Terms & Conditions

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DARLING’S LAMPSHADE COMPANY LTD. (“SELLER”)

GENERAL TERMS & CONDITIONS FOR SALE OF GOODS

NOTICE: Any Goods purchased by Buyer from the Seller. are subject to these general terms and conditions. Any additional or different terms proposed by Buyer are rejected by the Seller and shall not bind the Seller unless expressly accepted in writing by the Seller’s authorized representative. Any order for Goods shall constitute acceptance of these Terms and Conditions.

1. APPLICABILITY.

(a) These Terms and Conditions of sale (these "Terms") are the only terms which govern the sale of goods including without limitations Lampshades ("Goods"), Bronze Sculptures ("Goods") by the Seller to the buyer named on the invoice (“Invoice”) to which these Terms are annexed to ("Buyer").

(b) The accompanying Invoice and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms unless in accordance with Section 12 herein.

(c) Buyer agrees that it is purchasing the Goods from Seller for its own use and will not resell, export or redistribute the Goods, unless otherwise agreed to in writing and signed by Seller’s authorized representative. Seller’s authorized resellers are subject to terms and conditions of a separate reseller agreement executed between the Seller and any such reseller.

2. PRICE.

(a) Buyer shall purchase the Goods from Seller at the price (the "Price") set forth in the Invoice and shall pay all applicable taxes.

(b) Cost of regular shipping and handling are included in the total amount due on the Invoice.

(c) Additional shipping costs will apply to orders that require specialized shipping. All additional shipping costs shall be paid by Buyer prior to shipping.

3. PAYMENT TERMS.

(a) Upon receipt of Seller’s Invoice, Buyer shall pay all invoiced amounts due to Seller. Buyer shall make all payments hereunder in Canadian dollars. Seller accepts only cheques (from Canadian Chartered Banks Only), and cash.

(b) Payment by cheques require fifteen (15) business days to clear before shipping is confirmed.

(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller.

4. SHIPPING AND DELIVERY.

(a) The goods will be delivered within a reasonable time after the receipt of Buyer's purchase order, subject to availability of Goods. Buyer shall be notified of the shipping details prior to shipping the Goods. Shipping dates are estimates only and Seller shall not be liable for any delays, loss or damage in transit except as expressly provided for in these Terms.

(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the address provided by the Buyer, using Seller’s standard methods for packaging and shipping such Goods.

5. CANCELLATION POLICY. 

Buyer may in writing only cancel any order, in whole or in part, for the Goods within five (5) business days prior to scheduled shipment date, provided always that any order, in whole or in part, may not be cancelled once shipment has occurred. The Seller shall issue a full refund only for cancellations in accordance with this Agreement. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL SALES ARE FINAL. THERE SHALL BE NO REFUNDS OR EXCHANGES.

6. INSPECTION AND REJECTION OF NON- CONFORMING GOODS.

(a) Buyer shall inspect the Goods within forty-eight (48) hours of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Non-Conforming Goods during the Inspection Period and furnishes such photographic evidence of the damage, including damage to the Goods’ shipping packaging and other documentation as required by Seller to confirm non-conformance. "Non- Conforming Goods" means only the following: (i) Goods shipped that are different than identified in the Invoice; or (ii) Goods damaged from shipping and handling.

(b) If Buyer timely notifies Seller of any Non-Conforming Goods, Seller shall, in its sole discretion, (i) replace such Non-Conforming Goods with conforming Goods of same value or (ii) credit or refund the Price for such Non-Conforming Goods after receiving the Non- Conforming Goods from the Buyer. Buyer shall ship, at its expense and risk of loss, the Non-Conforming Goods to Seller's place of business as confirmed by the Seller prior to any replacement Goods being shipped or any refunds being issued.

(c) Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer's exclusive remedies for the delivery of Non-Conforming Goods. Except as provided under Section 6(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller or to request a refund.

7. NON-DELIVERY AND MISSING ORDER.

(a) The Seller shall not be liable for any non-delivery of Goods (unless caused by Seller's negligence).

(b) Any liability of Seller for non-delivery of Goods shall be limited to replacing the Goods within a reasonable time or adjusting the Invoice respecting such Goods to reflect the actual quantity delivered as determined by the Seller acting reasonably.

(c) Buyer acknowledges and agrees that the remedies set forth in Section 7 are Buyer's exclusive remedies for non-delivery of Goods. Except as provided under Section 7(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller or to request a refund.

