Welcome to the Kichler Dealer Portal (the "Site"), an extranet site provided by The L.D. Kichler Co. ("Kichler "). This is a legal agreement between you (“You” “Your”, “Yours” or “Authorized User”) and Kichler. Before accessing or using any part of this Site, You should read carefully the following terms and conditions contained in this Terms of Use Agreement (the “Agreement” or the “TOU”) as they govern Your access to, and use of, this Site and any programs, services, tools, materials or information available through the Site. Kichler is willing to license and allow the use of the Site only on the condition that You accept and agree to all of the terms and conditions contained in this TOU. If You do not agree with this TOU, You are not granted permission to access or otherwise use the Site and are instructed to exit the Site immediately.
By clicking on the "I Accept" button when signing up for an account on the Site and each time You enter the Site, You accept the TOU and Kichler’s Terms of Sale on Your own behalf, and, if Your account is in the name of Your company or You use the site on behalf of Your company, You also accept the TOU on behalf of Your company.
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Subject to the terms and conditions of this TOU, Kichler grants You a limited, personal, revocable, non-exclusive, royalty-free, non-transferable license to use the Site and any programs, services, tools, materials or information made available through or from the Site conditioned on Your continued compliance with the terms and conditions of this TOU. This TOU permits You to use and access for business purposes only the Site from the Internet or though an on-line network. You may download, view, copy and print the materials and information from this Site solely for Your internal business use, provided that You do not remove or alter any trademark, service mark or logo, or any copyright or other intellectual property notices. Except as provided above, You may not download, view, copy, print, reproduce, distribute, republish, display, post, transmit or modify any material, or portion thereof, located on the Site in any form or by any means without the prior written consent of Kichler. Kichler reserves the right to revoke any of the rights granted in this TOU at any time, and those rights automatically terminate if You violate any term of this TOU. Upon revocation or termination of such rights, You must destroy any digital or printed copies obtained from any portion of the Site. Unauthorized use of any material on the Site may violate copyright law, trademark law, and other laws of the United States and other jurisdictions. Any right not expressly granted You under this TOU are reserved to Kichler.
Your access to the Site is accomplished through the use of a user name (Your User Name”) and a password (Your “Password”) that will be issued to You by Kichler. Each time You use Your User Name and Your Password You will be deemed to be authorized to access and use the Site in a manner consistent with the terms and conditions of this TOU, and Kichler has no obligation to investigate the authorization or source of any such access of the Site. You are solely responsible for keeping Your User Name and Password strictly confidential and taking other reasonable precautions to prevent their unauthorized use. You agree to notify Kichler promptly by e-mail at [email protected] if You become aware of any unauthorized use of Your User Name or Password or any other breach or threatened breach of this Site’s security. Until You provide such notice to Kichler, Kichler will presume that all uses of Your User Name and Password are authorized by You, and You will remain solely responsible for all access to this Site, use of this Site, any orders placed through the Site by anyone using the User Name or Password assigned to You, whether or not such access to and use of this Site is actually authorized by You, including without limitation, all communications and transmissions and all obligations, including without limitation financial obligations, incurred through such access and use.
When You use this Site or send emails to Kichler, You are communicating with Kichler electronically. Kichler will communicate with You by email and by posting notices on the Site or through its other services and You consent to receive communications from Kichler electronically. You agree that all agreements, notices, disclosures and other communications that Kichler provides You electronically satisfy any legal requirements that such communication be in writing. You further acknowledge and agree that Kichler shall not be responsible for any failures, inoperability, delays or problems caused by Your failure to provide any necessary content or information for Your use of the Site in a timely or accurate manner. Moreover, Kichler assumes no responsibility for Your deletion of, or failure to store, any content or information
Except as permitted in the License Grant above, You may not reproduce, distribute, display, sell, lease, transmit, create derivative works from, translate, modify, reverse-engineer, disassemble, decompile or otherwise exploit this Site or any portion of it unless expressly permitted by Kichler in writing. You may not make any commercial use of the information provided on this Site or make any use of the Site for the benefit of another business unless explicitly permitted in advance by Kichler. Kichler reserves the right to refuse service, terminate accounts and/or cancel orders at its discretion, including without limitation, if we believe that Your conduct violates applicable law or is harmful to our interests.
