TERMS, CONDITIONS & WARRANTY
THESE STANDARD TERMS AND CONDITIONS APPLY TO ALL PURCHASES FROM AND AFTER JANUARY 2, 2008 WHETHER OR NOT SUCH PURCHASE IS SUBJECT TO A SIGNED PURCHASE ORDER AGREEMENT OR DISTRIBUTION AGREEMENT BETWEEN EVERBRIGHT LIGHTS INC. AND THE CUSTOMER.
- The Customer agrees to pay the total outstanding in accordance with the payment terms reflected on the invoice. Title to the goods shall remain with EL until all amounts outstanding are paid in full by the Customer. Interest will be payable by the Customer at a rate of 2% per month (equivalent to 24% per annum) on any amounts outstanding for more than Thirty (30) days.
- The Customer acknowledges that EL is a distributor of the goods sold herein and is not the manufacturer. EL agrees to take reasonable steps to enforce the manufacturer’s warranty in connection with the goods being free from defects in materials and workmanship for a period from the date of delivery of the goods. EL shall, at its option, repair replace the Product or the defective part thereof, or reimburse Customer for the purchase price. For purposes of clarity, “repair or replace the Product or the defective part thereof” does not include any reinstallation costs or expenses, including without limitation labor costs or expenses. If EL chooses to replace the Product and is not able to do so because it has been discontinued or is not available, EL may replace it with a comparable product. In the event any goods are determined to be defective and this warranty is determined to be applicable, provided however that the Customer shall provide notice of any claim it wishes to raise under this warranty and shall return any defective goods to EL at the Customer’s sole cost. This warranty shall be inapplicable in the event the goods fail to operate or are damaged as a result of improper wiring or installation, usage of the goods in a manner other than as suggested by EL or the manufacturer of the goods, usage of the goods with an inappropriate electrical system or issues related to the electrical system with which the goods are used, including but not limited to under/over voltage/current conditions, faulty or inappropriate transformers, ballasts or fuses, power surges, or usage of the goods outside of the manufacturer’s recommended operating conditions. EL shall have the right to inspect or examine goods returned pursuant to the foregoing warranty and to examine the Customer’s electrical system, power supply, controls and components to determine the cause of any failure of the goods and shall have the sole right to determine whether the failure of the goods is covered under this warranty.
- Dates of all shipments are estimated and not guaranteed. In the absence of specific instructions, EL will select the carrier and ship freight prepaid and added to the price of the relevant Product In cases where Customer, for any reason, requests deliveries of Products on a basis that is not in conformity with EL’s standard shipping procedures, Customer shall be responsible for all such costs associated with premium freight and any resulting overtime required in order to make deliveries in conformance with Purchaser’s required delivery schedule. EL will not be deemed to assume any liability in connection with any shipment because of the selection of a carrier or its failure to obtain insurance. Title and risk of loss or damage to each of the Products will pass to the Customer when delivery is made to the possession of the carrier.
- Prices do not include any taxes or other governmental charges, including, without limitation, value-added, sales, use or privileges taxes, or excise or similar taxes levied by any government, now or hereafter enacted. In EL’s discretion, any such taxes and charges may be added to the price for any products or may be billed separately. The Customer will, in any event, pay all such taxes and charges, on or before their due dates. In the event EL is required at any time to pay any such tax or charge, the Customer will reimburse EL promptly on demand. If any governmental agency requires Customer to withhold any portion of the gross payment due to EL, then such payment shall be increased by an amount such that the amount actually remitted to EL is equal to the amount that would have been remitted had their been no such withholding.
- EXCEPT AS MAY BE OTHERWISE PROVIDED HEREIN, EL DOES NOT PROVIDE ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE GOODS. EL SHALL NOT BE LIABLE FOR ANY DAMAGES, LOSSES OR EXPENSES INCURRED BY THE CUSTOMER OR OTHERS ARISING OUT OF THE USE OF THE GOODS. ANY IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSES ARE SPECIFICALLY EXCLUDED FROM THIS CONTRACT. THE CUSTOMER ACKNOWLEDGES AND AGREES TO SATISFY ITSELF THAT THE GOODS SUPPLIED HEREUNDER ARE FIT AND SATISFACTORY FOR THE CUSTOMER’S INTENDED PURPOSES.
- The Customer shall be deemed to have accepted the goods unless same are returned to EL, at the expense of the Customer, in their original packaging within 48 hours of the receipt of goods for exchange or refund, at the sole option of EL. All goods returned to EL shall be subject to a restocking fee equal to 15% of the cost of the goods plus any freight or delivery charges and same shall be paid by the Customer immediately. Product will not be approved for return or credit under the following conditions:
- Product has been altered.
- Product was not installed or maintained in accordance with EL specifications.
- Product was subject to unusual physical or electrical stress, misuse, or negligence.
- Product defect was not related to EL product functionality, including third-party modifications.
- Product damage caused after receipt of product by customer.
7. By choosing to request a RMA from EL, it is implied that customer agrees to the terms of the Return Policy as stated above.Events of force majeure or acts or commissions of third parties or acts of god or generally any cause reasonably beyond the control of EL shall relieve EL of its obligations hereunder. In case of any one or more of such events, EL shall have the right to delay delivery or, at its option, to cancel this contract.
8. If the Customer refuses to accept the goods when delivered or is default in the performance of any obligation or payment owing to EL under any contract or if the Customer becomes bankrupt or if the goods are destroyed, substantially damaged or seized under execution or otherwise or become subject to any lien, encumbrance or claim of any other person, firm or corporation or if EL considers that the prospect of payment of the amount owing hereunder to EL is impaired, then in any such case all monies payable hereunder shall become immediately due and payable without notice and EL may forthwith take possession of the goods in any manner permitted by law wherever the same may be located (the Customer waiving all damages occasioned by such taking of possession and removal of the goods and agreeing to indemnify EL for any such damage claimed by others) and may dispose of the goods in whole or in part (in their condition either before or after any commercially reasonable repair, processing or preparation for disposition). Upon any such disposition, credit shall be allowed against the monies payable hereunder for the actual proceeds from any such sale when actually received in cash less all reasonable expenses in connection with the disposition (including without limitation a reasonable solicitor’s fee, a reasonable collection agent’s fee or both). After allowing such credit, EL shall be accountable for any surplus remaining over and the Customer shall be accountable for any deficiency.
9. Customer shall indemnify, defend and hold harmless EL and its officers, directors, agents, employees, affiliates, representatives, successors, and assigns from and against all losses, liabilities, costs and expenses (including, without limitation, attorneys’ fees) arising out of or in connection with claims by third parties for any loss, damage or injury (including death) caused or alleged to be caused by (a) breach by Customer or its employees, partners to whom Customer sold Product, contractors, representatives, agents or affiliates, (collectively, “Purchaser Parties”) of any obligation herein; (b) negligent use, application, installation or implementation of Product by any of the Purchaser Parties; and/or (c) unless authorized in writing by EL, modification of Product or integration of Product into other products by any of the Purchaser Parties. Customer shall not join, settle or otherwise attempt to affect or dispose of any such claim without EL’s written consent.
10. In the event the Customer is comprised of two or more persons or entities, then all obligations and covenants of the Customer shall be joint and several. The parties hereto agree that this agreement is the entire agreement between the parties and all of the terms, conditions, covenants and agreements between the parties. The agreement shall be construed pursuant to the laws of the Province of Ontario. This agreement shall enure to the benefit of the parties hereto and their respective heirs, successors and personal representatives.