Terms and Conditions
- Entire Agreement. These Terms and Conditions apply to the Sales Order (the “Order”) and shall constitute the entire agreement (the “Agreement” or “Terms and Conditions”) of Bluum Holdings, LLC, or its affiliates Bluum USA, Inc., Bluum Technology Canada, Inc., Bluum (US) Corporation, LifeSpan International, Inc., Bluum Integration, LLC, Bluum of Texas, LLC and Bluum of Minnesota, LLC (collectively “we”, “us”, “our”, “Seller” and “Bluum”), and Buyer with respect to the subject matter hereof. These Terms and Conditions are controlling and shall supersede any prior or contemporaneous agreements, understandings or representations, oral or written, relating to the subject matter hereof. These Terms and Conditions shall govern in the event of any conﬂict between these Terms and Conditions and any provision contained in any subsequent Sales Order or Purchase Order or otherwise, the terms of which, whether conflicting, supplemental or otherwise, are expressly rejected.
- Shipment, Title and Risk of Loss. Unless otherwise agreed in writing, or pursuant to a Buy and Hold transaction, title and risk of loss pass from Seller to Buyer upon receipt of shipment from Seller. Seller is responsible for damage that occurs during shipment to the customer (FOB Destination), unless the customer has arranged the shipping contract with their own provider. If the buyer has arranged their own shipping method, the buyer would assume responsibility and ownership of the goods once the shipment is picked up at the Sellers location (FOB Origin). Unless otherwise agreed in writing, the method of shipment will be at Seller’s discretion. Any delivery or shipment date is an estimate only.
- Payment. For accounts where credit has been established, terms are net 30 days following the date of invoice. Amounts not paid in full within 30 days of date of invoice will be subject to a service charge of 1% per month on the unpaid balance to be included on each month’s statement until paid in full. Payment options are EFT or check. Bluum uses progress billing and invoices for equipment and services independently. Equipment is billed upon shipment. Labor and services billing will be based on labor incurred, generally at the completion of the project or based on completion percentage. All payment terms outside of the general terms and conditions must be negotiated and all parties must be in agreement prior to the start of any and all work.
- Taxes and Other Charges. In addition to any price provided in this Agreement, Buyer shall be liable for any tax, fee or other charge imposed on Seller at any time upon the sale and/or shipment of the products sold hereunder, now imposed by federal, state, municipal or any other governmental authorities or hereafter becoming effective for or during the period hereof.
- Cancellation or Default by Buyer. This Order may not be cancelled in whole or in part by Buyer except with Seller’s written consent. If at any time, in Seller’s opinion, Buyer’s credit is impaired, or if Buyer shall fail to pay to Seller any amount when due, under this or any other agreement, or if at any time Buyer shall indicate an intention to refuse to perform its obligation hereunder, Seller may at its option terminate this Agreement with respect to further shipments and all obligations of Buyer with respect to shipments previously made shall become immediately due and payable. In the event of such termination, Buyer shall remain liable to Seller for any and all loss or damage sustained due to Buyer’s default. The Buyer’s Liability, at the time of cancellation would be greater than or equal to 10% of the total of the order.
- Customized Goods. In the event that the Order is for customized products or specially manufactured goods, or for products that Buyer customizes after receipt of the products, the Bluum customized Product Sales Form shall be completed, attached hereto, and incorporated into these Terms and Conditions.
- Bill and Hold Transaction. In the event Buyer has requested that Seller bill and hold the products pursuant to the Order, the Bluum Bill and Hold Agreement shall be completed, attached hereto, and incorporated into these Terms and Conditions.
- Force Majeure. Seller shall not be liable for any loss, damage, delays, changes in shipment schedules or failure to deliver caused by any event beyond its reasonable control, including, without limitation, accident, ﬁre, actual or threatened strike or riot, explosion, mechanical breakdown (including technological or information systems), plant shutdown, unavailability of or interference with necessary transportation, any raw material or power shortage, compliance with any law, regulation or order, acts of God or public enemy, prior orders from others, or limitations on Seller’s or its suppliers’ products or marketing activities or any other cause or contingency beyond Seller’s control.