Only holders of an account and their authorized representatives may use the Site. For additional information on how to use this Site please refer to the Site’s Helpful Links. The Site may not be used in such a manner as to violate any applicable law. The Site may not be used for the purposes of destroying, disrupting or interrupting any software, hardware or any part of the Internet, including denial of service attacks, imposition of an unreasonable or disproportionately large load on Kichler’s infrastructure, or dissemination of any virus or other malicious code. You shall not upload to, distribute or otherwise publish through this Site any content, information or other material that (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets or other proprietary rights of any person; (b) is libelous, threatening, defamatory, absence, indecent, pornographic or could give rise to any civil or criminal liability under U.S. or international law; or (c) includes any bugs, viruses, worms, trap doors, Trojan horses or other harmful code or properties.
All purchases through the Site are governed by Kichler’s Terms of Sale. In the event of any conflict between those Terms of Sale and any written Terms of Sale or other agreement executed by an authorized representative of Kichler, the latter will prevail
While Kichler uses reasonable efforts to include accurate information on the Site, Kichler does not guarantee the accuracy, integrity, timeliness or quality of any material that is found on, in connection with, or posted to the Site. Kichler has no liability for any material associated with or found on this Site including for any errors or omissions in the content of the Site. Further, Kichler, although it may choose to do so, is under no obligation to record or retain any of the material on or associated with the Site, regardless of any requests to do so.
Except for certain financial information, including Your credit card number, any communication or material You transmit to the Site by electronic mail or otherwise, including any questions, comments, suggestions or the like, is, and will be treated as, non-confidential and non-proprietary as to You but shall be deemed proprietary to Kichler. Except for such financial information, anything You transmit may be used by Kichler or its affiliates for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting, and You grant Kichler a royalty free, perpetual, irrevocable non-exclusive license to reproduce, modify, adapt, create derivative works from, perform, distribute, or publish any such material. Furthermore, Kichler is free to use any ideas, concepts, know-how, or techniques contained in any communication You send to the Site for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products using such information. Kichler reserves the right to disclose any material transmitted to us, or information relating to such material, if required to do so by law or in good faith belief that such records or disclosures are reasonably necessary to: (i) comply with the legal process; (ii) enforce this TOU; (iii) respond to any claim that material contained on or associated with the Site is in violation of any right of any third party; or (iv) to protect the rights, property, or personal safety of Kichler, its employees, its users, or the general public.
All materials on the Site created or provided by Kichler, including text, graphics, logos, icons and images, are the sole property of Kichler or its content providers, and are protected by United States and foreign intellectual property laws. The compilation of all the content on this Site is the exclusive property of Kichler and is also protected by United States and foreign intellectual property laws.
KICHLER is the registered trademark of The L.D. Kichler Co. The other trademarks, service marks and logos used on the Site are the trademarks of Kichler or others. Nothing on the Site shall be construed as granting, by implication, estoppel or otherwise, any license or right to use any trademark without the prior written consent of Kichler. The designations �, ®, ©, SM or any other intellectual property symbols reflect registration and/or use in the context of United States laws with respect to such symbols.
The Site may contain links to other web sites. Kichler has no control over, and accepts no liability, obligation or responsibility for, the contents or performance of other websites. Any such links do not necessarily constitute an endorsement of, or any representation regarding, the linked website, its content, its owner, its performance or its owner’s products or services.
