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Kendila

Terms and Conditions

These Standard Terms and Conditions of sale ("Standard Terms") shall govern all sales transactions between Kendila Group Inc. and its affiliates ("kendila", “kendila lighting”) and the customer whose name appears on Kendila’s purchase order (the "Customer"), and neither the Customer's purchase order nor any other writing from the Customer shall be binding or have any force or effect on Kendila. 


Kendila's acceptance of all orders and all offers and sales by Kendila are subject to and expressly conditioned upon the Customer's assent to these Standard Terms. Customer's acceptance of any offer by Kendila must be made on such terms and conditions exactly as offered by Kendila. These Standard Terms are effective for all sales of Kendila products from and after the date indicated above. By placing an order with Kendila, accepting delivery of any Kendila products, making payment to Kendila, or otherwise engaging in any business transaction with Kendila, the Customer is deemed to have read, understood, and unconditionally accepted these Standard Terms in full, without the need for any separate signed acknowledgement. Customers who do not accept these Standard Terms should not order or accept delivery of products from Kendila. Acceptance of Kendila products by the Customer or ordering Kendila products shall be deemed the Customer's assent to these Standard Terms. Commencement of performance or shipment shall not be construed as acceptance of any of the Customer's terms and conditions which are different from or in addition to these Standard Terms.


Kendila reserves the right to amend or update these Standard Terms at any time, without prior notice to the Customer. Any such amended or updated Standard Terms will be effective immediately upon being made publicly available by Kendila, including by posting on Kendila’s website, and shall apply to all Customer orders placed thereafter. It is the Customer’s responsibility to review the most current version of these Standard Terms prior to placing any order, and by placing an order after such amendments or updates have been made public, the Customer is deemed to have accepted the amended or updated Standard Terms in full.


These Standard Terms may be amended from time to time by Kendila and shall govern any additional Customer orders made after such amended Standard Terms are made public. These Standard Terms, in conjunction with the applicable Kendila invoice, include all the terms, warranties, and conditions pertaining to each transaction between the Customer and Kendila, and can in no way be altered, modified or changed unless agreed to in writing by a Kendila authorised officer. Any of Customer's terms and conditions which are different from or in addition to Kendila’s terms and conditions are objected to by Kendila and shall be of no effect unless specifically agreed to in writing by Kendila.

Orders, Pricing, Changes and Cancellations

All orders must be accepted in writing by Kendila, which may be in the form of an Order Acknowledgement or commencement of production or shipment. No quotation shall constitute a binding offer without such acceptance. Once accepted by Kendila, all orders are final. Any change or cancellation request by the Customer after twenty-four (24) hours from order confirmation is subject to Kendila’s prior written consent, and may result in adjustments to price, delivery schedule, and other terms.

A minimum modification or cancellation charge of thirty percent (30%) of the selling price shall be applied to any released order of Classic products. A modification or cancellation charge of seventy-five percent (75%) to one hundred percent (100%) of the selling price shall be applied to any released order of Premium or Deluxe products. Custom, made-to-order, configured, or non-catalogue products — including but not limited to non-standard finishes, lengths, colour temperatures, or modifications — are Non-Cancellable and Non-Returnable (NCNR) upon order acknowledgement.


Partial cancellations may affect the freight charges, which will be adjusted in accordance with the total value of the order after cancellation. Additions to orders that have already been processed will be considered separate orders for purposes of determining freight charges. Cancellation of any portion of an order may, at Kendila’s discretion, result in price adjustments for the remaining items or cancellation of the entire order, with applicable fees. Kendila reserves the right to refuse any modification or cancellation request at its sole discretion.


Kendila reserves the right to put on hold or cancel (or cancel any order on hold) any previously accepted order pending resolution, to Kendila’s satisfaction, of any Customer credit issue. In the case of such a hold, prices are confirmed for ninety (90) days unless otherwise justified and accepted by Kendila, during such hold from the date the order was first accepted. If Customer requests suspension or delay in production or delivery, Kendila may invoice for work performed, materials procured, and reasonable storage and handling charges until production or delivery resumes. 


Prices do not include any taxes of any nature (including without limitation VAT, excise taxes, customs duties, brokerage fees, or federal, state, or local sales taxes) or other government charges (collectively, the “Taxes”). All such Taxes are the responsibility of the Customer and shall be paid by the Customer. This includes any brokerage fees or clearance charges incurred where the carrier acts as customs broker without separate authorization. Any such amounts advanced by Kendila or the carrier on the Customer’s behalf are immediately reimbursable.


