Agreement - Pre-order

  1. the private limited company HeNet B.V., with its registered office in Eindhoven (5652 AL) at Hurksestraat 64, The Netherlands, and with its principal place of business there, hereby duly represented by i) Spurk Holding B.V., hereby duly represented by its director T.J.P.M. Cooijmans, and ii) Capella Holding B.V., hereby duly represented by S.P. van Kervel (hereinafter referred to as: “HeNet”); 

And:

  1. Customer

 

Hereafter jointly referred to as: “Parties” and each individually as: “Party”;

Whereas:

  1. HeNet is selling Hotspots;
  2. Customer is a professional party and wishes to buy one or more Hotspots from HeNet;
  3. HeNet at the moment does not have Hotspots in stock, but is willing to accept pre-orders under certain conditions;
  4. Customer wishes to pre-order one or more Hotspots; and
  5. Parties wish to lay down their mutual understanding in this Agreement;

And agree the following:

  1. Definitions
    1. In this Agreement the definitions, indicated with a capital, whether used in the singular or plural form, will have the meaning as described in Annex I.
    2. The Agreement shall be interpreted in accordance with Annex I.
  1. Scope and applicability
    1. This Agreement applies to the pre-order of the Hotspots by Customer and the sale and delivery of the Hotspots by HeNet.
    2. Customer represents and warrants that it concludes this Agreement as a professional party and not as a consumer. Customer irrevocably agrees that it cannot invoke consumer legislation nor can Customer invoke the extended scope of application (in Dutch: “reflexwerking”) of consumer legislation.
    3. The applicability of any of the Customer’s purchasing or other conditions is expressly rejected.
  1. Pre-order
    1. The pre-order is a reservation for one or more Hotspots. By pre-ordering Hotspots, Customer acknowledges and agrees that the Hotspots will be delivered only if and when the Hotspots are available for Customer, subject to the Agreement.
    2. When placing  a pre-order for Hotspots, Customer shall be           required to provide certain information, such as address and (other) billing Customer represents and warrants that all such information is accurate, and Customer shall ensure that  such information is kept current.
  1. Delivery and installation
    1. Customer acknowledges and agrees that the Hotspots being pre-ordered are not in stock and are currently not available for delivery. 
    2. HeNet will make reasonable efforts to deliver the pre-ordered Hotspots to Customer. However, Customer acknowledges and agrees that HeNet does not have a delivery obligation. 
    3. Customer acknowledges and agrees that it has a purchase obligation if Hotspots become available for delivery to Customer.
    4. If Hotspots cannot be delivered – for any reason whatsoever – HeNet may cancel the Agreement. Customer’s only and exclusive remedy to that regard is a refund of the payment without interest.
    5. HeNet cannot make any commitments regarding delivery dates, times or time spans. All dates, times and time spans that are mentioned by HeNet are indicative and are never firm deadlines (in Dutch: “fatale termijnen”), unless explicitly stated otherwise.
    6. HeNet will dispatch the pre-ordered Hotspots to Customer when HeNet has the Hotspots available for Customer. 
    7. HeNet will determine the method of shipment and insurance.
    8. The Customer is responsible for the installation, setup and configuration of the Hotspots. Customer is responsible for correct compliance with all relevant (third party) licenses in the use of the Hotspots.
    9. HeNet is always entitled to make partial deliveries.
  1. Acceptation
    1. The Customer shall evaluate if the delivered Hotspots function in accordance with the Agreement and comply with the Agreement. Customer shall approve or disapprove the delivered Hotspots in writing within seven (7) days after delivery. If the Customer does not reject the delivered Hotspots in writing within this period, the delivered Hotspots are deemed to have been accepted.
    2. Only Defects shall constitute ground for withholding approval. Errors which, due to their nature and / or number, do not reasonably stand in the way of the operational use of the Hotspots, shall not constitute grounds for withholding approval. 
    3. After (deemed) acceptance, HeNet has fully fulfilled its obligations under the Agreement and HeNet is not obliged to correct any Defects, errors, omissions and / or flaws.
  1. Intellectual Property Rights
    1. All Intellectual Property Rights regarding the Hotspots and other delivered works exclusively belong to HeNet and/or its licensors. Customer shall only acquire those rights that are explicitly granted in this Agreement. HeNet, and its licensors, retain all right, title, and interest, including all Intellectual Property Rights in and to the Hotspots, including the Software (including any and all copies thereof) and any and all modifications, updates, and enhancements of the Hotspot. Any rights not expressly granted by HeNet in this Agreement are reserved. Customer acknowledges that it acquires no ownership interest in the Software. 