Kichler warrants the products available on the Site as set forth in our Terms of Sale or as described on the Site on a product-by-product basis. EXCEPT FOR THESE LIMITED WARRANTIES, THE SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. KICHLER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. KICHLER MAKES NO WARRANTY THAT: (a) THE SITE WILL MEET YOUR REQUIREMENTS; (b) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED, OBTAINED OR TRANSFERRED THROUGH THE SITE WILL MEET YOUR EXPECTATIONS, DESIRES OR NEEDS; AND (e) ANY ERRORS IN THE SOFTWARE WHICH COMPRISES THE SITE WILL BE CORRECTED.
You use any material distributed, downloaded or accessed from the Site at Your own risk and discretion. You will be solely responsible for any damage to Your computer system, loss of data, or loss due to Your downloading or reliance upon any such material. Kichler assumes no responsibility, and will not be liable for, any damages to Your computer equipment, software or other property as a result of Your downloading, viewing or otherwise using the Site, any of its material or any other site to which the Site is linked. No information or advice obtained from the Site, whether oral or written, shall create any warranty not expressly stated herein.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL KICHLER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSS (EVEN IF KICHLER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OF OR INABILITY TO USE THE SITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED, OBTAINED OR TRANSFERRED OR SOUGHT TO BE PURCHASED, OBTAINED OR TRANSFERRED THROUGH OR FROM The Site; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (v) ANY OTHER MATTER RELATING TO THE SITE OR SERVICE PROVIDED BY KICHLER. KICHLER SHALL NOT BE LIABLE FOR ANY FAILURE TO PERFORM UNDER THE TERMS OF THIS TOU WHERE SUCH FAILURE RESULTS FROM ANY CAUSE BEYOND KICHLER’s REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO MECHANICAL, ELECTRONIC OR COMMUNICATIONS FAILURE OR DEGRADATION.
The Site may contain references to Kichler products, services or programs that are not available in Your country. Such references are not intended to announce such products, services or programs in Your country. Kichler makes no representation that access to the Site is permitted under the laws of Your country, and access to the Site is prohibited anywhere such access would violate local law. You are responsible for compliance with all applicable laws governing Your access to the Site. The use of the Site and any claim relating to it or its contents are governed by laws of the State of Ohio, United States of America and controlling federal law of the United States of America, without regard to conflict of law’s provisions.
The Site may contain references to Kichler products, services or programs that are not available in Your country. Such references are not intended to announce such products, services or programs in Your country. Kichler makes no representation that access to the Site is permitted under the laws of Your country, and access to the Site is prohibited anywhere such access would violate local law. You are responsible for compliance with all applicable laws governing Your access to the Site. The use of the Site and any claim relating to it or its contents are governed by laws of the State of Ohio, United States of America and controlling federal law of the United States of America, without regard to conflict of law’s provisions.
The sole jurisdiction and venue of any action related to this TOU shall be the Court of Common Pleas of Cuyahoga County, Ohio and the United States District Court for the Northern District of Ohio, Eastern Division as their respective jurisdictions may lie, and You and Kichler agree to submit to personal and exclusive jurisdiction of these courts. Any failure by Kichler to exercise or enforce any term, provision or right established by this TOU shall not constitute a waiver of such term, provision or right. This TOU, together with the Kichler’s Terms of Sale, are the complete and exclusive agreement between Kichler Lighting and You concerning Your use of the Site, and they supersede and cancel all previous agreements, communication, and other understandings pertaining to Your use of the Site. In the event that any term or provision of this TOU is deemed invalid or unenforceable by a court of competent jurisdiction, the term or provision shall be limited or interpreted in such a manner as to render the remaining terms and provisions valid and enforceable to the maximum extent allowed by law. This TOU does not create an agency, joint venture or employment relationship, and You do not have the right to bind Kichler in any respect whatsoever. The terms and provisions of this TOU may not be assigned, transferred or sublicensed by You; however, Kichler reserves the right to assign this TOU in part or in whole to any third party. You agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this TOU must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in this TOU are for convenience only and do not have any legal or contractual affect whatsoever.