Kendila may include any such Taxes in the same invoice to the Customer as the Kendila products or in a separate invoice. Payment by Kendila of any such Taxes does not relieve the Customer of payment responsibility, and all such amounts paid on the Customer’s behalf shall be amounts owed by the Customer to Kendila on demand. Kendila reserves the right to correct clerical and typographical errors in any term or price, and to adjust prices after order acceptance in the event of material increases in the cost of raw materials, components, tariffs, duties, freight, or currency fluctuations affecting the order, by written notice to the Customer.

Payment Terms

Unless otherwise provided elsewhere in these Standard Terms or in a Kendila invoice, 50% of the total order cost shall be paid upon release of the order. The remaining 50% must be paid prior to shipping. However, for orders totaling less than $1000, 100% payment is required upon release of the purchase order. Clients who wish for 30 days net payments will have to apply and await approval by Kendila. For large or long-lead orders, Kendila may require additional milestone or progress payments beyond the standard 50%/50% structure. If payment is required in a currency other than Canadian dollars, the invoice amount will be adjusted to account for currency exchange fluctuations between the order date and the payment date.

Unless otherwise provided elsewhere in these Standard Terms or in a Kendila invoice, 50% of the total order cost shall be paid upon release of the order. The remaining 50% must be paid prior to shipping. However, for orders totaling less than $5000, 100% payment is required upon release of the purchase order. Clients who wish for 30 days net payments will have to apply and await approval by Kendila. For large or long-lead orders, Kendila may require additional milestone or progress payments beyond the standard 50%/50% structure. If payment is required in a currency other than Canadian dollars, the invoice amount will be adjusted to account for currency exchange fluctuations between the order date and the payment date.


Kendila shall have the right, from time to time, as a condition of the acceptance of an order or of the product shipment of an accepted order, to require assurance of payment satisfactory to Kendila. Such assurance may take the form of an irrevocable letter of credit or any other form as decided by Kendila. 


All amounts owed and payments to Kendila shall be without set-off, deduction, or counterclaim. Should the Customer be required by law to withhold amounts otherwise due to Kendila, then the Customer's payments to Kendila shall be increased to such an amount as is equal to the amount owed Kendila not including the withheld. The Customer is responsible for all bank transfer fees, wire charges, and other payment processing costs to ensure Kendila receives the full invoiced amount. Past-due balances shall accrue interest at one and one-half percent (1.5%) per month (18% per annum) or the maximum rate allowed by law, whichever is less, calculated from the due date until payment is received in full, with interest accruing daily and compounded monthly. Kendila may, at its discretion, accelerate all outstanding amounts so they become immediately due and payable, and/or cancel or suspend any pending shipments or production until payment is made in full. Kendila may also withhold, repossess, or reclaim delivered goods until all outstanding amounts are paid.


The Customer hereby grants Kendila a security interest in the Kendila products sold to it until payment of the full purchase price, including, without limitation, any shipping costs and charges and Taxes is made to Kendila. The Customer agrees to execute any financing statements or other documents as Kendila requests to perfect, protect or maintain Kendila security interests.

Shipment - Delivery - Storage

All shipment and delivery dates Kendila orders are a best approximation of probable shipment and delivery dates and are not guaranteed. Kendila shall not be liable for costs, expenses or damages incurred by any party due to shipment or delivery after any estimated date. Any change in an order will automatically involve a reschedule of the shipment and delivery date. Shipping will be handled by Kendila and added to the invoice (Prepaid and added). The client will be given a choice of shipping method and service. If the client wishes to use their own shipping account, they will have to provide their account number and broker contact for their shipment. If the Customer elects to use its own carrier or shipping account, Kendila’s responsibility shall end upon tender of goods to such carrier, and all risk of loss or damage thereafter shall be borne by the Customer.


For shipments within Canada and the United States with the exception of Hawaii, Alaska and Puerto Rico, Kendila shall pay shipping costs and charges (but not Taxes and not demurrage) for non-express shipped lots of a given order in excess of $50,000 on all products, provided Kendila determines routing and surface (non-air) method of transportation. Any shipment of a lot under $50,000 will be subject to a freight charge. The freight charge for any shipment of a lot between $500 and $15,000 will be 5% of the total value of the lot or a flat rate of $100, whichever is greater. Any shipment of a lot of $500 and under will be assessed a freight charge of $30 per order. For any shipment of a lot that requires shipment to a construction site, an additional fee of $100 will be added. Routing and mode of transportation will be determined by Kendila unless otherwise requested by the Customer, in which case the Customer shall assume all shipping costs and charges. 


