoring or gaining insight into the growth of grass, or gaining insight into shadows on the field, collecting data and analysing and advising on the basis thereof.

SGL, Buyer, Tenant, or Counterparty is individually also referred to as “Party“.

Article 2: Scope of application

2.1
These General Terms and Conditions apply to, and form an inseparable part of, all Orders, Offers, Agreements and order confirmations of SGL.

2.2
Agreements deviating from these General Terms and Conditions shall only be valid if such agreements are set out in writing and confirmed in writing by both Parties.

2.3
In case of conflict between the content of provisions of the Agreement and provisions of these General Terms and Conditions, the provisions of the Agreement shall prevail.

2.4
By signing, or otherwise accepting in writing, an Offer, the Counterparty has acknowledged that it has been provided with these General Terms and Conditions. The Counterparty may at any time request SGL to send it a copy of these General Terms and Conditions in pdf format by email or a paper version by post free of charge.

2.5
Insofar as the Counterparty wishes to declare its own general terms and conditions applicable, the applicability of those general terms and conditions is expressly rejected. A reference by the Counterparty to its own general terms and conditions has no legal effect. If these General Terms and Conditions are not accepted by the Counterparty, no Agreement will be concluded unless the Parties agree on the applicable general terms and conditions and confirm this in writing.

2.6
SGL is authorised to amend the General Terms and Conditions from time to time. If this occurs, the new version of the General Terms and Conditions will apply by operation of law to all existing legal relationships and the new General Terms and Conditions will replace these General Terms and Conditions. The most recent version of the General Terms and Conditions will always be published on SGL’s website so that the Counterparty can inspect them at any time. The Counterparty is responsible for consulting the most recent version of the General Terms and Conditions from time to time.

2.7
If SGL and the Counterparty conclude more than one Agreement, the General Terms and Conditions will apply to all Agreements between SGL and the Counterparty, regardless of whether or not they are (always) explicitly declared applicable to the Agreement in question.

2.8
If one or more provisions of these General Terms and Conditions prove not to be legally valid or cannot be legally applied, the other provisions of the General Terms and Conditions shall remain in force. The parties shall consult on the provisions that are not legally valid or cannot legally be applied in order to agree on a replacement provision that is legally valid and as close as possible to the purport and intention of the provision to be replaced.

2.9
In case of conflict between the Dutch General Terms and Conditions and a translation of the General Terms and Conditions, the interpretation of the Dutch language General Terms and Conditions shall prevail.

Article 3: Offers and formation of Agreement

3.1
All Quotations are without obligation, unless the Quotation expressly provides otherwise.

3.2
When making an Offer, SGL will rely on the information provided by the Counterparty. The Counterparty guarantees the accuracy of the information provided by it.

3.3
In preparing an Offer, SGL may take as a basis what is visually perceptible from the outside, or what is communicated to the Counterparty, at the location where the Order will be delivered or installed.

3.4
The Quotation contains a description of the Products and/or Services to be supplied and any other work to be performed.

3.5
When making an Offer, SGL assumes delivery of Products and Services, and possibly installation, under normal (working) conditions, which means, among other things, that there is good transport access to the location where the Products are to be delivered or installed, or the Services are to be performed. Before installation, the Counterparty will in any event ensure that there is an adequate power supply for the use of SGL’s Products and goods. If SGL has not informed the Counterparty about the required power supply, or if there is any doubt in the Counterparty about the required power, the Counterparty must promptly ask SGL about this before SGL delivers the goods to the Counterparty or installs them at the Counterparty’s premises. Any delay or damage otherwise, in case the Counterparty’s power supply is not adequate for the (installation) of SGL’s goods and in case the Counterparty has not inquired about the required power supply, will be at the Counterparty’s expense and risk.

3.6
SGL cannot be held to an Order, Quotation, Agreement or other undertaking if the Counterparty should reasonably understand that the Quotation, Agreement, Order or undertaking, or any part thereof, contains an obvious mistake or clerical error. The Party that discovers such an obvious error, mistake or slip of the pen in an Offer, Agreement, Order or Undertaking or any part thereof shall inform the Counterparty as soon as possible. SGL will not be liable for damages incurred by the Counterparty as a result of the said manifest errors, mistakes or slips. In a situation as described in this Clause, SGL will correct the manifest error, mistake or clerical error in writing.

3.7
A composite quotation does not oblige SGL to deliver part of the Products and/or Services included in the Quotation, or any other (written) offer by SGL, at a corresponding part of the quoted price.

3.8
In addition to the provisions of Clause 1, an Agreement may be concluded by the Counterparty placing an Order with SGL and SGL accepting the Order by order confirmation.

3.9
As long as an Offer has not been accepted by the Counterparty, SGL will be entitled to revoke the Offer without any obligation to pay damages. A non-binding Quotation, or otherwise non-binding offer by SGL, may still be revoked immediately after acceptance.

3.10
The day on which the Quotation or Agreement has been signed by both Parties, or otherwise accepted in writing, shall count as the day of the formation of the Agreement.

3.11
Services provided in subscription form are, unless otherwise stipulated in the Quotation or Agreement, recurring in nature and are tacitly renewed on a monthly basis.

Article 4: Amendment of the Agreement and additional and less work

4.1
Amendment of the Agreement is possible if the Parties so agree, record a description of the amendment in writing, and both Parties sign that description, or declare by e-mail that they agree to the amendment of the Agreement.

4.2
A change in the Agreement after it has been concluded may affect an expected (up)delivery date. Regardless of the reasons, SGL cannot be held liable for (the consequences) of a change in the (delivery) date.

4.3
Verbal promises by and agreements with subordinates, i.e. persons other than an SGL statutory representative and persons without a sufficient power of attorney from an SGL statutory representative, shall not bind SGL unless the promises or agreements are confirmed in writing by an SGL statutory representative.

4.4
If an amendment to the Agreement entails additional work, and/or means that SGL will deliver more Products, the invoice amount will increase. The Parties will record the adjustment of the invoice amount in the description of the Agreement amendment. The foregoing also applies if the amendment to the Agreement entails less work or fewer Products and/or Services to be delivered.

Article 5: Additional and reduced work on installation and/or delivery

5.1
In drawing up the Offer, SGL was entitled to assume, prior to delivery, what was visually perceptible from the outside at the location where the Order was to be delivered or installed. If, after the Agreement is concluded, it appears that a deviation from or addition to the agreed Order is necessary, and if SGL was not able to visually observe the cause of such deviation or addition from the outside, the deviating and/or additional work will result in additional work.

5.2
Erroneous or incorrect information from the Counterparty may lead to additional work.

5.3
SGL is entitled to charge the Counterparty for additional work in addition to the agreed price in the Agreement.

5.4
Additional work is calculated on the basis of the value of the price determinants applicable at the time the additional work is carried out. Less work shall be calculated on the basis of the value of the price determining factors applicable on the day the Agreement is concluded.

5.5
Additional work also includes unforeseen Services, including installation work or ICT solutions for the purpose of the correct provision of (other) Services, data display and analysis or other software applications.

5.6
SGL will only claim an increase in the total price of the Agreement in the event of additional work if SGL has informed the Counterparty of the additional work and the resulting price increase within a reasonable period of time after it has become clear to SGL that the performance of the Order entails additional work.

5.7
The Counterparty is responsible for making necessary ICT systems accessible if they are required for the installation or provision of Services. Delays or extra incurred due to lack of access to required systems will be considered as additional work or charged to the Counterparty.