8. LIMITED WARRANTY.

(a) Subject to the limitations set forth in these Terms, Seller warrants to Buyer that the Goods shall be delivered to Buyer free from defects in material and workmanship and shall conform to any mutually agreed specifications. The warranties set forth in this Section 8 are exclusive and in lieu of all other warranties, conditions and guarantees, whether written, oral, implied or statutory. No implied or statutory warranty or condition of merchantability or fitness for a particular purpose shall apply.

(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9(a), SELLER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; OR (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

(c) Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods (e.g., beadings and bases). Third Party Products are not covered by the warranty in Section.

8(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS, CONDITIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

(d) The Seller shall not be liable for a breach of the warranty set forth in Section 8(a) except as stipulated under Section 6.

(e) The Seller shall not be liable for a breach of the warranty set forth in Section 8(a) if: (i) Buyer makes any further use of such Goods after giving such notice as required under Section 6(a); (ii) the defect arises because Buyer failed to follow Seller's oral or written instructions as to the storage, installation, commissioning, use, maintenance or care of the Goods including those set out in sections 10 and 11 herein; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.

(f) THE REMEDIES SET FORTH IN SECTION 6(b) SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(a).

9. LIMITATION OF LIABILITY.

(a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE GOODS OR THIS AGREEMENT. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER

10. MAINTENANCE AND CARE OF GOODS.

All Goods have been handmade in the studio at the Seller’s place of business in Calgary, Alberta by Artist Kelly O’Gorman Dixon. All Goods are unique and intricate with many hours of labour involved in their creation. Great care must be taken when cleaning the Goods. Seller will provide a roll of garment lint remover with each order and which should be used by Buyer to remove dust from the Goods. To remove dust, gently dab the sticky side of the paper onto the shade. Do not wet the Goods with any kind of liquid, like water, sprays or soaps. Do not attempt to adjust trims or fabric by pulling or poking them as they are all hand sewn firmly and tightly into place with no allowance for movement. Beads on Goods can be dusted, in a very gentle manner, using a soft dry cloth or feather duster. Do not pull on beads as they may become unattached. Each bead string has been created individually and attached individually. Soft dry cloth should be used to dust the base. Bronze Sculptures should be cleaned with a clean dry soft cloth only.

11. HEALTH & SAFETY. 

Buyer shall comply with all applicable laws, regulations and ordinances. The fabrics used in the creation of the Goods have not been treated with any form of fire retardant and may pose a FIRE HAZARD if not used with a cool light bulb. Only LED light bulbs shall be used with the Goods. Usage with any other type of light bulb is prohibited. Do not allow the fabric on the shade to come in contact with the light bulb. The Goods or any part thereof are not intended for use by children. The beads which are hand sewn onto each lampshade may pose a CHOKING HAZARD. All lamp bases have been professionally wired.

12. AMENDMENTS AND MODIFICATIONS.

These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.

13. WAIVER. 

No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to

exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

14. FORCE MAJEURE. In no event shall Seller be liable or responsible to the Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond its reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, tsunami, fire, earthquake, explosion; (c) epidemics, pandemics, including the 2019 novel coronavirus pandemic (COVID-19), and other potential disaster(s) or catastrophe(s); (d) other similar events beyond the reasonable control of the Seller; and (e) shortage of materials or supply chain disruptions. The Seller shall use commercially reasonable efforts to give notice within fourteen (14) days of the Force Majeure Event to the Buyer, stating the period of time the occurrence is expected to continue. The Seller shall use commercially reasonable efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. Seller shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.

15. NO THIRD-PARTY BENEFICIARIES. 

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

16. GOVERNING LAW. 

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein.

17. CHOICE OF FORUM. 

Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to the Goods or this Agreement, shall be instituted in the courts of the Province of Alberta, and each party irrevocably submits to the exclusive jurisdiction of such courts.

18. NOTICES. 

All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Invoice or to such other address that may be designated by the receiving party in writing. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required.

(c) when sent, if by email (with confirmation of transmission) if sent during 9am - 5pm MST, Monday to Friday, and on the next business day if sent after such hours; and (d) on the day after the date mailed by certified or registered mail by Canada Post our nationally recognized carrier, return receipt requested, postage prepaid.

19. SEVERABILITY. 

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

20. SURVIVAL. 

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement and the delivery of Goods.