GENERAL

These Terms & Conditions of Sale are furnished to Purchaser in conjunction with a specific quotation (the “Quotation”) for Kuiper grow inc. (“Kuiper”) branded products (including any embedded software, the “Products”).   Kuiper’s acceptance of all orders to purchase Kuiper Products (each, a “Purchase Order”) shall be at Kuiper’s sole discretion, and all sales of Kuiper Products are made subject to and expressly conditioned upon these Terms & Conditions of Sale.  No modifications of this document, whether by Purchaser in its Purchase Order or otherwise, shall have any effect or be binding upon Kuiper if, in conflict with the prices, terms and conditions or specifications stated or referred to in the Quotation or these Terms & Conditions of Sale, unless expressly agreed to in writing by an authorized representative of Kuiper and contained in a Purchase Order Acknowledgement, even if such Purchase Order states that shipment after such Purchase Order constitutes acceptance of the terms thereof.

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PRICES AND TAXES
All prices herein are firm for Products ordered within thirty (30) days (unless otherwise notated on the quote) from the date of the Quotation specifying delivery as quoted therein.   Otherwise, prices may be changed by Kuiper at its sole discretion and may escalate.  Prices stated herein do not include taxes, insurance, VAT, customs or excise taxes, special packaging, installation, freight, handling, or any other shipping charges unless these items are specifically listed and priced in the Quotation.
 

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PAYMENT

Kuiper may offer the following payment options:

• Visa

• MasterCard

• American Express

• PayPal

• ACH

• Wire

• Check

In cases where Kuiper builds a custom order, Purchaser will be charged for the full purchase amount when Purchaser submits a Purchase Order. Term accounts may be available to qualifying Purchasers with approved credit.

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Kuiper will not accept or process any Purchase Order if Purchaser’s account is not up to date. Kuiper will use commercially reasonable efforts to invoice for deliverable items on the day of shipment, and for services upon completion of such services or start-up of Products, whichever comes first. The amount invoiced will include the price of the Products and/or services rendered plus all applicable taxes, fees, transportation, insurance, and other charges. The payment of these invoices is due within thirty (30) days of the invoice date and shall be made in Canada funds.  Payment to Kuiper shall not be contingent on third party payments to Purchaser. Any payment not made when due shall be subject to an interest charge at the maximum rate permitted by law. Additionally, if any payment is not made when due, Kuiper reserves the right to refuse to provide any further Products or Services until such payment and the applicable interest charge has been received.  Purchaser agrees to no rights of setoff for amounts it owes for particular Products against amounts owed to it by Kuiper. Purchaser shall pay all of Kuiper costs and expenses (including reasonable attorneys’ fees) to enforce and preserve Kuiper’s rights under this section.

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SECURITY INTEREST

For the purpose of securing payment of the price of Kuiper Products and all other charges payable to Kuiper hereunder, Purchaser hereby grants to Kuiper a security interest in each and every Product delivered to Purchaser under these Terms & Conditions of Sale, including without limitation any proceeds from its resale or distribution or from insurance held by Purchaser covering such Products. Upon request by Kuiper, Purchaser shall cooperate with Kuiper and execute any necessary documents to perfect Kuiper’s security interest granted herein, where required by law. These interests will be deemed satisfied and deemed released by payment in full of the purchase price and all other charges payable hereunder for each such Product.

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SHIPMENT

Products shall be delivered to Purchaser or its carrier Ex Works (Incoterms 2010) Kuiper’s facility (unless otherwise stated) and title and risk of loss to each Product sold by Kuiper to Purchaser shall pass to Purchaser upon delivery to the carrier at Kuiper’s facility.  Special shipping instructions must be received from the Purchaser three (3) business days before the shipment date; otherwise, Kuiper reserves the right to use its judgment in selecting the means of shipment.   Any additional shipping cost incurred at the request of the Purchaser will be charged to the Purchaser.  Unless otherwise agreed in writing, Kuiper’s standard packaging will be used.  If the Purchaser cannot accept delivery of Products, Purchaser will arrange for storage and shall bear all costs for such storage.  Kuiper shall not be liable for any delays in transit of Products.  Kuiper shall not be liable to or responsible for any damages or loss for delay or default in delivery due to any cause beyond Kuiper’s reasonable control, nor shall Purchaser cancel or have the right to cancel Its Purchase Order because of delays or default in delivery due to such causes.  Requests to cancel or modify all or any part of a Purchase Order by Purchaser may be granted by Kuiper if made more than thirty (30) days before the estimated shipping date, subject to a restocking fee of up to 40% for any Products for which a Purchase Order is canceled.  No cancellation or modification of Purchaser’s Purchase Order may be made within thirty (30) days before the estimated shipping date.