    2. Subject to the terms and conditions of this Agreement, HeNet hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited license to execute and use the Software solely on the applicable Hardware for Customer’s own internal business operations and solely in accordance with the applicable instructions or documentation for the Hotspot. The Software may only be used on the Hardware in which it was initially installed. Customer agrees that Customer will not assign, sublicense, transfer, pledge, lease, rent, or share its rights under this License Agreement without HeNet’s prior written consent. No implied licenses are granted by HeNet. 
    3. The rights granted to Customer in this Agreement are subject to the following restrictions: 
      1. Customer shall not, and shall ensure that no third party shall, 
        1. reproduce, modify, make derivative works of, translate, adapt, disassemble, reverse compile or reverse engineer any part of the Software, nor attempt to create the source code from the object code for the Software; 
        2. rent, lease, distribute, host, publish, disclose, or otherwise commercially exploit the Software or make the Software available to any third party other than as expressly permitted by this License Agreement; 
      2. Except as expressly stated herein, no part of the Software may be transmitted in any form or by any means, including electronic, mechanical, photocopying, recording or via a hacking device or other means; provided, Customer shall be permitted to received updates to the Software authorized by HeNet; and 
      3. Any future release, update, or other addition to functionality of the Software shall be subject to the terms of this Agreement, unless HeNet states otherwise. HeNet is not obligated to provide any services (including any updates or upgrades to the Software) under this Agreement. 
    4. Customer shall preserve all copyright and other proprietary rights notices in the Hotspot. Customer acknowledges and agrees that the Hotspot is proprietary to HeNet, or its licensors, and is protected under Intellectual Property Rights laws. Customer shall maintain the confidentiality of the Software and the source code of the Software, regardless of whether the Software is labeled or marked with any proprietary notice that indicates its confidential nature.
    5. Customer shall explicitly, without limitation, not use the Hotspots in order to build a competitive product, and/or copy any features, functions or graphics of the Hotspots.
    6. The Hotspots may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located on a display, online, or elsewhere and are made a part of and incorporated by reference into this Agreement. By accepting this Agreement, Customer is also accepting such additional terms and conditions, if any, set forth therein. Certain items of independent, third-party code may be included in the Software that may be subject to certain open source licenses. Such open source software is licensed under the terms of the license that accompanies such open source software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for such open source software. 
  1. Retention of title
    1. HeNet reserves ownership of the Hotspots as long as Customer:
      1. fails to fulfill his obligations under the Agreement;
      2. does not fully pay for the Hotspots; or
      3. does not comply with claims arising from non-compliance with the Agreement, such as damage, interest and costs.
    2. As long as the Hotspots are subject to a retention of title (in Dutch: “eigendomsvoorbehoud”), as referred to in the previous paragraph, the Customer is not permitted to encumber the Hotspots outside his normal business operations.
    3. HeNet may retain the Hotspots, despite an existing obligation to delivery, until the Customer has fully paid all fees owed to HeNet.
    4. After HeNet has invoked its retention of title, HeNet may immediately take back the delivered Hotspots, which are subject to retention of title. Customer allows HeNet to enter the place(s) where these Hotspots are located.
  1. Passage of risk
    1. The risk of loss, theft, misappropriation or damage to the Hotspots is transferred to Customer at the moment when the Hotspots are placed in the actual control of the Customer or an auxiliary person of the Customer.
  1. Fees and payment
    1. All prices stated by HeNet are exclusive of VAT and other (government) levies and taxes, costs of dispatch and transport and all possible related costs such as import fees, and shall be borne by Customer, unless explicitly stated otherwise.
    2. All prices stated by HeNet are in euros and the Customer must pay in euros, unless explicitly stated otherwise.
    3. Customer shall pay 50% of the total fees (in advance) at the moment of pre-ordering the Hotspots. Customer shall pay the other 50% of the total fees on the moment of (deemed) acceptance of the Hotspots.
    4. The Customer agrees to electronic invoicing by HeNet. HeNet will electronically send an invoice to the Customer for the amount due. The payment term for an invoice is fourteen (14) days after the date of the invoice, unless expressly stated otherwise. The agreed payment term for an invoice is a firm deadline.
    5. If, according to the Agreement, the Customer consists of several persons (natural persons and / or legal entities), then each person is jointly and severally liable towards HeNet to fulfill the obligations under the Agreement, including the payment obligations.
