Updated August 2022
THESE TERMS OF SALE (“TERMS”) ARE THE ONLY TERMS WHICH GOVERN THE SALE OF PRODUCTS BY MANUFACTURE LEVITON DU CANADA S.R.I. / LEVITON MANUFACTURING OF CANADA ULC (“SELLER”) TO THE BUYER (“BUYER”), (COLLECTIVELY, THE “PARTIES”), UNLESS OTHERWISE AGREED TO IN WRITING BY SELLER. THESE TERMS PREVAIL OVER ANY ADDITIONAL OR DIFFERENT TERMS SUBMITTED BY BUYER. FULFILLMENT OF BUYER'S ORDER DOES NOT CONSTITUTE ACCEPTANCE OF ANY OF BUYER’S TERMS OF PURCHASE, NOR DOES IT SERVE TO MODIFY OR AMEND THESE TERMS. ANY TERMS OF PURCHASE OF BUYER ARE HEREBY REJECTED UNLESS THEY ARE EXPRESSLY ACCEPTED IN A WRITTEN INSTRUMENT DULY EXCECUTED BY SELLER.
1. TERMS OF SALE. Seller’s performance is expressly limited to the Terms as stated in this document for all sales orders, sales acknowledgements, purchase orders (“PO”), and/or releases pursuant to Blanket POs, issued by either Buyer or by Seller on behalf of Buyer. Any proposal for additional or different terms and any attempt by Buyer to vary the Terms stated in this document are objected to and rejected, whether made before or after the delivery of this document to Buyer. All offers by Seller to sell Products are subject to these Terms and any of the following acts performed by Buyer shall constitute acceptance of this document and of all these Terms: Signing and returning a copy of this document, placing a PO or release of a blanket PO after receipt of this document, or notice that this document is available on Seller’s website, acceptance of delivery of any of the Products ordered, requesting Seller to commence performance of the PO, making payment for all or a portion of the Products ordered. These Terms cannot be changed in any manner without the express written approval by Seller’s authorized representative in an addendum to this document executed by both Seller and Buyer, or expressely stated in a written contract specific to the Seller and Buyer, signed by both parties. No course of dealing by Seller or usage of the trade, or any delay or omission by Seller to exercise any right or remedy granted under this document shall operate as a waiver of any of Seller’s rights or remedies, or add upon Seller any obligation not in this document.
2. PRICES. All POs are subject to Seller’s published or quoted prices in effect on the date of the PO so long as requested ship date does not extend beyond the price expiration date. Written quotations expire 30 days from date of quotation unless otherwise specified on the sales quote. Seller reserves the right to set minimum purchase quantities and/or charge a handling fee for low volume orders.
3. TAXES. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by a Governmental Authority on any amounts payable to Seller. Buyer shall be responsible for the payment of any and all taxes, charges, levies, assessments, or any other fees of any kind imposed by governmental or other authority in respect of the purchase, importation, sale, lease or other distribution of the Products; provided that, Buyer shall not be responsible for any taxes imposed on, or with respect to Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
4. PAYMENT TERMS. Net 30 days from date of invoice, unless otherwise specified in writing by Seller. Seller may charge Buyer interest on all late payments at the rate of 1.5% per month, or the maximum amount permitted by law, starting from the first day payment is late, until the date of receipt of the full amount of payment. Buyer may not withhold payment of any amount due to Seller because of any set-off, counter-claim, abatement or other similar deduction.
5. PO CANCELLATION. Buyer may not cancel and PO without Seller’s prior written approval. If approval is given by Seller, cancellation of the PO is contingent on payment by Buyer of all reasonable charges and expenses already incurred by Seller for production of the Products ordered by that PO. In the event any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against the Buyer, or in the event of the appointment, with or without Buyer’s consent of an assignee for the benefit of creditors or of a receiver, or if Seller in its reasonable judgment concludes that Buyer’s financial condition or ability to perform the PO has been adversely affected, then Seller shall be entitled to cancel any unfulfilled part of the PO without any liability whatsoever. Notwithstanding the foregoing, Made To Order or custom Products are not cancellable by Buyer.
