(a): These terms and conditions (“Terms”) apply to the sale or supply of all products or systems (“Products”), and the performance of all services (which includes any software provided as a service) (“Services”) by Nardeen Lighting Limited (“NARDEEN”) to you (“Customer”) and will form a necessary part of any Offer or Agreement therefore. Customer’s ordering of Products or Services from NARDEEN constitutes acceptance of these Terms, as such Terms may have been updated through the date of such order. As used herein, “Agreement” means any written agreement for supply, distribution, sale, or license of any Products or Services entered into between NARDEEN and Customer, or any purchase order that is issued by Customer and accepted by NARDEEN; and “Offer” means any quotation, proposal or offer provided to Customer by NARDEEN.
(b): Products and Services may include web or mobile applications that may be subject to additional terms (“Additional Use Terms”) or software that may be subject to additional (end-user) software license conditions (“EULAs”), both from either NARDEEN or an affiliate, or third parties. Such EULAs or Additional Use Terms will be made available together with the web or mobile application or software, as applicable. Except where specified otherwise in a EULA or Additional Use Terms, such EULA or Additional Use Terms will form part of the Agreement. Software will not be sold to Customer, but licensed subject to the license terms in section 10 below.
(c): In the event of any conflict or inconsistency between these Terms and the terms of any Agreement or Offer the terms of such Agreement or Offer will prevail. With respect to web or mobile applications or software, any Additional Use Terms or the terms of any applicable EULA will prevail over these Terms.
(d): The terms “agreed”, “consent”, “confirmed”, “accepted”, "informed”, “notified” or “notice” and documents or acts of similar meaning will be deemed to be required to be done in writing, where "in writing" means hand-written, type-written, printed or electronically made, and resulting in a permanent record. The terms "includes" or "including" will be construed without limitation to the generality of preceding words.
(e): Any different or additional terms in any purchase order, blanket instructions, terms of purchase or other writing from Customer will be deemed a material alteration of these Terms and are expressly objected to and rejected and will be of no force or effect. Commencement of performance or shipment will not be construed as acceptance of any of Customer's terms or conditions. Course of performance or usage of trade will not be applied to modify these Terms. These Terms may be amended by NARDEEN by posting an updated version on its website, provided that in respect of an Agreement and an Offer the version of the Terms applicable as of the effective date of the Agreement or the date of the Offer will apply.
(f): Offers by NARDEEN are open for acceptance within the period stated in such Offer or, in the event that no period is stated, within thirty (30) days from the date of the Offer, provided that NARDEEN may amend, withdraw or revoke any Offer at any time prior to the receipt by NARDEEN of the acceptance of an Offer. No order submitted by Customer will be deemed final or accepted by NARDEEN unless and until confirmed by NARDEEN.
(g): Customer is solely responsible for the accuracy of any order, including with respect to the specification, configuration or other requirements of Products and Services, and functionality, compatibility and interoperability with other products (not authorized by NARDEEN), as well as fitness for particular use. Customer warrants that the information provided to NARDEEN under an Agreement is complete, accurate and true, and Customer acknowledges that a failure to provide complete, accurate and true information or instructions to NARDEEN may detrimentally affect NARDEEN's ability to discharge its obligations or exercise its rights under an Agreement.
(h): Any catalog, specification, price sheet or other similar documentation prepared by NARDEEN is strictly for convenience only and will not be deemed as an Offer. NARDEEN believes such documentation is complete and accurate at time of printing, but NARDEEN does not warrant that such documentation is error free. NARDEEN will not accept responsibility for any damages in connection with errors of measurements, descriptions, application recommendations and the like.
(i): Products will be supplied in accordance with the standard functionalities, styles and sizes as described in NARDEEN’s catalogs or, for special or made-to-order Products, in accordance with NARDEEN’s drawings and specifications sheets. In the event of a conflict between an order of Customer and a drawing or specification sheet from NARDEEN approved by Customer, the latter will prevail.
(j): Assumptions, exclusions and qualifications stated by NARDEEN in Offers, Agreements or otherwise will direct the Agreement and will be construed as part thereof and guide its execution and interpretation.
(k): Where the performance under the Agreement relies on the approval, confirmation or acceptance by Customer of a (draft) proposal, design, deliverable, planning or any other action by NARDEEN, Customer shall do so within the period stated in the Agreement, or, in the event that no period is stated, within seven (7) days after receipt of a request from NARDEEN, in the absence of a response within such time period Customer will be deemed to have approved, confirmed or accepted as submitted by NARDEEN.