Copyright 2016 The L.D. Kichler Co. All rights not expressly granted in these Terms of Use are reserved.
These Terms and Conditions of Sale of The L.D. Kichler Co., an Ohio corporation (“Seller”) or a subsidiary or affiliate of Seller, shall apply to all sales to Buyer of goods consisting of lighting fixtures and equipment (the “Products”) for indoor (the “Indoor Products”) and outdoor (the “Outdoor Products”) use. To the extent the Products sold by Seller are subject to additional or special terms and conditions contained in any agreement, statement of work, amendment, addendum or other writing signed by Seller each such writing is deemed to incorporate these terms and conditions as if fully set forth therein (the “Agreement”). All orders are subject to approval by Seller at its corporate headquarters in Cleveland, Ohio. Any amendment, waiver or other alteration by Seller shall be effective only if made in a writing signed by a designated officer or director of Seller at the applicable corporate headquarters. [International sales terms are italicized and bracketed].
1. Entire Agreement. Notwithstanding any different or additional terms or conditions contained in Buyer's purchase order or other communication, Seller accepts Buyer's order only on the condition that Buyer expressly accepts and assents to the terms and conditions contained in this Agreement. Seller hereby objects to and rejects any different or additional terms in any communication by Buyer. Buyer's acceptance of any Products shall be deemed to be acceptance of all of the terms and conditions stated in this Agreement. Any notice by Buyer objecting to these terms must be in writing separate from any form purchase order. Neither Seller's failure to object specifically to provisions contained in any communication from Buyer nor Seller's performance under this Agreement shall be deemed a waiver of the provisions contained in this Agreement.
2. Payment. Unless otherwise provided in a writing signed by both parties, invoices are due and payable net 30 days from shipment. Outstanding unpaid balances shall be subject to a finance charge of 1-1/2% per month until paid in full (or such lower rate as may be the maximum permitted by law), together with Seller's cost of collection (including reasonable attorney's fees). Payments received may be applied by Seller against any obligation owed by Buyer to Seller. Seller may refuse or delay shipments or require payment C.O.D. if Buyer fails to pay promptly any payments due Seller. Any authorized early payment discounts must be taken at the time of invoice payment and will be calculated from the invoice date to the date payment is received by Seller. To secure the payment of the purchase price of the Products sold hereunder, Buyer grants Seller a purchase money security interest in all Products sold hereunder whether constituting equipment, inventory, fixtures and/or general intangibles, including all accessions to and replacements thereto, and all proceeds thereof and Buyer authorizes Seller to file one or more financing statements. Seller shall have all of the rights remedies of a secured party under the Uniform Commercial Code, which remedies shall be cumulative and not exclusive.
3. Price & Taxes. Unless otherwise specified, all prices are F.O.B. point of origin [Ex Works point of origin]. Written quotations are valid for 30 days from issuance. Seller may increase the price of any Products ordered by Buyer but not yet shipped by Seller based upon increases in Seller's price for such Products. Prices do not include and Buyer shall pay all sales, use, services, excise, tariffs, duties or similar taxes or charges unless Buyer provides Seller with valid tax exemption certificates.
4. Delivery. Products are shipped F.O.B. point of origin [Ex Works point of origin]. Title to and risk of loss shall pass upon Seller's delivery of Products to carrier. Buyer shall pay all freight, handling, delivery, special packing and insurance charges for shipments of Products. Choice of carrier and shipping method and route shall be at the election of Seller. Seller shall have the right to deliver all Products covered hereby at one time or in partial shipments from time to time, within the agreed time for delivery. Seller shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Seller, which causes shall include, without limitation, force majeure, acts of God, acts or omission of Buyer, acts of civil or military authorities, fire, strikes, power surges or outages, epidemics, quarantine restrictions, flood, natural disasters, riot, war, delays in transportation or inability to obtain necessary labor, materials or supplies. In the event of any delay, the set date of delivery, if any, shall be extended for a reasonable period, or, at Seller's option, cancelled.