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STATEMENT OF LIMITED WARRANTY, WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY.

The Limited Warranty, the warranty disclaimers and the limitations of liability set forth in these Terms & Conditions of Sale shall apply to all sales of Products made hereunder.

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KUIPER LIMITED WARRANTY

This limited warranty (“Limited Warranty”) constitutes the complete and exclusive warranty agreement between the original buyer (“Purchaser”) of the Kuiper Products and Kuiper grow inc. and its worldwide parent, subsidiaries and affiliates regarding the warranty for the Products and supersedes any prior warranty or representation, including representations made in Kuiper sales literature or advice given to Purchaser by Kuiper or an agent or employee of Kuiper, that may have been made in connection with Purchaser’s purchase of the Products. No change to the conditions of this Limited Warranty is valid unless it is made in writing and signed by an authorized representative of Kuiper.

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Kuiper warrants to Purchaser that, subject to the terms of this Limited Warranty, each new Product sold by Kuiper to Purchaser shall be free from defects in material and workmanship in normal use and service for a period equal to the earlier of twelve months (For dimmers) or 5 years (For qualified Luminaires) from (i) the date of start-up (as evidenced by a document executed by Kuiper, if applicable) or (ii) the date of shipment from Kuiper (as shown in the records of Kuiper) (the “Limited Warranty Period”).

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This Limited Warranty is non-transferable to anyone who obtains ownership of the Product from Purchaser and is subject to the following additions, exceptions, exclusions, and limitations.

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This Limited Warranty does not apply to (i) failure occurring as a result of abuse, misuse, negligent repairs, repairs performed by non-Kuiper-certified personnel, corrosion, erosion, normal wear, and tear, alterations or modifications made to the Product without the express written consent of Kuiper; (ii) failure resulting from attachments, accessory items, and parts not sold or approved by Kuiper, damages arising from shipping, installation, accidents, tampering, vandalism or acts of God, (iii) failure resulting from any installation of the Product by third parties; (iv) failure resulting from any use judged by Kuiper as improper; or (v) failure to follow the recommended operating practices and maintenance procedures as provided in the Products’ operating and maintenance manuals.

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Kuiper reserves the right to modify, alter, and improve any Product part or parts without incurring any obligation to replace any Product previously sold without such modified, altered, or improved part or parts.

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No person is authorized to give any other warranty or to assume any additional obligation on Kuiper’s behalf unless made in writing and signed by an authorized representative of Kuiper.

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This Limited Warranty shall cease to apply if the Products are removed from the country to which they were originally shipped by Kuiper.

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PROCEDURES

Kuiper does not accept returns on any Products.  Replacements for defective Products will be provided in accordance with this Limited Warranty. To make any warranty claim hereunder, please send an email to support@kuipergrow.com for complete instructions. If approved, Kuiper will issue an RMA (Return Merchandise Authorization) and a replacement product will be sent out upon receipt of the defective units. Kuiper will either replace or repair the defective unit based upon our discretion. Items returned without an RMA number will be rejected and returned to sender.

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Purchasers requesting an advance replacement will be required to provide payment information for a replacement unit which Kuiper will keep as a pending charge for the original cost of the item. If Kuiper does not receive the defective unit back within 25 days from the shipment of the replacement, Kuiper will process the pending charge against Purchaser’s credit card and the replacement unit will no longer be accepted for return by Kuiper.

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Once Kuiper receives the defective item, the unit will be examined for physical damage. If after review all are present and the unit is in “good” condition, then the pending charge will be voided.  If Kuiper’s testing and examination do not disclose a defect warranted hereby, Kuiper shall so advise Purchaser and shall dispose of the Product in accordance with Purchaser’s instructions. In addition, Purchaser shall reimburse Kuiper for services provided to test and examine such Products at Kuiper’s standard commercial time and materials rates. Purchaser agrees to provide Kuiper with any substantiation requested by Kuiper, including proof of purchase, as a condition of receiving warranty service.

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No claim for breach of warranty, or any other claim, in tort, contract, or otherwise, arising out of or related to Products, may be commenced more than two (2) years following the expiration of the Limited Warranty set out above or the accrual of the claim, whichever occurs first.

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Repaired or replaced Products shall be warranted hereunder for the remainder of the Limited Warranty Period.

