These terms and conditions (“Agreement”) govern the sale of all products, parts and components (“Products”) and the provision of all services (“Services”) by Sunna Design Inc., its divisions, subsidiaries and affiliates (collectively, “Seller”) to any purchaser of Products and/or Services (“Buyer”).
By virtue of ordering, receiving, installing or using any product, buyer is deemed to have agreed to this agreement and is bound by this agreement. If buyer does not agree with any term or condition of this agreement, buyer may not install or use the product, and must return the product to the point of purchase. This agreement contains terms and conditions that limit or exclude seller’s liabilities and obligations, and which are a fundamental condition of seller’s agreement to sell products to buyer. Buyer agrees that it has read, understood and agreed to these limitations and exclusions, and that they are a reasonable and essential part of the bargain between seller and buyer.
All orders placed by Buyer are subject to acceptance by Seller. All orders must include a complete description of Products being purchased, quantities required and approximate date materials are required by. Orders may not be cancelled or altered without Seller’s written consent. Seller may in its sole discretion allocate Product among its Buyers. Seller may designate certain orders as non-cancelable and certain Product as non-returnable (“NCNR”). All orders containing custom terms shall be NCNR.
This Agreement takes precedence over any additional, supplemental or conflicting terms and conditions 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 and conditions. 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 and conditions contained herein.
The prices and pricing terms for all Products sold by Seller are subject to any additional terms and conditions 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. Buyer will also pay all taxes, including sales, use, personal property, value-added, excise, custom fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on the transactions contemplated by this Agreement.
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. If the carrier is selected and hired by Seller, Buyer will reimburse Seller for all transportation costs paid by Seller. Regardless of whether the carrier is selected and hired by Seller or Buyer, (1) the carrier shall be Buyer’s agent and delivery of the Product to the carrier shall constitute delivery to Buyer and title and risk of loss shall pass to Buyer upon delivery to carrier at the Delivery Point, and (2) Seller reserves the right to charge Buyer for reasonable storage fees incurred if the goods are not picked up by Buyer’s carrier within 72 hours of the mutually agreed on shipping date. Notwithstanding the foregoing, Seller reserves all rights to disposal of goods and stoppage in transit. In no event will Seller be liable for any delay in delivery or assume any liability in connection with shipment. Buyer is responsible at its cost to insure all Products from and after delivery of the Products at the Delivery Point. Buyer acknowledges that lead times and delivery dates provided by Seller are estimates only. Seller reserves the right to ship before the delivery date if Product is available to ship. Seller shall not be liable for delays in delivery or for failure to perform due to events for force majeure or other causes beyond the reasonable control of Seller. In the event of delay caused by such event, the date of delivery shall be extended for a period equal to the time lost as a consequence of the delay in delivery without subjecting Seller to any liability or penalty. If any Product is damaged, lost or stolen while in the custody of the carrier, Seller shall be deemed to have performed its obligations in full. 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.
Seller reserves the right to cancel or delay shipment of any orders placed by Buyer and accepted by Seller, if Buyer: (1) fails to make any payments as provided herein, (2) fails to meet reasonable credit or financial requirements established by Seller, or (3) otherwise fails to comply with the terms and conditions set forth herein.
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.
Other than the limited warranties, Buyer acknowledges that, with respect to the Products sold to Buyer, Seller does not make any expressed or implied warranties and the Products are provided “AS IS”. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES STATED HEREIN, SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ON PRODUCTS FURNISHED HEREUNDER, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICES AND NON-INFRIGEMENT OF THIRD-PARTY RIGHTS.
Seller offers a limited warranty against defects in material and workmanship on its Sunna Design and Sol branded Products (“Limited Warranty”). The Limited Warranty may vary for different Products. Information on the applicable Limited 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 Limited Warranty. Further exclusions and limitations are set out in the Limited Warranty terms and in Sections 6, 7 and 8. Products that are sold by Seller and are not Sunna Design or Sol branded (“Third Party Products”) are sold by Seller as is, where is, and with all faults, and without express or implied warranties from Seller, but may be accompanied by their manufacturers’ standard warranties. Buyer acknowledges that it has reviewed Seller’s Limited Warranty terms and accepts their terms and conditions, including all limitations, exclusions, and disclaimers.
