SMART GROW TECHNOLOGIES (“SGS”) Standard Terms and Conditions For Product Sales or Leases, Service Contracts or Supplier Projects

Definitions. 4

SECTION i. PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY! 4

Additional Information Regarding Terms and Conditions. 4

SECTION 1. RESOLUTION OF DISPUTES. 5

1.1 DISPUTE RESOLUTION DECLERATION. 5

1.2 AGREEMENT TO TERMS VIA TRANSFER OF MONEY TO SGS. 5

1.3 REQUEST AND OF ARBITRATION. 5

1.4 COST OF ARBITRATION. 5

1.5 BINDING AND UNCONTESTABLE ARBITRATION.. 6

SECTION 2. GOVERING LAW.. 6

2.1 JURISDICTION.. 6

2.2 RECOVERY. 6

SECTION 3. TITLE; RISK OF LOSS. 6

3.1 SHIPPING. 6

SECTION 4. THIRD PARTY SERVICES. 7

4.1 THIRD PARTY SERVICES. 7

4.2 THIRD PARTY SERVICES RELEASE. 7

4.3 CONFLICT OF TERMS. 7

SECTION 5. COOPERATION.. 7

5.1 INFORMATION.. 7

5.2 CUSTOMER SECURITY. 8

SECTION 6. ACCESS. 8

6.1 SERVICE LOCATION.. 8

SECTION 7. RIGHT OF PUBLICITY. 8

SECTION 8. PAYMENTS. 8

8.1 ACCEPTANCE. 8

8.2 INTEREST AND LATE FEES. 9

8.3 DEFAULT OR LATE PAYMENTS. 9

SECTION 9. EXPORT SALES. 9

9.1 EXPORTS. 9

SECTION 10. WARRANTIES. 10

10.1 MANUFACTURER’S WARRANTY. 10

10.2 LEGAL WARRANTIES. 10

10.3 HORTICULTURAL USAGE OF SGS PRODUCTS. 10

10.4 SGS SERVICES. 11

10.5 ENTIRE WARRANTY OF SGS SERVICES. 11

10.6 UPKEEP OF PRODUCTS AND SERVICES. 11

10.7 ESTIMATES. 11

SECTION 11. PRICING.. 12

11.1 PRICING CHANGES. 12

11.2 SERVICE ESTIMATES. 12

SECTION 12. CREDITS. 12

12.1 CREDITS. 12

SECTION 13. LIMITATION OF LIABILITY. 12

13.1 LIABILITY. 12

SECTION 14. LIMITED LICENSE. 13

14.1 CUSTOMER RIGHTS. 13

SECTION 15. CONFIDENTIAL INFORMATION.. 13

15.1 CONFIDENTIAL INFORMATION.. 13

15.2 PERIOD OF CONFIDENTIALITY. 13

15.3 RELEASE DUE TO LAW. 14

SECTION 16. RETURN PRIVILAGES. 14

16.1 RMA PROCESS INITIATION.. 14

SECTION 17. MISCELLANEOUS. 14

17.1 SUBCONTRACTING.. 14

 

 

 

 

 

Definitions

  1. “Customer(s)” is any grower, supplier, company, vendor, partner, provider, or other entity/individual that does business with SGS.
  2. “Party” or “Parties” includes any combination of Customer and SGS.
  3. “Product(s)” are any and all lighting, nutrients or other components of a horticultural system or product line as provided and sold by SGS.
  4. “SGS Agent(s)” are any consultants, employees, representatives, service personnel, distributors, or other affiliates who have been authorized to represent SGS.
  5. “SOW” STATEMENT OF WORK
  6. “Terms and Conditions” and “Agreement” are used interchangeably and are synonymous.

 

 

SECTION i. ACCEPTANCE OF SGS TERMS & CONDITIONS – PLEASE READ THIS SECTION VERY CAREFULLY!

THE TERMS AND CONDITIONS OF PRODUCT SALES AND SERVICE PROJECTS ARE LIMITED TO THOSE CONTAINED HEREIN AND ON THE SMART GROW TECHNOLOGIES QUOTE FORM. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY (CUSTOMER) ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN.

BY ACCEPTING PAYMENT FROM OR MAKING A PAYMENT TO (SGS), THE (CUSTOMER) IDENTIFED ON THE QUOTE, SERVICE AGREEMENT, ORDER, OR INVOICE, (SOW) OR OTHER (SGS) DOCUMENTATION, AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS IN THEIR ENTIRETY. SEPARATE AGREEMENTS AUTOMATICALLY ACCEPT THESE TERMS AND CONDITIONS AND UNLESS EXPLICITLY STATED OTHERWISE, THIS SMART GROW TECHNOLOGIES (“SGS”) Standard Terms and Conditions WILL GOVERN.

