1.1. These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the goods ("Goods") by Big Star Lights USA Inc. (“Big Star”) to you, the buyer ("Buyer").
1.2. The accompanying invoice (the "Invoice" and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfilment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
2.1. Big Star shall not be liable for any delays, loss or damage in transit.
2.2. Unless otherwise agreed in writing by the parties, Big Star shall deliver the Goods to the Buyer’s place of business, as provided by the Buyer (the "Delivery Point"), using Big Star's standard methods for packaging and shipping such Goods. Additional fees may apply if delivery drivers are requested to assist in unloading (i.e. pulling apart pallets, unloading by hand, etc.).
2.3. Big Star may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of Buyer's order.
2.4. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Big Star's notice that the Goods have been delivered at the Delivery Point, or if Big Star is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations:
i. risk of loss to the Goods shall pass to Buyer;
ii. the Goods shall be deemed to have been delivered; and
iii. Big Star, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance) at an estimated cost of $100 per pallet per week commencing from the date the Goods were ready for domestic shipping.
3.1. The quantity of any instalment of Goods as recorded by Big Star on dispatch from Big Star's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
3.2. Big Star shall not be liable for any non-delivery of Goods (even if caused by Big Star's negligence) unless Buyer gives written notice to Big Star of the non-delivery within TEN (10) days of the date when the Goods would in the ordinary course of events have been received.
3.3. Any liability of Big Star for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
3.4. Buyer acknowledges and agrees that the remedies set forth in Section 3.0 are Buyer's exclusive remedies for the delivery of Non-Conforming Goods. Except as provided under Section 3.3, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Big Star.
4.0 Quantity. If Big Star delivers to Buyer a quantity of Goods of up to 5% more or less than the quantity set forth in the Invoice, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Invoice adjusted pro rata.
5.0 Shipping Terms. Big Star shall make delivery in accordance with the terms on the face of the Invoice.
6.0 Title and Risk of Loss. Title and risk of loss passes to Buyer upon shipment of the Goods. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Big Star a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the British Columbia Personal Property Security Act.
7.0 Amendment and Modification. These Terms may only be amended or modified if in writing and consented to by each party.
8.0 Inspection and Rejection of Non-Conforming Goods.
8.1. All claims of Goods delayed, lost, or damaged in transit are the responsibility of the Buyer.
8.2. Buyer shall inspect the Goods upon receipt (the "Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Big Star in writing of any Non-Conforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Big Star. "Non-Conforming Goods" means only the following:
i. product shipped is different than identified in Buyer's order; or
ii. product's label or packaging incorrectly identifies its contents.
8.3. If Buyer notifies Big Star of any Non-Conforming Goods in a timely manner, Big Star shall, in its sole discretion:
i. replace such Non-Conforming Goods with conforming Goods, or
ii. credit or refund the Price for such Non-Conforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith.
8.4. Buyer shall ship, at its expense and risk of loss, the Non-Conforming Goods to Big Star's facility located at Unit A6 – 8420 Portal Way, Blaine, WA 98230. If Big Star exercises its option to replace Non-Conforming Goods, Big Star shall, after receiving Buyer's shipment of Non-Conforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point.
8.5. Buyer acknowledges and agrees that the remedies set forth in Section 8.3 are Buyer's exclusive remedies for the delivery of Non-Conforming Goods. Except as provided under Section 8.3, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Big Star.
9.1. Buyer shall purchase the Goods from Big Star at the price(s) (the "Price(s)") set forth in Big Star's Invoice.
9.2. All Price(s) are exclusive of all municipal and state sales tax, goods and services tax, value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Big Star's income, revenues, gross receipts, personnel or real or personal property or other assets.
9.3. If, from the date of the Invoice to the date the Goods are shipped, any municipal or state sales tax, goods and services tax, value added tax, use and excise taxes, or any other similar taxes, duties or charges of any kind imposed by any Governmental Authority change, Big Star will provide a revised Invoice to the Buyer incorporating those changed amounts. If, upon receipt of the revised Invoice, the Buyer no longer wants to purchase the Goods, it may terminate this Agreement.
10.0 Payment Terms.
10.1. Buyer shall pay all invoiced amounts due to Big Star hereunder by cheque, credit card, or wire transfer in United States dollars.
10.2. Unless otherwise agreed to in writing, the invoiced amounts in respect of an order are payable upon placement of the order.
10.3. If paying by cheque, make payable to BIG STAR LIGHTS USA INC. and write Invoice # in the memo. Mail to: 17700 River Road, Richmond, BC, V6V 1L9, Canada.
10.4. If paying by wire transfer, send to:
Routing number: 123205054
Account number: 4862588771
and e-mail a copy of the deposit slip for each transfer to firstname.lastname@example.org, indicating the Invoice # to apply the credit to.