Article 7: Delivery

7.1
Delivery of Products by SGL takes place “ex works” – meaning that SGL’s Products are delivered directly from the factory to the Counterparty – unless the Parties have expressly agreed otherwise in writing.

7.2
The Buyer is obliged to accept the Products included in the Agreement at the time that SGL delivers them or causes them to be delivered to the Buyer, or at the time when they are made available to the Buyer under the Agreement.

7.3
If the Buyer refuses to take delivery or fails to provide information or instructions necessary for delivery, SGL is entitled to store the Products or have them stored at the Buyer’s expense and risk.

7.4
If Products are delivered, SGL is entitled to charge any transport and/or delivery costs.

7.5
Delivery times or deadlines otherwise within which SGL must deliver Products or perform work, are indicative only and in no event constitute a strict deadline as referred to in Article 6:83(a) of the Dutch Civil Code.

7.6
SGL is entitled to deliver the Products in parts and to charge the Buyer separately for those partial deliveries.

7.7
Services provided by SGL may require prior preparatory work. Delivery of Services occurs after signature, or otherwise written acceptance, of the Agreement. SGL endeavours to complete preparatory work within a reasonable time to make Services functional to the Counterparty.

Article 8: Examination Buyer

8.1
The Buyer is obliged to inspect the Products delivered by SGL on the day of commissioning, and if the Products delivered by SGL are not commissioned on the day of delivery, at the latest within three days after delivery at the Counterparty’s location. In doing so, the Buyer must examine whether the quality and quantity of the Products delivered correspond to what was agreed in the Agreement.

8.2
If a model has been shown to the Buyer, the model is presumed to have been shown as an indication or example only, without the actual Products to be delivered having to be identical to it, unless the Parties expressly agree otherwise in writing.

8.3
SGL does not guarantee accuracy of Services with respect to predictions and/or data analysis and views.

8.4
Deficiencies in the Products or Services delivered, as well as deficiencies in the installation or assembly of the Products by SGL, or any deficiencies on the part of SGL, must be notified to SGL in writing within eight days after (delivery).

8.5
The Buyer is obliged to accept the Products and Services purchased and to pay SGL the full purchase price agreed in the Agreement, even if the Buyer notifies SGL of a default in accordance with and as referred to in Clause 8.4.

8.6
If a deficiency is not notified to SGL in accordance with Clause 8.4, any guarantee referred to in Clauses 11.1 to 11.3 will lapse.

8.7
Even in the event of a reported complaint, the Purchaser remains obliged to purchase and pay for the Order. If the Purchaser wishes to return defective Products, this will be done with SGL’s prior written consent and in the manner indicated by SGL.

8.8
The Buyer must give SGL the opportunity to investigate the complaint or have it investigated.

Article 9: Payment and collection

9.1
Payment must be made within fourteen (14) days of the invoice date of the relevant invoice in a manner to be indicated by SGL. Objections to the amount of an invoice do not suspend the payment obligation. The Counterparty is not entitled to set off or suspend any payment.

9.2
SGL is entitled to charge advances on payments and the Counterparty is obliged to pay those advances.

9.3
If the Counterparty fails to make payment within the period of fourteen (14) days, the Counterparty will immediately be in default without any demand or notice of default being required. The Counterparty will also owe SGL default interest of 1% per month or part thereof, unless the statutory (commercial) interest rate is higher, in which case the highest interest rate will apply. The interest on the amount due and payable will be calculated from the moment that the Counterparty is in default until the moment of payment of the entire outstanding claim, including extrajudicial (collection) costs and (late payment) interest.

9.4
SGL’s claims against the Counterparty will fall due immediately in the event that the Counterparty’s company is dissolved or liquidated, applies for or is granted a suspension of payments and in the event that its bankruptcy is applied for or is pronounced.

9.5
Payments made by the Counterparty shall always first be applied to reduce the (extrajudicial) collection costs, then to reduce the default or (statutory) commercial interest and finally to reduce the principal sum.

9.6
The above applies without prejudice to SGL’s authority to suspend any outstanding obligation on its part in case the Counterparty is late in paying one or more outstanding (instalment) payments.

9.7
If the Counterparty is in default or in arrears with payment of an invoice from SGL, SGL may assign the claim. In that case, in addition to the principal sum and the (default) interest, the Counterparty will owe all judicial and extrajudicial costs incurred by SGL for the collection of its claim, as well as for the preservation of its rights, and all costs for obtaining extrajudicial satisfaction will be payable by the Counterparty.

9.8
Judicial and extrajudicial costs will in any case include the costs of lawyers and jurists, bailiffs and collection agents engaged or to be engaged by SGL in order to obtain payment of the due and payable claim against the Counterparty. Such costs must also be reimbursed by the Buyer if such court costs exceed the outstanding invoice amount.

Article 10: Retention of title

10.1
All Products delivered to the Buyer (which also includes: the created with the Services or other work provided by SGL) remain SGL’s property until all amounts owed by the Buyer for the Products delivered or to be delivered or Services performed or to be performed under the Agreement, as well as all other amounts owed by the Buyer due to default in payment, have been paid to SGL in full.

10.2
The Products delivered may be used by the Buyer in the ordinary course of its business, but the Buyer is not entitled to dispose of the Products in any manner whatsoever, to encumber them with a limited security or usufruct, or otherwise withdraw them from SGL’s recourse.

10.3
The Buyer is obliged to adequately insure the goods delivered by SGL as long as the goods have not yet been paid or paid in full to SGL. At SGL’s request, the Buyer must be able to prove that the goods are adequately insured, for example by presenting an insurance policy.

10.4
If third parties levy attachment on the Products delivered under retention of title or wish to create or enforce rights thereon, the Buyer will be obliged to immediately inform the party wishing to levy or create the attachment and SGL thereof in writing.

10.5
If the Purchaser fails to meet its payment obligations towards SGL or if SGL has good reason to fear that it will fail to meet those obligations, SGL will be entitled to repossess the Products delivered under retention of title. The Purchaser hereby grants unconditional and irrevocable permission to SGL or third parties to be appointed by SGL to enter all those places where SGL’s property is located and to take back those Products.

10.6
All costs that may arise as a result of Clause 10.5 will be at the Buyer’s expense and risk, and will be immediately due and payable upon arising and not offsetable against any outstanding claims against SGL.

Article 11: Warranty

11.1
SGL guarantees normal use of its Products and Services, for a period of twelve months after the Products and/or Services have been delivered to the Counterparty, or installed at the Counterparty.

11.2
The warranty under Clause 1 is limited to the repair of the Products and/or Services by or on behalf of SGL, if occurring within the warranty period and if the cost of repair does not exceed the original invoice amount of the Product concerned.

11.3
Any form of guarantee will lapse if a defect has arisen as a result of or arising from injudicious or improper use, incorrect storage, transport or maintenance by the Counterparty and/or third parties, always without SGL’s express written permission. Any form of guarantee will also lapse if the Counterparty or third parties have made changes or attempted to make changes to the goods, have attached to them other Products that should not be attached to them, or if they have been processed or treated in a manner other than as prescribed by SGL. Nor will the Counterparty have any claim to guarantee if the defect originated from, or was the result of, circumstances beyond SGL’s control, including weather conditions such as, but not limited to, extreme rainfall or very high or very low temperatures.

11.4
The provisions of Clause 11.1 apply mutatis mutandis to prototypes, studies, and research, on the understanding that SGL only has a best-efforts obligation in that respect. The provisions of Clause 11.1 do not in any event apply to trials, tests, experiment and other demos, and do not in any case apply to the delivery of Services and/or Products by SGL, for which the Counterparty does not have to pay any fee.