ANY GENERAL DESCRIPTION OF THE TYPES OF PRODUCTS OR SERVICES AND RESULTS THEREOF POSTED ON ANY (SGS) WEBSITE OR MOBILE APPLICATION DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN (SGS) AND (CUSTOMER) AND SHOULD BE CONSIDERED MARKETING MATERIAL ONLY WITHOUT ANY GUARENTEE OR EFFECT UPON THE RELATIONSHIP WITH SGS OR THE PRODUCTS OR SERVICES PURCHASED.

Additional Information Regarding Terms and Conditions

These Terms and Conditions constitute a binding contract between Customer and SGS. These Terms and Conditions are subject to change without prior notice. Any changes will be posted on the SGS website as a new version of the SGS Standard Terms and Conditions Agreement.

Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order are unacceptable and null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice. This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, electronic or implied, if any, between the parties with respect to the subject matter hereof.

 

SECTION 1. RESOLUTION OF DISPUTES VIA BINDING ARBITRATION

1.1 DISPUTE RESOLUTION DECLERATION.

In the course of business dealings, invariably disputes, claims and/or controversies between Parties will arise.  In the event of such a matter, both Parties agree to be bound by the following methods of resolution as defined in this Section 1.  Parties agree the Arbitrator’s decisions are the final and definitive method of resolving a dispute.  Parties expressly waive any rights they may have to litigation in any state or federal court.  (See Section 2: Governing Law, below, for substantive and procedural issues). Also see Section 1.2 EFFECTS OF ARBITRATION which defines minimum damages if either Party attempts to bypass the process and 1.3 REQUEST AND STEPS FOR ARBITRATION which defines the actual procedural mechanisms of Arbitration.

 

1.2 EFFECTS OF ARBITRATION.

This Agreement uses Arbitration as the sole remedy to any disputes. There are advantages to Arbitration, but also disadvantages. Arbitrating our disputes may be more efficient, and it will be done in private. Also, unlike courts that are an arm of government, private Arbitrators have no ability to require third parties to participate in arbitration or to provide documents or witnesses. By doing business in any form with SGS as stated in SECTION i. ACCEPTANCE OF SGS TERMS & CONDITIONS, you agree to all the terms of this Agreement and specifically to this Section 1: Resolution of Disputes. You also agree that this clause is paramount to the Agreement and our business relationship. Also, you and SGS voluntarily agree that the Arbitrators’s decision shall be binding, conclusive, and not open to appeal or any other legal action. Also, by agreeing to this letter, you and SGS voluntarily give up important constitutional rights to trial by judge or jury, as well as rights to appeal. If either party begins any legal action in direct opposition to this Section, the party taking the action agrees to minimum damages of three times the legal cost of the defendant’s costs plus a penalty of $50,000, regardless of the outcome of such legal action, in addition to any other sanctions imposed by the court or Arbitrator. Nothing contained herein shall impinge upon your right to make a disciplinary complaint to the appropriate authorities.

 

1.3 REQUEST AND STEPS FOR ARBITRATION

Upon an irresolvable dispute, either Party may request Arbitration. Such request must be made in writing to the other Party and provide a thirty-day (30) notice period to allow for settlement of the issue without Arbitration. At the end of the thirty-day (30) period, if the dispute has not been settled, both Parties agree to enter negotiations (Arbitration Meeting) within thirty (30) calendar days. Upon any and all unresolvable disputes, Parties agree to work an Arbitrator at JAMS of Portland (https://www.jamsadr.com/).

If an Arbitrator cannot be agreed upon by the Parties, then JAMS of Portland shall make the decision of who shall be the Arbitrator.

If either Party fails to make any Arbitration Meeting, the Arbitrator may move forward with a final decision without both Parties present. Both Parties agree to only work with an Arbitrator from JAMS of Portland (https://www.jamsadr.com/).

