Materials Lease

Pluck, Inc.

Materials Lease

This materials lease (the “Lease”) govern the lease of the Leased Materials set forth in Order Forms from time to time (the “Leased Materials“) by Pluck, Inc. (hereinafter, “Company”) to you (“Customer” or “you”). The Lease, together with the Terms of Use entered into between Company and you, including any applicable Order Forms (the “Service Agreement”) separately agreed and incorporating this Lease, establishes the legal terms and conditions of the agreement between us, so please carefully read them before using the Services or entering into any Order Form. You agree to be bound by this Lease, which is incorporated into and made part of the Service Agreement. All capitalized terms in this Lease not otherwise defined in this Lease have the definitions assigned to them in the Service Agreement.

IMPORTANT NOTICES – PLEASE READ CAREFULLY BEFORE PROCEEDING:

THIS LEASE CANNOT BE MODIFIED EXCEPT BY EXPRESS WRITTEN AGREEMENT BETWEEN YOU AND COMPANY. SEE SECTION 15.4 FOR FURTHER DETAILS.

YOU MAY NOT SUBLEASE THE MATERIALS OR ASSIGN OR OTHERWISE TRANSFER ANY OF YOUR RIGHTS UNDER THIS LEASE. SEE SECTION 15.1FOR FURTHER DETAILS.

THIS LEASE INCLUDES A DISCLAIMER OF ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES AS TO QUIET ENJOYMENT, NON-INTERFERENCE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR YOUR PARTICULAR PURPOSES. SEE SECTION 5.1 FOR FURTHER DETAILS.

PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH COMPANY ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS LEASE, CUSTOMER EXPRESSLY ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS ALL OF THE TERMS OF THIS LEASE AND HAS TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. SEE SECTION 15.10(b) FOR FURTHER DETAILS.

In consideration of the mutual covenants and promises in this Lease, the parties hereto agree as follows:

1.         Lease. Company hereby leases to Customer, and Customer hereby leases from Company, the Leased Materials set forth from time to time on any applicable Order Form.

2.         Term, Termination and Cancellation.

2.1       Term. The term of this Agreement will begin, as to any Leased Materials, on the effective date of the Applicable Order Form and will remain in effect, as to those Leased Materials, for the duration of that Order Form and any successor Order Form applicable to the same Leased Materials, unless cancelled by a party or terminated in accordance with Section 2.2.

2.2       If Customer fails to pay any rent or other amount herein provided within ten days after the same is due and payable, or if Customer fails to observe, keep or perform any other provision of this Lease required to be observed, kept or performed by Customer, Company will have the right to exercise any one or more of the following remedies:

(a)        Company may sue for and recover all rents, and other payments, then accrued or thereafter accruing.

(b)       Company may take possession of the Leased Materials, without demand or notice, wherever same may be located, without any court order or other process of law. Customer hereby waives any and all damages occasioned by such taking of possession.

(c)        Company may terminate this Lease.

(d)       Company may pursue any other remedy at law or in equity.

2.3       Notwithstanding any repossession or any other action which Company may take, Customer will be and remain liable for the full performance of all obligations on the part of Customer to be performed under this Lease. Without limiting the generality of the foregoing, any right based on prior default will survive any cancellation or termination of this Lease, and the canceling or terminating party will also retain any remedy for default of the whole lease contract or any unperformed balance. All of Company's remedies are cumulative, and may be exercised concurrently or separately.

2.4       If this Lease or any Order Form is terminated or cancelled or if Company exercises any rights to repossess Lease Property under this Lease, if Company gives Customer at least five business days’ notice (or, in case of termination, cancellation or repossession for an Event of Default, two business days’ notice) of Company’s intent to repossess the Leased Materials in accordance with this Lease (a “Repossession Notice”), Customer will be responsible for harvesting any remaining Produce and transplanting or otherwise removing any crops then planted in any Raised Beds before repossession. If any crops or Produce remain in any Raised Bed two business days after a Repossession Notice (or such longer time as specified in the Repossession Notice), such Produce and crops will be deemed abandoned by Customer and Company may donate, destroy or otherwise use (including composting for Company’s use or replanting salvageable crops) the abandoned Produce and crops at Company’s discretion. If Company repossesses Leased Materials in accordance with the Lease but without a Repossession Notice, Company will use commercially reasonable efforts to transplant any remaining crops onto the Property, if practicable, and to harvest any remaining Produce and deliver the harvested Produce to Customer.

