These terms govern the sale of all products, parts and components (“Products”) and the provision of all services (“Services”) by Octopus LED LLC (“Octo LED”), its divisions, subsidiaries and affiliates (collectively, “Seller”) to any purchaser of Products and/or Services (“Buyer”).
All orders placed by Buyer are subject to acceptance by Seller. All orders must include a complete description of Products being purchased and quantities required. Orders may not be cancelled or altered without Seller’s written consent. Seller may in its sole discretion allocate Product among its Customers. Seller may designate certain orders as non-cancelable and certain Product as non-returnable (“NCNR”). All orders containing custom terms shall be NCNR.
These Terms takes precedence over any additional, supplemental or conflicting terms asserted by Buyer or otherwise, to which notice of objection is hereby given. Neither Seller’s commencement of performance or delivery shall be deemed or constituted as acceptance of Buyer’s supplemental or conflicting terms. Buyer’s submission to Seller of an order for Products or acceptance of the Products from Seller shall be deemed to constitute confirmation and acceptance of the terms contained herein.
2. Prices, Pricing Terms and Payment
The prices and pricing terms for all Products sold by Seller are subject to any additional terms that may be set out on Seller’s price list, which Seller may amend from time to time. Full payment is due promptly upon placing an order unless credit has been pre-approved by Seller. All credit terms are subject to Seller’s credit policies then in effect.
3. Delivery and Title
Delivery of Products from Seller to Buyer shall take place at the factory or warehouse location specified by Seller to the carrier who will transport the Products to Buyer (the “Delivery Point”), and shall be deemed to have occurred when the Products are loaded on to the carrier’s truck, trailer, train car or other mode of transport. Selection of the carrier and delivery route shall be made by Seller unless specified by Buyer. Subject to Section 4, delivery of a quantity which varies from the quantity specified shall not relieve Buyer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment shall not entitle Buyer to cancel other installments. Seller reserves the right to discontinue Products without notice. If a Product is no longer in Seller’s inventory, Seller reserves the right to cancel Buyer’s orders related to such Product.
Shipments will be deemed to have been accepted by Buyer upon delivery of the said shipments to Buyer or Buyer’s agent unless rejected in accordance with this Section 4. Buyer shall perform whatever inspection or tests Buyer deems necessary as promptly as possible but in no event later than five (5) days after delivery, after which time Buyer will be deemed to have irrevocably accepted the Products. Any discrepancy in shipment quantity must be reported within five (5) working days of receipt of the Products. In the event of an over shipment, Buyer shall have the option to return the excess Products to Seller at Seller’s expense or to retain the excess Products (subject to adjustment of the invoice) and shall notify Seller of Buyer’s election within five (5) working days after receipt of the Products, failing which Buyer will be deemed to have elected to retain and pay for the excess Products. Any Product returns shall be subject to compliance with Seller’s return merchandise authorization (“RMA”) policies and procedures as well as a restocking charge equivalent to 50% of the value of such Product as specified in Seller’s invoice to Buyer, provided that the restocking charge will not apply to returned excess Products. Returned Products must be in the original packaging and conform to minimum package quantity (“MPQ”) requirements. Products not eligible for return shall be returned to Buyer freight collect.
5. Product Warranty
Seller offers a standard warranty against defects in material and workmanship on its Octo LED branded Products (“Standard Warranty”). Information on the applicable Standard Warranty terms for the Product you have purchased can be obtained on Seller’s website, partner portal or by contacting your sales representative. Seller expressly excludes and disclaims any and all other representations, warranties, conditions and guarantees, whether express, implied or imposed by statute, with the exception of the Standard Warranty. Buyer acknowledges that it has reviewed Seller’s Standard Warranty terms and accepts their terms, including all limitations, exclusions, and disclaimers.
6. Installation and Use of Products
Buyer is responsible to install and use the Products in accordance with all specifications, instructions, directions, manuals and other documents or materials provided by Seller in relation to the Products (“Product Documentation”). Without limiting the generality of the foregoing, with respect to any Octo LED lighting system purchased by Buyer from Seller.
