Purchasing Terms & ConditionsLANTRONIX, INC.
Purchasing Terms and Conditions
AGREEMENT: Only a writing signed by an authorized representative of Buyer may modify a purchase offer (the “Offer”) or bind Buyer. UNLESS OTHERWISE AGREED IN WRITING BY BUYER, THE OFFER EXPRESSLY LIMITS ACCEPTANCE BY SELLER TO THE TERMS OF THE OFFER AND IS NOTICE OF OBJECTION TO ANY ADDITIONAL OR DIFFERENT TERMS OF SELLER. THE OFFER IS EXPRESSLY CONDITIONED ON SELLER’S ASSENT TO EACH AND ALL OF THE TERMS
CONTAINED HEREIN. None of Buyer’s actions shall be construed as acceptance of any additional or different terms in Seller’s forms. Buyer may revoke the Offer at any time prior to Seller’s acceptance. The following acts of Seller shall constitute acceptance of the Offer (a mutually accepted Offer shall thereafter be an “Order”): (i) signing a copy hereof, (ii) otherwise indicating acceptance in writing, (iii) accepting whole or partial payment, or (iv) commencing performance.
PRICING; RISK OF LOSS; PAYMENT: Unless otherwise specified on the purchase order, the prices charged to Buyer (i) are F.O.B. destination, and (ii) include all applicable federal, state and local taxes, charges or duties. No additional charges or taxes of any kind are allowed unless Buyer specifically agrees in writing. Risk of loss shall remain solely with Seller until the goods are delivered to Buyer’s premises (or services are fully performed by Seller, if applicable). Risk of loss or damage prior to Buyer’s inspection and acceptance is upon the Seller, and Buyer has no responsibility to provide insurance against loss or damage to items prior to acceptance (which may occur after delivery). The acceptance of goods or services by Buyer does not waive, limit, restrict or compromise any claims that Buyer may ultimately have against Seller on account of such products or services. All prices for products or services ordered by Buyer shall be quoted, invoiced and payable in U.S. dollars, unless otherwise agreed by Buyer. Payment for each purchase shall be made within sixty (60) calendar days from the fulfillment of the order by Seller, unless otherwise agreed by Buyer in writing. No late fees or penalties shall accrue against Buyer. Buyer may cancel this Order, in whole or in part, without liability to Seller if deliveries are not made at the time and in the quantities specified, or in the event of any other breach or failure of any terms or conditions hereof. Buyer at any time may make changes in quantity ordered or in specifications or drawings relating to the goods, or may change or amend any other term or condition of this Order, without any liability thereof from Buyer to Seller. Any claim for actual losses Seller incurs due to any such change must be made within 30 days from the date of receipt by Seller of such change or shall be deemed waived. Price increases or extension by Seller of delivery time shall not be binding on Buyer unless Buyer agrees in writing.
INSPECTION/WARRANTY/REPRESENTATIONS: Goods and services purchased hereunder are subject to inspection and approval at Buyer’s destination notwithstanding any prior payment. Buyer reserves the right to reject, refuse acceptance of, and withhold payment for goods or services which are not in compliance in any way with either (i) any of Buyer’s instructions and specifications or (ii) any of Seller’s express or implied warranties. Goods or services not accepted will be held or returned to Seller at Seller’s risk and expense at full invoice price plus any applicable transportation charges. Seller agrees to reimburse Buyer for any expense Buyer incurs due to Seller’s failure to make shipments as specified on Buyer’s purchase order. Payment of invoices does not constitute acceptance by Buyer of any goods or services. Upon receipt of goods or services, failure by Buyer to provide notice(s) of rejection (or incomplete or inaccurate notice(s) of rejection) for any good or services shall not under any circumstances be construed to constitute acceptance (in whole or in part) of the applicable goods or services. Without limiting the foregoing, Buyer may reject any goods or services that do not comply with the requirements of the Order or any other reasonable quality requirements. At Buyer’s sole option and election in writing, upon its rejection of goods or services, Seller shall, promptly: (i) refund the full amount paid for any rejected goods or services; or (ii) correct, replace or re-perform any such rejected goods or services, all at Seller’s sole and complete expense. All remedies specified herein shall be cumulative and in addition to all other or future remedies provided at law or in equity. Seller warrants that for a period of one (1) year from the date of acceptance of goods or completion of services under this Order that such goods/services are free of defects in material and workmanship and are fit and safe for the purpose intended under normal use and service. Seller shall replace defective items or defective parts, including the cost or removal and replacement at Seller’s expense. Seller hereby expressly represents and warrants that, as of the date of the Order, and continuing thereafter: (a) the goods and services will be provided in compliance with all applicable laws, rules and regulations; (b) the goods and services will not in any manner, directly or indirectly, disparage, defame, discredit or harm Buyer or its reputation; (c) the goods and services will not harm or infringe any rights (including, without limitation, rights to privacy or intellectual property of any party, including, but not limited to, Buyer or any third party) of any party; (d) it has full capacity, power and authority to enter into and perform this Order; (e) its entry into this Order and performance of its obligations hereunder does not breach any of its obligations to any third party, breach any contract or agreement or violate any rule, law or regulation of any nature; (f) the goods and services will be provided and performed (as applicable) in a professional and workmanlike manner and shall be of a service and product quality that is consistent with the highest standards in Seller’s industry; (g) all of the representations and warranties made herein are true and complete; (h) its performance of this Agreement will be free and clear of liens and encumbrances; (i) the goods and services will be free (in whole and in part) from any defects in material and workmanship for twelve (12) months from the date of satisfactory acceptance of the goods and completion of the services.