3.         Rent and Deposit.

3.1       Rent. The Rent for use of the Leased Materials is set forth from time to time on Company’s Fee Schedule here, provided that the Rent set forth on any Order Form will not be changed during the term of that Order Form with respect to the applicable Leased Materials.

3.2       Payment. Customer agrees to pay any and all Rent at the time Customer orders the Leased Materials. All Rent is due in advance of the installation of the Leased Materials.

3.3       Taxes. Listed Rent for the Leased Materials does not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority. Any applicable taxes will be added to Company’s invoice as a separate charge to be paid by Customer.

4.         Use. Customer will use the Leased Materials in a safe and appropriate manner and will comply with and conform to all Law in any way relating to the possession, use or maintenance of the Leased Materials.

5.         Warranty Disclaimer; Limitation of Liability.

5.1       EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT OR ESTABLISHED BY APPLICABLE LAW AS RIGHTS THAT CANNOT BE WAIVED OR LIMITED BY CONTRACT, THE MATERIALS ARE LEASED “AS IS” AND WITH ALL FAULTS, AND COMPANY DOES NOT MAKE AND HEREBY DISCLAIMS ALL WARRANTIES CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING IMPLIED WARRANTIES REGARDING TITLE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY, FREEDOM FROM CLAIMS OF INFRINGEMENT OR THE LIKE, FITNESS FOR USE FOR A PARTICULAR PURPOSE, QUALITY OF MATERIALS OR WORKMANSHIP, OR ABSENCE OF DISCOVERABLE OR NONDISCOVERABLE DEFECTS. LESSEE WAIVES, RELEASES, RENOUNCES, AND DISCLAIMS EXPECTATION OF OR RELIANCE ON ANY SUCH WARRANTY OR WARRANTIES.

5.2       COMPANY WILL NOT HAVE ANY RESPONSIBILITY OR LIABILITY TO CUSTOMER OR ANY OTHER PERSON, WHETHER ARISING IN CONTRACT OR TORT, OUT OF ANY NEGLIGENCE OR STRICT LIABILITY OF COMPANY OR OTHERWISE, FOR

(a)        ANY LIABILITY, LOSS, OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY OR INDIRECTLY BY THE LEASED MATERIALS; BY ANY INADEQUACY, DEFICIENCY, OR DEFECT OF THE LEASED MATERIALS; OR BY ANY OTHER CIRCUMSTANCES IN CONNECTION WITH THIS LEASE;

(b)       THE USE, OPERATION, OR PERFORMANCE OF THE LEASED MATERIALS OR ANY RISKS RELATING TO THE LEASED MATERIALS;

(c)        ANY CONSEQUENTIAL DAMAGES, EXCEPT FOR CONSEQUENTIAL DAMAGES FOR INJURY TO THE PERSON.

5.3       EXCEPT FOR CONSEQUENTIAL DAMAGES FOR INJURY TO THE PERSON, CUSTOMER WILL NOT BE ENTITLED TO RECOVER, AND HEREBY DISCLAIMS AND WAIVES ANY RIGHT THAT CUSTOMER MAY OTHERWISE HAVE TO RECOVER, CONSEQUENTIAL DAMAGES AS A RESULT OF ANY BREACH OR ALLEGED BREACH BY COMPANY OF ANY OF THE AGREEMENTS, REPRESENTATIONS, OR WARRANTIES OF COMPANY CONTAINED IN THIS LEASE.

5.4       TO THE FULLEST EXTENT ALLOWED BY LAW, CUSTOMER HEREBY WAIVES ALL OF ITS RIGHTS AND REMEDIES PROVIDED IN TEXAS BUSINESS AND COMMERCE CODE §§ 2A.508 – 2A.522, AND THIS WAIVER HAS BEEN NEGOTIATED BY COMPANY AND CUSTOMER AND HAS BEEN KNOWINGLY AND VOLUNTARILY ENTERED INTO BY THE PARTIES.

6.         Care. Customer will use ordinary care to preserve the safety and condition of the Leased Materials and will repair, at Customer’s own cost and expense, any deterioration or damage caused by Customer’s lack of ordinary care. Company will provide maintenance and repair services in accordance to and subject to the terms of the Service Agreement.