 

1.4 COST OF ARBITRATION.

The cost of Arbitration shall be borne by both parties equally unless one Party fails to attend the Arbitration Meeting, or the Arbitrator deems one party should bear the entire burden of the Arbitration costs. No outside or inside counsel (they must get a non-attorney to represent them) shall be allowed in the Arbitration at any time and the Arbitration shall not run for more than a total of eight-hours (unless both sides agree to a longer Arbitration) with two four-hour sessions. The Arbitrator may request documentation or sworn statements from either Party to be produced at the second four-hour meeting. If either party violates this section, or the Arbitrator finds that one party is abusing the Arbitration process, the offending party will be liable for the cost of all fees, including but not limited to: consultant, attorney and Arbitrator fees, travel fees and legal fees. The Arbitrator may access up to triple damages borne by the aggrieved Party.

 

1.5 BINDING AND UNCONTESTABLE ARBITRATION

The decision of the Arbitrator shall be binding on all Parties with no right of appeal or other recourse. This Section 1, in its entirety, shall survive the termination of this agreement.

 

SECTION 2. GOVERING LAW

 

2.1 JURISDICTION.

THESE TERMS AND CONDITIONS, WILL BE GOVERNED BY THE LAWS OF THE STATE OF OREGON, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION WILL BE BROUGHT EXCLUSIVELY IN DESCHUTES COUNTY, OREGON, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE CURCUIT COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. If Arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association. If Arbitration is chosen by any party with respect to a Claim, neither SGS nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-Arbitration discovery, except as provided for in the applicable Arbitration rules or by agreement of the parties involved. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim.

 

2.2 RECOVERY.

Any court having jurisdiction may enter judgment on the award rendered by the Arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete Arbitration. The existence or results of any Arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to SGS arising out of the Products or Services will be exclusively litigated in court rather than through Arbitration. Any violation of the confidentiality of the result of or any findings of Arbitration (including the matter disputed) shall cause minimum damages of two times the yearly sales of SGS in the present year due to the aggrieved Party.

 

SECTION 3. TITLE; RISK OF LOSS

 

3.1 SHIPPING.

If Customer provides SGS with Customer’s carrier account number or selects a carrier other than a carrier that regularly ships for SGS, title to Products and risk of loss or damage during shipment pass from SGS to Customer upon delivery to the carrier (F.O.B. Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from SGS to Customer upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added).

 

SECTION 4. THIRD PARTY SERVICES

 

4.1 THIRD PARTY SERVICES.

Customers may order services (collectively, “Services”) from or through SGS from time to time. Certain Services may be provided by third parties, including, but not limited to, manufacture, assembly, installation, extended warranty service by manufacturers, and are sold by SGS as a (“Third Party Services”) Liaison.

4.2 THIRD PARTY SERVICES RELEASE.

In the case of Third Party Services, Customer shall consider the third party to be the contracting party and the third party shall be the party responsible for providing the services to the Customer and Customer will look solely to the third party for any loss, claims or damages arising from or related to the provision of such Third-Party Services. Customer and Customer’s Affiliates (defined below) hereby release SGS and SGS’s Affiliates (defined below) from any-and-all claims arising from or relating to the purchase or provision of any such Third Parties Services. Any amounts, including, but not limited to, taxes, associated with Third Party Services which may be collected by SGS will be collected solely in the capacity as an independent sales agent. “Affiliate” means, with respect to a party, an entity that controls, is controlled by, or is under common control with such party.

4.3 CONFLICT OF TERMS.

Where Services are ordered in a Quote or Statement of Work, each Quote or Statement of Work hereby incorporates these Terms and Conditions and constitutes a separate agreement with respect to the Services performed. In the event of an addition to or a conflict between any term or condition of the Statement of Work and these Terms and Conditions, these Terms and Conditions will control, except as expressly amended in the applicable Statement of Work by specific reference to this Agreement. Each such amendment will be applicable only with respect to such Statement of Work and not to future Statements of Work. Changes to the scope of the Services described in a Statement of Work will be made only in a writing executed by authorized representatives of both parties. SGS will have no obligation to commence work in connection with any such change, unless and until the change is agreed upon in that writing executed by both parties. All such changes to the scope of the Services will be governed by these Terms and Conditions and the applicable Statement of Work. Each Statement of Work may be signed in separate counterparts each of which shall be deemed an original and all of which together will be deemed to be one original.

