6.1. Stem Services Warranty. During the term of each Services Order, Stem warrants
that the Stem Services and the associated Stem Equipment will be free from material
defects in workmanship, material, and design. The Stem Services will be performed,
and the Stem Equipment will be operated and maintained in accordance with (i) the
Integrated Services Contract, (ii) Prudent Industry Practice, (iii) Applicable Law, (iv)
applicable permits, and (v) the Manufacturers’ Warranties and Preventive
Maintenance Plan applicable to the Systems. For the avoidance of doubt, and without
limiting any Manufacturers’ Warranties applicable to the Systems, the Stem Services
Warranty is not a warranty for the Systems or any other component or equipment
including but not limited to meters, relays, breakers, inverters, or any other items that
are not part of the Stem Equipment. Stem shall use commercially reasonable efforts to
perform the Stem Services and operate and maintain the Stem Equipment in a
manner that will minimize interference with the Sites.
6.2. Remedy Under Warranty. Following notice from Customer, or upon Stem becoming
aware of a defect covered by the Stem Services Warranty and subject to section 6.3,
Stem shall, at its sole cost and expense and as commercially reasonable, effect
re-performance of the Stem Services or take such other action as is necessary, as
reasonably determined by Stem, to cure such defect and to bring it to conformance
with the Stem Services Warranty.
6.3. Limitations of Warranty. Stem will be excused under section 6.2 to the extent the
defect or Stem’s inability to perform the Stem Services in accordance with the
standards stated in section 6.1 is due to any of the following: (i) a Force Majeure
event, (ii) defects in, damage to, or destruction of the Systems not caused by Stem
(including any issues that are subject to a Systems warranty claim), (iii) any changes
to the Sites not caused by Stem, (iv) the inoperability of any components not caused
by Stem, (v) the inoperability of any equipment or services at a Site not connected to
the Systems or connected to the Systems and required by the Systems to operate, in
each case not caused by Stem, (vi) Customer’s or End User’s breach of any provision
of an Integrated Services Contract, or act or omission, negligence, gross negligence,
or willful misconduct, (vii) the presence of any Hazardous Materials at the Sites not
introduced at the Sites by Stem, (viii) cancellation or termination of the Manufacturers’
Warranties, where such cancellation or termination has not been caused by any action
or inaction on the part of Stem, or (ix) cancellation or termination of the Manufacturers’
Warranties, where such cancellation or termination has been caused by an action or
inaction on the part of Stem, and where such action or inaction has been required by
Customer, in writing, even if Stem has provided notice of the possibility that such
action or inaction may result in a cancellation or termination of the Manufacturers’
Warranties.
6.4. Disclaimer of Warranties. SUBJECT TO ANY LIMITATIONS UNDER APPLICABLE
LAW, THE LIMITED WARRANTIES STATED IN THIS AGREEMENT ARE
EXPRESSLY IN LIEU OF AND EXCLUDE ALL OTHER EXPRESS OR IMPLIED
WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND OF FITNESS FOR PARTICULAR PURPOSE, USE, OR
APPLICATION, AND ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART
OF STEM. EXCEPT AS SPECIFIED IN THESE LIMITED WARRANTIES, OR
ELSEWHERE IN THIS AGREEMENT OR ANY ASSOCIATED SERVICES ORDER,
ALL STEM SERVICES ARE PROVIDED “AS IS.”
7. INDEMNIFICATION
7.1. Indemnification by Stem – Losses. Stem shall fully indemnify, hold harmless and
defend Customer, Customer’s Affiliates, End Users, and their respective shareholders,
members and partners, and each of their respective representatives, employees,
officers, directors, and agents (collectively, the “Customer Indemnitee”) from and
against all third-party claims and all expenses (“Losses”) incurred by Customer
Indemnitee in connection with or arising from any claim by a third party for physical
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