11.5
In any case, outside the warranty are defects that have occurred as a result of:

1. the Counterparty’s failure to observe the manual provided by SGL and any other documentation, such as a product data sheet;
2. use of the delivered goods by the Counterparty other than the foreseen normal use;
3. Normal wear and tear;
4. assembly/installation or repair by third parties, including by the Counterparty;
5. discolouration or other weather damage (e.g. hail or sun);
6. accidents and unintentional acts by the Counterparty or third parties causing damage (in any form);
7. the application of any government regulation on the nature or quality of the materials used;
8. No stable and reliable connection to the internet, GPS and so on, preventing software maintenance and preventing Services from going ahead.

11.6
It is up to the Counterparty to prove that none of the cases referred to in Clause 11.4 and/or Clause 11.5 applies.

11.7
SGL does not guarantee the availability of online Services. SGL will make reasonable efforts to keep online environments linked to Services provided available to the Counterparty.

Article 12: Suspension and dissolution

12.1
In addition to the grounds for suspension and termination that SGL has under the law, SGL is also entitled to suspend the fulfilment of its obligations or terminate the Agreement if:

1. Counterparty fails to fulfil its obligations under the Agreement, or fails to do so on time or in full;
2. Counterparty violates any of the provisions of these General Terms and Conditions;
3. after the Agreement has been concluded, circumstances have come to SGL’s knowledge that give SGL reason to fear that the Counterparty will not fulfil an obligation under the Agreement or will not do so on time, correctly or fully;
4. When the Agreement was concluded, the Counterparty was requested to provide security for the
   fulfilment of its obligations under the Agreement and this security is not provided or
   is insufficient in SGL’s opinion;
5. circumstances occur which are of such a nature that performance of the Agreement can no longer be required of SGL by standards of reasonableness and fairness.

12.2
If the Agreement is terminated, SGL’s claims under the Agreement will be immediately due and payable to the Counterparty. If SGL suspends fulfilment of its obligations, SGL will retain its claims under the law and Agreement. SGL cannot be held liable for any damages resulting from rescission of the Agreement or suspension by SGL on any grounds whatsoever.

12.3
If an Agreement relating to a Service or lease is dissolved prematurely, the sum of outstanding payments up to the end of the established lease or subscription term is immediately due and payable in full to the Counterparty.

12.4
If the Agreement is terminated prematurely by SGL, SGL will, in consultation with the Counterparty, arrange for the transfer of work yet to be performed to third parties. This unless the termination is imputable to the Counterparty. If the transfer of the work involves extra costs for SGL, these will be charged to the Counterparty. The Counterparty will be obliged to pay these costs within a reasonable period to be determined by SGL.

12.5
In the event that the Counterparty is dissolved or liquidated, applies for or is granted a suspension of payments, if its bankruptcy is applied for or is pronounced, and if any of the Counterparty’s assets or claims are seized – and that seizure is not lifted within three months – SGL will be free to terminate the Agreement without owing the Counterparty any damages. SGL’s claims against the Counterparty will in that case be immediately due and payable.

Article 13: Liability

13.1
If the Counterparty wishes to hold SGL liable, the Counterparty will first have to give SGL written notice of default, whereby SGL will be given a reasonable period of time to remedy what the Counterparty has stated or to still perform its obligations.

13.2
SGL’s liability is limited to compliance with the provisions described in Article 11 of these General Terms and Conditions. The parties may include additional warranty provisions in the Agreement.

13.3
Under no circumstances can SGL be held liable for non-material damage and indirect damage.

13.4
Under no circumstances can SGL be held liable for indirect damages resulting from incorrect or inaccurate data or Services.

13.5
In addition, SGL’s liability for whatever reason will always be limited to the amount paid out by SGL’s insurer in the case in question, including the excess borne by SGL in connection with that insurance. If in a specific case no claim can be made on SGL’s insurance, SGL’s liability will be limited to a maximum of the total amount that SGL has charged the Counterparty in the context of the Agreement in which the harmful event occurred.

Article 14: Transfer of risk

14.1
The risk of loss of or damage to Products or Services delivered that are the subject of the Agreement shall pass to the Counterparty at the moment these Products and/or Services are legally or actually delivered to the Counterparty, whichever of such delivery takes place first, and thereby come under the control of the Counterparty or a third party to be designated by the Counterparty.

Article 15: Force majeure

15.1
In these General Terms and Conditions, force majeure means, in addition to what is understood in this respect by law and case law, all external causes, foreseen or unforeseen, over which SGL cannot or could not exercise any control, but as a result of which SGL is unable to fulfil its obligations under any Agreement. If there is a situation of force majeure, SGL cannot be held to fulfil its obligations under an Agreement and SGL cannot be held liable for damages for non-fulfilment or untimely fulfilment.

15.2
Force majeure includes, but is not limited to, fire, floods, strikes within SGL or at its suppliers, pandemics, epidemics (and any government measures affected thereby, such as a lock-down or operating restrictions), (civil) war, terrorism, government measures, permits not being available (on time), trade embargoes, labour disturbances, power outages business interruptions, breach or delay on the part of SGL’s supplier(s) and subcontractors and the non-availability or late availability of materials (such as metals), semi-finished products, raw materials, transport, fuel, energy and regulations regarding product specifications or requirements by, for example, government agencies, which relate to the Products or Services delivered or to be delivered by SGL.

15.3
SGL also has the right to invoke force majeure if the circumstance preventing (further) performance occurs after SGL should have fulfilled its undertaking.

15.4
The Parties may suspend obligations under the Agreement during the period that the force majeure continues. If this period lasts longer than three months, each of the Parties is entitled to dissolve the Agreement, without any obligation to pay damages to the Counterparty, or, as soon as it is certain that the period lasts longer than three months, each of the Parties may demand by registered letter that the Agreement either be adapted to the circumstances or be dissolved (in part) with immediate effect, without the Parties being mutually liable to pay damages.

15.5
Insofar as SGL has already partially fulfilled its obligations under the Agreement at the time of the occurrence of Force Majeure or will be able to fulfil them, SGL will be entitled to charge the part already fulfilled and/or to be fulfilled separately to the Counterparty.

Article 16: Intellectual property rights

16.1
SGL is and will remain the exclusive owner of all intellectual property rights and similar rights vested in the information contained in the Quotation, Order and Agreement, all other documents produced and communications sent by SGL, and the Products, work and (the result of) Services to be delivered by SGL irrespective of whether the Counterparty has paid any amount for them. The Counterparty – or any party whatsoever – is not entitled without the express written permission of a statutory representative of SGL, to reproduce, show to third parties, share, make public or use in any manner whatsoever any information referred to in the preceding sentence.

16.2
All intellectual property rights and similar rights to (parts of) the Products delivered or otherwise made available by SGL or (the result of) Services delivered or to be delivered (including any documentation, designs, sketches, drawings, software and data) are vested in SGL or in its suppliers. Insofar as (parts of) these Products or (the result of) Services are or may be protected by any right of intellectual property, information protection, or a similar right, the Counterparty will only be granted the right to use the relevant (parts of) Products or (the result of) Services within its organisation in a manner that may be considered usual for such an organisation.