10.5. In the event payments are not received by Big Star on the date it is due, Big Star may:
i. charge interest on any such unpaid amounts at a rate of ONE percent (1%) per week (FIFTY-TWO percent (52%) APR) or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
ii. suspend delivery of any Goods until payment has been made in full.
10.6. In Big Star’s sole discretion, payments made by credit card may be subject to a THREE percent (3%) extra transaction fee.
10.7. Client shall be responsible for all municipal and state sales taxes, value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, territorial or local governmental entity on any amounts payable by the client hereunder.
10.8. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Big Star, whether relating to Big Star's breach, bankruptcy or otherwise.
11.0 Limited Warranty.
11.1. Subject to 11.2 and 11.3, Big Star warrants to Buyer that for the Goods and periods of time listed in this Section 11.1 from the date of shipment of the Goods ("Warranty Period"), that such Goods will be free from material defects in material and workmanship:
i. Electrical wiring and accessories – THREE (3) years;
ii. Replaceable bulbs – TWO (2) years; and
iii. LED Strip Lights – ONE (1) year;
iv. All other items – ONE-HUNDRED AND TWENTY (120) days.
11.2. Any warranty listed in Section 11.1 is void if the item(s) are left up over ONE HUNDRED AND TWENTY (120) consecutive days.
11.3. Bulb burnouts or electrical damage caused by the Buyer, weather elements, rough handling, or transit are not covered by Section 11.1.
11.4. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11.1 BIG STAR MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; OR (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) CONDITION OR WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
11.5. Big Star shall not be liable for a breach of the warranty set forth in Section 11.1 unless:
i. Buyer gives written notice of the defect, reasonably described, to Big Star within THIRTY (30) days of the time when Buyer discovers or ought to have discovered the defect;
ii. Big Star is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Big Star) returns such Goods to Big Star's place of business at Big Star's cost for the examination to take place there; and
iii. Big Star reasonably verifies Buyer's claim that the Goods are defective.
11.6. Big Star shall not be liable for a breach of the warranty set forth in Section 11.1 if:
i. Buyer makes any further use of such Goods after giving such notice;
ii. the defect arises because Buyer failed to follow Big Star's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or
iii. Buyer alters or repairs such Goods without the prior written consent of Big Star.
11.7. Subject to Section 11.5 and Section 11.6 above, with respect to any such Goods during the Warranty Period, Big Star shall, in its sole discretion, either:
i. repair or replace such Goods (or the defective part) or
ii. credit or refund the price of such Goods at the pro rata contract rate
provided that, if Big Star so requests, Buyer shall, at Big Star's expense, return such Goods to Big Star.
11.8. THE REMEDIES SET FORTH IN SECTION 11.7 SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND BIG STAR'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11.1. FOR GREATER CLARITY, THE WARRANTY IN SECTION 11.1 DOES NOT INCLUDE THE COST OF LABOR TO INSTALL AND/OR REMOVE THE GOODS, THE COST OF SHIPPING.
12.0 Limitation of Liability.
12.1. IN NO EVENT SHALL BIG STAR BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.2. IN NO EVENT SHALL BIG STAR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO BIG STAR PURSUANT TO THIS INVOICE FOR THE GOODS SOLD HEREUNDER or $5,000.00, WHICHEVER IS LESS.
13.0 Compliance with Law. 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 this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Big Star may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
14.0 Termination. In addition to any remedies that may be provided under these Terms, Big Star may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer:
i. fails to pay any amount when due under this Agreement;
ii. has not otherwise performed or complied with any of these Terms, in whole or in part; or
iii. becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15.0 Waiver. No waiver by Big Star of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Big Star. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16.0 Force Majeure. Big Star shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Big Star including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour 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, provided that, if the event in question continues for a continuous period in excess of THIRTY (30) days, Buyer shall be entitled to give notice in writing to Big Star to terminate this Agreement.
17.0 Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Big Star. 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 this Agreement.
18.0 Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of BRITISH COLUMBIA, CANADA and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the Province of BRITISH COLUMBIA, CANADA or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of BRITISH COLUMBIA, CANADA. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
19.0 Choice of Forum. Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, shall be instituted in the courts of the Province of BRITISH COLUMBIA, CANADA, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, litigation or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
20.0 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Invoice or to such other address that may be designated by the receiving party in writing. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email (in each case, with confirmation of transmission) if sent during the addressee's normal business hours, and on the next business day if sent after the addressee's normal business hours; and (d) on the TENTH day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
21.0 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
22.0 Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Compliance with Laws, Governing Law, Choice of Forum and Survival.
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