SECTION 5. COOPERATION REGARDING SERVICES

 

5.1 INFORMATION.

In addition to any specific Customer duties set forth in any applicable Quote or Statement of Work, Customer agrees to cooperate with SGS in connection with performance of the Services by providing: (i) timely responses to SGS’s inquiries and requests for approvals and authorizations, (ii) access to any information, site or materials requested by SGS which are necessary or useful as determined by SGS in connection with providing the Services, including, but not limited to, physical access to Customer’s facilities and/or floor plans, and (iii) all Required Consents necessary for SGS to provide the Services. “Required Consents” means consents or approvals required to give SGS, its Affiliates, and subcontractors the right or license to access, use and modify all data and third party products. Customer acknowledges and agrees that the Services are dependent upon the completeness and accuracy of information provided by Customer and the knowledge and cooperation of the agents, employees or subcontractors (“Personnel”) engaged or appointed by Customer who are selected by Customer to work with SGS.

5.2 CUSTOMER SECURITY.

SGS will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to SGS from time to time.

SECTION 6. ACCESS FOR SERVICES

 

6.1 SERVICE LOCATION.

SGS may perform the Services at Customer’s place of business, at SGS’s own facilities or such other locations as SGS deems appropriate.  When the Services are performed at Customer’s premises, SGS will attempt to perform such Services within Customer’s normal business hours unless otherwise jointly agreed to by the parties. Customer will also provide SGS access to Customer’s staff and any other Customer resources (and when the Services are provided at another location designated by Customer, the staff, and resources at such location) that SGS determines are useful or necessary for SGS to provide the Services. When the Services are provided on Customer’s premises or at another location designated by Customer, Customer agrees to maintain adequate insurance coverage to protect SGS and Customer’s premises and to indemnify and hold SGS and its Affiliates, and its and their agents and employees harmless from any loss, cost, damage or expense (including, but not limited to, attorneys’ fees and expenses) arising out of any product liability, death, personal injury or property damage or destruction occurring at such location in connection with the performance of the Services, other than solely as a result of SGS’s gross negligence or willful misconduct.

 

SECTION 7. RIGHT OF PUBLICITY

INTENTIONALLY LEFT BLANK

SECTION 8. PAYMENTS

 

8.1 ACCEPTANCE.

Orders are not binding upon SGS until accepted in writing by SGS. Customer agrees to pay the total purchase price stated in a separate document (Quote or other sales or service invoice).  All terms of payment are within SGS’s sole discretion. In connection with Services being performed pursuant to a Quote/Statement of Work, Customer will pay for the Services in the amounts and in accordance with any payment schedule set forth in the applicable Quote/Statement of Work. Customer will pay for the Services as invoiced and written in the “Terms and Conditions of Sales Process. Invoices are due and payable within the time period specified, subject to continuing credit approval by SGS. SGS, or any of its Affiliates on behalf of SGS may issue an invoice to Customer. SGS may invoice Customer separately for partial shipments, and SGS may invoice Customer for all of the Services described in a Quote/Statement of Work or any portion thereof.

8.2 INTEREST AND LATE FEES.

Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law for any outstanding service fees or additional Product cost invoiced upon Product shipment. In addition, a fee of one-hundred and twenty-five dollars ($125) will be added to every request for payment of late payments. Customer will pay for, and will indemnify and hold SGS and its Affiliates harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with any Statement of Work, the Product(s) or the Services. Customer may claim any exemption from such taxes, fees or charges at the time of purchase and provide SGS with the necessary supporting documentation.

8.3 DEFAULT OR LATE PAYMENTS.

Late payments or payment defaults by Customer are the only items that may bypass the Arbitration clause in this Agreement, as decided solely by SGS. In the event of a payment default, SGS may take any legal action it deems necessary. Customer will be responsible for all of SGS’s costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees regardless of the path SGS decides to use to remedy any amount due.  In addition, if payments are not received as described above, SGS reserves the right to suspend Services and stop all Product functionality until payment is received. Customer hereby grants to SGS a security interest in the Products to secure payment in full. Customer authorizes SGS to file a financing statement reflecting such security interest. Except as otherwise specified on an applicable Statement of Work, Customer will reimburse SGS for all reasonable out-of-pocket expenses incurred by SGS in connection with the performance of the Services, including, but not limited to, travel and living expenses. If any payments are still not paid within three-months (3) of the original invoice, SGS shall have the right to request that Customer return all Product that they have purchased in good working order, and still charge Customer the full amount for such Product or Services or double the amount if any Products are damaged and cannot be resold by SGS. In addition, Customer agrees that customer shall pay all legal, service and other charges for SGS to recover such Product and any and all amounts due.

SECTION 9. EXPORT SALES

 

9.1 EXPORTS.

If this transaction involves an export of items (including, but not limited to, commodities, software or technology) subject to the Export Administration Regulations, such items were exported from the United States by SGS in accordance with the Export Administration Regulations. Customer agrees that it will not divert, use, export or re-export such items contrary to United States law. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. The list of such countries subject to United States economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, Sudan, and Syria. Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers’ warranties for exported Products may vary or may be null and void for Products exported outside the United States.