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DISCLAIMERS AND LIMITATION OF LIABILITY

EXCEPT AS EXPRESSLY SET FORTH IN THE LIMITED WARRANTY, KUIPER MAKES NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS WITH RESPECT TO ITS PRODUCTS AND SERVICES, EXPRESS OR IMPLIED. KUIPER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, OR PARTICULAR RESULTS.

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THE REMEDIES OF PURCHASER SET FORTH UNDER THE PROVISIONS OF LIMITED WARRANTY OUTLINED ABOVE ARE THE SOLE AND EXCLUSIVE LIABILITY OF FLUENCE WITH RESPECT TO THE PRODUCTS FURNISHED UNDER THESE TERMS & CONDITIONS OF SALE AND ANY RELATED WARRANTY SERVICES, WHETHER BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE.

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KUIPER SHALL IN NO EVENT BE LIABLE TO PURCHASER, ANY SUCCESSOR IN INTEREST OR ANY BENEFICIARY OR ASSIGNEE RELATING TO THE PRODUCTS FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, EVEN IF KUIPER WAS ADVISED OF OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES.

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ANY IMPLIED WARRANTIES THAT MAY BE IMPOSED BY LAW ARE LIMITED IN DURATION TO THE LIMITED WARRANTY PERIOD. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR CERTAIN PRODUCTS. IN SUCH JURISDICTIONS, SOME EXCLUSIONS OR LIMITATIONS OF THIS LIMITED WARRANTY MAY NOT APPLY TO PURCHASER.

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KUIPER’S MAXIMUM LIABILITY SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT UPON WHICH SUCH LIABILITY IS BASED.

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THE LIMITED WARRANTY DOES NOT APPLY TO PRODUCTS THAT HAVE BEEN SUBJECT TO MISUSE INCLUDING, BUT NOT LIMITED TO: THE APPLICATION OF A REVERSE VOLTAGE TO LEDS, STATIC DISCHARGE, OVERHEATING, WATER SUBMERSION, ACCIDENT, MODIFICATIONS, OR ALTERATION WHICH MAKES IT IMPOSSIBLE FOR FLUENCE TECHNICIANS TO TEST THE PRODUCT.  ALL PRODUCT WARRANTIES ARE VOID IF THE LED FIXTURES HAVE BEEN OPENED BY THE PURCHASER.

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FURTHER, PRODUCTS SOLD BY KUIPER ARE NOT AUTHORIZED FOR USE OUTSIDE OF THE HORTICULTURAL INDUSTRY.

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KUIPER IS NOT RESPONSIBLE FOR THE INDIRECT EXCHANGE OR RESALE OF PRODUCTS TO TERRITORIES THAT ARE RECOGNIZED UNDER FEDERAL OR INTERNATIONAL TRADE EMBARGOS.

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KUIPER LED LIGHTING PRODUCTS ARE EXTREMELY BRIGHT. PURCHASER SHOULD NOT STARE DIRECTLY INTO ANY OF THE LIGHTS. PURCHASER SHOULD ONLY USE LIGHT THERAPY LED FIXTURES UNDER A LICENSED DOCTOR’S SUPERVISION.

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TECHNICAL ADVICE DISCLAIMER

It is expressly understood that any technical advice furnished (via email, telephone, blog or any other form of communication) by Kuiper or any of its employees with reference to the use of Products is given without charge and Kuiper assumes no obligations or liability for such advice given or the results obtained. All such advice is given and accepted at the Purchaser’s risk. If Purchaser is not experienced with the use of high-powered LEDs and electronics, then Kuiper highly recommends that Purchaser engage an experienced electronics technician or engineer to provide Purchaser with assistance in the installation, maintenance and use of the Products.

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INTELLECTUAL PROPERTY

All trademarks, trade names, patents, copyrights, design, drawings, formulas or other data, photographs, samples, literature, and sales aids of every kind shall remain the property of Kuiper and/or its licensors. Purchaser agrees not to do anything inconsistent with that ownership or to contest ownership of such items. Purchaser also agrees that all use of Kuiper’s trademarks by Purchaser will inure to the benefit of Kuiper. Purchaser acknowledges that any software included in the Products is proprietary to Kuiper or its licensors and is subject to copyrights and trade secrets owned by Kuiper or its licensors. All references in these Terms & Conditions of Sale to “purchases,” “sales,” or words of similar import, with respect to any such software, signifies only the acquisition of a license for such software for use with the Products in accordance with the terms of this Agreement.  Purchaser shall have no access to, or rights in, the source code of any software included in the Products.  Purchaser shall have no right to copy, modify or remanufacture any Product or part thereof, nor reproduce any written material supplied by Kuiper without the explicit written consent of Kuiper.