6. WARRANTY. The warranties applicable to Seller’s Products are found on the applicable product page on the Seller’s website, the Products’ installation instructions or packaging, and/or on the Products’ specification sheets. Seller warrants to the original consumer purchaser, not for the benefit of anyone else, that the Products at the time of sale by Seller are free of defects in materials and workmanship under normal and proper use for the specified period of time applicable to the Products, measured from the Seller’s sale date. Seller’s only obligation is to correct such defects by repair or replacement, at its option. This warranty excludes and there is disclaimed liability for labor for removal of the Products or reinstallation. This warranty is void if the Products are installed improperly or in an improper environment, overloaded, misused, sold to an end-user in an opened, or not Seller’s original package, abused, or altered in any manner, or are not used under normal operating conditions or not in accordance with any labels or instructions. There are no other warranties (express or implied) of any kind, including merchantability and fitness for a particular purpose, but if any implied warranty is required by law, the duration of any such implied warranty, including merchantability and fitness for a particular purpose, is limited in duration to one year from the date of sale by Seller, and in no event longer than the shortest time required by law. Seller is not liable for incidental, indirect, special, or consequential damages, including without limitation, damage to, or loss of use of, any equipment, lost sales or profits or delay or failure to perform this warranty obligation. The remedies provided herein are the exclusive product warranty remedies to Buyer and the end-user, whether based on contract, tort or otherwise.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THE LIMITATION OF LIABILITY PROVISIONS IN THESE TERMS SHALL APPLY EVEN IN THE EVENT ONE OR MORE OF THE REMEDIES HEREIN FAIL ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER. The limitation of liability set forth herein shall not apply to liability or injury resulting from Seller's gross negligence or willful misconduct.
8. SHIPPING TERMS. Seller shall retain a security interest in the Products until the purchase price is paid in full by Buyer. The Products will be shipped as per the Sales Quote or in Seller’s discretion (if not listed on the Sales Quote). Seller reserves the right to select origin of shipment, routing, and method of transportation. Any premium freight charges (such as air freight) will be at Buyer’s expense. If Buyer specifies alternate routing, Buyer must assume all additional transportation charges. Title to and risk of loss shall pass to Buyer upon delivery of the Products FOB point of shipment, unless otherwise indicated on Seller’s invoice or bill of lading. Seller is not liable for any damages or fees resulting from failure to meet a shipping schedule.
9. CLAIMS FOR LOSS OR DAMAGE IN SHIPMENT. If Seller paid for freight and Products are delivered in damaged condition or cartons are missing, a notation must have been placed on all papers signed by the receiver, and Buyer must notify Seller directly within 3 business days of delivery with specific details regarding the shipment. Credit will not be allowed for late or improperly substantiated damage claims. If Buyer paid for freight, then Buyer is responsible to file a claim for loss or damage with the carrier.
10. PO ACCEPTANCE. Any PO is deemed accepted by Seller as to items and quantities only, unless Buyer receives a written objection thereto prior to the shipment of the ordered Products, or within 5 business days after Seller’s receipt of the PO, whichever is sooner. Any POs unfilled 90 days after receipt are subject to price adjustment to then prevailing prices.
11. RETURN MATERIALS AUTHORIZATION (RMA). Products may not be returned without prior written authorization from Seller. Seller shall not be bound via deductions from remittance due. When a return is occasioned due to Seller’s error other than conditions covered by Warranty, full credit including transportation charges will be allowed. Where a return is not due to Seller’s error or Warranty, but the value of the items is at least $50, Seller may in its sole discretion authorize the return pursuant to its current policy on returns. All return shipments must be freight prepaid by the Buyer. All Products returned must be new, in condition to be resold, and with Seller’s current package design. Condition to be resold, requires that the package be unopened and not damaged, and the product untampered with, and never having been installed. Any defective good returns are subject to Seller’s warranty. No obsolete items or items that are not current stock or standard production, will be accepted. Proof of purchase (copy of Seller’s invoice) must accompany all RMA requests. Additional charges may be made if there is an expense in converting the returned Product into saleable condition. Made to Order and custom Products built to the Buyer’s specifications will not be accepted for return. In no event will Seller be responsible for Products returned without proper authorization or identification. Any attempt to contravene the above-stated policy will subject Buyer to liability for Seller’s resulting losses, including costs, expenses, and attorney’s fees.