Any special shipping requests should be verified with Kendila. Kendila standard practice is to ship international orders pursuant to Incoterms-2020 ExWork factory conditions. Notwithstanding the foregoing, Kendila may, at any time and at its sole discretion, ship orders pursuant to any other Incoterm conditions. In all cases, shipments may be tendered in several lots. Title passes when delivery is made to the possession of the carrier. Unless Kendila specifies otherwise in writing: domestic shipments are FCA (Incoterms® 2020) Kendila facility; cross-border shipments are EXW or CPT/CIP at Kendila’s option. In all cases, risk of loss transfers to the Customer when goods are handed to the first carrier.


The Customer must inspect the merchandise upon delivery and report any apparent error or defect to Kendila within ten (10) days of said delivery; should the Customer fail to do so it shall be conclusively presumed that the products were delivered in accordance with the purchase order. Apparent defects and shortages must be reported within ten (10) days of delivery; hidden defects must be reported within thirty (30) days of discovery and no later than six (6) months after delivery.


Proof of Delivery & Non-Delivery Claims. Carrier scan records and/or signed Proof of Delivery shall be conclusive evidence of delivery to the Ship-To address on the Customer’s order. Any claim for non-delivery, shortage, mis-delivery, or delivery to an unauthorized recipient must be made in writing within five (5) business days of the earlier of (i) the carrier’s recorded delivery date or (ii) the scheduled delivery date. Claims must include the carrier tracking number, proof of delivery, receiving logs, and, where applicable, a police or internal loss report. Failure to notify within this period constitutes acceptance and waiver of such claims. Once the applicable claim period has expired, delivery shall be deemed final and the Products shall be conclusively presumed to conform in all respects to the Customer’s order.


Damage to or loss of any goods in transit must be noted on the carrier's delivery freight bill. Kendila will provide the Customer with assistance in order for the Customer to file a claim with the carrier; however, the Customer may not withhold whole or partial payment pending carrier settlement. Unless expressly requested in writing and paid for by the Customer, shipments are tendered without cargo insurance. If the Customer requests insurance, Kendila will procure it as the Customer’s agent; any claim is between the Customer and the insurer, and Kendila’s obligation is limited to providing commercially reasonable assistance.


Deliveries to jobsites, freight forwarders, or third-party locations are deemed delivered upon the carrier’s proof of delivery at the specified address. The Customer is solely responsible for secure receiving at such locations; unattended drop-off is at the Customer’s risk. If a shipment is refused, reconsigned, held beyond free time, or requires redelivery due to Customer-caused conditions (including inaccurate ship-to data or unavailable receiver), the Customer will bear all carrier charges, storage, and handling at published rates. Kendila may invoice these charges separately and payment will be due upon receipt.


To prevent damages or changes in the performance characteristics of Kendila products, storage temperature must remain between -40°C and +50°C (-40ºF and 122ºF). Startup temperature should not exceed the L70 operating temperature indicated in the product performance specification or installation instructions. 

Compliance with laws, Including Export-Import Restrictions

With respect to the purchase and, if applicable, resale, of Kendila products, it is the responsibility of the Customer, at its sole cost and expense, to comply with all applicable laws and regulations of any government or other competent authority, including those regarding export or import, and to maintain all necessary permits, licences and consents. 


All shipments of Kendila products are subject to applicable export and import laws, including without limitation those of Canada and the United States. Kendila shall have no liability for delayed delivery or non-delivery resulting from denial, revocation, suspension, or governmental delay in issuance of any necessary export licence or authority. 

Limitation of liability

TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL KENDILA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, BUSINESS INTERRUPTION, OR LOSS OF GOODWILL, ARISING OUT OF OR RELATING TO THE SALE, INSTALLATION, USE, OR PERFORMANCE OF THE PRODUCTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF KENDILA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


IN NO EVENT SHALL KENDILA’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THESE STANDARD TERMS OR THE PRODUCTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER TO KENDILA FOR THE SPECIFIC PRODUCTS GIVING RISE TO THE CLAIM.

ALL CLAIMS ARISING OUT OF OR RELATING TO THESE STANDARD TERMS OR THE PRODUCTS MUST BE FILED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, AND ARE OTHERWISE BARRED.

THE LIMITATIONS SET FORTH HEREIN SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THESE STANDARD TERMS OR THE WARRANTY. THESE LIMITATIONS DO NOT APPLY TO LIABILITY RESULTING FROM KENDILA’S GROSS NEGLIGENCE, WILFUL MISCONDUCT, OR FRAUD.

Resales

If the Customer is authorised by Kendila to resell Products to End Users, the terms of sale shall be these Standard Terms, and, unless otherwise provided for in these Standard Terms, all references to Kendila shall instead be references to Customer and all references to Customer shall instead be references to such End User. Even if authorised by Kendila to resell products to End Users, the Customer may not (i) resell any product via the internet, (ii) resell products for integration into a third party's lighting products, or (iii) remove or modify any Kendila patent notices or trademarks from a product, its packaging, or its supporting materials. 