(l): In the event that Customer resells Products or incorporates Products and/or Services in offerings to its customer, Customer shall ensure that all its customers and/or end users of Products or Services comply with all relevant Customer’s obligations under the Agreement and these Terms, and that the terms of its agreement with each of its customer(s) or end user(s) are consistent with the Agreement and these Terms, failing which Customer shall indemnify, defend and hold harmless NARDEEN and its affiliates, and their officers, directors, agents, employees, successors, and assigns from and against, all losses, liabilities, costs (including legal costs) and expenses arising out of or in connection with any non-compliance.
(b): Customer shall note any damage to Products caused in transit, or shortages thereto, on transport documentation immediately upon receipt of Products, with due regard to applicable instructions by NARDEEN or the carrier. All Products delivered under the Agreement will be deemed accepted by Customer as conforming to the Agreement, and Customer will have no right to revoke any acceptance, unless Customer provides NARDEEN notice of a claimed nonconformity within seven (7) days of the date of delivery. Notwithstanding the foregoing, any use of a Product by Customer or its customers after delivery will constitute acceptance of that Product by Customer. NARDEEN shall at its option and within a reasonable time, correct nonconformities by either repair, make available parts, replace or deliver missing Products, or credit the Price paid by Customer for undelivered Products.
(c): Minor Nonconformities will not prevent or suspend acceptance by Customer of the Products, Services or both, and NARDEEN shall correct these within a reasonable time. “Minor Nonconformities” are nonconformities or anomalies that do not hinder the overall operation and intended use of Products or Services in accordance with the specifications.
(d): NARDEEN may make changes to the design, materials, fit and finish of Products or change working methods, communication systems, software or any other elements of Services, and Documentation provided that such changes do not materially affect the functionality of the Product or Services. Unless specifically agreed otherwise, NARDEEN does not warrant the availability, accuracy, completeness, reliability, timeliness or output from Products and Services. Customer shall not use or rely on Products and Services for any other applications or purposes than agreed in the Agreement.
(e): Customer explicitly acknowledges that certain features or functionality of Products and Services may rely on the availability and correct functioning of third party service providers, as may be indicated by NARDEEN, including supply of energy, data storage, connectivity and communication services. These are outside of the control of NARDEEN, and NARDEEN will have no responsibility or liability in this respect.
(f): Customer is responsible for all information, orders, instructions, materials, and actions provided or performed by Customer directly or by third parties engaged by Customer (excluding subcontractors of NARDEEN) in connection with the delivery or performance by NARDEEN of any Products or Services. NARDEEN will be entitled to rely on the accuracy and completeness of all information furnished by Customer, including where NARDEEN provides data collection, design or audit services. Upon request of NARDEEN, Customer shall promptly provide any other information, services or support under Customer's control and relevant to the performance by NARDEEN under the Agreement.
(g): In the event of delay or interruption in delivery of Products or the performance of Services for reasons not attributable to NARDEEN or due to a Variation, the timelines for performance by NARDEEN will be amended accordingly. NARDEEN will be entitled (in addition to the increased costs referred to in section 2(c)) to a reasonable compensation by Customer for any damages and/or costs incurred by such delay.
(h): In the event that an Agreement contains (minimum) stock requirements for NARDEEN, Customer shall at first request of NARDEEN purchase Products kept in stock under such requirement.
(b): Customer shall use and, where applicable, shall cause and ensure that end-users use web-applications, mobile applications and software in accordance with applicable Additional Use Terms and/or EULAs, and where applicable, keep a full back-up of such software installed readily available. In the event of a software error, Customer shall provide NARDEEN with alerts or error messages and support NARDEEN in updating or replacing software used in connection with performance under the Agreement.
(c): Customer shall not perform (or permit) any activity on any equipment or software supplied and/or used by NARDEEN in the performance of Services, except normal use in accordance with the specifications or otherwise with the prior approval by NARDEEN. In the event of any unauthorized actions, NARDEEN may suspend the Services until the equipment or software has been restored to its original compliant state and charge Customer on the basis of a Variation, and until confirmed any warranty obligations of NARDEEN with respect to such Services will be null and void. Any changes to equipment or software owned by NARDEEN (or its licensors) will be exclusively owned by NARDEEN (or its licensors), even if such changes have been performed by or for Customer.
(d): Unless expressly included in Services, for any Services requiring connection to a system from a remote location, Customer shall at its own expense and risk establish external system access for service staff of NARDEEN (or its subcontractors). Customer shall make available technically competent staff as and when required to support NARDEEN and, where applicable, Customer authorizes NARDEEN to make use of Customer's IT infrastructure to connect to and share data with specified systems and/or services to perform Services.
