For the purposes of these Terms and Conditions, Revamp Lighting LLC is referred to as “Seller” and the party who placed an order is referred to as “Buyer”. These Terms and Conditions apply to all orders placed by Buyer for Revamp lighting products or services.
1. ACCEPTANCE OF ORDERS. Seller's acceptance of Buyer orders are subject to Buyer's agreement that these terms and conditions will apply to the transaction, even if Buyer submits its own terms and conditions, in which case these terms and conditions will prevail. This Agreement is governed by the laws of the State of Wisconsin as if made and performed entirely within the state.
2. ORDERS AND PRICES. Orders accepted by Seller may not be cancelled or modified, either in whole or part, without Seller’s express written consent. If Seller consents to any order modification or cancellation, it may impose an order modification or cancellation fee. All prices are those stated in Seller’s quote which overrides any prices that may be contained in a purchase order from Buyer. Prices are in U.S. dollars and do not include transportation, insurance or any sales, use, excise or other taxes, duties, fees or assessments imposed by any jurisdiction. All applicable taxes will be paid by Buyer, unless Buyer provides Seller with appropriate tax exemption certificates, and if Buyer requests that Seller ship products to Buyer’s customer, Buyer must provide Seller with a valid resale certificate or other valid exemption certificate for its customer. Buyer indemnifies Seller for all taxes, costs, fees, expenses, penalties, and other charges if Buyer cannot provide adequate evidence that it remitted the applicable sales tax to the destination state. Any amounts paid at any time by Seller that are the responsibility of Buyer shall be invoiced to Buyer and reimbursed to Seller. All prices and other terms are subject to correction for typographical errors.
3. TERMS OF PAYMENT. All payments shall be in U.S. dollars. For orders placed through Seller’s online system, Buyer shall pay for products using a valid credit card which will be charged immediately and is a prerequisite to Seller acceptance of Buyer’s order. For other orders (e.g. custom product) Buyer will submit no less than fifty (50) percent of the total quotation along with its order and then pay the remaining fifty (50) percent upon notification by Seller that the order is ready for shipment. No shipment will be made until the final fifty (50) percent has been received. If Buyer fails to complete the transaction by paying the final fifty (50) percent, Seller shall retain the initial fifty (50) percent payment which shall be considered a non-refundable order cancellation fee.
4. DELIVERY, TITLE AND RISK OF LOSS. Products are designed and labeled “For U.S. Use Only” and will only be shipped from Seller’s manufacturing facilities or inventory hub to the location designated by Buyer on its order when that address is located in the United States. Product is considered delivered to Buyer when handed over to the transportation company at the shipping point. If Buyer’s order qualifies for “free freight” according to Seller’s quotation, then Seller shall be responsible for paying the cost of delivering the ordered product. Otherwise, Buyer is responsible for the cost of delivery. Regardless of the payer, Seller will solely determine the transportation company and delivery routing. In no case will Buyer use Seller’s own transportation company account for order delivery. Buyer shall open and inspect product within two days of delivery and immediately contact Seller to report any shortages or damage incurred in transit. Buyer will take photographs of the damaged product and transmit them to Seller for use in filing a damage claim. Buyer will retain all packaging material for inspection by the freight company investigating the damage claim. If Buyer fails to notify Seller of shortages or damage within two days of delivery, Seller will have no further responsibility for the condition of the product.
5. PERFORMANCE. The term "performance" shall include, without limitation, fabrication, shipment, delivery, assembly, installation, testing and warranty repair and replacement, as applicable. Any and all dates or time-frames relating to Performance that are provided by Seller shall at all times be considered an estimate and not a firm commitment of Performance. Seller will make best efforts to meet or exceed such dates but in no case will be liable for failure to perform by the subject date regardless of the reason for such failure to perform. Further, Buyer agrees that any delay in delivery or failure to deliver or perform any part of this Agreement shall not be grounds for Buyer to terminate or refuse to comply with any provisions hereof and no claim or penalty of any kind shall be effective against Seller for such delay or failure; provided, however, that if the delay or failure extends beyond six (6) months from the originally scheduled date either party may, with written notice to the other, terminate this Agreement without further liability for the unperformed part of this Agreement.
6. DEFAULT AND TERMINATION. Buyer may terminate this Agreement if Seller materially defaults in the performance of its obligations and fails to cure such default within sixty (60) days after written notice from Buyer. Such termination shall be Buyer's sole remedy in the event of a Seller default. Buyer shall be in material default under this Agreement if Buyer fails to pay any amounts when due hereunder, cancels or attempts to cancel this Agreement prior to delivery or refuses delivery or otherwise fails to perform any of its obligations hereunder. In the event of a material default by Buyer, Seller may, upon written notice to Buyer, (a) suspend its performance and withhold shipments, in whole or in part, (b) terminate this Agreement, (c) declare all sums owing to Seller immediately due and payable, and/or (d) recall products in transit, retake same and repossess any products held by Seller for Buyer's account, without the necessity of any other proceedings, and Buyer agrees that all products so recalled, taken or repossessed shall be the property of Seller, provided that Buyer is given credit therefor. Exercise of any of these remedies by Seller shall not preclude exercise of any of the others, and neither the existence nor exercise of such remedies shall be construed as limiting, in any manner, any of the rights or remedies available to Seller under the Uniform Commercial Code or other laws.