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CONFIDENTIALITY

The terms hereof, the Products, and any other materials and information provided by Kuiper to Purchaser hereunder, whether orally, in writing, or by inspection of tangible objects, including without limitation technical data, research, product plans, or know-how constitute and contain proprietary and confidential information of Kuiper (“Confidential Information”).   Purchaser may not disclose Confidential Information to any person other than its employees with a need to know such information or consultants under contract to Purchaser who have agreed in writing to be bound by confidentiality restrictions at least as protective of the Confidential Information as these Terms & Conditions of Sale.  Purchaser may not use the Confidential Information for any purpose other than to exercise its rights under these Terms & Conditions of Sale. Purchaser shall take reasonable measures to protect the secrecy of and to avoid the unauthorized use and disclosure of the Confidential Information. Purchaser shall immediately notify Kuiper in the event it becomes aware of any unauthorized or suspected unauthorized use or disclosure of Confidential Information.

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TERM AND TERMINATION

These Terms & Conditions of Sale shall continue indefinitely in force from the date hereof unless terminated under the provisions of this Section.   If either party materially defaults in the performance of any provision of these Terms & Conditions of Sale, the non-defaulting party gives written notice to the defaulting party thereof, and the default is not cured within thirty (30) days of the date of receipt of such notice, the non-defaulting party may terminate these Terms & Conditions of Sale by giving thirty (30)  days written notice.   The provisions of Sections of this Agreement that survive by their very nature shall survive the termination of these Terms & Conditions of Sale for any reason.

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NOTICE

Any notice required or permitted by these Terms & Conditions of Sale shall be in writing and shall be sent by prepaid registered or certified mail, return receipt requested, to the address shown on the Quotation. Such notice shall be deemed to have been given three (3) days after deposit in the mail.

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FORCE MAJEURE

Except for the payment obligations set forth in Section 3, above, the nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, natural disaster, governmental acts or orders or restrictions, failure of suppliers, acts of terrorism, energy shortage, epidemics, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the nonperforming party.

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SEVERABILITY

If any provision in these Terms & Conditions of Sale is found or held to be invalid or unenforceable in any respect, such unenforceability will not affect any other provisions of these Terms & Conditions of Sale.

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GOVERNING LAW

These Terms & Conditions of Sale and any sale of Products made hereunder shall be governed by and construed in accordance with the laws of Canada, without regard to its choice of law provisions, and not by the 1980 U.N. Convention on Contracts for the international sale of goods.  Any action to enforce these Terms & Conditions of Sale shall be brought in the Toronto, Canada. Any cause of action or claim Purchaser may have with respect to the Kuiper Products must be commenced within one (1) year after the claim or cause of action arises. Kuiper’s failure to insist upon or enforce strict performance of any provision of these terms and conditions shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any of these terms and conditions.

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ASSIGNMENT

Purchaser shall not assign these Terms & Conditions of Sale or any portion thereof without the prior written consent of Kuiper, which consent shall not be unreasonably withheld or delayed.  Kuiper may assign its rights and duties under this Agreement to any party at any time without notice to Purchaser.

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COMPLIANCE WITH LAWS

Kuiper Products are not designed or intended for use in connection with the illegal manufacturing, cultivation, or production of controlled substances. Kuiper products are intended for commercial horticultural and research uses in accordance with applicable law. The lawful and proper use of Kuiper Products is a condition of their sale.  Any improper use of the Kuiper Products voids the warranty otherwise provided. Any illegal use of Kuiper Products could subject the Purchaser to severe fines, penalties and/or imprisonment under applicable law. Purchaser acknowledges that neither Kuiper, nor any of its agents, affiliates, directors, employees and associates may be held liable, responsible or accountable for any type of damage, litigation or other legal action, which may arise from Purchaser’s legal or illegal use of Kuiper products, websites, or consultation, and Purchaser agrees to indemnify and hold harmless Kuiper from and against any and all such liability.

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ENTIRE AGREEMENT

The Quotation and these Terms & Conditions of Sale shall supersede all other proposals by Kuiper and shall constitute the entire agreement between the parties.

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ATTORNEYS FEES

The prevailing party in any legal action brought by one party against the other and arising out of these Terms & Conditions of Sale shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys’ fees.

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