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Sales Order Terms and Conditions

 

      1. 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.

      2. 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.

      3. 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.

      4. 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.

      5. 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.

      6. 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.

      7. 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.

      8. 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.

      9. 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.

      10. 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.

      11. 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.

      12. 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%.

      13. 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.

      14. Governing Law. This Agreement shall be exclusively governed by and construed in accordance with the internal laws of the state of Minnesota.

      15. 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.

      16. 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.

      17. 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.

      18. 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.

      19. Disposal. The client will be responsible for providing adequate facilities for the disposal of project related waste.

      20. Terms and Conditions for Purchase of "Accessibility for Digital Resources Foundations" Course.
        1. Entire Agreement. These Terms and Conditions constitute the agreement (the “Agreement”) between Bluum Holdings, LLC, and/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, “Bluum”), and the Recipient (“You” or “Recipient”) of the Accessibility for Digital Resources Foundations Course (the “Course”). If You do not agree to these Terms and Conditions, You may not continue with the download or streaming of the Course.
           
        2. Ownership of Intellectual Property. As between Bluum and Recipient, all right, title and interest in the Course, inclusive of all software, trademarks, copyrights, and other intellectual property rights therein, remains with Bluum and You obtain no rights thereto except as expressly provided by this Agreement. Bluum reserves all rights not explicitly granted herein.

        3. Covenant not to Create a Competing Product. By downloading, streaming, viewing or otherwise accessing the Course, You agree not to create, market and/or sell any derivative work(s) of or from the Course (or any part thereof) or any similar program with the same themes, language, structure, format or wording to compete with the Course (“Competing Product”), even if such Competing Product would be deemed “fair use” of the Course under copyright and/or trademark law. You acknowledge that there has been significant time, energy and expense put into the creation of the Course, and any creation of a Competing Product would be damaging to Bluum. The pricing for the Course reflects a discount based upon your agreement not to create a Competing Product. If You create a Competing Product in contravention of this Agreement, to the extent that such Competing Product may be considered a derivative work of the Course or copies any portion of the Course in whole or in part (without regard to whether such Competing Product or copy may constitute fair use), You agree that Bluum shall be considered the owner of the Competing Product, and, to the extent that Bluum cannot be considered the owner of the Competing Product, You agree to assign all rights in the Competing Product to Bluum or to exclusively license the Competing Product to Bluum. In all cases, You hereby covenant not to sue Bluum for any alleged use of any content in any Competing Product.

        4.  License to the Course. 
           
          1. If You purchase a download of the Course:
            1. Bluum hereby grants to You a license to publicly perform (i.e., to playback the audio/visual content of) the Course via any digital media to viewers who are employed by, contracted with, or otherwise affiliated with You (“Viewers”), with no limitation on location or number of performances. You may not perform or otherwise share the Course with anyone other than the Viewers described in the prior sentence.  
            2. All performances of the Course must be accompanied by an introduction, either audio or visual, and either live or pre-recorded, that clearly states that the Course has been provided to You (and the Viewers) for educational purposes by Bluum, and that Viewers may not record, take screenshots of, save or otherwise exploit the Course or any part thereof on or in any media.  
            3. Bluum hereby grants to You a license to reproduce and copy the Course via download from the website where it is hosted for the limited purpose of performing the Course to Viewers. 
            4. All licenses granted hereunder are without the right to sublicense to any third-party, including to Viewers. 
            5. You may not use the Course in any commercial manner. You may not charge anyone for viewing the course without the express written permission of Bluum. 
            6. You may not remove any logos, intellectual property markings, or other intellectual property information from the Course.

          2. If You purchase a streaming performance of the Course: 
            1. Bluum will provide You with log-in information to access the Course on a website where it is hosted (the “Website”). You may share this log-in information only with persons who are employed by, contracted with, or otherwise affiliated with You (“Authorized Users).
            2. Bluum hereby grants to You and Authorized Users a license to stream the Course from the Website for public performance for an unlimited number of Authorized Users, so long as the Course is available on the Website and Your log-in information is operable. Bluum may disable the Course at any time with or without notice to You. 
            3. You and any Authorized User may not stream, perform, use or otherwise share the Course with anyone other than Authorized Users.  
            4. Neither You nor Authorized Users may record, take screenshots of, save or otherwise exploit the Course or any part thereof on or in any media.  
            5. All licenses granted hereunder are without the right to sublicense to any third-party. 
            6. Neither You nor any Authorized User may use the Course in any commercial manner. You may not charge anyone for viewing the course without the express written permission of Bluum. 
            7. You may not remove any logos, intellectual property markings, or other IP from the Course.  

        5. Information Disclaimer. The information contained in the Course is for informational purposes only and is not intended to address every accessibility issue You may encounter. Vision and hearing disabilities have been addressed as they are the most common disabilities that create obstacles on digital media. However, there are other disabilities that will require different accommodations to be made. Bluum encourages You to seek legal assistance when implementing the information in the Course and when developing a digital accessibility policy. Moreover, the standards for web accessibility change from time to time, and we make no guarantee that the Course has the most up to date material or information.

        6. Third-Party Content Disclaimer. This Course cites to third-party services that may provide guidance on accessibility matters. Bluum is not affiliated with any of these third-party services and does not endorse or recommend that You use any particular service.

        7. NO WARRANTY. LIMITATION OF LIABILITY. THE COURSE IS DELIVERED “AS IS” AND BLUUM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONDITION, PERFORMANCE, ACCURACY, THE FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. THE COURSE IS NOT INTENDED TO BE NOR SHALL IT BE CONSTRUED TO PROVIDE ANY LEGAL ADVICE. IN NO EVENT WILL BLUUM BE LIABLE TO RECIPIENT FOR ANY SPECIAL, INCIDENTAL, DIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN EXCESS OF THE AMOUNT RECEPIENT PAID FOR THE COURSE.

        8. Governing Law and Venue. This Agreement shall be exclusively governed by and construed in accordance with the internal laws of the state of Minnesota. Any suit, action or proceeding with respect to this Agreement must be brought exclusively in the federal and state courts located within State of Minnesota and Recipient hereby submits to the jurisdiction of such courts for the purpose of any suit, action or proceeding. Recipient 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 federal and state 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. Recipient further agrees to waive any rights to file or participate in a class action arising out of the purchase and/or use of the Course. Any claim that may be brought against Bluum must be brought within one (1) year of its accrual, regardless of the regular statutes of limitations.