16.3
The Counterparty is not allowed to remove, establish or change any designation on or in the relevant Products or (the result of) Services regarding copyrights, patent rights, trademarks, trade names or other intellectual property rights. If the Counterparty does so anyway, the Counterparty will transfer all intellectual property rights and similar rights, including the benefits already enjoyed, free of charge to SGL at SGL’s first request. SGL declares that, to the best of its knowledge, the Products concerned do not infringe any third-party intellectual property rights applicable in the Netherlands. The Counterparty will immediately notify SGL in writing of any liability or legal action based on the assertion that the use of the Products concerned infringes any intellectual property right or similar right applicable in the Netherlands.

16.4
SGL retains the right to use the knowledge acquired through the execution of the work, or the use by the Counterparty of SGL’s Products or Services (or the result thereof) for other purposes, insofar as this does not reasonably concern confidential information and the Counterparty has not expressly denied this in writing. Reports, drawings and the like, in which the work commissioned, belong to and are the exclusive property of SGL.

Article 17: Ownership of data

17.1
The Counterparty has the right of use of all knowledge and data specifically related to the Order for the duration of the Agreement. Those data and knowledge generated or otherwise created by means of or with the aid of the Services or Products provided by SGL may be used by the Counterparty exclusively in its own company or organisation and exclusively for the purpose of SGL’s product.

17.2
SGL is entitled to use the specific knowledge, data and know-how obtained through the performance of the Agreement for itself and to have them used by third parties.

17.3
All data – including any related intellectual property or similar rights – generated through or by means of the Services or use of Products provided by SGL will be fully and exclusively owned by SGL. SGL is entitled to use the knowledge, data and know-how obtained through the performance of the Agreement for itself and to have them used by third parties.

17.4
Data generated by Services will only be used to improve SGL’s Services.

17.5
The right of use referred to in Clause 1 is not transferable. The Counterparty is not permitted to sell, lease, (sub)license, dispose of or grant or establish limited rights to the specific knowledge and data, online environment, software and carriers on which it is recorded, or to make the specific knowledge and data available to a third party in any way or for any purpose, not even if the third party in question uses the specific knowledge and data exclusively for the benefit of the Counterparty. If the Counterparty does so anyway, the Counterparty will transfer all intellectual property rights and similar rights, including the benefits already enjoyed, free of charge to SGL at SGL’s first request.

17.6
Immediately after the end of the right of use of the knowledge, data and data referred to in this Article, the Counterparty will return to SGL all copies, data carriers, files, reports, drawings and the like in its possession and delete any copies thereof.

Article 18: Indemnifications

18.1
The Counterparty indemnifies SGL against all claims by third parties with regard to intellectual property rights or similar rights to materials or data provided by the Counterparty, which are used in the performance of the Agreement.

18.2
The Counterparty indemnifies SGL against all third-party claims against SGL that relate directly or indirectly to any Agreement.

Article 19: Confidentiality

19.1
Each Party warrants that all data received from the Counterparty, which it knows or ought to know to be of a confidential nature, will remain confidential, unless a legal duty requires disclosure of such data. Data relating to the design, materials, techniques and software used in and for the operation of SGL’s Products are in any event confidential in nature. The Counterparty hereby declares that it understands and agrees to this. Data are furthermore in any case also considered confidential if they are designated as such by one of the Parties. The Party receiving confidential data will only use it for the purpose for which it was provided. The Party obliged in that case to share or disclose the confidential information shall inform the Counterparty as soon as reasonably possible.

19.2
The Counterparty is expressly prohibited from retrieving any confidential information of SGL, regarding its Products, for example by disassembly or reverse engineering.

19.3
Subject to SGL’s prior written approval, the Counterparty is not permitted to disclose in duplication, advertisements and otherwise in written or oral form, that it, and in what manner it is doing business and/or has done business with SGL.

19.4
SGL is entitled to use photographs and other visual material of its Products, software and goods taken at the Counterparty’s location for promotional purposes.

19.5
All data, specifications or other information made available to the Counterparty in the context of the data, specifications or other information made available to the Counterparty for the performance of an Agreement are considered confidential information. Upon request, the Counterparty must immediately transfer the confidential information as well as all copies or other multiplications thereof to SGL and then delete electronic versions in full.

Article 20: Transfer of rights and obligations

20.1
The Counterparty is not entitled to transfer the rights and obligations arising from the Agreement concluded under these General Terms and Conditions to third parties in whole or in part, except with SGL’s prior written and unambiguous consent.

Article 21: Applicable law and disputes

21.1
All Agreements, to which these General Terms and Conditions apply in full or in part, and all legal relationships between the Parties arising from them, shall be governed exclusively by Dutch law. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is explicitly excluded.

21.2
The District Court of Amsterdam shall have exclusive jurisdiction to adjudicate all disputes between the Parties, both as a result of an Agreement and as a result of extra-contractual grounds

The provisions below apply – where applicable – in addition to Articles 1 to 21 of these General Terms and Conditions.

SUPPLEMENTARY PROVISIONS ON CONTRACTING

Article 22: Approval and examination

22.1
The Products delivered and the work carried out shall be deemed approved if and insofar as it is put into use by the Counterparty, or by a third party on behalf of the Counterparty. The day on which an item or part thereof is taken into use shall count as the day of approval of the Order or of the relevant part of the Order.

22.2
Minor defects cannot be a reason for withholding approval, provided they do not prevent any commissioning. SGL will remedy minor defects as soon as possible, unless the minor defects are not attributable to SGL.

22.3
Any visible shortfalls and/or defects must be reported to SGL in writing on the day of commissioning, and in any case no later than eight days after SGL’s delivery or completion.

Article 23: Maintenance

23.1
The content and scope of the maintenance services to be provided by SGL will be laid down in writing between the Parties. These General Terms and Conditions shall apply mutatis mutandis to those arrangements.

23.2
In the absence of written agreements, SGL is obliged to make every effort to remedy, to the best of its ability, malfunctions and defects duly reported to SGL by the Counterparty within a reasonable period of time. In this Article, “malfunctions and defects” is understood to mean the failure to meet, or not meet without interruption, the specifications of the Products delivered or Services rendered expressly made known by SGL in writing, insofar as the guarantee period referred to in Article 11.1 still applies.

23.3
Parts will be replaced if, in SGL’s opinion, this is necessary to repair or prevent faults and/or defects. The replaced parts will become and remain the property of SGL, unless the Parties agree otherwise.

23.4
Immediately after the occurrence of a malfunction and/or defect, the Counterparty will inform SGL thereof in writing by means of a detailed description of the malfunction and/or defect drawn up by an employee of the Counterparty who is knowledgeable in the matter. The Counterparty is obliged to allow SGL’s personnel, or third parties designated by SGL, access to the location of the Products in question, to render all other necessary cooperation and to make the Products available to SGL for the maintenance work.

23.5
The costs of investigating and remedying faults and/or defects arising from the use of equipment not supplied by SGL or from the installation of software not supplied by SGL will in any case be at the Counterparty’s expense (and risk).

ADDITIONAL PROVISIONS RELATING TO RENTAL AND LEASING

Article 24: General

24.1
The Lessee/Lessee undertakes to pay the agreed lease or rental price and the fees and costs arising from the (rental) Agreement and to return the leased object after termination of the lease or rental period, all subject to the provisions below.

24.2
Return means making the Rented Property available in its original condition by Lessee or Tenant to SGL.

24.3
The Lessee or Tenant is entitled to inspect the rented object or have it inspected prior to taking it into use. If the Lessee or Tenant does not exercise this right, the rented object will be deemed to have been delivered in new condition, complete and in accordance with the (rental) Agreement.