SECTION 10. WARRANTIES

 

10.1 MANUFACTURER’S WARRANTY.

Customer understands that SGS is not the manufacturer of the Products purchased by Customer. In purchasing the Products, Customer is relying on the manufacturer’s statements, specifications, photographs or other illustrations representing the Products that may be provided by SGS or its Affiliates. SGS AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY. Customer expressly waives any claim that it may have against SGS or its Affiliates based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Product and also waives any right to indemnification from SGS or its Affiliates against any such Claim made against Customer by a third party. Customer acknowledges that no employee of SGS or its Affiliates is authorized to make any representation or warranty on behalf of SGS or any of its Affiliates that is not in this Agreement or expressively stated in an SGS Quote. Customer may not resell the Product offering any Warranties or assurances by SGS to any third party or employee/consultant/service provider of Customer. All Warranties are and null and void if the owner of the Products is not the original purchaser (the Customer) unless the Warranty has been extended in writing by the COO or CEO of SGS; and specifically granted to the new owner in writing.

10.2 LEGAL WARRANTIES.

SGS makes no warranties to the Customer and the Customer hereby acknowledges that SGS makes no warranties in regard to the applicability of all laws and regulations affecting, without limitation the manufacture, performance, sale, packaging, and labelling of the Products which are in force within the Customer’s territory.

10.3 HORTICULTURAL USAGE OF SGS PRODUCTS.

Customer further acknowledges and agrees that SGS makes no representations, warranties or assurances that the Products are designed for or suitable for use in any application other than horticulture in a damp environment. Customer agrees to indemnify SGS in connection with any such use of the Products other than as described herein. Customer further agrees to review and comply with the manufacture’s disclaimers and restrictions regarding the use of the Products in high risk environments.

10.4 SGS SERVICES.

SGS warrants that the Services will be performed in a reasonable and workmanlike manner. Customer’s sole and exclusive remedy and SGS’s entire liability with respect to this warranty will be, at the sole option of SGS, to either (a) use its reasonable commercial efforts to reperform or cause to be reperformed any Services not in substantial compliance with this warranty or (b) refund amounts paid by Customer related to the portion of the Services not in substantial compliance; provided, in each case, Customer notifies SGS in writing within five (5) business days after performance of the applicable Services.

10.5 ENTIRE WARRANTY OF SGS SERVICES.

EXCEPT AS SET FORTH HEREIN OR IN ANY STATEMENT OF WORK THAT EXPRESSLY AMENDS SGS’S WARRANTY, AND SUBJECT TO APPLICABLE LAW, SGS MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, CONDITIONS, COVENANTS, REPRESENTATIONS, OR WARRANTIES, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE OR OTHER MATERIALS USED IN PERFORMING SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF SGS OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF SGS OR ANY OF ITS AFFILIATES THAT IS NOT IN THIS AGREEMENT OR IN A STATEMENT OF WORK EXPRESSLY AMENDING SGS’S WARRANTY.

10.6 UPKEEP OF PRODUCTS AND SERVICES.

Customer shall be solely responsible for upkeep and maintenance of Products, services and any materials delivered by SGS according to any orders made by Customer.  SGS, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF ANY PRODUCT, MATERIAL, DATA, AND SOFTWARE, OR SERVICE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF THE SAME IN ANY WAY RELATED TO OR RESULTING FROM THE PRODUCTS, MATERIALS, OR SERVICES.

10.7 ESTIMATES.

SGS will not be responsible for and no liability shall result to SGS or any of its Affiliates for any delays in delivery or in performance which result from any circumstances beyond SGS’s reasonable control, including, but not limited to, Product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency or any difficulty in gaining access to Customer facilities. Any shipping dates or completion dates provided by SGS or any purported deadlines contained in a Quote/Statement of Work or any other document are estimates only.

SECTION 11. PRICING

 

11.1 PRICING CHANGES.

SGS reserves the right to make adjustments to pricing, Products and Service offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes and errors in advertisements. All orders are subject to Product availability and the availability of Personnel to perform the Services. Therefore, SGS cannot guarantee that it will be able to fulfill Customer’s orders.

11.2 SERVICE ESTIMATES.

If Services are being performed on a time and materials basis, any estimates provided by SGS are for planning purposes only. Unless stated in writing by SGS, all Quotes are valid for only thirty (30) days.