- Limitation on Warranty and Remedies. Seller warrants those products manufactured by it against defects caused solely by faulty assembly for 30 days after delivery. All other products, and the components and materials utilized in any assembled or customized products, are covered by, and subject to, the terms, conditions and limitations of the manufacturer’s standard warranty, which warranty is expressly in lieu of any other warranty, express or implied, of or by Bluum or the manufacturer. Buyer’s exclusive remedy, if any, under these warranties is limited, at Bluum's election, to any one of (a) refund of Buyer’s purchase price or (b) replacement of any such product. Buyer acknowledges that except as specifically set forth or referenced in this paragraph, THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (INLCUDING, WITHOUT LIMITATION, IN ADVERTISING MATERIALS, BROCHURES, OR OTHER DESCRIPTIVE LITERATURE) BY SELLER OR ANY OTHER PERSON, EXPRESS OR IMPLIED, AS TO THE CONDITION OR PERFORMANCE OF ANY PRODUCTS, THEIR MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. SELLER ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR MANUFACTURER’S PRODUCT SPECIFICATIONS OR THE PERFORMANCE OR ADEQUACY OF ANY DESIGN OR SPECIFICATION PROVIDED TO SELLER BY OR ON BEHALF OF BUYER. NO WAIVER, ALTERATION, ADDITION OR MODIFICATION OF THE FOREGOING CONDITIONS SHALL BE VALID UNLESS MADE IN WRITING AND SIGNED BY AN OFFICER OF SELLER. SELLER SHALL UNDER NO CIRCUMSTANCES, WHETHER FOR A FAILURE OF ITS LIMITED REMEDY OR OTHERWISE, BE LIABLE TO BUYER OR OTHERWISE FOR SPECIAL, INCIDENTAL, DIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES.
- Software License. Title to any software installed with the products sold to Buyer remains with the applicable licensor(s). All software is subject to the applicable license agreement that is included with the products. Buyer agrees to be bound by the license agreement once the software is opened, the package is opened or its seal is broken. Warranty for any software shall be in accordance with the license agreement. Seller does not warrant any software under this Agreement.
- Limitation of Actions. Products are deemed accepted by Buyer unless Buyer notifies Seller in writing within 10 days after receipt of products, if for quantity, or within 30 days after receipt of products, if for quality, loss of or damage to products, and the products must be held available at Buyer’s place of business for Seller’s inspection. Any action for breach of this Agreement, other than for non-payment, must be commenced within one year of the date of shipment, or due date of delivery in the event of non-delivery, of the particular shipment upon which such claim is based. No claim may in any event be made after products have in any way been used or processed by the Buyer. Buyer’s remedies set forth herein are exclusive and the total liability of Seller for damages with respect to this Agreement, or anything done in connection therewith, shall be limited to the purchase price of the particular shipment with respect to which such damages are claimed.
- Returns. Please inspect product upon delivery. All claims for defective merchandise or errors in shipping must be made within five days after receipt of goods. Clients using their own carriers will be responsible for filing their own freight claims if product is damaged in transit. Returns for non-defective items required an authorization number and must be made within 30 days. Custom orders and “consumables”, such as projector lamps, may not be returned. Returns are subject to restocking fees with the exception of out of box failures and replacements under warranty. Restocking fees vary depending on the product line, expect a minimum charge of 25%.
- Indemnification. Buyer shall indemnify and hold Seller harmless from and against any and all claims, actions, suits, proceedings, costs, demands, damages and liabilities of any nature, relating to or in any way arising out of the delivery, rejection, installation, possession, use, operation, control or disposition of the products purchased by Buyer.
- Governing Law. This Agreement shall be exclusively governed by and construed in accordance with the internal laws of the state of Minnesota.
- Amendment. This Agreement shall not be amended except by a writing signed by an officer of the Seller and specifically stating that it is an amendment.
- Venue. Any suit, action or proceeding with respect to this Agreement must be brought exclusively in the courts of the State of Minnesota or in United States courts located in the State of Minnesota, as either party may elect, and Buyer hereby submits to the jurisdiction of such courts for the purpose of any suit, action or proceeding. Buyer irrevocably waives any objections which it may now or hereinafter have to the venue of any suit, action or proceeding arising out of or relating to this Agreement in the courts located in the State of Minnesota and irrevocably waives any claim that any suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
- Timeframe for Delivery of Professional Development Services (Training). Bluum shall deliver any professional development services to the buyer within 12 months after placement of sales order. Bluum shall no longer be liable to provide professional development services after 12 months. Bluum will consider any contract to deliver professional development services fulfilled on the date 12 months after placement of sales order.
