These General Terms and Conditions (the “Terms”), together with the purchase order (the “Order”) and the Order Confirmation (as defined below), if any, govern the terms and conditions of the sale of the Products to the exclusion of all other terms that are contradictory to these Terms and Conditions of sale. “Customer” is defined as the purchaser of the Products from Seller. These Terms shall prevail over any conflicting clauses contained in Customer’s Purchase Order terms and conditions of purchase. These Terms supersede any and all previous agreements and understandings, whether written or oral, between the parties with respect to the subject matter. “Seller”, as used herein, means Gordon Bullard & Company, LLC and its affiliates.
This price list issued by Seller from time to time (the “Price List”) supersedes all previous price lists. The indicated prices are net of V.A.T. and the Seller reserves the right to modify the Price List without any prior notification.
Orders for the Products will only be binding on Seller upon Seller’s written express acceptance (the “Acceptance”) by Seller’s written order confirmation (the “Order Confirmation”).
All Accepted Orders are final and cannot be cancelled by Customer. No Product shall be returned to, or Refund paid, by Seller without prior written authorization from Seller. All approved returns are subject to Seller’s inspection upon receipt. Credit will not be allowed for damaged or used material. Seller in its sole discretion may apply standard restocking charges for the returned Products value. All Products authorized for return are to be shipped prepaid to Seller, accompanied by a document specifying the invoice details related to each single Product. If a refund is not authorized by Seller, then the full Purchase Price shall be retained by Seller as a reasonable estimate of its damages due to the breach by Customer and such amounts shall be retained as liquidated damages. If the Products have been personalized to Customer’s specifications then Customer shall be responsible for the full Purchase Price and no refund shall issue. Customer shall pay the full Purchase Price for Orders cancelled more than fifteen (15) calendar days after Order Confirmation is sent by the Seller.
Shipping terms shall be Ex Works manufacturer’s factory (Incoterms® 2020) and the risk of loss passes to Customer in accordance with such terms. Such Terms shall be applicable even in case of special arrangements where the Seller pays the carriage or freight charges.
All shipping and delivery dates are estimates and subject to the following: A) Subject to Customer furnishing complete shipping and delivery instructions in such a manner as to reach Seller timely before the date of any shipment and delivery specified in the Order and/or Order Confirmation.
B) To be considered approximate and time is not of the essence, since the ability of Seller to complete and deliver the Products ordered by such date may be dependent upon conditions over which Seller has no reasonable control or which it cannot predict exactly. Shipping dates affected by port closures or holidays are not within the control of Seller and therefore, not Seller’s responsibility.
In no event shall Seller be liable for any actual, special, consequential or exemplary damages of any kind, known or unknown, anticipated and non-anticipated, including without limitation, lost profits or lost production resulting from delays in production, shipment or delivery. Seller shall be authorized to make partial shipments of Orders depending on the availability of Products, without prejudice to the payments due by the Customer, even if the Order is not completely filled. If the Customer does not provide the Seller with specific instructions as for the shipment method then Seller shall be authorized to use the means of transportation that Seller deems, in its discretion, most suitable for the delivery of the Product(s).
Seller shall not be liable for damages or costs that Customer incurred for delay in delivery of the Products.
Seller shall have the right to modify the designs and/or specifications of the Products at any time without notice to the Customer. In the event of any such change, Seller shall have the right to supply the Products so modified.
Products will be supplied with Seller’s customary packaging.
Customer shall inspect the Products upon their arrival at the delivery destination and shall within eight (8) business days after delivery give written notice to Seller of any claim for damages, defects, differences in quantity or nonconformity. Failure to give such notice within said period shall constitute irrevocable acceptance of the Products and acknowledgment that the Products have been received by Customer in good condition and free of damages.
Title to the Products shall remain with Seller until the Purchase Price has been paid in full (including any interest and any additional amounts) by Customer. Seller may file a UCC-1 Financing Statement to give notice of its ownership interest in all or any portion of the Products. Customer may re-sell the Products to a third party (the “Third Party”) only if the Purchase Price has been paid in full and if the sale to the Third Party included a retention of title clause similar to the one herein. If the Customer sells the Products to a Third Party before having performed the full payment in favor of the Seller, then the sale between Seller and Customer will automatically be void and the Products will be considered as being sold by Seller to Third Party. Customer shall fully insure the Products against damages or loss in its own name and in the name or any Third Party, shall provide evidence of such insurance to the Seller immediately upon request.
The Net purchase price specified shall be deemed fully, invoiced and deliver, with and charges for the Products (the "Purchase Price"). Buyer shall pay as a condition of shipment unless a prior payment term is authorized by Seller in writing, signed by the President of Seller. If any payment is not made when due interest shall accrue on Seller's other rights and remedies, Customer shall be liable for late interest charge calculated at the lesser of (i) 1 and ½ percent (1.5%) per month or (ii) the highest rate permitted by law. Customer shall have no right to setoff or withhold any payment due to the Seller or any reason involving the Products or the Agreement.
