General Terms of Sale
These general terms of sale apply to purchases from Lantronix, Inc., and all of its subsidiaries (collectively the “Company” or “Lantronix”) of products made by or on behalf the Company, unless both parties have signed a written contract covering the sale of the products, in which case the terms and conditions of the contract will govern to the extent they are inconsistent with these terms.
Purchases made from authorized distributors or resellers will be subject to terms and conditions of sale as may be separately established by each such distributor or reseller, which are not binding upon Lantronix unless otherwise expressly agreed to. However, Company extends its standard Limited Warranty to customers purchasing Lantronix branded products from their authorized distributors and resellers. The standard Limited Warranty is in lieu of all other warranties, which are expressly disclaimed.
These general terms and conditions of sale are as in effect at the time of publication and are subject to change at any time.
Acceptance of Terms
These general terms and conditions of sale govern the sale or licensing by Lantronix of all goods and services (“Products”) furnished to Buyer hereunder, whether such sale or licensing is effected by paper-based transactions or via e-mail or other forms of electronic data interchange or electronic commerce, and represents the entire agreement between Buyer and Lantronix with respect thereto. Buyer’s receipt or acceptance of delivery of any of the Products ordered or purchased hereunder will constitute its acceptance of these terms and conditions. No addition or modification to these terms and conditions will be binding on Lantronix unless agreed to by Company in writing. Company objects to and rejects other terms and conditions that may be proposed by Buyer or that appear on or are referenced in Buyer’s purchase order or requisition that are in addition to or otherwise not consistent with these terms and conditions.
All prices published by Company or quoted by Company representatives may be changed at any time without notice. All prices quoted by Lantronix or Company representatives are valid for 30 days, unless otherwise stated in writing. All prices for the Products will be as specified by Company or, if no price has been specified or quoted, will be Lantronix’s price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of Company’s original price quotation.
Taxes and Other Charges
Prices for the Products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which taxes and duties must be paid by Buyer. If Buyer claims any exemption, Buyer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.
Terms of Payment
Unless otherwise agreed by Lantronix in writing, payment shall be net thirty 30 days from the date of invoice. If Buyer fails to pay any amounts when due, Buyer shall pay Lantronix interest thereon at a periodic rate of 1.5% per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) incurred by Company in collecting such overdue amounts or otherwise enforcing Lantronix’ rights hereunder. Company reserves the right to require from Buyer full or partial payment in advance, or other security that is satisfactory to Company, at any time that Company believes in good faith that Buyer’s financial condition does not justify the terms of payment specified. All payments shall be made in U.S. Dollars.
Delivery; Cancellation or Changes by Buyer
The Products will be shipped to the destination specified by Buyer, F.O.B. Lantronix’ shipping point. Company will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Lantronix reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Buyer fails to make any payment to Company when due or otherwise fails to perform its obligations hereunder. All shipping dates are approximate only, and Lantronix will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Company’s reasonable control. In the event of a delay due to any cause beyond Company’s reasonable control, Company reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Products as to which delivery is delayed due to any cause within Buyer’s control may be placed in storage by Company at Buyer’s risk and expense and for Buyer’s account. Orders in process may be canceled only with Company’s written consent and upon payment of Lantronix’ cancellation charges. Orders in process may not be changed except with Company’s written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefore. Credit will not be allowed for Products returned without the prior written consent of Company.
All sales are final. Neither Buyer nor any end users may return Products to Company except as expressly permitted by Lantronix standard limited warranty, which can be found at www.lantronix.com/legal/warranty-policy. Credit will not be allowed for Products returned without the prior written consent of Lantronix.
Title and Risk of Loss
Notwithstanding the trade terms indicated above and subject to Company’s right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Buyer upon delivery of possession of the Products by Company to the carrier; provided, however, that title to any software incorporated within or forming a part of the Products shall at all times remain Company or the licensor(s) thereof, as the case may be.