Article 25: Lease or rental period

25.1
The lease or rental is entered into for a period to be determined by the Parties. The lease or rental period begins on the agreed day of delivery of the goods from SGL to the Tenant/Lessee and ends on the agreed day of return of those goods by the Tenant/Lessee to SGL.

25.2
If the leased or rented object is returned within the agreed lease or rental period, i.e. prematurely, the lease or rental sum remains due for the entire agreed lease or rental period.

25.3
If the rented or leased object is not taken into use by the Tenant/Lessee at the agreed time due to any cause, the Tenant/Lessee will nevertheless owe the lease or rental price for the entire agreed lease or rental period, while the rented or leased object will be kept at the disposal of the Tenant/Lessee for the account and risk of the Tenant/Lessee. If the Tenant/Lessee does not take the leased or rented object into use immediately after SGL’s summons, SGL is entitled to dispose of it freely, while the agreed lease or rental price remains due in full.

Article 26: Risk

26.1
During the entire lease or rental period, the risk of the rented or leased goods is for the account of the Tenant/Lessee, irrespective of what event, act or omission might have caused any damage. The foregoing also applies in the event of force majeure on the part of the Tenant/Lessee. The Tenant/Lessee is obliged to compensate all damages to the rented or leased goods on the basis of new value.

26.2
The Tenant/Lessee shall indemnify SGL against any third party claims in connection with the Leased Property, regardless of the basis of such claims.

Article 27: Use

27.1
During the lease or rental period, the Tenant/Lessee is obliged to use the rented object in accordance with its nature and purpose as a good Tenant, maintain it and secure it against theft, destruction and damage.

27.2
The Tenant/Lessee is obliged to adequately insure the goods rented or leased by SGL. At SGL’s request, the Tenant/Lessee must be able to prove that the goods are adequately insured, for example by producing an insurance policy.

27.3
During the lease or rental period, any necessary repairs will be carried out at the expense of the Tenant/Lessee by or on behalf of SGL. The Tenant/Lessee may carry out or arrange for any repairs to be carried out by expert personnel only with SGL’s prior written consent, while only original spare parts may be used.

27.4
During the lease or rental period, SGL is at all times entitled to inspect the condition and manner of use of the rented or leased item, or employ a third party to do this. The Tenant/Lessee will provide access to the equipment and the location thereof.

27.5
During the lease or rental period, SGL is at all times entitled to have the rented or leased items valued, or employ a third party to do this. The Tenant/Lessee will provide access to the equipment and the location thereof.

27.6
Without SGL’s express written consent, it is not permitted to assign, sell or sublet the Rented or Leased Property to any third party, nor to transfer to third parties any right arising from the (lease or rental) Agreement in whole or in part.

Article 28: Return of Rented Property

28.1
At the end of the rental period, the Tenant is obliged to return the Rented Property in its original and cleaned condition.

28.2
If the Tenant does not comply with the obligation to return, the Tenant will be liable for all resulting damages and costs, including SGL’s loss of income, without any notice of default being required. Under the same conditions, the Tenant is obliged to provide SGL with all documents and accessories belonging to the Rented Property at the time of return.

28.3
If the Tenant does not return the rented object on the agreed date, SGL will be entitled, without notice of default and without the intervention of a court, to terminate the (Rental) Agreement and to repossess the rented object without delay, without prejudice to SGL’s right to charge the Tenant for the damage resulting from this. If that situation arises, SGL will inspect the rented object for any damage and defects. SGL will inform the Tenant as soon as possible of its findings concerning the condition of the rented property and will also give the Tenant the opportunity to inspect the rented property.

Article 29: Other provisions

29.1
During the lease or rental period, the leased or rented goods, as well as the use thereof, are exclusively and entirely at the risk of the Tenant/Lessee.

29.2
SGL bears no further liability than provided for in these General Terms and Conditions.

Article 30: Dissolution

30.1
Upon termination of the lease or rental agreement, the Tenant/Lessor shall be obliged to immediately return the rented object.

30.2
If the Tenant/Lessor cancels the lease or rental agreement, the Tenant/Lessor shall be liable to pay the rent for the entire initial lease or rental period, as provided for in the lease or rental agreement, in one lump sum.

30.3
SGL may inspect the leased or rented Products at any time. SGL may also engage a different Party to carry out inspection. The Counterparty must grant access to the location of the Product at SGL’s request. If costs are incurred for the inspection, these are recoverable from the Counterparty.

30.4
SGL may have the leased or rented Products appraised at the Counterparty’s expense. The Counterparty must grant the appraiser access to the location of the Product at SGL’s request. The Counterparty will cooperate in the performance of the valuation and provide all necessary information and documents.

30.5
The Counterparty will ensure that leased or rented Products are insured throughout the entire lease or rental period against all risks that are normally insured against in the industry. The insurer and the conditions of the insurance must be considered acceptable by SGL. The Counterparty may be requested by SGL to share a copy of the insurance policy.

30.6
The Counterparty must fulfil all obligations under the insurance policy in a timely manner. If the Counterparty fails to do so, the Counterparty will be liable for all damages or losses suffered by SGL as a result. At SGL’s request, the Counterparty will provide proof of payment of insurance premiums. If the Counterparty fails to comply with the payment of insurance premiums, SGL may take over payment of the insurance premiums and recover them from the Counterparty.

ADDITIONAL PROVISIONS RELATING TO SERVICES

Article 31: general

31.1
The Parties may agree that SGL will provide Services irrespective of whether the Counterparty is Tenant, or Buyer. The Services may include, but are not limited to, monitoring or gaining insight into the growth and quality of the grass, gaining insight into shading on the field, collecting or analysing data, advising the Counterparty and predicting future conditions based on algorithmic models.

31.2
Various goods/Products and Services of SGL, which the Counterparty rents or has purchased, may be used to observe and generate data (in the broadest sense of the word) so that SGL can provide the Services to the Counterparty.

31.3
In the context of the Services, SGL may make a digital environment available to the Counterparty. Parties may determine in the Agreement which possibilities and functions, under which conditions, are offered to the Counterparty with the digital environment.

31.4
SGL may, in the context of Internet-connected Products, set up a digital environment in which Products are connected to a central platform. Connected Products can, for example, but not exclusively, be viewed by SGL and controlled manually or autonomously based on collected data.

31.5
SGL reserves the right to expand online platforms with newly developed Services and Products or change functionalities.

31.6
The Counterparty is obliged to keep the login details of, and the data in, the online environment strictly confidential. The login details should only be known to the persons employed by or for the Counterparty who need the login details for the performance of their work.

31.7
SGL cannot guarantee the trouble-free use of an online environment – which includes (storage) clouds, applications, servers, online dashboards and all other digital hardware and software related to the Additional Services – and SGL does not accept any liability, directly or indirectly, as a result of an inaccessible or unavailable online environment, a (cyber) attack on the online environment, or any malfunction in or to an online environment in the broadest sense of the word.

31.8
SGL cannot guarantee trouble-free use on Products that are digitally and/or autonomously controlled. SGL accepts no liability, directly or indirectly, as a result of damage or misuse by or of a digitally controlled Product.

31.9
SGL may close, or block access to, online environments for the Counterparty if the Counterparty has not used the online environment for thirty or more consecutive days. Without SGL’s prior written permission, the Counterparty will not have third parties perform maintenance on the online environment and on SGL’s Products/Goods that are necessary for observing or generating data, or are otherwise used for the purpose of the Additional Services. In the event that the online environment or any of SGL’s Products/Goods are not functioning properly, the Counterparty must inform SGL as soon as possible. The Counterparty will not, without SGL’s prior written consent, integrate the software offered by SGL with its own software and/or third-party software.