(e): NARDEEN shall not be responsible for the failure of any of its Products or Services to provide the expected performance, benefits, effects or outcome arising from: (i) Customer’s failure to comply with the terms under the Agreement; (ii) failures or fluctuations of electric power; (iii) sunset/shutdown of connectivity and communication technologies; (iv) Force Majeure and other unusual external influences; or (v) Variations.
(b): All the documentation provided by NARDEEN in connection with the Products and Services, including any user manuals or instructions, catalogs, specification sheets, data, drawings, schedules, designs, source code, or any other documents or information obtained from NARDEEN or created by NARDEEN in whatever form including electronic or printed format (“Documentation”) will remain the property of NARDEEN. Documentation is not sold to Customer, but licensed subject to the license terms in section 10 below. Unless otherwise agreed, all IPR in and to the Documentation is retained by NARDEEN or a NARDEEN nominee. Customer shall not use, publish, copy or disclose the Documentation except in accordance with these Terms.
(a): Customer is responsible for the timely completion of preparatory works and site preparations in conformity with requirements set by NARDEEN. Customer shall prior to the agreed start of Installation or other Services on site, and in such a manner that NARDEEN can perform in the most efficient manner and within agreed time schedules: (i) provide and maintain the site conditions (including infrastructure); (ii) provide all necessary information, instructions, inspections, authorizations, approvals, permits and notify NARDEEN about the location of any cables, electric power lines, water pipes or the like, including surveys describing physical characteristics, legal limitations and utility locations for the site; (iii) provide site access, including traffic management, where applicable; and (iv) put at the disposal of NARDEEN all materials, tools, constructions and other facilities, and all other reasonable assistance in an accurate and timely manner, and at no additional costs to NARDEEN, all in compliance with applicable laws, including all applicable health and safety, electrical and building codes.
(b): Customer shall not call NARDEEN upon site before the obligations under section 6(a) have been satisfactorily completed. In the event of waiting times of more than four (4) hours on a day, NARDEEN may reschedule and charge Customer a full working day for that day for the resources concerned. Customer shall (i) provide a fully qualified representative to support NARDEEN as and when required while working on site; (ii) provide utilities (including gas, water, electricity and connectivity), heating and lighting necessary for the performance on site; (iii) provide adequate and lockable rooms for Personnel (equipped with sanitary installations) and storage of materials, tools and instruments on or near the site; (iv) decommission and collect the materials that are replaced by Products and remove these from the site; and (v) assist NARDEEN during (performance) tests. Upon request of NARDEEN, Customer shall arrange for the temporary shutdown of facilities at the site (including water systems).
(c): Upon finalization of Installation or other Services on-site, NARDEEN shall notify Customer in accordance with the acceptance protocol agreed between the Parties. In the event that no such protocol has been agreed, within five (5) days after notice to Customer of finalization of installation or other Services on-site, Customer shall check and test the Service set-up, the Products supplied and/or Installed by NARDEEN and, subject to sections 3(b) and 3(c), notify NARDEEN of any Defect (as defined in section 9(a)), in the absence of which Customer will be deemed to have accepted the Service set-up, the Products supplied and/or Installed five (5) days after notice. NARDEEN shall resolve Defects so notified within a reasonable period in accordance with section 9.
(b): Legal title to Products will pass to Customer only when NARDEEN (or its financiers) has received payment for such Products in full and, to the extent permitted by applicable law, NARDEEN received payment in full of all other amounts due by Customer under any other agreement with NARDEEN (or any of its affiliates). Until legal title to Products has passed to Customer, Customer shall (i) not assimilate, transfer or pledge any of the Products, or grant any right or title in the Products to any third party, except in the normal course of business and against payment or subject to retention of title; and (ii) ensure that the Products remain identifiable as Products owned by NARDEEN. In the event of breach by Customer, NARDEEN may require that Customer return to NARDEEN, at Customer’s cost (including costs for de-installation), all Products in which the title has not yet passed and Customer shall fully cooperate to enable NARDEEN to collect such Products and grant NARDEEN (or its representative) free access to the location of the Products, and other equipment supplied and/or used by NARDEEN in the performance of Services.
(b): Unless otherwise agreed by the Parties, NARDEEN does not provide any warranty for third party products, products not marked with the PHILIPS trademark or with trademarks owned by Signify or NARDEEN, nor for third party software, applications or services, or customized Products.
(c): Customer acknowledges that EULAs or Additional Use Terms may limit the warranty period for software (including web or mobile applications).