    6. Customer is not entitled to suspend any payment.
    7. Customer is not entitled to set off amounts owed.
    8. If an amount that is owed is not paid within the payment term, Customer is in default (in Dutch: “verzuim”) by operation of law (in Dutch: “van rechtswege”) and the statutory interest is owed on the outstanding invoice amount, without further notice of default (in Dutch: “ingebrekestelling”) being necessary. In the event payment is not made on time, Customer shall also be obliged, without further notice of default being necessary, to fully compensate both the judicial and the extrajudicial collection costs of HeNet, including the costs of lawyers, bailiffs and collection agencies. The extrajudicial collection costs will be calculated in accordance with the Dutch “Staffel buitengerechtelijke incassokosten” (BIK, extrajudicial collection costs), unless the actual extrajudicial collection costs are higher. In the latter case HeNet is entitled to charge the actual extrajudicial collection costs to the Customer. 
    9. The claim for payment is immediately due if Customer is declared bankrupt, applies for a moratorium on payments, full attachment is levied on its assets, it goes into liquidation or it is dissolved.
  1. Fees and payment
    1. All prices stated by HeNet are exclusive of VAT and other (government) levies and taxes, costs of dispatch and transport and all possible related costs such as import fees, and shall be borne by Customer, unless explicitly stated otherwise.
    2. All prices stated by HeNet are in euros and the Customer must pay in euros, unless explicitly stated otherwise.
    3. Customer shall pay 50% of the total fees (in advance) at the moment of pre-ordering the Hotspots. Customer shall pay the other 50% of the total fees at the moment the Hotspots are ready for dispatch by HeNet. HeNet will notify Customer when the Hotspots are ready for dispatch and HeNet will send Customer an electronic invoice for the amount due. HotSpot will dispatch the Hotspots seven (7) days after the day the payment of Customer is received by HeNet. 
    4. The Customer agrees to electronic invoicing by HeNet. HeNet will electronically send an invoice to the Customer for the amount due. The payment term for an invoice is fourteen (14) days after the date of the invoice, unless expressly stated otherwise. The agreed payment term for an invoice is a firm deadline.
    5. If, according to the Agreement, the Customer consists of several persons (natural persons and / or legal entities), then each person is jointly and severally liable towards HeNet to fulfill the obligations under the Agreement, including the payment obligations.
    6. Customer is not entitled to suspend any payment.
    7. Customer is not entitled to set off amounts owed.
    8. If an amount that is owed is not paid within the payment term, Customer is in default (in Dutch: “verzuim”) by operation of law and the statutory interest, is owed on the outstanding invoice amount, without further notice of default being necessary. In the event payment is not made on time, Customer shall also be obliged, without further notice of default being necessary, to fully compensate both the judicial and the extrajudicial collection costs of HeNet, including the costs of lawyers, bailiffs and collection agencies. The extrajudicial collection costs will be calculated in accordance with the Dutch “Staffel buitengerechtelijke incassokosten” (BIK, extrajudicial collection costs), unless the actual extrajudicial collection costs are higher. In the latter case HeNet is entitled to charge the actual extrajudicial collection costs to the Customer. 
    9. The claim for payment is immediately due if Customer is declared bankrupt, applies for a moratorium on payments, full attachment is levied on its assets, it goes into liquidation or it is dissolved.
  1. Limited warranties
    1. HeNet does not warrant that the Hotspots are suitable for the actual and / or intended use by the Customer.
    2. HeNet will make commercially reasonable efforts to repair any Defects in the Hotspot within a reasonable period of time and free of charge if these Defects occur within a period of twelve months after delivery. If in the reasonable judgement by HeNet repair is not possible, repair will take too long or if repair will be associated with disproportionately high costs, HeNet is entitled to replace the Hotspot free of charge with another similar, but not necessarily identical Hotspot. 
    3. Data conversion necessary due to repair or replacement is not covered by this warranty. 
    4. All parts replaced become the property of HeNet. 
    5. The warranty obligation lapses if Defects are wholly or partly the result of (a) any use of such Hotspot other than in accordance with this Agreement; (b) any modification of such Hotspot, or any part thereof, by anyone other than HeNet or contractors authorized in writing by HeNet; (c) any such Hotspot rendered defective or non-conforming, in whole or in part, due to: (i) neglect, misuse, electrical or electromagnetic stress, accident, fire or other hazard, (ii) improper testing, handling, storage, transportation, operation, interconnection, or installation by anyone other than HeNet or contractors authorized in writing by HeNet, or (iii) any other cause beyond the range of normal use of such Hotspot. 