Article 32: Non-sollictation

32.1
Article 32 applies in all cases, regardless of whether there is delivery of Services or Products, contracting of work or (financial) lease.

32.2
During and a period of 12 months after termination of an Agreement, the Counterparty is prohibited from having direct or indirect contact with SGL’s contact persons, these include, but are not limited to, employees of SGL, companies and self-employed persons hired by SGL, as well as suppliers of SGL, for the performance of services equal, similar or related to the Services performed or to be performed by SGL and Products to be delivered, or from otherwise entering into business relations, directly or indirectly, with contact persons in the broadest sense of the word.

32.3
Upon violation of the provisions of Clause 2 of this Article 32, the Counterparty will pay SGL an immediately due and payable penalty of € 10,000 for each violation and a penalty of € 5,000 for each day that the violation continues, without prejudice to SGL’s right to claim full damages instead of the penalty and without prejudice to SGL’s right to also claim performance of the Agreement.

Seller’s acceptance of any purchase order is expressly conditioned upon purchaser’s assent and acceptance of the following terms and conditions which may additional to or different form those stated or referenced in a purchase order. The following terms and conditions are the only terms and conditions upon which the seller will accept any purchase order and that apply to the agreement, as herinafter defined:

1. Application
   These terms and conditions (“Terms and Conditions”) apply to a sale of any goods and/or furnishing any service, as applicable, by Stadium Grow Lighting, Inc., an Ohio corporation (hereinafter “Seller”), as Seller to a person or legal entity purchasing goods or services from Seller (hereinafter “Purchaser”), as Buyer.  In addition to the capitalized terms defined elsewhere in these Terms and Conditions, for purposes of these Terms and Conditions: the term “Goods” shall mean the spare, service or replacement parts or components or other Goods identified in the Purchase Order; the term “Services” shall mean the Services identified in the Purchase order; and the term “Purchase Order” shall mean a Purchase Order, release, agreement, contract, award letter, correspondence or other writing received by Seller from Purchaser requesting Seller to Manufacture and/or sell Goods and/or furnish services to Purchaser.
2. Acceptance of Orders
   Seller’s acceptance of any Purchase Orders expressly conditioned upon Purchaser’s assent and acceptance to these Terms and Conditions which may be additional to or different from those stated or referenced in a Purchase Order.  These Terms and Conditions are the only Terms and Conditions upon which the Seller will accept any Purchase Order and that apply to the Agreement.  Each Purchase Order is an offer to purchase Goods and/or services identified in the Purchase Order, and is subject to prior approval and acceptance by Seller.  Each Purchase Order approved and accepted by Seller shall be governed exclusively by this Agreement, whether or not it references this Agreement on the face of the Purchase Order.  This Agreement constitutes the entire agreement between the parties with respect to the transaction (as) covered by it and is effective upon, and Purchaser shall be deemed to have accepted these Terms and Conditions by Purchaser’s (1) written acceptance, (2) ordering Goods or services from Seller in any manner, (3) paying for any Goods or services, or by Seller’s (4) commencement of manufacture or procurement of any Goods or any part thereof for the Purchaser, or (5) commencement of performance of services, whichever occurs first.  If Seller at any time discovers, whether before or after providing its acceptance to Purchaser or commencing its performance, any issues that may impact the nature, quantity or price of any Goods or services, Seller shall notify Purchaser in writing of such issues and adjust its scope of work and the price accordingly, and these adjustments shall automatically become part of the Agreement regardless of whether Purchaser issues a new or amended Purchase Order that reflects the adjustments.
3. Purchaser’s Terms and Conditions Excluded
   To the extent any Purchase Order or any Purchaser’s Terms and Conditions include or reference any terms or conditions that are additional to or different from those contained in these Terms and Conditions, these Terms and Conditions shall control, supersede and replace Purchaser’s additional and/or different terms and conditions.
4. Prices
   Stated prices apply only to the specific quantities of Goods and services described in Seller’s acceptance, as applicable.  Prices do not include sales, used, excised, privileged or other taxes, export or import fees (including without limitation costs incurred for export packing and for duties, tariffs, licenses and other governmental impositions, shipping or transportation costs or any insurance charges, and Purchaser shall pay all such taxes, fees, costs and charges.  The price for the Goods is based on continuous manufacture for rates of delivery specified.  All amounts are payable in U.S. dollars unless otherwise specified in the Purchase Order.  If a Purchase Order indicates that the purchase price includes duties, tariffs, licenses, and other governmental impositions, the purchase price is based upon the amount of those duties, tariffs, licenses, and other governmental impositions as of the date of the Purchase Order and in the event of any increase in those costs, the purchase price shall be increased equivalently.  Seller makes no representation or warranty that the purchase price for the Goods or services does not exceed the price charged to any other customer or seller for the same or similar Goods or services.
5. Delivery
   The dates for delivery of Goods and the performance of services as set forth in the Purchase Order are estimates, and neither time nor quantity shall be deemed of the essence.  Seller’s obligation to deliver Goods and/or perform services is conditioned upon the timely receipt by Seller of documents and information necessary for the completion of the Purchase Order, any down payment, Purchaser’s compliance with the Agreement, and Purchaser maintaining credit satisfactory to Seller.  Seller may suspend or delay performance or delivery at any time pending receipt of assurances, including full or partial prepayment or payment of any amounts owed, adequate to Seller in its full and absolute discretion, of Purchaser’s ability to pay.  Failure to provide such assurances shall entitle Seller to terminate any and all Purchase Orders, in whole or in part, without further liability or obligation to Purchaser.  Seller may also require Purchaser to pay for shipments C.O.D. or cash in advance in the event Seller does not receive adequate assurances of payment, in its sole and absolute discretion.  Except as otherwise specified in the Purchase Order, as modified by Seller’s acceptance, all shipments shall be delivered F.O.B.  Seller’s facility and Purchaser shall arrange for and pay all costs and expenses of shipping the Goods.  If Seller is responsible for shipping of the Goods, all delivery shall be via common carrier or some other reasonable means chosen by Seller.  Title and risk of loss and damage to the Goods shall pass to the Purchaser at the F.O.B., Seller’s facility upon delivery of such Goods to the common carrier.  Shipments will not be insured, except at Purchaser’s written request and expense.  Nothing herein shall be construed as limiting Seller’s right to stop the Goods in transit and repossess the same if payment of the Purchase Price, as required under the Agreement, has not been made to Seller.
6. Payment
   Except as otherwise provided in the Purchase Order, Purchaser will be invoiced for the balance due on the Goods, upon delivery of the Goods or any part of the Goods to common carrier for shipment for Purchaser and will be invoiced for services upon substantial completion of the services.  Unless otherwise stated, full payment will be due upon Purchaser’s receipt of the invoice.  No discounts may be taken without the prior written agreement of the Seller.  Seller reserves the right to charge Purchaser interest at the rate of one and a half percent per month (or the maximum rate permitted by law, if less) on any payments that were not made timely, until the entire balance is paid in full.  Seller may include and charge this interest, in whole or in part, on any invoice or statement of a past due balance issued to the Purchaser, but a failure to do so shall not be a waiver of Seller’s right to charge this interest at a later time.  Payment of such interest shall not operate to release Purchaser from its obligation to make payments on their due date.  Purchaser shall immediately reimburse Seller for the costs and expenses (including, without limitation, costs and expenses of investigation, costs and expenses of legal actions, or proceedings, and attorneys’ fees and expenses), whether or not legal action is actually commenced, incurred by Seller in enforcing its rights and remedies under the Agreement.  Purchaser’s payment obligations are not subject to any setoffs, claims, conditions or contingencies and shall survive expiration or termination of this Agreement or any Purchase Order.
7. Security Interest
   Purchaser hereby grants Seller a purchase money security interest in the Goods wherever located, including all substitutions, replacements, and proceeds thereof, including insurance proceeds, to secure Purchaser’s obligation to pay the purchase price and any other charges owed to the Seller by Purchaser, and agrees that these documents shall be effective as a security agreement between the Seller and Purchaser as to the Goods.  Purchaser further agrees that Seller may (but is not obligated to) take any action it deems appropriate to evidence or perfect such security interest, including but not limited to requiring a separate security agreement and filing Uniform Commercial Code Financing Statements.  Purchaser authorizes Seller to file such financing statements, and Purchaser shall execute a written security agreement in favor of Seller in the form prepared by Seller and presented to Purchaser.
8. Change and Cancellation
   Following acceptance by Seller, Purchaser may not cancel or change the Agreement or any Purchase Order, adjust the type, volume, delivery terms or price of any Goods or services, or cancel, suspend or reschedule any performance or deliveries by Seller, without Seller’s prior written consent, which consent may be withheld or conditioned in Seller’s sole and absolute discretion.  Any agreed upon changes shall be evidenced by a written change order.  In the event of any cancellation or termination of any Purchase Order for any reason, Purchaser, in addition to and not to the exclusion of Seller’s other remedies and remedies at law, equity or under this Agreement, shall pay to Seller on Seller’s demand the following amounts which shall be invoiced by Seller: (i) the contract price for all Goods and services which have been completed in accordance with this Agreement; (ii) the Seller’s work in process and raw materials purchased by Seller and furnishing the Goods and/or services, in the amount equal to 120% of Seller’s actual full cost including burden and overhead costs as determined by Seller in accordance with Seller’s standard accounting practices, plus a charge for any packing and storage fees, however, any amounts received from the Seller’s sale of the Goods or materials to others; (iii) Seller’s actual cost of settling all claims with subcontractors and suppliers utilized in connection with the Agreement; (iv) Seller’s actual cost to store the item to be purchased and, if necessary, relocation production to alternate sources; and (v) Seller’s incidental and consequential damages resulting upon the termination or breach by Purchaser, including, but not limited to, attorneys’ fees and other professional fees incurred by Seller as a result of the termination or a breach.  Upon an agreed cancellation or termination of any Purchase Order, all work on the Purchase Order or a part thereof that was cancelled or terminated shall be stopped as promptly as is reasonably possible by Seller.
9. Inspection, Acceptance and Rejection of Goods
   Purchaser shall inspect all goods upon receipt and notify Seller within ten (10) days after receipt of the Goods of any shortage, damage, defects, non-conformities, or other issues affecting the Goods.  The Purchaser shall be deemed to have received and accepted the Goods in a condition, quantity and quality required by the Agreement upon the earlier of (i) the expiration of the ten (10) day notice period described above without Seller’s receipt of the written notice from Purchaser, (ii) Purchaser’s written acceptance of the Goods, (iii) the Goods becoming operational or performing their normal functions according to the manufacturing specifications, or (iv) payment for the Goods.  All sales of Goods are final and Goods cannot be returned without Seller’s prior written authorization determined in Seller’s sole and absolute discretion.  Purchaser may not reject any Goods after acceptance.
10. Inspection, Acceptance and Rejection of Services
    Purchaser shall inspect Seller’s services upon Seller’s completion of same and notify Seller within ten (10) days after the Seller’s completion of the services of any deficiencies or other issues with any way Seller performed the services.  Seller shall be deemed to have provided the services and Purchaser shall be deemed to have accepted the services required by the Agreement upon the earlier of (i) the expiration of the ten (10) day notice described above without Seller’s receipt of written notice from Purchaser, (ii) Purchaser’s written acceptance of the services, (iii) Purchaser’s use of the results of the services or (iv) payment for the services.  Purchaser may not reject services after acceptance.
11. Limited Warranty