SECTION 12. CREDITS

 

12.1 CREDITS.

Any credit issued by SGS to Customer for any reason must be used within one (1) year from the date that the credit was issued and may only be used for future purchases of Products and/or Services. Any credit or portion thereof not used within the one (1) year period will automatically expire.

SECTION 13. LIMITATION OF LIABILITY

 

13.1 LIABILITY

UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL SGS, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF SGS HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY SGS OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR SERVICES; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED PRODUCT OR MATERIAL. IN THE EVENT OF ANY LIABILITY INCURRED BY SGS OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF SGS AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (B) ten thousand $10,000.00. This Section shall guide any decision by the Arbitrator. If the Arbitrator accesses damages above these amounts, SGS may request an appeal from a second Arbitrator who may overturn the original amounts accessed by the first Arbitrator. This is the only remedy for any Party to appeal the decision of the initial Arbitrator.

SECTION 14. LIMITED LICENSE

 

14.1 CUSTOMER AND SGS RIGHTS

Customer’s sole rights are to the Work product, materials and other deliverables to be provided or created (individually or jointly) in connection with the SGS Services or Product sales. SGS shall own all other results of the Services or Sale including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of this Agreement that are embodied in such work or materials (“Work Product”). Customer will be granted, upon payment in full to SGS, a non-transferable, non-sublicensable, non-exclusive, royalty-free license to use such SGS Work Products solely for Customer’s internal use. Customer will have no ownership or other property rights thereto and Customer shall have no right to use any such Work Product for any other purpose whatsoever. Customer acknowledges that SGS may incorporate intellectual property created by third parties into the Work Product (“Third Party Intellectual Property”). Customer agrees that its right to use the Work Product containing Third Party Intellectual Property may be subject to the rights of third parties and limited by agreements with such third parties.

 

SECTION 15. CONFIDENTIAL INFORMATION

 

15.1 CONFIDENTIAL INFORMATION

Each Party anticipates that it may be necessary to provide access to information of a confidential nature of such Party, the Affiliates or a third party (hereinafter referred to as “Confidential Information”) to the other Party in the performance of this Agreement and any Quote/Statement of Work. “Confidential Information” means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and conditions of each Quote/Statement of Work. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by agents, employees or subcontractors of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable. As an exception to the terms SECTION i. ACCEPTANCE OF SGS TERMS & CONDITIONS, any and all SGS Non-Disclosure Agreements (mutual, or not) shall govern the damages and terms regarding any aspect of confidential materials of SGS and supersede any terms herein.

15.2 PERIOD OF CONFIDENTIALITY

Each party agrees to hold the other party’s Confidential Information confidential for a minimum period of ten (10) years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but to use no less than a reasonable degree of care. Disclosures of the other party’s Confidential Information will be restricted (i) to those individuals who are participating in the performance of this Agreement or the applicable Statement of Work and need to know such Confidential Information for purposes of providing or receiving the Products or Services or otherwise in connection with this Agreement or the applicable Statement of Work, or (ii) to its business, legal and financial advisors, each on a confidential basis. Each party agrees not to use any Confidential Information of the other party for any purpose other than the business purposes contemplated by this Agreement and the applicable Statement of Work. Upon the written request of a party, the other party will either return or certify the destruction of the Confidential Information of the other party.

15.3 RELEASE DUE TO LAW.

If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Confidential Information of the other party, the receiving party will give the disclosing party prompt written notice of such request so that the disclosing party may seek an appropriate protective order or like protective measure and will undertake reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.

SECTION 16. RETURN PRIVILAGES

 

16.1 RMA PROCESS INITIATION

SGS allows Customer returns based on and controlled by the SGS Return Material Authorization process (RMA). Software is not returnable if the packaging has been opened unless specifically allowed in writing by SGS. If software was distributed electronically, it is not returnable if the licenses were downloaded. For additional information please request SGS’s full Product Return Material Authorization process. Customers should contact SGS Customer Relations at RMA@smartgrow.systems to initiate a return or for additional information. Customers must notify SGS Customer Relations of any damaged Products within ten (10) days of receipt.

SECTION 17. MISCELLANEOUS

 

17.1 SUBCONTRACTING

SGS may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or the performance of Services or assign the right to receive payments, without Customer’s consent. Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of SGS. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement or any Statement of Work will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between SGS and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement or a Statement of Work is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement or the applicable Statement of Work. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.