Intellectual Property

Nothing herein shall be construed to grant to Customer or any End user of Kendila product any right, title, or interest in or to any intellectual property rights (including, without limitation, any patent, trademark, copyright, trade name or trade secrets) embodied in or associated with the products, services or related software that may be already installed in or included with the products or services. 


Any software included with a product or otherwise licenced by Kendila to Customer, is licenced and not sold. The licence is nonexclusive and is limited to use with the product and subject to any additional terms and conditions that may become applicable when the End user installs or accepts the software. 


Customer shall not sell, transfer, sublicense, reverse engineer or disassemble or redistribute the software. Customer shall not copy, disclose, or display any such software or otherwise make it available to others. No other use is permitted and Kendila retains for itself (or, if applicable, its suppliers) all title and ownership to any software delivered hereunder.

Indemnification

Customer will at all times defend, indemnify and hold harmless Kendila and its officers, directors, shareholders, employees, accountants, attorneys, agents, affiliates, successors and assigns from and against any and all damages, injuries (including death), liabilities, costs and expenses, including reasonable legal fees and expenses, arising out of or related to third-party claims, actions, or demands arising out of or related to any (i) breach of any provision in these Standard Terms by Customer or End User, including any misrepresentation or violation of applicable laws, regulations, or standards by Customer or End User, including any actual or alleged infringement or misappropriation of any third-party intellectual property rights arising from Customer’s or End User’s use, modification, or integration of the Products, or (ii) improper or negligent installation or use, or unauthorised repair, or integration into another lighting product, of a Product by Customer or End User (or its agents), including without limitation any damage to property, loss of data, or injury caused by such acts or omissions.


This indemnity extends to claims relating to intellectual property infringement, product liability, recalls, and any modifications or alterations to the Products made without Kendila’s written consent.


Customer shall not settle, compromise, or consent to the entry of any judgment with respect to any pending or threatened claim without Kendila’s prior written consent unless the settlement, compromise, or consent provides for and includes an express, unconditional release of all claims, damages, liabilities, costs, and expenses, including reasonable legal fees and expenses, against Kendila. Kendila reserves the right, at its own expense, to participate in and control any defense or settlement of any matter for which Customer has agreed to indemnify Kendila.

Force Majeure

Kendila shall not be liable for any delay or failure to perform due to causes beyond its reasonable control, including but not limited to acts of God, natural disasters, epidemics, pandemics, governmental actions, labor disputes, material shortages, carrier delays, or other force majeure events. Delivery dates shall be extended for the duration of any such delay, and Kendila may allocate production and deliveries among its customers as it deems fair and reasonable.

Governing Law & Venue

These Standard Terms shall be governed by and construed in accordance with the laws of the Province of Québec and the federal laws of Canada applicable therein, without regard to conflict of law principles. The parties irrevocably submit to the exclusive jurisdiction of the courts of Montréal, Québec. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

Entire Agreement; Amendment; Severability

These Standard Terms, together with the applicable Kendila invoice and any written agreements signed by an authorized officer of Kendila, constitute the entire agreement between the parties with respect to the sale of the Products. No amendment or modification shall be binding unless in writing and signed by an authorized officer of Kendila. If any provision of these Standard Terms is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

Precedence of Terms

These Standard Terms, together with any additional written terms expressly agreed to by Kendila in a document signed by an authorized officer of Kendila, constitute the sole and entire agreement between Kendila and the Customer with respect to the sale of the Products. By placing an order with Kendila, accepting delivery of any Kendila products, making payment to Kendila, or otherwise engaging in any business transaction with Kendila, the Customer is deemed to have read, understood, and unconditionally accepted these Standard Terms in full, without the need for any separate signed acknowledgement.

In the event of any inconsistency, conflict, or ambiguity between these Standard Terms and any term or condition contained in any Customer purchase order, confirmation, acknowledgment, request for quotation, proposal, or other communication (whether oral or written), these Standard Terms shall govern and control.

Any additional or different terms or conditions proposed by the Customer, whether contained in a purchase order, other document, or otherwise, are hereby expressly objected to and shall be of no force or effect unless expressly accepted in writing by Kendila in a document signed by an authorized officer. No conduct by Kendila, including but not limited to shipment of goods, commencement of work, or acceptance of payment, shall be deemed or construed as acceptance of any such additional or different terms.

If a separate written agreement executed by an authorized officer of Kendila and the Customer contains provisions that conflict with these Standard Terms, the provisions of such separate written agreement shall control only with respect to the specific subject matter expressly addressed therein, and all remaining provisions of these Standard Terms shall continue to apply to the fullest extent possible.