1.  Subject to other terms in these Terms and Conditions, Seller warrants to Purchaser (i) with respect to the Goods, that at the time of delivery, the Goods will be free from defects in materials and workmanship (hereinafter “Goods Warranty”).  This limited warranty is for the benefit of the Purchaser only and is not transferable; (ii) with respect to services, that it will perform the services in a prompt, professional and workmanlike manner (hereinafter “Services Warranty”).
2. The Goods Warranty shall be effective for a period of time expressly stated in Seller’s quotation and, if no warranty period is expressly stated in the quotation, then for a period of one (1) year from the date of delivery of the Goods to Purchaser.  The Services Warranty shall be effective for a period of time, if any, expressly stated in the Seller’s quotation.  The warranty period, if any, for the Goods Warranty and for the Services Warranty shall each be referred to, as applicable, as the “Warranty Period.”
3. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, DIRECT OR INDIRECT, EXPRESSED OR IMPLIED, IN CONNECTION WITH OR REGARDING ANY GOODS OR SERVICES FURNISHED PURSUANT TO THE AGREEMENT, INCLUDING ANY WARRANTIES OR MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR ANY PARTICULAR USE OR PURPOSE, WARRANTIES TO THE SUITABILITY, RELIABILITY, DURABILITY, CONDITION, PERFORMANCE, RESULTS TO BE DERIVED FROM SELLER’S PERFORMANCE, SELLER’S CAPACITY, TITLE OR QUALITY, OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY DISCLAIMED.  ORAL STATEMENTS ARE NOT WARRANTIES AND SHALL NOT BE RELIED UPON BY PURCHASER AND ARE NOT PART OF ANY AGREEMENT BETWEEN THE PARTIES.SUBJECT TO THE PROVISIONS OF THE AGREEMENT, PURCHASER ACCEPTS GOODS AND SERVICES IN THEIR “AS IS” “HOW IS” CONDITION.
4. No allowance will be made for repairs made by Purchaser. The Goods Warranty and the Services Warranty cover the Seller’s scope of work under the Agreement only.  Neither the Goods Warranty nor the Services Warranty covers and Seller shall not be responsible for (i) normal maintenance or items consumed during normal operation, (ii) normal wear and tear, (iii) use under circumstances exceeding the recommended limitations or applications or for any unintended purposes, (iv) failure to observe operating or installation instructions, (v) abuse, mishandling, misuse, unauthorized or inappropriate repair or alteration of the Goods, (vi) lack of proper maintenance, (vii) negligence, willful or intentional misconduct and/or willful or intentional damage to or other problems with, the Goods caused by Purchaser or anyone under Purchaser’s direction or control, (viii) accidents or damage to the Goods caused by natural causes such as fire, storm, flood, or other causes beyond the reasonable control of Seller.
5. Neither the Goods Warranty nor the Services Warranty extends to any product or part which has been manufactured using engineering specifications or data submitted by Purchaser or any product or part, including without limitation any electric or electronic component or software or equipment, supplied by or on behalf of the Purchaser.