- Pricing Adjustments as it Relates to Tariffs. If/When international tariff changes impact any product(s) included in this quote, Bluum reserves the right to adjust or cancel this quote.
Disposal. The client will be responsible for providing adequate facilities for the disposal of project related waste.
ACCEPTANCE AND COMPLETE AGREEMENT. These Terms and Conditions apply to the entire agreement (the “Agreement” or “Terms and Conditions”) of Bluum Holdings, LLC, or its affiliates Bluum USA, Inc., Bluum Technology Canada, Inc., Bluum (US) Corporation, LifeSpan International, Inc., Bluum Integration, LLC, Bluum of Texas, LLC and Bluum of Minnesota, LLC (collectively “we”, “us”, “our”, “Buyer” and “Bluum”). This purchase order is Buyer’s offer to Seller and is not an acceptance by Buyer of any offer to sell by Seller or of any terms and conditions contained in any such offer. Acceptance of this offer by Seller may be made by (a) executing and returning an acknowledgement copy of this purchase order, or (b) delivering any of the goods ordered herein or (c) rendering any of the services ordered herein. Any additional or different terms proposed by Seller are objected to and rejected unless expressly assented to in writing by Buyer. This purchase order is a complete and exclusive statement of the terms and conditions of the agreement between Seller and Buyer.
CANCELLATION. Time is of the essence in this purchase order. Buyer may cancel this purchase order, or any portion of this purchase order, without liability, if: (a) delivery is not made when and as specified; (b) Seller fails to meet contract commitments as to exact time, price, quality or quantity; (c) Seller ceases to conduct its operation in the normal course of business; (d) Seller is unable to meet its obligations as they mature;(e) proceedings are instituted against Seller under the bankruptcy laws or any other laws relating to the relief of creditors; (f) a receiver is appointed or applied for by Seller; for (g) any assignment is made by Seller for the benefit of creditors. Buyer also reserves the right to cancel for any other reason permitted by the Uniform Commercial Code then in effect in the state where Buyer has issued this purchase order.
INVOICE AND PAYMENT. A separate invoice shall be issued for each shipment. Unless otherwise specified on this purchase order, no invoice shall be issued prior to shipment of the goods and no payment shall be made prior to receipt of both the goods and a correct invoice. Applicable discount periods shall be computed from the date of receipt of the goods and a correct invoice to the date Buyer’s check is mailed. Unless freight and other charges are itemized, discount shall be taken on the full amount of invoice.
INDEMNITY AND INSURANCE.(a) Patent Indemnity. Seller, at its expense, shall protect, defend and indemnify Buyer, Buyer’s customers, and the users of Buyer’s goods against all claims and proceedings alleging infringement of any United States or foreign patent by any goods delivered under this purchase order, and Seller shall hold them harmless from any resulting liability and losses, provided Seller is reasonably notified of such claims and proceedings. Seller’s obligation shall not apply to goods manufactured pursuant to detailed designs furnished by Buyer nor to any infringement arising from the use or sale of goods in combination with goods not delivered by Seller if such infringement would not have occurred from the use or sale of such goods solely for the purpose for which they were designed or sold to Buyer.
(b) General Indemnity. Seller, at its expense, shall indemnify Buyer and save Buyer harmless from any and all liability, demands, causes of action or claims, whether well founded or otherwise, including the cost of defending the same, for breach of warranty (provided that Buyer makes no express or implied warranties of goods greater in scope than the warranties made by Seller in this purchase order) and for bodily injury to any person or damage to property, either real or personal, of any person whomsoever in any way arising out of, in the course of, or in connection with the goods or services purchase hereunder or the operations of the Seller in carrying out the provisions and terms of this Agreement.
(c) Insurance. Seller shall maintain such public liability insurance, including products liability, completed operations, contractors liability and protective liability, automobile liability insurance (including non-owned automobile liability) and Workmen’s Compensation, and employer’s liability insurance as will adequately protect Buyer against such damage, liabilities, claims, losses and expenses (including attorney’s fees) as are described in this paragraph 4. Seller agrees to submit certificates of insurance evidencing its insurance coverage when requested by Buyer.
INSPECTION AND REJECTION. All goods are subject to final inspection and acceptance by Buyer at delivery destination notwithstanding any payment or prior inspection at source. Such inspection will be made within a reasonable time after receipt of goods.