(d): In order to be entitled to make a valid claim under warranty, Customer shall promptly notify NARDEEN of alleged Defective Products or Defective Services prior to expiration of the warranty period. In the event that NARDEEN decides, in its sole discretion, that a claim under warranty is valid, NARDEEN shall, within a reasonable time, at its own option, repair or offer replacement products for Defective Products, or remedy or supplement any Defective Services. If despite reasonable efforts of NARDEEN, a Defective Product cannot be repaired, no replacement product can be supplied or Defective Services cannot be remedied or supplemented, NARDEEN shall make an appropriate refund or credit of monies paid by Customer for those Defective Products or Defective Services. Repairs, replacements or remedies will not extend or renew the applicable warranty period. Customer shall obtain consent from NARDEEN on the specifications of any tests it plans to conduct to determine whether a Defect exists. Replacement products supplied by NARDEEN may have minor deviations in design and/or specifications which do not affect the functionality of replaced Product. In respect of any replaced or credited Products, NARDEEN may, in its sole discretion, either claim the property of replaced or credited Products and require Customer to return these to NARDEEN, or instruct Customer to destroy these at Customer’s costs.
(e): Customer shall bear the costs of access for remedial warranty efforts by NARDEEN, including removal and replacement of systems, structures or other parts of Customer’s facility, the de-installation of Defective Products, and the re-installation of replacement products. Customer shall not return Products to NARDEEN without consent of NARDEEN and unless in accordance with applicable NARDEEN’ return policies. In the event that NARDEEN decides that a claim under warranty is not valid, Customer will bear the costs incurred by NARDEEN in handling and testing, and the transport of Products returned.
(f): Any indemnification and warranty obligations of NARDEEN under an Agreement are conditional upon (i) proper storage, installation, use, operation, and maintenance of Products, all in accordance with user manuals, warranty policies and other instructions or terms communicated by NARDEEN to Customer; (ii) Customer keeping accurate and complete records of operation and maintenance during the warranty period and providing NARDEEN access to those records; and (iii) modification or repair of Products or Services only as authorized by NARDEEN. Failure to meet these conditions renders the warranty null and void. NARDEEN will not be responsible for normal wear and tear and environmental or stress testing. The warranty provided in this section 9 does not apply to damage or failure to perform arising as a result of any Force Majeure or from any abuse, misuse, abnormal use, improper power supply, powers surges or fluctuations, corrosive environments, neglect, exposure or any use or installation in violation of the instructions or restrictions prescribed by NARDEEN or any applicable standard or code.
(g): Any indemnification and warranty obligation of NARDEEN under an Agreement will not establish, by themselves, any liability to third parties or the public. Nothing in an Agreement will be construed to create any obligation, standard of care or liability to persons or third parties.
(h): If a recall, retrofit, update, withdrawal or any other remedial action related to any Product is required, Customer shall fully cooperate and shall provide such assistance as NARDEEN may require. Customer shall keep accurate books and records to assure traceability of the Products in the event of a Product recall or any other remedial actions.
(i) SUBJECT TO THE EXCLUSIONS AND LIMITATIONS SET OUT IN THE AGREEMENT, AND SUBJECT TO APPLICABLE LAW, SECTIONS 9, 11 AND 12(b), (c) and (d) STATE THE ENTIRE LIABILITY OF NARDEEN AND ITS AFFILIATES IN CONNECTION WITH DEFECTIVE PRODUCTS OR DEFECTIVE SERVICES, REGARDLESS OF WHEN THE DEFECT ARISES, AND WHETHER A CLAIM, HOWEVER DESCRIBED, IS BASED ON CONTRACT, WARRANTY, INDEMNITY, TORT OR EXTRA-CONTRACTUAL LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WILL EXTEND DIRECTLY TO CUSTOMER ONLY AND NOT TO ANY THIRD PARTY, INCLUDING CUSTOMER’S CUSTOMERS, AGENTS OR REPRESENTATIVES. NARDEEN EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY AGAINST INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AN ESSENTIAL PURPOSE OF THE LIMITED EXCLUSIVE LIABILITIES AND REMEDIES UNDER THE WARRANTY IS ALLOCATION OF RISKS BETWEEN NARDEEN AND CUSTOMER, WHICH ALLOCATION OF RISKS IS REFLECTED IN THE PRICES.