12. PATENT INDEMNIFICATION. Seller shall defend any lawsuit or court legal proceeding brought against Buyer, so far as based upon a claim that the furnishing of any Products or any part thereof constitutes an infringement of any United States patent, or any patent issued in a country in which Seller sold the alleged infringing Product, but only if: (1) Seller is notified in writing by Buyer promptly after Buyer learns of same; (2) Seller is given authority, information and assistance from Buyer for the defense and control of same. In the event Seller’s furnishing hereunder of said Products or any part thereof is held in such a suit to constitute infringement of a valid and enforceable patent by a court of last resort from which no appeal has been perfected, and the use of said Products by Buyer is enjoined by such court, Seller shall at its own expense attempt to: (a) produce for the Buyer the right to continue using said Products; or (b) replace such Products with what Seller and its counsel believe to be non-infringing Products; or (c) modify such Products so that, in the opinion of Seller and its counsel, the Products become non-infringing; or (d) accept the return of such Products and credit the purchase price and the reasonable transportation costs of such return toward future sales from Seller. Seller shall have no liability for any costs, losses or damages resulting from Buyer's willful acts, or any settlement or compromise incurred or made by Buyer without Seller’s prior written consent. Seller shall have no obligation to defend and no liability for any costs, losses or damages, to the extent that an infringement allegation is based upon: (i) Buyer's use of the Products in combination with any other good, software or equipment; (ii) Buyer's use of the Products in a manner or for an application other than for which they were designed or intended, regardless of whether Seller was aware of or had been notified of such use; (iii) Buyer’s use of the Products in a manufacturing or other process; (iv) Buyer’s modifications to the Products; (v) Seller’s compliance with Buyer's particular design, instructions or specifications; or (vi) Seller’s compliance with any industry or proprietary standard or Buyer’s use of the Products to enable implementation of any industry or proprietary standard (such claims - i.e. those set forth in (i) through (vi) above - are individually and collectively referred to herein as “Other Claims”). The foregoing states the entire liability of Seller for patent infringement of a valid and enforceable patent. Buyer shall indemnify and hold Seller harmless against any damages, liabilities or costs finally awarded against Seller or agreed to by Buyer as settlement or compromise, and will defend any claim, suit or proceeding brought against Seller insofar as such claim, suit or proceeding is based on an allegation arising from Other Claims. Buyer will not enter into any settlement or make admissions or concessions to claimants concerning infringement or validity of an asserted patent without prior written consent from Seller, which shall not be unreasonably withheld.
13. RESELLING ONLINE. A Buyer who purchases Seller’s Goods for resale agrees to abide with any and all of Seller’s published policies that are in effect at the time of purchase and which may be amended from time to time, including but not limited to policies on the use of Seller’s trademarks and publishing resale prices.
14. NON-CONFORMING PRODUCT. Any claim by Buyer for non-conforming Product shall be deemed waived unless asserted in writing within 30 days after delivery of the Product.
15. SHIPPING SCHEDULES. Seller will not be responsible for untimely delivery, or any losses or damages to Buyer (or any third persons) whether occasioned by deviations in performance or the nonperformance of any of Seller’s obligations under the PO or loss or damage to the Products when caused directly or indirectly by or in any manner arising from any casualty, riots, acts of Buyer, strikes or other labor difficulties, shortage of labor, supplies and transportation facilities or any other cause or causes beyond its reasonable control or the control of its suppliers. In the event that Seller receives a “rated order” placed pursuant to the American Defense Production Act of 1950 (“DPA”), Seller will evaluate its impact on lead times quoted on non-rated Orders and make reasonable efforts to eliminate and/or minimize delay on non-rated Orders. Seller is not liable for any shipment delays caused by or arising from its compliance with the DPA, and any related delays shall not be deemed a breach of these Terms by Seller.