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 solar lighting system purchased by Buyer from Seller:
(1) if Buyer intends to install the solar lighting system on Buyer’s existing poles or on poles that will be purchased by Buyer from a supplier other than Seller, Buyer is responsible to (a) determine the required specifications for the poles on which the solar lighting system will be installed in order to ensure the proper and safe installation and use of the solar lighting system, including the required structural and weight-bearing requirements for the poles, based on and taking into account the Effective Projected Area of the solar lighting system and its intended use by Buyer (the “Pole Specifications”), (b) obtain engineering and other professional advise as may be required for the purposes of subsection 6(1)(a), (c) ensure that the poles used by Buyer meet the Pole Specifications; and
(2) Buyer is responsible to (a) install the solar lighting system in locations that are free from obstructions that would block the sun from the solar panels, including but not limited to buildings, other structures, and trees, (b) to ensure that the solar panels remain free from such obstructions over time, and (c) relocate solar lighting systems that become obstructed for any reason.
Buyer’s failure to comply with this Section 6 in respect of any Product will void the Limited Warranty for that Product, and Seller will have no liability or obligation to Buyer under that Limited Warranty.
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 indirectly out of Buyer’s handling, installation or use of any product or the failure by Buyer to comply with section 6.
IN NO EVENT WILL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, OF ANY NATURE (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR PERSONAL PROFITS, BUSINESS INTERRUPTION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR FOR BREACH OF WARRANTY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL SELLER’ TOTAL CUMULATIVE LIABILITY TO BUYER OR ANY THIRD PARTY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR OTHERWISE) EXCEED THE TOTAL AMOUNT OF FEES PAID BY BUYER TO SELLER FOR PURCHASE OF THE 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.
Buyer will indemnify and will hold Seller harmless from and against any claim, loss or liability arising out of any breach of the foregoing covenants contained in this Section.
Technical assistance or advice offered by Seller in regard 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 this agreement, including sections 6 or 7, or entitle buyer to any claim, right or remedy against seller that is limited or excluded by this agreement, including sections 7, 8 and 11.
Notwithstanding any terms and condition of sale and subject at all times to any of the limitations expressed in the Limited 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.
This Agreement shall be governed exclusively by the laws of the state of Delaware, United States excluding rules of international law that would result in the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods (1980) does not apply to this Agreement. If Buyer’s principal place of business is located within the United States, the parties hereby irrevocably attorn and submit to the exclusive jurisdiction of Delaware, United States of America in respect of all disputes arising under or in respect of this Agreement. If Buyer’s principal place of business is located outside of the United States of America, then all disputes arising out of or in respect of this Agreement shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be Wilmington, Delaware, United States of America. The language of the arbitration shall be English.
Seller shall not be liable for its inability to secure sufficient quantities of any Product or failure to deliver due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, all of which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In the event of a force majeure condition, Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to Buyer.
If any provision of this Agreement will be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
The duties and obligations of each of Buyer herein may not be assigned or delegated without the written consent of Seller. No waiver will be implied from conduct or failure to enforce rights, and no waiver will be effective unless in writing signed on behalf of the party against whom the waiver is asserted.
16. Attorneys’ fees
In any action to enforce this Agreement, the prevailing party will be entitled to recover all court costs and expenses and reasonable attorneys’ fees, in addition to any other relief to which it may be entitled.
This Agreement and any attachments incorporated or referred herein constitute the complete, final and exclusive statement of the terms of the agreement between the parties and supersedes all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to this subject matter. Any provisions in any acknowledgment form or other document prepared by Buyer which vary from or are additional to the provisions of this Agreement will not bind Seller and are expressly rejected. This Agreement may not be varied, modified, altered, or amended except in writing signed by the parties.