The Products delivered to Buyer hereunder shall be subject to Company’s standard limited warranty policies and return procedures applicable for the respective product in effect at the time of acceptance of the applicable Purchase Order, which can be found at www.lantronix.com/legal/warranty-policy. No warranty other than Company’s standard limited warranty are hereby made by Lantronix. EXCEPT FOR COMPANY’S STANDARD LIMITED WARRANTY, COMPANY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES TO BUYER OR ANY OTHER THIRD PARTY, WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, AND LANTRONIX SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Resale of Third Party Branded Products and Services
Notwithstanding the foregoing, Products supplied by Company that are obtained by Company from an original manufacturer or third party supplier are not warranted by Company, but Company agrees to assign to Buyer any warranty rights in such Product that Company may have from the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier.
Buyer shall indemnify, defend and hold harmless Company, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) to the extent arising from or in connection with (1) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (2) use of a Product in combination with equipment or software not supplied by Lantronix where the Product itself would not be infringing; (3) Company’s compliance with designs, specifications or instructions supplied to Company by Buyer; (4) use of a Product in an application or environment for which it was not designed; or (5) modifications of a Product by anyone other than Company without Company’s prior written approval.
Buyer’s use of the Products shall be subject to the terms of the license agreement applicable to the Products, which can be found at www.lantronix.com/legal/licenses.
Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF COMPANY UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL PURCHASE PRICE THERETOFORE PAID BY BUYER TO COMPANY WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER COMPANY (1) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (2) IS NEGLIGENT.
Buyer acknowledges that each Product and any related software and technology, including technical information supplied by Lantronix or contained in documents (collectively “Items”), is subject to export controls of the U.S. government. The export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Buyer shall comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item. Buyer shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (1) export or re-export any Item, or (2) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. Buyer shall cooperate fully with Company in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold Company harmless from, or in connection with, any violation of this Section by Buyer or its employees, consultants, agents, or customers.
(1) The construction, interpretation, and performance of these terms and all transactions under it shall be governed by the laws of the Province of British Columbia, Canada, but excluding both British Columbia’s choice of laws rules and the U.N. Convention for the International Sales of Goods. The Buyer agrees that any action relating to this Agreement shall be instituted and prosecuted in a court of competent jurisdiction in British Columbia, Canada (“BC Courts”) and each party waives its right to a change of jurisdiction or venue. The Buyer hereby submits and consents to the exclusive jurisdiction of the BC Courts in any action arising out of or relating to these terms of sale and waives any other venue to which it may be entitled by domicile or otherwise and agrees not to bring any action except in the foregoing BC Courts. Notwithstanding the forgoing, Company shall have the right to commence an action against Buyer in the BC Courts and before the state and federal courts located in New York County, New York, USA (“New York Courts”) and in such an event Buyer does hereby consents to the jurisdiction of the foregoing courts. In the event of an action before the New York Courts, the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New York, without reference to its choice of law provisions.(2) In the event of any legal proceeding between the Lantronix and Buyer relating to these terms of sale, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury. (3) The application to this Agreement of the U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded. (4) In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect, unless the revision materially changes the bargain. (5) Company’s failure to enforce, or Company’s waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision. (6) Unless otherwise expressly stated on the Product or in the documentation accompanying the Product, the Product is not designed for use in life support equipment or activities. Purchasers using or selling such Products for use in life support equipment do so at their own absolute risk. (7) Company shall not be liable for any damages or penalty for delay in delivery or for any other failure to perform in accordance with the terms and conditions hereof if such delay or failure to perform is due in whole or in part to factors beyond Lantronix’ reasonable control, including, but not limited to, delay in transportation or delay in delivery by Company’s vendors. (8) The terms and conditions set forth herein constitute the entire agreement between Lantronix and Buyer. Company’s offer to sell is expressly limited to the terms stated herein. Company shall not be bound by any terms of Buyer’s order which add to, modify, or are in any way different from the terms set forth in this document.
This Agreement was last revised on October 1, 2021.
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