7. Buyer’s Responsibility and Liability
Buyer assumes all responsibility and liability for loss or damage resulting from the handling, installation or use of the Product. Buyer acknowledges and agrees that Buyer’s failure to comply with Section 6 may result in loss of or damage to the Product or other property and personal injury or death.
BUYER HEREBY RELEASES SELLER, SELLER’S AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE “SELLER PARTIES”) OF AND FROM, AND HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE SELLER PARTIES FROM AND AGAINST, ANY AND ALL CLAIMS, LIABILITIES, OBLIGATIONS, COSTS AND EXPENSES ARISING DIRECTLY OR INDIRECTY OUT OF BUYER’S HANDLING, INSTALLATION OR USE OF ANY PRODUCT OR THE FAILURE BY BUYER TO COMPLY WITH SECTION 6.
8. Seller’s Limitations and Exclusions
EXCEPT FOR THE STANDARD WARRANTY, SELLER HAS NO LIABILITY OR OBLIGATION TO SELLER IN RELATION TO OR ARISING OUT OF ANY PRODUCTS, SERVICES OR ADVICE. IF NOTWITHSTANDING THE FOREGOING SELLER IS DETERMINED TO HAVE ANY LIABILITY OR OBLIGATION TO BUYER IN RELATION TO OR ARISING OUT OF ANY PRODUCT, SERVICE OR ADVICE, SELLER’S TOTAL LIABILITY AND OBLIGATION, WHETHER IN WARRANTY, CONTRACT, NEGLIGENCE OR ANY OTHER THEORY OF LAW OR EQUITY, AND WHETHER OR NOT FORESEEABLE OR KNOWN BY SELLER OR ANY PERSON ACTING ON SELLER’S BEHALF, SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT, OR IN THE CASE OF SERVICES OR ADVICE THE PURCHASE PRICE OF THE PRODUCT IN RESPECT OF WHICH THE SERVICES OR ADVICE WERE PROVIDED, GIVING RISE TO THE LIABILITY OR OBLIGATION.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON FOR PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHETHER FORSEEABLE OR NOT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUES, LOSS OF USE OF GOODS, OR LOSS OF BARGAIN.
9. Export Control/Use of Products
Buyer certifies that it will be the recipient of Products to be delivered by Seller. Buyer acknowledges that the Products are subject to the export and/or import control laws and regulations including those of Canada and, where applicable, the United States and the country in which Buyer is located. Buyer agrees that it shall, at the request of Seller, provide end-user documentation and certification and that it shall otherwise strictly comply with all export laws of Canada, the United States and the country in which Buyer is located and assume sole responsibility for obtaining licenses and/or permits to export, re-export or import as may be required. Buyer agrees that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited.
10. Technical Assistance or Advice
Technical assistance or advice offered by Seller in regards to the use of any Product or in connection with Buyer’s purchases (“Advice”) may be given free of charge and only as an accommodation to Buyer. Seller reserves the right to charge for Advice at its discretion and shall have no obligation to provide any Advice to Buyer and if any such Advice is provided, it is provided at Buyer’s own risk, without liability or responsibility on behalf of Seller and such fact will not obligate Seller to provide any further or additional assistance or advice. No statement made by any of Seller’s representatives in connection with the Products constitute a representation or warranty, express or implied.
Buyer’s reliance on or use of any Advice shall not relieve Buyer of its responsibilities, liabilities and obligations under the Terms, including sections 6 or 7, or entitle Buyer to any claim, right or remedy against Seller that is limited or excluded by the Terms, including sections 7, 8 and 11.
11. Limitation Period
Notwithstanding any terms of sale and subject at all times to any of the limitations expressed in the Standard Warranty, no action by Buyer may be brought at any time for any reason against Seller or the manufacturer more than twelve (12) months after the facts occurred upon which the cause of action arose.