7.         Acceptance, Loss and Damage.

7.1       Acceptance. Customer will make an inspection of the Leased Materials and, on tender of delivery in the condition required by this Lease and the Order Form, Customer will accept the Leased Materials and indicate and confirm Customer’s acceptance of the Leased Materials by delivery to Company of an Acceptance Certificate in the form set forth in Exhibit A.

7.2       Loss and Damage. Except as set forth in the  Service Agreement, Customer hereby assumes and will bear the entire risk of loss and damage to the Leased Materials from any and every cause whatsoever. No loss or damage to the Leased Materials or any part thereof will impair any obligation of Customer under this Lease. Except as otherwise provided in the Service Agreement, in the event of loss or damage of any kind whatever to the Leased Materials, Customer will, at Company's option (a) place the same in good repair, condition and working order, (b) replace the same with like equipment in good repair, condition and working order, or (c) pay to Company the replacement cost of the Leased Materials.

8.         Surrender. On the expiration or earlier termination of this Lease, Customer will return the Leased Materials to Company in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof excepted as set forth in the Service Agreement.

9.         Taxes. Customer will keep the Leased Materials free and clear of all levies, liens and encumbrances. Customer, or Company at Customer's expense, will report, pay and discharge when due all license and registration fees, assessments, sales, use and property taxes, gross receipts, taxes arising out of receipts from use or operation of the Leased Materials, together with any penalties or interest thereon, imposed by any state, federal or local government or any agency, or department thereof, whether or not the same are assessed against or in the name of Company or Customer.

10.       Indemnity.Customer will defend, indemnify, save, and hold Company and its Affiliates, officers, employees, agents, suppliers or licensors harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, costs of investigation, and the amount of any settlements, asserted against Company and them that may arise or result from (a)  Customer's use of the Leased Materials, including without limitation the manufacture, selection, delivery, possession, use, operation, or return of the Leased Materials, (b) Customer’s breach of any representation, warranty or covenant in this Lease, (c) Customer’s negligence, willful misconduct or violation of applicable Law, and (d) any death or physical injury or damage to personal property of any Company, any Company Affiliate or any third party on the Property or resulting from or related to the Leased Materials.

11.       Default and Remedies.

11.1     For purposes of this Lease

(a)        “Event of Default” means Customer’s (i) wrongful rejection or revocation of acceptance of the Leased Materials, (ii) failure to make a payment when due under this Lease or the Service Agreement, (iii) repudiation with respect to a part or the whole of the Lease, (iv) other material breach of this Lease or the Service Agreement if that breach remains uncured 5 business days after notice of that breach by Company, (v) Insolvency Event.

(b)       “Insolvency Event” means (i) the commencement of any proceeding under the Bankruptcy Act, as amended, by or against Customer, (ii) Customer’s insolvency or inability to pay Customer’s liabilities as they come due or a material deterioration in Customer’s financial condition, (iii) Customer’s assignment for the benefit of creditors, (iv) the levying of writ of attachment or execution on the Leased Materials that is not released or satisfied within ten days thereafter, (v) the appointment of a receiver in any proceeding or action to which Customer is a party with authority to take possession or control of the Leased Materials, or (vi) circumstances of Customer’s financial condition or other circumstances that make Company, in good faith, insecure about Customer’s ability to perform under this Lease, or determine that the Leased Materials are at material risk.

11.2     On the occurrence of any Event of Default and at any time afterwards as long as it continues, Company may, at its option and without notice to Customer, declare this Lease to be in default and exercise one or more of the following remedies, to the extent available, permitted by, and subject to any mandatory requirements of applicable Law:

(a)        Demand that Customer immediately return the Leased Materials to Company in the manner specified by written notice, which will be effective on delivery;

(b)       Enter on the premises where all or part of the Leased Materials are located and, without incurring liability, take immediate possession of the Leased Materials and remove them;

(c)        Sell the Leased Materials by private or public disposition or hold, use, operate, or lease the Leased Materials to others, free and clear of any rights of Customer;

(d)       Proceed by appropriate court action or actions, either at law or in equity, to enforce performance by Customer of the applicable covenants of this Lease and to obtain relief that the court considers appropriate for the breach;

(e)        Proceed by appropriate court action or actions to recover damages for breach of this Lease;

(f)        Cancel all of Customer’s rights to possess and use the Leased Materials under this lease by written notice, which will be effective on delivery;

(g)       Render the Leased Materials unusable or disable them;

(h)       Exercise all rights available to Company under the Texas Business and Commerce Code.