Buyer shall notify Seller if any goods delivered hereunder are rejected, and at Buyer’s election and Seller’s risk and expense, such goods shall be held by Buyer or returned to Seller. No replacement or correction of nonconforming goods shall be made by Seller unless agreed to in writing by Buyer. Buyer shall also have all rights and remedies available under law or equity with respect to non-conforming or rejected goods and with respect to Seller’s breaches of these terms and conditions.
CHANGES AND DISCREPANCIES. Any discrepancies, omissions or lack of clarity in drawings, specifications, or purchase orders must be referred to the Buyer for written interpretation before this purchase order is processed. Buyer shall have the right at any time before completion of the purchase order to make changes in quantities, in drawings and specifications, in delivery schedules, and in methods of shipment and packaging. If such changes cause an increase or decrease in price or in the time required for performance, Seller shall promptly notify Buyer thereof in writing and equitable adjustment shall be made. Changes shall not be binding upon Buyer unless evidenced by a purchase order change notice and signed by Buyer.
WARRANTY. Seller expressly warrants that all goods and services ordered, or provided hereunder, will conform in all respects to the specification, drawings, samples and other descriptions (both oral and written and whether set forth in sales or marketing media or otherwise) and will be merchantable and free from any defects in material, design or workmanship. If Buyer has furnished performance requirements for the goods purchased hereunder, Seller further warrants that such goods shall be fit and sufficient for the purposes for which Buyer intends them. Seller also warrants that the goods provided under this purchase order shall be free and clear of any lien or other adverse claim against title. This purchase order is based upon both the express and implied warranties contained herein and such warranties form a part of the basis of the bargain for the Buyer. No warranty of any kind, whether express or implied, arising under law, equity or course of dealing is disclaimed by Seller or waived by Buyer, and all such warranties are hereby reserved. In addition to any other remedies Buyer may have, Buyer may reject goods not conforming to the foregoing warranties, whether or not such goods shall have been previously accepted by Buyer or any prior payments shall have been made thereon. Seller further warrants that no law, rule, regulation, ordinance or Executive Order of the United States, as state or local government, or any other government or any other governmental agency has been violated in the manufacture, transportation, delivery or sale of the goods or the performance of the services covered by this purchase order. Seller agrees that the foregoing warranties shall survive delivery, acceptance, inspection, test, use of, and payment for the goods, materials or services provided hereunder and shall inure to the benefit of Buyer and its customers.
CONFIDENTIAL INFORMATION. Seller shall keep confidential all information, drawings, specifications, or data furnished by Buyer, whether such information is transmitted in written form, orally, or electronic form, where such information is transmitted by Buyer through its employees, agents, contractors, customers or other third parties at the request of Buyer, or prepared by Seller specifically, in connection with this purchase order.
LIMITATIONS OF BUYER’S LIABILITY; STATUTE OF LIMITATIONS. IN NO EVENT SHALL BUYER BE LIABLE FOR ANTICIPATED PROFITS OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. BUYER’S LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THIS CONTRACT, OR FROM THE PERFORMANCE OF BREACH HEREOF, SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE GOODS OR SERVICES OR UNIT THEREOF WHICH GIVES RISE TO THE CLAIM. BUYER SHALL NOT BE LIABLE FOR PENALTIES OF ANY DESCRIPTION. ANY ACTION RESULTING FROM THE BREACH ON THE PART OF BUYER AS TO THE GOODS OR SERVICES DELIVERED HEREUNDER MUST BE COMMENCED WITHIN 1 YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
CHOICE OF LAW. This purchase order shall be governed exclusively by the laws of the State of Minnesota without regard to principles of conflict of laws. Seller agrees that any claims or causes of action which relate to or arise out of this purchase order shall be instituted and litigated only in, and Seller voluntarily submits to the exclusive jurisdiction by a court of competent jurisdiction located within the State of Minnesota.
ATTORNEYS’ FEES. Seller shall pay all expenses, charges, costs and fees incurred by Buyer in enforcing any of these terms and conditions, including, without limitation, Buyer’s attorneys’ fees, regardless of whether litigation is commenced or pursued.
ACKNOWLEDGMENT OF RESALE. Seller hereby acknowledges that Buyer is purchasing the goods with an intent to resell the goods, and is relying on these terms and conditions to do so.