5. Acceptance. Upon receipt of Products, Buyer agrees to inspect and/or test the Products. Such inspection or testing shall be completed promptly and in no event later than 30 days after delivery of the Products. The Products shall be deemed accepted by Buyer unless Buyer provides Seller, within 30 days of the initial inspection period, a written notice specifying all defects or discrepancies in the quality or quantity of Products.
6. Cancellation/Rescheduling. Buyer may cancel or reschedule orders only upon 30 day written notice and written consent of Seller. If Seller consents to the cancellation of an order for Products, in Seller's discretion, Buyer shall pay Seller any manufacturer's restocking fee and reasonable cancellation charges (in an amount not less than 15% of the canceled order). Buyer may only request rescheduling of deliveries for orders having an original delivery date of no less than 60 days from the date a written rescheduling request is received by Seller.
7. Returns. Buyer may only return Products with Seller's consent and in accordance with Seller's Return Policy. Upon confirmation of right to return, Seller shall issue or cause to be issued a Return Material Authorization ("RMA") for the Products. Buyer shall return Products in accordance with Seller's instructions in their original package and in good condition, without alteration.
8. Warranty and Limitation. The Products are subject to Seller’s warranty located at www.kichler.com and is subject to change from time to time. Goods which may be sold by Seller but which are not manufactured by Seller are not warranted by Seller, but are sold only with the warranties, if any, of the manufacturers thereof.
9. Disclaimer of Consequential Damages. BUYER SHALL IN NO EVENT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, TO LOSS OF PROFIT, PROMOTIONAL AND/OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION AND/OR LOSS OF CUSTOMERS.
10. Compliance with Laws Buyer agrees that Products will not be used, resold, transferred, exported or reused in any way by Buyer in violation of any laws, regulations of any local state or other governmental entity and Buyer shall indemnify, defend and hold harmless Seller and any supplier of Seller from any harm or damages or liability caused to it (including but not limited to reasonable attorney fees, court costs, and costs of investigation and defense) by any of the foregoing uses or for the failure to comply with any laws or regulations.
11. Complete Agreement. This Agreement sets forth the sole and entire agreement between the parties regarding the sale of Products herein and supersedes any and all prior or contemporaneous oral agreements between them regarding the same
12. Disputes. All disputes under this Agreement concerning the Products not otherwise resolved between Seller and Buyer shall be resolved in a court of competent jurisdiction sitting in Cuyahoga County, Ohio and Buyer consents and agrees that jurisdiction and venue for such proceedings shall lie exclusively with such courts. No action, regardless of form, arising out of, or in any way connected with, the Products furnished or Services rendered by Seller, may be brought by Buyer more than one (1) year after the cause of the action has accrued.
13. General. All agreements, covenants, conditions and provisions contained herein shall apply to and bind the assignees and successors in interest of Buyer. This Agreement is not assignable by Buyer without Seller's written consent. Facsimile signatures or other reliable means of authentication by which the Buyer signifies its assent to this Agreement shall be effective to bind Buyer to the terms hereof. The waiver by Seller of any breach or default in any payment shall not be deemed to be a waiver of any later breach or default. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at another time or of any other remedy at any time. If any provision or portion of this Agreement is held to be invalid, illegal, unconscionable or unenforceable, the other provisions and portions hereof shall not be affected. The captions used herein are for the convenience of the parties only and shall not affect the construction or interpretation hereof. Any clerical errors are subject to correction. This Agreement shall be governed by the laws of the State of Ohio. [All shipping terms shall be interpreted in accordance with the INCOTERMS in effect from time to time and unless expressly stated in writing, shall supersede any inconsistent term set forth in this Agreement. This Agreement shall not be governed by the UN Convention on the International Sale of Goods.]