11.3     In effecting any repossession, Company and its representatives and agents, to the extent permitted by Law, will

(a)        Have the right to enter on any premises where Company reasonably believes the Leased Materials are located;

(b)       Not be liable, in conversion or otherwise, for the taking of any personal property of Customer that is in or attached to the repossessed Leased Materials as long as Company promptly returns that property to Customer;

(c)        Not be liable in any manner for any damage to any of the Customer’s property in repossessing and holding the Leased Materials, except for damage caused by Company’s gross negligence or willful misconduct;

(d)       Have the right to maintain possession of and dispose of the Leased Materials by public or private disposition on any premises owned by Customer or under Customer’s control;

(e)        Not be liable for rent or storage charges; and

(f)        Not be liable for any damages including general, consequential, or punitive damages.

11.4     Customer will be liable to Company for all reasonable expenses, costs, and fees incurred in (a) repossessing, storing, preserving, shipping, maintaining, repairing, and refurbishing the Leased Materials to the condition required by this Lease, and (b) preparing the property for sale or lease, advertising the sale or lease, and selling or reletting the Leased Materials.

11.5     At any public sale of the Leased Materials under this Section 11, Company may bid for and purchase the Leased Materials. Customer agrees that the amounts paid or bid will be used in the computations contemplated in this clause.

11.6     No remedy referred to in this Section 11 is intended to be exclusive, but, to the extent permissible under applicable Law, each will be cumulative and operate in addition to any other remedy referred to above or otherwise available to Company at law or in equity. The exercise or beginning of exercise by Company of any one or more of Company’s remedies will not preclude the simultaneous or later exercise by Company of any other remedies.

11.7     No express or implied waiver by Company of any default or Event of Default will be construed as a waiver of any future or subsequent default or Event of Default.

12.       Insolvency and Bankruptcy. Neither this Lease nor any interest therein is assignable or transferable by operation of law. If any Insolvency Event occurs, Company will have and may exercise the option to, without notice, immediately terminate the Lease. The Lease will not be treated as an asset of Customer after the exercise of said option.

13.       Ownership. The Leased Materials is, and will at all times be and remain, the sole and exclusive property of Company; and Customer will have no right, title or interest therein or thereto except as expressly set forth in this Lease.

14.       Additional Documents. If Company so requests, Customer will execute and deliver to Company such documents as Company deems necessary or desirable for purposes of recording or filing to protect the interest of Company in the Leased Materials including a UCC financing statement.

15.       Miscellaneous.

15.1     Assignment. Customer will not sublease, assign, transfer or delegate its rights or obligations under this Lease to any third party without Company’s prior written consent. For the purposes of this Lease, any sale or transfer by a Customer that is a legal entity of all or substantially all of its stock or assets or by merger or otherwise by operation of law is considered an assignment, requiring Company’s express written consent. Company may freely assign this Lease or pledge or transfer any of its interest herein, including to any Company Affiliate, to a purchaser of all or substantially all of Company’s assets, and to a successor in interest of Company as part of a corporate reorganization, consolidation or merger. This Lease and each of the provisions of this Lease will inure to the benefit of and be binding on each party’s successors, heirs, administrators and permitted assigns.

15.2     Severability. If any provision of this Lease is determined by any arbitrator or court of competent jurisdiction to be invalid or unenforceable, that provision will be interpreted to the maximum extent to which it is valid and enforceable, all as determined by that arbitrator or court in the applicable proceeding, and the remaining provisions of this Lease will, nevertheless, continue in full force and effect without being impaired or invalidated in any way.

15.3     Entire Lease; No Reliance. This Lease, together with the Service Agreement and the Privacy Policy, constitutes the entire agreement and understanding between the parties with respect to its subject matter, and this Lease merges and supersedes all prior agreements, discussions and writings with respect to its subject matter. Each party represents that it has not relied on any representations made by the other party or its representatives or on any descriptions, illustrations or specifications contained in any physical or digital text including websites, proposals, catalogues or other publicity material. Each party has relied only on the express terms of this Lease, and not on any representations of the other party not set forth in writing in this Lease, nor on any other documents or materials of the other party not expressly made a part of this Lease.