    6. Any other or further remedy by the Customer on non-conformity of the delivered Hotspot than mentioned in this article is excluded.
    7. Costs of work and repairs outside the scope of this warranty will be charged by HeNet in accordance with its usual rates.
    8. Under the Agreement, HeNet has no obligation with regard to errors and / or other Defects reported after the end of the guarantee period referred to in Article 2.
  1. Liability
    1. HeNet’s liability for attributable failure (in Dutch: “toerekenbare tekortkoming”) to perform the Agreement or any unlawful act (in Dutch: “onrechtmatige daad”) shall be excluded to the extent allowed by a mandatory or peremptory rule of law. 
    2. In the event that HeNet is liable for damages under a mandatory or peremptory rule of law, and its liability cannot be excluded, the liability of HeNet shall be, per event (a series of connected events being considered as one event), limited to compensation of the direct damages (in Dutch: “directe schade”) to the amount equal to the amount paid by Customer under the Agreement. In no event will HeNet’s total, aggregate liability, exceed EUR 400.00. 
    3. Direct damage is exclusively understood to mean all damage consisting of:
      1. damage caused directly to material items (“property damage”);
      2. reasonable costs for determining the nature and scope of the damage insofar as it relates to the direct damage as referred to here; and
      3. reasonable costs incurred by Customer to prevent or limit the direct damage, as referred to in this article, which could be expected as a result of the damaging event.
    4. HeNet’s liability for indirect damages (in Dutch: “indirecte schade”) is, in any event, excluded. Indirect damage means any damage that is no direct damage, and is thus including but not limited to consequential damages (in Dutch: “gevolgschade”), loss of profit, loss of business, loss of anticipated savings, loss of information, or any other financial loss or loss of goodwill or reputation, or other incidental, indirect, punitive or exemplary damages of any kind.
    5. The exclusions and limitations of this article will not apply if and insofar as the damages are caused by willful misconduct (in Dutch: “opzet”) or gross negligence (in Dutch: “grove schuld”) of HeNet or its management.
    6. Without prejudice to the above, HeNet excludes any liability for third party failures, including but not limited to third parties involved by HeNet and failures of third party software.
    7. Unless performance of the Agreement by HeNet is permanently impossible (in Dutch: “blijvend onmogelijk”), HeNet’ liability for attributable failures in the performance of the Agreement will be incurred only if Customer immediately sends HeNet a notice of default, setting a reasonable term (in Dutch: “redelijke termijn”) for the recovery of the failure, and HeNet also, after that term, is attributable failing to fulfill its obligations. The notice of default must contain a complete and detailed description of the failure(s) so that HeNet is given the opportunity to respond adequately.
    8. Any claim for damages by Customer that is not specified and explicitly reported by Customer shall expire within a period of twelve (12) months after the claim has arisen. This does not affect the Customer's complaint obligation (in Dutch: “klachtplicht”).
  1. Force majeure
    1. HeNet is not obliged to fulfill any obligation in the event of force majeure (in Dutch: “overmacht”).
    2. HeNet will be entitled to invoke force majeure if the performance of the Agreement is, in whole or in part, temporarily or not, prevented or impeded by circumstances reasonably beyond its control.
    3. Force majeure on the part of HeNet shall include, but is not limited to, malfunction or breakdown of the internet and/or the telecommunications infrastructure, malfunction of problems in or caused by third-party software or networks, shortcomings of suppliers of HeNet, shortcomings of third parties engaged by HeNet, power failures, civil unrest, mobilization, war, traffic jams, strikes, lockouts, business interruptions, supply delays, fire and flood, virus outbreaks, epidemics, pandemics, governmental and/or international measures, and all (other) external causes, foreseen or unforeseen, which HeNet cannot influence.
    4. If the ability to perform is affected by a force majeure event, Parties shall take all reasonable steps to mitigate the impact of such event, without prejudice to the Parties’ rights and remedies.
  1. Indemnification
    1. Customer agrees to defend, indemnify and hold HeNet harmless from any and all third-party claims or damages (including all reasonable attorneys’ fees) in connection with a violation by the Customer of the Agreement and/or any unlawful activities, including but not limited to any violation of the warranty that Customer concludes this Agreement as a professional party and not as a consumer, and any breach of Intellectual Property Rights.
  1. Termination