16. HEADINGS. Headings used in these Terms are for convenience only and shall not be considered in construing or interpreting these Terms.
17. GOVERNING LAW. All matters arising out of or relating to these Terms shall be governed by and construed in accordance with the laws of the Province of Quebec and the laws of Canada, without giving effect to its conflict of laws rules. Seller and Buyer also hereby agree that the courts situated in Quebec shall have be the exclusive venue, unless otherwise agreed to in writing, over any and all disputes arising from or related to the sale of goods by Seller.
18. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with these Terms is confidential, solely for the use in connection with the sale of Products under these Terms and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this section. This section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
19. FORCE MAJEURE. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any obligations of these Terms, including without limitation delivery dates, when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller. Such circumstances may include, without limitation, acts of God, flood, fire, earthquake, explosion, governmental or municipal action or order, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, and factory closures and delays related thereto, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
20. ANTI-BRIBERY. Seller is committed to conducting its business ethically and in compliance with its anti-bribery policy, and all applicable laws and regulations, including the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, and any other applicable laws that prohibit improper payments to obtain a business advantage.
21. EXPORT COMPLIANCE. Buyer shall comply with all export and import laws of all countries involved in the resale of the Products by Buyer, including the export regulations of the United States. Buyer’s submission of a PO or its acceptance of an offer to purchase Products from Seller shall be deemed a representation by Buyer that Buyer is in compliance with all laws administered by the United States Treasury Department’s Office of Foreign Assets Control (OFAC) or any other entity imposing economic sanctions and trade embargoes (“Economic Sanctions Laws”) against designated countries (“Embargoed Countries”), entities, and persons (collectively, “Embargoed Targets”). Further, Buyer represents that it is not and has not been, an Embargoed Target or otherwise subject to any Economic Sanctions Law. Without limiting the generality of the foregoing, Buyer shall not (a) directly or indirectly export, re-export, transship, or otherwise deliver the Products or any portion of thereof to an Embargoed Target or (b) broker, finance, or otherwise facilitate any transaction in violation of any Economic Sanctions Law. Buyer assumes all responsibility for shipments of the Products requiring any government import clearance. Seller may terminate the PO if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Products.
22. COMPLIANCE WITH LAWS. Buyer’s compliance: Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms and any PO subject to these Terms. Seller’s compliance: Buyer acknowledges that Seller’s obligations to Buyer are subordinate and subject to its obligation to comply with relevant laws. As such, Seller is not liable for any delays caused by or arising from its compliance with relevant laws, regulations, government orders and the like in meeting its obligations.
23. WAIVER. The failure of either party to require performance of any term or condition or the waiver by either party of any breach of the same shall not prevent subsequent enforcement of such term or condition nor be deemed a waiver of any subsequent breach. Any change in, addition to, renewal of, or waiver of these Terms shall be binding upon either party only if in writing signed by such party’s officer or other authorized agent.
24. SEVERABILITY. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. SURVIVAL. The provisions of these Terms relating to payment, confidentiality, disclaimers, warranties, limitation of liability, indemnification, governing law and jurisdiction, severability, and this paragraph shall survive the fulfillment of the Buyer’s PO.
26. MODIFICATION. These Terms may only be modified in writing signed by an authorized representative of both Seller and Buyer.
27. PUBLIC ANNOUNCEMENT. Buyer shall not publicly disclose, issue any press release or make any other public statement, including publication on its website, concerning the existence of Seller’s sale of the Products, or the subject PO(s), without Seller’s prior written consent.
28. ASSIGNMENT. Buyer shall not assign any of its rights or delegate any of its obligations under this PO without Seller’s prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under its PO.
29. RELATIONSHIP OF THE PARTIES. Nothing in these Terms shall be deemed to constitute either party as an agent, representative, or employee of the other, or create an agency relationship for any purpose. Neither party has the authority to bind the other party. Furthermore, these Terms do not constitute a franchise or establish a franchise relationship, and do not grant a trademark or any other express or implied license.