8. PATENTS AND INTELLECTUAL PROPERTY RIGHTS. The sale of products hereunder does not convey any express or implied license under any patent, copyright, trademark or other proprietary rights owned or controlled by Seller, whether relating to the products sold, service provided, or any manufacturing process or other matter. All rights under any such patent, copyright, trademark or other proprietary rights are expressly reserved by Seller. Buyer agrees not to infringe, directly or indirectly, any Seller patents with any combination or system incorporating a product sold hereunder. Seller will defend any suit or proceeding brought against Buyer insofar as such suit or proceeding is based on a claim that the design or manufacture of products furnished hereunder which were manufactured solely to Seller's designs and specifications infringe any U.S. patent issued as of the date of shipment, provided Seller is promptly notified in writing of such suit or proceeding and is given full authority, information and assistance by Buyer for such defense. Seller will pay all damages and costs based on such claim of infringement which are finally awarded against Buyer in any such suit or proceeding or paid by way of settlement, but Seller shall have no liability whatsoever with respect to any settlement made by Buyer without Seller's prior written consent, which Seller may withhold in its sole discretion. If such products are held to infringe any U.S. patent and their use or sale is enjoined, or if in the opinion of Seller such products are likely to become the subject of such a claim of infringement, Seller may, in its sole discretion and at its own expense, either procure a license which will protect Buyer against such claim without cost to Buyer, replace such products with non-infringing products, or require return of such products and refund an equitable portion of the price paid by Buyer to Seller for such products. The foregoing states Seller's sole liability for any claim related to any alleged infringement of any patent or other intellectual property rights. Seller shall have no liability for any claim of infringement or damages based on a combination of products furnished under this Agreement with products, equipment or materials not furnished hereunder, or based upon any items made with the products furnished under this Agreement. Buyer shall defend and hold Seller harmless against any expense, loss, costs or damages resulting from any claimed infringement of patents, trademarks or other intellectual property rights arising out of compliance by Seller with Buyer's designs, specifications or instructions. Seller grants Buyer a limited, non-exclusive non-transferable license to use Seller trademark “LumaShade” solely for the promotion and sale of products in accordance with these Terms and Conditions of Sale and solely in compliance with Seller’s Trademark Usage Guidelines, as amended from time to time, a current copy of which will be supplied by Seller to Buyer upon request. Seller reserves the right to publicize that Buyer has purchased products from Seller.
9. LIMITED COMMERCIAL WARRANTY. Seller shall provide to the original purchaser a limited warranty for each of Seller’s commercial grade products provided hereunder. The terms, limitations and exclusions for the limited warranty are available online or will be supplied by Seller to Buyer in writing upon request. Seller reserves the right to modify its limited warranty at any time in its sole discretion.
10. LIMITATION OF LIABILITY AND CLAIMS. SELLER'S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE SHALL IN NO EVENT EXCEED THE AMOUNT, IF ANY, RECEIVED BY SELLER HEREUNDER. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL LOSS OR DAMAGES OF ANY KIND, HOWEVER CAUSED, OR ANY PUNITIVE, EXEMPLARY OR OTHER DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR PRODUCTS OR SERVICES FURNISHED BY SELLER MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties and supersedes all prior negotiations, proposals, agreements and understandings, whether oral or written, relating to the products to be purchased or relating to the subject matter of this Agreement. Any representation, warranty, course of dealing or trade usage not expressly contained or referenced herein shall not be binding on Seller.
12. ATTORNEY'S FEES and ARBITRATION. In the event of default by Buyer, Buyer agreed to reimburse Seller's expenses, including reasonable attorney's fees, incurred by Seller in enforcing performance. Any claim (including, without limitation, any claim based on negligence, misrepresentation, strict liability or other basis) arising out of or relating to this Agreement or its performance or breach, which involves an amount in excess of $50,000 shall be settled by arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce, if arbitration is demanded by either party. The location of the arbitration shall be the City of Racine, Wisconsin USA. The decision of such arbitration shall be final and binding and any award rendered may be entered in any court having jurisdiction.
14. ASSIGNMENT. Buyer shall not assign or transfer any rights or claims under this Agreement without the prior written consent of Seller, and any purported assignment made without such consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties.
15. NO EXPORT. The products sold under this Agreement are for exclusive use within the United States of America and Buyer hereby agrees that it shall not export or otherwise attempt to sell, use, or operate such products outside of this exclusive area of use. In the event that Buyer fails to adhere to this restriction, then Buyer shall assume full and complete responsibility for any expenses or damages that may result.
16. PRODUCT SAFETY. Buyer shall comply fully with all industry safety standards applicable to the manufacture, distribution or sale of items incorporating the products supplied by Seller, including but not limited to American National Standards Institute (ANSI) / Illuminating Engineering Society of North America (IESNA) RP-27 (or equivalent eye safety labeling standards) and International Standard IEC 62471-2006, published by the International Electrotechnical Commission, including all marking, labeling, and supplemental user and service information (if any) required by the standards, where applicable. Buyer shall comply fully with all applicable safety-related laws, rules and regulations of any governmental body having jurisdiction to regulate manufacture, distribution or sale of items incorporating the products supplied by Seller. Buyer shall obligate all persons and entities buying such products from Buyer (other than end users) to comply with such industry standards, laws, rules or regulations applicable to such person or entity. Buyer shall defend and hold Seller harmless against any expense, loss, costs or damages relating to any claimed failure by Buyer to comply with such industry standards, laws, rules or regulations or from any bodily injury, illness or property damage resulting from products manufactured by Buyer which incorporate the products supplied by Seller.
17. GENERAL. If the products purchased from Seller are to be used in the performance of a government contract or subcontract, no government requirements or regulations shall be binding upon Seller unless specifically agreed to by Seller in writing. No modification, amendment, rescission, waiver or other change in this Agreement shall be binding on Seller unless agreed to in writing by Seller. The invalidity or unenforceability, in whole or in part, of any provision herein shall not affect the validity or enforceability of any other provision herein. Failure or delay on the part of either party to exercise any right, power, privilege or remedy herein shall not constitute a waiver thereof. The section headings contained herein are for convenience of reference only and are not to be used in the construction or interpretation of this Agreement.