    1. HeNet may cancel (in Dutch: “opzeggen”) the pre-order at any time and for any or no reason prior to the delivery of the Hotspots. Customer may only cancel the pre-order at any time when Hotspots are not delivered one (1) year after the pre-order.
    2. In the case of cancellation, Customer is entitled to a refund of the payments made for the not delivered Hotspots without interest. This is Customer’s only and exclusive remedy.
    3. Customer’s right to dissolve (in Dutch: “ontbinden”) the Agreement, in whole or partially, is excluded.
    4. HeNet has the right to dissolve the Agreement without a notice of default being necessary if Customer is declared bankrupt or applies for a moratorium on payments, a general attachment is levied against Customer’s assets, he goes into liquidation or is dissolved.
    5. HeNet is authorised to dissolve the Agreement due to an attributable failure in the performance of the Agreement if Customer, after a notice of default that grants a reasonable term to remedy the attributable failure has been issued, is attributable failing to fulfill his obligations under the Agreement. 
    6. If, at the time of dissolution, Customer has already received (a) Hotspot(s) under the Agreement, this/these Hotspot(s) and the associated payment obligations shall not be subject to an obligation to undo (in Dutch: “ongedaanmakingsverbintenis”).
    7. All provisions which are meant to survive the cancellation, dissolution or termination (in Dutch: “beëindiging”) in any other manner whatsoever, including but not limited to all of the Customer’s representations, warranties, indemnification obligations, HeNet’s limitation of liability, the applicable law, the arbitration clause and this paragraph, shall survive such cancellation, dissolution or termination.
  1. Applicable law and disputes
    1. The Agreement is governed by the laws of The Netherlands. The United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) applies.
    2. In the event of disputes relating to the Agreement, or from agreements building on it, the Parties will attempt to resolve them in the first instance with the help of ICT mediation, in accordance with the ICT Mediation Regulations of the Stichting Geschillen solution Automatisering (SGOA), with its registered office in The Hague, as it reads on the start date of the ICT mediation.
    3. As long as the ICT mediation has not been terminated, neither party will submit the dispute to a judge or an arbitral tribunal.
    4. The parties undertake to jointly attend the first mediation meeting. After that, the parties are free to terminate the ICT mediation at any time for any reason.
    5. If it has proved impossible to resolve a dispute as referred to above with the help of ICT mediation or if the ICT mediation has ended, then that dispute will be settled by arbitration in accordance with the Arbitration Rules of the Automation Dispute Resolution Foundation (SGOA), as it reads on the date of request by the most diligent party to the arbitration.
    6. The foregoing is without prejudice to the right of each Party to request preliminary relief, or for the purpose to preserve rights, in summary arbitral proceedings and without prejudice to the right of each Party to take precautionary measures at the exclusively competent court of Midden-Nederland, Utrecht in The Netherlands. 
  1. Other provisions
    1. This Agreement, together with the Annexes and the other documents referred to in this Agreement, constitutes the entire agreement between the Parties relating to the subject matter of this Agreement and supersedes, and its terms govern, any and all other prior proposals, agreements and other communications between the Parties relating to the relevant subject matter either verbal or in writing.
    2. In the event that any term or provision in this Agreement shall be held to be illegal, invalid, or unenforceable, in whole or in part, under any applicable law or be so held by applicable court decision, such term or provision or part thereof, will be interpreted to best reflect the Parties’ intent, and the remainder of this Agreement will not be affected and will continue to be valid and enforceable to the fullest extent permitted by law.
    3. All notices or reports permitted or required under this Agreement shall be in writing. 
    4. No term or provision of this Agreement shall be varied or modified by any prior or subsequent statement, conduct or act of Customer, except that hereafter the Parties may amend this Agreement only by a subsequently dated written amendment signed by the duly authorized representatives of both Parties. 
    5. HeNet may amend the Agreement and/or the Annexes at any time by means of written notification to Customer. Notice of any planned amendments must be given at least two (2) months before they take effect. In the event of an amendment which disadvantages Customer, Customer may terminate the agreement with effect from the time this amendment becomes effective.
    6. HeNet is entitled to transfer its rights and obligations under this Agreement to a third party. Customer may only transfer his rights and obligations under this Agreement to a third party with HeNet’s prior written permission.
    7. The version of any communication and/or reports received or stored by HeNet serves as authentic and binding proof, subject to evidence to the contrary provided by Customer.

