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TOGGLED – TERMS AND CONDITIONS OF SALE

NOTICE: These terms and conditions of sale (“Terms”) govern your (the “Purchaser”) purchase of any ilumisys, Inc. dba toggled (“Seller”) LED replacements for fluorescent tubes (the “Products”).   Any purported acceptance by Seller of a purchase order is expressly conditional upon Purchaser’s acceptance of these Terms. Seller hereby objects to any and all additional or different terms and conditions of sale and delivery proposed by Purchaser.

  1. Acceptance. All purchase orders received by Seller are subject to final acceptance or confirmation by Seller and no terms or purchase orders are binding upon Seller until so accepted. Written authorization to proceed with work is considered to be the same as a purchase order for purposes of these Terms.
  1. Deliveries. All deliveries are F.O.B. Seller’s shipping/dock facility. All risk of loss to Products sold shall pass to Purchaser upon delivery by Seller to Seller’s shipping/dock facility. Title to the Products shall remain with Seller until Purchaser pays the purchase price as specified on the invoice in full to Seller. Delivery is conditional on the timely receipt by Seller of documents necessary for the completion of the purchase order, any down payment, and Purchaser’s compliance with these Terms. Seller will use reasonable efforts to meet delivery schedules. Seller will not be liable for any delay in the performance of any purchase orders, or in the delivery or shipment of Products, or for any damages suffered by Purchaser by reason of such delay. Delivery is subject to Purchaser maintaining credit satisfactory to Seller. Seller may suspend or delay performance or delivery at any time pending receipt of assurances, including full or partial prepayment or payment of any outstanding amounts owed, adequate to Seller in its discretion, of Purchaser’s ability to pay. Failure to provide such assurances shall entitle Seller to cancel any purchase order issued against these Terms without further liability or obligation to Purchaser.
  1. Prices. Prices are quoted F.O.B. Seller’s shipping/dock facility. Prices do not include sales, use, excise, privilege or any similar tax levied by any government, and Purchaser shall pay any such applicable tax. Upon the request of Seller, and when applicable, Purchaser shall provide Seller a tax exemption certificate acceptable to the appropriate taxing authorities.
  1. Terms of Payment. The purchase price for the Products shall be due in full by Purchaser thirty (30) days after date of invoice or as otherwise provided in Seller’s invoice. Extensions of credit, if any, may be changed or withdrawn by Seller at any time. Invoices not paid on their date due will be subject to carrying charges which shall accrue and be added to the unpaid balance in the amount of one and one-half percent (1 ½%) per month of any overdue unpaid balance, or the maximum rate permitted by law, whichever is less. Purchaser shall reimburse Seller for the costs of collection, including, without limitation, reasonable attorneys’ fees, of any overdue amount owed by Purchaser to Seller, and such collection costs shall also be subject to the carrying charges. Purchaser may not hold back or set-off any amounts owed to Seller in satisfaction of any claims asserted by Purchaser against Seller.
  1. Cancellation/Changes. Purchaser may not cancel or change a purchase order once placed with and accepted by Seller except with the prior written consent of Seller and upon terms that will indemnify Seller against any loss. Seller may correct mathematical, clerical or transcription errors.
  1. Limited Warranty. The applicable warranty for all Products sold by Seller is available at www.toggled.com/warranty.
  1. Limitation and Disclaimer of Liability. SELLER SHALL NOT BE LIABLE TO PURCHASER OR TO ANY THIRD PARTY FOR (i) ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR (II) ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH INSTALLATION SERVICES PROVIDED TO AN END USER BY PURCHASER, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SELLER’S AGGREGATE LIABILITY FOR ANY AND ALL DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS SHALL BE LIMITED TO THE LESSER OF THE ACTUAL DAMAGES INCURRED OR $20,000.
  1. Security Agreement. Purchaser hereby grants to Seller a continuing purchase money security interest in all Products sold and/or delivered to it and to the proceeds thereof. Purchaser shall execute and deliver any financing statements and other documents that Seller may reasonably require for the perfection of Seller’s security interest and Purchaser hereby authorizes Seller to do all other acts reasonably necessary for the establishment, perfection, preservation, and enforcement of its security interest.
  1. Limitations. Any action by Purchaser under or relating to this Agreement or the Products sold must be commenced within one (1) year after such cause of action has accrued.
  1. Installation Services. Purchaser may make available to end users particular installation services as mutually agreed between the Purchaser and the end user (“Installation Services”).  Purchaser shall indemnify, defend and hold harmless Seller, and its affiliates, against all losses, damages, liabilities, costs and expenses (including but not limited to attorney’s fees) resulting from any action, suit, claim, demand or proceeding relating to Installation Services.
  1. Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Michigan without reference to principles of conflicts of law.
  1. Entire Agreement. Seller and Purchaser acknowledge that these Terms, together with Seller’s invoice, constitute the entire agreement between Seller and Purchaser with regard to the sale or transfer of the Products sold and supersede all prior oral or written statements of any kind made by the parties or their representatives. These Terms may not be amended, modified, or supplemented except by written agreement executed by Seller and Purchaser. The provisions of the Terms are hereby deemed by the parties to be severable and the invalidity or unenforceability of one provision shall not affect the validity or enforceability of any other provision.