In addition to any other remedy available to Seller, if (i) Customer defects in payment of any part of the Purchase Price when due; (ii) Customer fails to perform its obligations; (iii) Customer becomes insolvent or bankrupt or a petition for appointment of a receiver is filed by or against Customer; and/or Seller reasonably deems that collection of any part of the Purchase Price is insecure, then the full Purchase Price shall become immediately due and aware at option of Seller, and if not paid immediately, Seller can then return the Products to Seller at per-load and at Customer's expense, and costs of expenses of the Customer as liquidated damages and not as a penalty.
This limited warranty forth below shall only apply if the Product has been installed and operated in
compliance with the specifications and guidelines set forth herein, on the product label and packaging, and
on the Seller website in instructions and documents; (ii) in accordance with the National Electrical Code
(NEC), the Standards for Safety of Underwriters Laboratories Inc. (UL), the Standards for the American
National Standards Institute (ANSI), or in Canada, with the standards of the Canadian Standards Association
(CSA); and (iii) in lighting equipment designed and approved for the application and in environmental
conditions within the normal specified operating range of the product.
If the Product is defective, the Product will be repaired or replaced at Seller's option. This warranty is limited to the repair or replacement of the Product. This warranty gives the customer specific legal rights, and in any such state or area the warranty is provided, no express nor other than shown herein or other representation has the authority to change or modify this warranty, unless acting in writing by the President.
If requested by Seller, Customer shall return any Product found to be defective to Seller, shipping prepaid by customer. No inspection cover or wall support member is granted from Seller. General wear is not covered, and effects of exposure to weather, sunshine or any other situations or environmental factors are excluded from warranty. Seller shall not be liable under this warranty unless the warranty claim is submitted promptly by Customer after discovery of the defect, but in no event later than eight (8) weeks from the date of shipment. Customer shall provide a detailed description of the claimed defect and Seller shall have, at its sole discretion, test the product for heat, properly installed, maintained, and operated. The remedy set forth in this section shall be the Customer's sole and exclusive remedy for claims arising out of or relating to the purchase of the Product. Customer waives any other right or remedy, whether in contract (for breach of contract, breach of warranty, or otherwise) in tort (for negligence, strict liability, misrepresentation, or otherwise), in equity, under any statute, rule or regulation, or otherwise, that treats Payments made to Seller prior to a warranty claim are non-refundable and shall be returned and applied to the Purchase Price.
ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE EXPRESSLY DISCLAIMED. NO PERSON OR ENTITY IS AUTHORIZED TO BIND SELLER TO ANY OTHER WARRANTY OR REPRESENTATION. SELLER'S LIABILITY ON ANY CLAIM OF ANY KIND SHALL IN NO CASE EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT INVOLVED.
NOTWITHSTANDING ANYTHING IN THIS ORDER OR OTHER AGREEMENT BETWEEN THE PARTIES TO THE CONTRARY, SELLER'S LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUE, LOSS OF BUSINESS OPPORTUNITY, LOSS OF USE, OR ANY OTHER SIMILAR DAMAGE.
Customer shall indemnify, defend and hold harmless Seller and Seller's shareholders, its officers, directors, managers, employees, and agents from and against any losses, liabilities, damages, claims, and expenses (including reasonable attorney's fees) arising out of or in connection with (i) Customer's use or misuse of the Product; (ii) Customer's breach of any term or condition of this Order; or (iii) any negligent act or omission by Customer or its employees or agents.
Customer acknowledges Seller's ownership of and title to the trademarks and all other intellectual property rights relating to the Products. Customer shall not take any action that may interfere with or impair Seller's intellectual property rights or bring Seller's reputation into disrepute. All intellectual property rights shall remain the sole property of Seller.
Customer shall maintain the confidentiality of all information provided by Seller, including pricing, technical specifications, and business information. Customer shall not disclose such information to any third party without Seller's prior written consent.
Seller shall not be liable for any delay or failure in performance due to causes beyond its reasonable control, including but not limited to acts of God, war, terrorism, strikes, or supply chain disruptions.
All taxes, duties, and permit fees associated with the purchase and installation of the Product shall be the sole responsibility of Customer.
Seller's failure to enforce any provision of this Order shall not be construed as a waiver of such provision or the right to enforce it later.
This Order shall be governed by and construed in accordance with the laws of the State of Michigan. Any dispute arising out of or in connection with this Order shall be resolved through binding arbitration in Michigan. The prevailing party shall be entitled to recover its reasonable attorney's fees and costs.
Customer shall not circumvent Seller by dealing directly with Seller's suppliers or customers. In the event of such circumvention, Customer shall be liable to Seller for liquidated damages in an amount equal to the profit Seller would have earned on the transaction.