(b): In respect of any (embedded) software or other applications supplied to Customer, Customer shall not and shall not permit any third party to: (i) copy, reproduce, distribute, modify, adapt, alter, translate, or create derivative works therefrom; (ii) assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available such software or other works; (iii) merge or incorporate such software with or into any other software; or (iv) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code or the algorithmic nature for such software, or to decode, de-crypt or neutralize any security measures in software or remove or circumvent the protection of software, without authorization from NARDEEN except as explicitly allowed under applicable law; (v) perform any action with regard to software in a manner that would require the software, or any derivative work thereof, to be licensed under Open Source Terms, including but not limited to: (a) combining the software or a derivative work thereof with Open Source Software, by means of incorporation or linking or otherwise; or (b) using Open Source Software to create a derivative work of the software, where “Open Source Software” means any software that is licensed under open source license terms that require as a condition of use, modification or distribution of a work: (1) the making available of source code or other materials preferred for modification, or (2) the granting of permission for creating derivative works, or (3) the reproduction of certain notices or license terms in derivative works or accompanying documentation, or (4) the granting of a royalty-free license to any party under IPR regarding the work or any work that contains, is combined with, requires or otherwise is based on the work.
(c): Customer acknowledges that third parties may own IPR related to Products or Services. Customer shall reproduce, without any amendments or changes, any proprietary rights legends of NARDEEN or its third party suppliers in any software or Documentation provided by NARDEEN.
(d): NARDEEN will be free to use in any way or form any ideas, suggestions, feedback or recommendations by Customer to NARDEEN regarding Products or Services ("Feedback"), without payment of royalties or other consideration to Customer. NARDEEN will own all IPR in Feedback. NARDEEN is entitled to use output, deliverables and creations resulting from the performance of Services for its own publicity or for promotional purposes.
(b): In the event that a claim referred to under section 11(a) results in any legal proceedings, Customer shall give NARDEEN full authority, at the option and cost of NARDEEN, to settle or conduct the defense of such claim. Customer shall provide NARDEEN with all assistance as NARDEEN may reasonably require in connection with such defence of such claim. Customer shall not enter into any settlement in connection with any such claim, nor incur any costs or expenses for the account of NARDEEN without the prior consent of NARDEEN.
(c): Subject to the provisions of sections 11 and 12, NARDEEN will reimburse Customer in respect of any final award of damages by a court of competent jurisdiction holding that Products and/or Services as supplied by NARDEEN under an Agreement directly infringe any third party IPR, provided that the infringement is held to be directly and solely attributable to the use by Customer of the Products and/or Service as supplied by NARDEEN under the Agreement.
(d): Notwithstanding anything to the contrary provided in the Agreement, NARDEEN will not be liable for, and the obligations of NARDEEN set out in this section 11 will not apply to: (i) any claim of infringement of third party IPR resulting from compliance with Customer’s design, drawings, specifications or instructions; or (ii) use of any Products, deliverables and/or Services other than in accordance with its specifications or any claim based on or resulting from any modification or adaptation of a Product, deliverables and/or Service made by or on behalf of Customer; or (iii) any third party IPR covering any assembly, circuit, combination, method or process, in the manufacture, testing or application in which such Products and/or Services supplied by NARDEEN may have been used; or (iv) any claim of infringement resulting from compliance with an industry standard applying to the Products or Services.
(e): With regard to any claim of infringement covered by section 11 (d), Customer shall fully indemnify NARDEEN against any award of damages for any such infringement and shall reimburse all costs incurred by NARDEEN in defending any suit or proceeding for such infringement, provided that NARDEEN gives Customer prompt notice in writing of any such suit or proceeding for infringement and, if so requested, full authority to conduct the defence thereof.
(f): In the event that NARDEEN receives notice claiming infringement of third party IPR in relation to any Products and/or Services supplied or to be supplied under an Agreement, NARDEEN may, in order to limit or avoid liability, terminate the Agreement, suspend or discontinue the supply or performance to Customer of the Products and/or Services or parts to which such notice relates and NARDEEN will not be liable to Customer by virtue of such termination, suspension or discontinuation.
(g): Subject to the exclusions and limitations set forth in section 12, the foregoing states the entire liability of NARDEEN for infringement of third party IPR in connection with the supply of Products and/or Services.
(b): NARDEEN will not under any circumstances be liable for any lost profits, lost savings, loss of data, loss of reputation, loss of goodwill, indirect, incidental, punitive, special or consequential damages, whether or not such damages are based on tort, warranty, contract or otherwise – even if NARDEEN has been advised, or is aware, of the possibility of such damages.
(c): In order to be entitled to make a valid Claim, Customer shall notify NARDEEN of any such Claim within thirty (30) days of the date of the event giving rise to the Claim, and any lawsuit relating to a Claim must be filed within one (1) year of the date of such notification. Claims that are not brought or filed in accordance with the preceding sentence will be null and void.
(d): The limitations and exclusions of liability will apply only to the extent permitted by applicable mandatory law.