15.4     Amendment. Company may revise this Lease from time to time and the most current version will always be posted on the Website. If a revision, in Company’s reasonable discretion, is material, Company may, but have no obligation to, notify Customer by email or by notice provided to Customer through the Platform. By continuing to access or use the Platform and Services after revisions become effective, Customer agrees to be bound by the revised terms. If Customer does not agree to the new terms, Customer must cease using the Platform and Services and terminate Customer’s account using the process provided on the Platform for terminating a customer account. Notwithstanding the foregoing, the terms set forth in any Order Form may only be amended by mutual consent of the parties. On Company’s provision of a notice of material amendment from Company, Customer will have 10 business days in which to elect to terminate all Order Forms and permit Company to repossess all Leased Materials subject to those Order Forms, in which case Company will refund to Customer a pro-rata portion of any pre-paid rent pertaining to the remaining term of those Order Forms. If Company provides notice of a material amendment and Customer fails to timely elect or terminate all Order Forms, any continued use of the Leased Materials after expiration of the 10 business day termination period will be deemed Customer’s express acceptance of the amendments disclosed in that notice. Except as set forth in this Section 15.4, this Lease cannot be modified except by express written agreement between Customer and Company.

15.5     Force Majeure. Neither party will be held responsible for any delay or failure in performance of any part of this Lease (with the exception of any obligation to make payments to the other party) to the extent the delay or failure is caused by fire, flood, explosion, war, terrorism, strike, embargo, epidemic, pandemic, governmental action or failure to act, the act of any civil or military authority, act of God, inability to secure material or transportation facilities, acts or omissions of carriers, power outages, computer failures, or by any other causes beyond its control whether or not similar to the foregoing.

15.6     No Waiver. The waiver, modification, or failure to insist by a party on any of the provisions of this Lease will not void, waive, nor modify any of the other provisions nor be construed as a waiver or relinquishment of such party’s right to performance in the future of any such provision.

15.7     Relationship of the Parties. The relationship of the parties under this Lease is one of independent contractors, and no agency, partnership, employment, joint venture or similar relationship is created by this Lease. Except as specifically authorized, neither party will have any authority to assume or create obligations on the other party’s behalf, and neither party will take any action that has the effect of creating the appearance of its having such authority.

15.8     Notices. Except as otherwise expressly set forth in this Lease, any notice required or permitted under this Lease will be given in writing by personal delivery, by USPS Priority ExpressMail, by nationally recognized overnight delivery service (e.g. UPS) or by e mail. Any notice will be deemed received on the earlier of the date of actual delivery or the date on which delivery is refused, regardless of whether the party has vacated the physical address or discontinued the email address. The notice address and email address for Customer will be the address and email address on record with Company as modified by Customer through the Platform from time to time. The notice address for Company will be 2401 Fountain View Dr Ste 312 #98, Houston, TX 77057 and the email address for Company will be legal@patchwrk.com, as reflected in this Lease as modified from time to time, pursuant to its terms.

15.9     Third Party Beneficiaries. This Lease does not and is not intended to confer any rights or remedies on any person or entity other than the parties.

15.10   Governing Law; Arbitration.

(a)        The validity and enforceability of this Lease, and all claims or causes of action (whether in contract, tort, statute or otherwise) that may be based on, arise out of or relate to this Lease, or the negotiation, execution or performance of this Lease (including any claim or cause of action based on, arising out of or related to any representation or warranty made in or in connection with this Lease or as an inducement to enter into this Lease), will be governed by, construed in accordance with, and enforced in accordance with, the domestic internal laws of the state of Texas, including its statutes of limitations, but without regard for conflicts of law principles.