12. Claim for Breach of Warranty, Purchaser’s Sole Remedy

1. Purchaser must notify Seller of any claim for breach of the Goods Warranty or the Services Warranty promptly following discovery of the claim and in any event prior to the expiration of the applicable Warranty Period.  Seller shall have no liability for any damage suffered by Purchaser or any third party in connection with any failure or delay in notifying Seller of any warranty claim.  Purchaser shall follow Seller’s instructions in resolving the warranty claim, including without limitation, providing reasonably detailed information and documents to Seller of the facts and circumstances giving rise to the claim and allowing Seller’s employees and representatives entry to Purchaser’s premises to investigate and remedy the claim as Seller deems appropriate.
2. All Goods authorized by Seller to be returned must be accompanied by a copy of the Purchase Order and invoice numbers and a reasonably detailed description of the defect or non-conformity.
3. Seller will, within a reasonable time, in its sole and absolute discretion and election, and as Purchaser’s sole remedy in connection with any defective or non-conforming Goods or services, repair, replace or issue a credit for the purchase price of the Goods or services, as applicable, found by Seller to be defective or non-conforming.
4. Repair or replacement parts furnished by Seller pursuant to the Goods Warranty which prove defective in material or workmanship during either (i) a period of ninety (90) days from the date of delivery of same to the Purchaser or (ii) the remainder of the original Warranty Period for the Goods for which Seller furnished repair or replacement parts, whichever is longer, will be repaired or replaced, in Seller’s sole and absolute discretion and election, and as Purchaser’s sole remedy by Seller, F.O.B. Seller’s facility, provided that Purchaser sends Seller appropriate notice of the defect during such time period and establishes that the parts were properly installed, maintained and operated and is not subject to any exclusions from warranty coverage as described in this Agreement.
5. Neither Purchaser nor any affiliate of Purchaser has the right to deduct, setoff or recoup from Seller or any of Seller’s affiliates, of any amount owed to Seller or to any Seller affiliates.

13. Limitation on Damages
    SELLER SHALL HAVE NO LIABILITY OR OBLIGATION FOR ANY DAMAGES SUFFERED BY PURCHASER OR ANY THIRD PARTY WITH RESPECT TO ANY PURCHASE ORDER OR ANY GOODS OR SERVICES PROVIDED BY SELLER IN EXCESS OF THE PURCHASE PRICE THAT PURCHASER ACTUALLY PAYS SELLER FOR THE GOODS OR SERVICES WITH RESPECT TO WHICH LIABILITY AROSE.  SELLER SHALL NOT BE LIABLE TO PURCHASER OR ANY THIRD PARTY IN CONNECTION WITH OR IN ANY RELATED TO THE AGREEMENT, WHETHER ARISING FROM THE FURNISHING OF SERVICES, THE SALE OF GOODS, ANY DEFECT OR NON-CONFORMITY OF THE GOODS OR SERVICES, OR ANY USE OR INABILITY TO USE ANY GOODS OR THE RESULTS OF ANY SERVICES, ANY DELAY OR FAILURE TO PROVIDE ANY GOODS OR SERVICES, OR OTHERWISE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORY (WHETHER TORT, CONTRACT, PRODUCT LIABILITY, WARRANTY, RECALL, INDEMNIFICATION OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, NON-ECONOMIC OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF INCOME OR REVENUE, LOSS OF GOOD WILL, LOSS RELATED TO PRODUCTION OR SALES INTERRUPTION, LOSS OR DAMAGE TO PURCHASER’S PREMISES OR ANY EQUIPMENT, SYSTEM OR COMPONENT THEREIN, OR LOSS RELATED TO ANY GOODS OR SERVICES NOT FURNISHED OR APPROVED BY SELLER, EVEN IF SELLER HAS BEEN ADVISED OF THE OF THE POSSIBILITY OF SUCH DAMAGES.  In no event shall Seller have any liability for (i) loss of use or downtime related to any equipment subject to a warranty claim, (ii) any attorneys’ fees or other costs and expenses Purchaser incurred in connection with the Agreement, or (iii) any other cost, including without limitation, the cost of shipping or installation.
14. Limitations of Actions
    Except as otherwise provided in these Terms and Conditions, all claims against Seller must be made in writing and received by Seller, as soon as possible and in any event within thirty (30) days from the date that the Purchaser knew or should have known, whatever is earlier, of the breach, loss or damage, and the failure to provide Seller a timely notice shall be a complete defense to any claim, suit or action asserted or commenced by Purchaser with respect to such claim.  All legal actions against Seller must be filed and properly served on Seller within one (1) year of delivery of the Goods (or the applicable portion of the Goods) or the completion of the services, as applicable, and thereafter shall be forever barred; provided that if Seller, pursuant to the warranties provided in these Terms and Conditions, is replacing any Goods or performing warranty services at a point of expiration of the one (1) year limitations period, the period shall be extended for those specific Goods and/or services for a period of ninety (90) days after delivery of the replacement Goods or completion of the warranty services.
15. Termination, Default and Remedies
    This Agreement and any Purchase Order that is a part of or subject to this Agreement may only be terminated for cause, and neither party may terminate the Agreement or any Purchase Order that is a part of or subject to this Agreement for convenience, at will, or without cause.  For purposes of this Agreement, “cause” means a breach of a party’s material obligations under the Agreement that has not been cured within thirty (30) days following a written notice by the non-breaching party specifying the nature of the breach, provided, however, that if a party commences efforts to cure the breach but is unable to complete the cure within the period of time stated, the parties shall in good faith discuss and agree upon a reasonable extension necessary to complete the cure, provided that the curing party exercises reasonable and diligent efforts to complete the cure as soon as possible.  Notwithstanding the foregoing, this Agreement may be terminated by either party at any time upon written notice to the other party if (a) the other party becomes insolvent, makes an assignment for the benefit of creditors or is unable to meet its obligations as they become due, (b) a petition in bankruptcy or insolvency is filed by or against the other party, or (c) any amounts due for longer than 30 days, the Seller by the Purchaser are unpaid. Seller shall not be responsible or liable for any delay or failure of performance that is caused by Purchaser or anyone under Purchaser’s direction or control.  No termination by Seller shall prejudice Seller’s rights to any amounts due under this Agreement or any other rights or remedies of Seller.  In the event of a breach of the Agreement by Purchaser, in addition to the other rights and remedies available, Seller may suspend performance of this Agreement until Purchaser’s breach has been cured.  Further, to the extent Purchaser’s breach of any of its obligations under this Agreement causes any delay, or Seller agrees to a Purchaser’s request for a suspension, rescheduling or other delay, in Seller’s performance of Seller’s obligations, the time period for Seller’s performance shall be extended by the period of such a delay and Seller shall not be considered in breach of this Agreement.  As a result of same, and further provided that Purchaser shall be liable to Seller for Seller’s actual and reasonable costs and expenses incurred as a result of such delay.  Purchaser may not terminate this Agreement or any Purchase Order that is a part of the Agreement, in whole or in part, as a result of any change of control of Seller.
16. Unauthorized Modifications
    Purchaser agrees that Seller does not warrant and Seller shall not be liable for loss, cause, damage, expenses or claims of any sort whatsoever, including, without limitation, those arising from, relating to or in connection with personal injury, death, or property damage, due to or on account of any/all modifications of any of the Goods, hardware and/or accompanying materials relating to the Goods manufactured or supplied by Seller and/or included in the Seller’s scope of supply.
17. Intellectual Property
    Seller retains all rights, title and interest in and to all intellectual property rights, and none of these rights, title or interest, express or implied, shall transfer in any way to Purchaser, in whole or in part, for any reason or in any way.