Annex I - References, interpretation and definitions

In this Agreement, the following terms shall have the following meaning:

 

  1. Agreement: this agreement;
  2. Annex: an annex to this Agreement, which is incorporated herein by reference, and which forms an integral part of the Agreement;
  3. Defect: a fault in the Hotspot that results in the Hotspot not functioning in accordance with the Agreement or the Hotspot not otherwise complying with the Agreement;
  4. Hardware: the hardware as described on the product pages
  5. Hotspot: the Hardware and Software provided by HeNet that is able to act as a IoT gateway exchanging LoRa packets with a defined LoRa router via the internet, as pre-ordered by Customer on the basis of the Agreement.
  6. Intellectual Property Rights: all intellectual property rights including but not limited to copyrights, database rights, design rights, domain names, neighboring rights, trademark rights, trade name rights, patent rights, rights to know-how, rights to confidential technical information, rights to trade secrets and (other) related rights, title and interest;
  7. Software: the software that is embedded in the Hardware;

This Agreement has been prepared in English and contains Dutch legal terms (“...”). In case of a dispute, this Agreement must be interpreted in accordance with the laws of The Netherlands.

Thereto, In this Agreement and the recitals:

  1. reference to any statute includes a reference to that statute as amended, extended or re-enacted and to any regulation, order, instrument or subordinate legislation under the relevant statute;
  2. reference to any recital, clause, paragraph or schedule is to a recital, clause, paragraph or schedule (as the case may be) of or to this Agreement;
  3. reference to the singular includes a reference to the plural and vice versa;
  4. reference to “or” is not exclusive and “include” and “including” shall not be construed or read to be limiting;
  5. reference to “hereby”, “herein”, “hereof”, “hereunder” and any like words refer to the Agreement, except where on the basis of the context another meaning can be the only reasonable interpretation;
  6. reference to a law or regulation includes any amendment or modification to such law or regulation and any further rules issued thereunder or any law or regulation in replacement therefor;
  7. reference to any gender includes a reference to all other genders;
  8. references to a natural person or legal entity includes its successors or assigns, to the extent permitted under the Agreement;
  9. any rights of either Party may be exercised at any time and from time to time unless specified otherwise in the Agreement;
  10. reference to “written/in writing” in this Agreement also refers to email communication, provided the identity of the sender and the integrity of the contents is adequately established;
  11. reference to an article in this Agreement shall be a reference to such section of the body of the Agreement, and not to any attachment or other document, unless where explicitly provided otherwise; and
  12. specific references in (the body of) this Agreement to other parts of the Agreement shall be without prejudice to the full general applicability of any unreferenced provision or part thereof.

In this Agreement:

  1. the headings of articles, sections, portions or paragraphs of the Agreement are for ease of reference only and shall not affect the interpretation of the respective rights and obligations of the Parties and shall not form any part of this Agreement for the purposes of construction;
  2. in the event of any inconsistency or conflict between the various parts of the Agreement, the following order shall apply, whereby any document mentioned in an earlier category shall prevail over any document mentioned in a later category hereunder, and not listed itself in any category hereunder, shall have the same rank and be as binding as the document through which it is referred:
  3. the body of this Agreement, or where appropriate, any legally valid change made thereto, which change shall then prevail over conflicting provisions in the body of this Agreement;
  4. the Annexes, whereby an Annex with an earlier alphabetical letter shall prevail over any Annexes with a later romaninte (i will prevail over ii, ii will prevail over iii, etc.), unless the Annex with the later romanite  letter expressly states it takes precedence over the inconsistent or conflicting term in the Annex with an earlier romanite;

iii. the recitals to this Agreement;

  1. the wording of the Agreement shall be decisive in interpreting the mutual rights and obligations of the Parties under the Agreement.