(b)       Binding, confidential arbitration pursuant to this Section 15.10(b) will be the only remedy for any dispute or claim of any kind, including third-party claims arising under, concerning, or relating to this Lease, its interpretation, its validity (including any claim that all or any part of this Lease is void or voidable), its termination, or its subject matter, whether sounding in contract, tort, equity, statutory law, administrative regulation or otherwise (a “Claim”). Any Claim, will be resolved in a confidential expedited arbitration administered by the JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (a copy of which can be found here: https://www.jamsadr.com/rules-comprehensive-arbitration) (the “Rules”) then in effect. For purposes of clarification, the parties understand and agree that (a) Section 15.10(a) will apply to any arbitration under this Section 15.10(b), both as to the governing law to be applied by the Arbitrator to the Claim and as to the law governing the arbitration and the interpretation of this Section 15.10(b), and (b) the Federal Arbitration Act, 9 U.S.C. §§ 1-16, will also apply to any arbitration under this Section 15.10(b) by virtue of Article VI, Clause 2 to the United States Constitution. Any Claim submitted to arbitration will be decided by a single, neutral arbitrator (the “Arbitrator”) mutually agreed by the parties or, if they cannot agree within 15 business days of the commencement of arbitration, in accordance with the Rules. The Arbitrator must be qualified as a Texas attorney who has at least ten years of prior combined professional experience either as a judge or in private practice as a business or commercial litigator. Any arbitration hearings or conferences pursuant to this Section 15.10(b) will be conducted exclusively by means of conference telephone or other communications technology, as reasonably determined by the Arbitrator, by means of which all persons participating in those hearings or conferences can hear each other, and neither the parties, the Arbitrator or any attorneys, witnesses or other representatives of the parties will be required to be physically present in any particular place for purposes of any hearing or conference unless the Arbitrator determines that a physical hearing is necessary to effectively arbitrate the Claim, in which case that physical hearing will be in a location selected by the Arbitrator to be reasonably convenient to the parties and the Arbitrator. The Arbitrator will have the exclusive power to adjudicate the alleged breach, enforcement, interpretation or validity of this Lease, including as to the scope or applicability of this Section 15.10(b). Discovery within the arbitration will be as the Arbitrator determines is reasonable or necessary for the fair and efficient arbitration of the Claim. All JAMS fees and costs will be borne equally by the parties, except that in rendering the award, the Arbitrator will allocate and award an appropriate share of the prevailing party’s reasonable attorneys’ fees and costs, to the losing party. Judgment on any arbitration award may be entered and enforced by any court of competent jurisdiction. If there is more than one Claim between the parties, all such Claims may be heard in a single arbitration under this Section 15.10(b). Except to the extent required by applicable Law that cannot be waived or modified by this Lease, Claims under this Section 15.10(b) may not be consolidated into a single arbitration proceeding with claims between the Company and other persons, even if those claims are governed by an arbitration proceeding similar or identical to this Lease and even those other persons are similarly situated and their claims are similar or identical in the nature to a Claim under this Lease, provided that nothing in this sentence will be interpreted to prevent the Arbitrator from granting public injunctive relief in conformance with applicable Law. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LITIGATION ARISING UNDER, CONCERNING, OR RELATING TO THIS LEASE, ITS INTERPRETATION, ITS VALIDITY (INCLUDING ANY CLAIM THAT ALL OR ANY PART OF THIS LEASE IS VOID OR VOIDABLE), ITS TERMINATION, OR ITS SUBJECT MATTER, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY, STATUTORY LAW, ADMINISTRATIVE REGULATION OR OTHERWISE.

15.11   Definitions and Construction. Capitalized terms in these terms of use have the meanings indicated in this Lease or in the Service Agreement unless the context otherwise requires, which meaning will be equally applicable to both the singular and plural forms of those terms. In this Lease, unless a clear contrary intention appears (a) ”Section” refers to sections of this Lease; (b) ”including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term, (c) where any word or phrase is given a definite meaning, any part of speech or other grammatical form of that word or phrase has a corresponding meaning, (d) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating that period will be excluded and, if the last day of that period is not a business day, the period will end on the next business day, and (e) any reference to a consent, determination or other exercise of discretion by Company, unless expressly provided to the contrary, means a determination or exercise of discretion in Company’s sole and absolute discretion.


Exhibit A

Acceptance Certificate

The undersigned, Customer, under the Materials Lease (the “Lease”) between Customer and Company represents, warrants, and agrees that

1.         Customer has made a thorough and complete inspection of the Leased Materials in accordance with Section 7.1 of the Lease.

2.         The Leased Materials satisfy the conditions set forth in the Lease, conform to its requirements, and conform to Customer’s requirements.

3.         Customer accepts the Leased Materials for all purposes under the Lease.

4.         Company has made no affirmation of fact or promise, has given no description, and has otherwise given no assurances on which Customer has relied, that would create an express or implied warranty regarding the Leased Materials and their conformity to such affirmation, promise, description, or assurances.