COMPLIANCE WITH LAWS: Seller shall comply with all applicable federal, state and local laws, executive orders, rules, regulations and orders. Without limiting the foregoing, Seller warrants that it shall meet all applicable requirements and standards of the Fair Labor Standards Act and the regulations and orders of the U.S. Department of Labor issued thereunder, the Occupational Health and Safety Act, and applicable affirmative action laws. Buyer, as a contractor to the federal government, is subject to each of the following (and the respective regulations, orders and rules issued thereunder): (1) Executive Order 11246; (2) the Rehabilitation Act of 1973; (3) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended; and (4) Executive Order 13201. Accordingly, the following clauses must be, and hereby are, incorporated into this Order, as applicable, and Seller agrees to furnish to Buyer, upon request, information sufficient to demonstrate compliance with these clauses (and Seller shall promptly notify Buyer of any change of status with regard to these certifications and representations), as applicable: (1) The Equal Employment Opportunity Clause (41 C.F.R. Section 60-1.4 and 29 C.F.R. 52.222-26); (2) The Equal Opportunity Clause for Special Disabled Veterans and Veterans of the Vietnam Era (41 C.F.R. Section 60-250.4 and 29 C.F.R. 52.222-35); (3)The Equal Opportunity Clause for Workers with Disabilities (41 C.F.R. Section 60-741.5 and 29 C.F.R. 52.222-36); and (4) Notice of Employee Rights Regarding Payment of Union Dues or Fees (29 C.F.R. 470.2 and 29 C.F.R. 52.222-39). By accepting this Order, Seller certifies and represents its compliance with the preceding federal laws, as applicable.
CONFIDENTIALITY: Seller shall not utilize or disclose any confidential information, drawings or data, whether or not designated as such, that Buyer disclosed to Seller, except as is reasonably required to perform the Order. At Buyer’s request at any time, Seller shall immediately return any such confidential items to Buyer. This section is subject to any confidentiality agreement executed between the parties. INDEMNIFICATION: Seller agrees to defend, indemnify and hold Buyer, its subsidiaries, affiliates, agents and their respective employees, contractors, officers, directors, affiliates, shareholders, agents, representatives, customers, successors and assigns (the “Indemnified Parties”), harmless against any and every claim demand, action, proceeding, liability, loss, cost or expense whatsoever, including (without limitation) attorney’s fees, arising from, related to or in connection with any actual or alleged (i) defect in the goods or services, (ii) failure by Seller to comply with Buyer’s specifications or with Seller’s express or implied warranties, (iii) violation by Seller or its goods or services of any federal, state or local law, rule or regulation, (iv) infringement of any patent, trademark, trade name, trade secret, copyright or other property or personal right by Seller or its goods or services, (v) enforcement by Buyer of its rights hereunder, (vi) Seller’s bad faith, willful misconduct or negligence, (vii) acts or omissions of Seller, or (viii) personal or physical injuries of any kind whatsoever suffered by the Indemnified Parties. In the event of any claim, demand, action or proceeding being commenced against Buyer regarding the above matters, Buyer shall give Seller notice thereof in writing. In the case of sub-section (iv) above, in addition to Seller’s obligation to indemnify the Indemnified Parties as discussed above, Seller shall, at Buyer’s sole and exclusive option and Seller’s sole expense, either: (A) secure a license to use such portion of the infringing, unlawful or violating assets in a manner consistent with this Order; (B) replace the same with other non-infringing, lawful and non-violating assets that are equally suitable and functionally equivalent, compatible and useable as the infringing, unlawful and/or violating assets, as is determined by Buyer in its sole and absolute discretion; or (C) modify the infringing, unlawful or violating assets so that they no longer infringe, harm or violate the rights of others while still otherwise meeting the requirements of this Order. In any claim to which indemnity attaches hereunder, the Indemnified Parties may also join the defense against any such claim with counsel of their own choosing. Any settlement or compromise of any claim or liability to which indemnification applies hereunder requires the express written consent of Buyer.
GENERAL: The Order contains the entire agreement between the parties and supersedes any and all prior or contemporaneous agreements, understandings or communications (whether oral, written, express, implied or otherwise), between the parties relating to the subject matter hereof. The Order may not be modified, amended or cancelled without Buyer’s written consent in each instance. No delay, failure or omission to exercise any right, power or remedy accruing to Buyer under the Order shall impair, or be deemed a waiver of, any such right, power or remedy of Buyer. If any of the provisions hereof shall be held by a court of competent jurisdiction to be unenforceable, then (i) the remaining provisions shall remain unaffected and in full force and effect, and (ii) such unenforceable provision will be enforced to the maximum extent permissible under the circumstances so as to effectuate the original intent of the parties with respect to such provision. The rights and remedies of Buyer hereunder are cumulative and may be exercised singularly or concurrently. The Order shall create no rights or benefits enforceable by any third party. Nothing in the Order will be construed to constitute an agency, partnership, joint venture or employer-employee relationship between the parties. Neither party has the power, and will not hold itself out as having the power, to act for or in the name of, or to bind, the other party. The parties to this Order intend their arrangement and the performance of this Order to be one of an independent contractor providing services to a customer. Unless otherwise stated herein, any notices hereunder shall be in writing and be delivered by hand or mail to the principal place of business of the recipient and shall be deemed given upon delivery, if by hand, or three (3) business days after mailing if by certified first class postal mail, return receipt requested. Either party may change its address for receipt of notice to the other party by delivering written notice of such change pursuant to this paragraph. The article, section and paragraph headings used in this Order are for convenience only and shall not be used in interpreting or construing the Order. The Order shall be interpreted as having been drafted together by each of the parties with the assistance of its respective legal counsel. This Order may be executed in counterparts, each of which will be considered an original, and together which shall constitute one and the same instrument. Signatures of this Order delivered via facsimile or electronic means shall have the same legal effect as original signatures. Seller may not assign or transfer its rights, duties or obligations under this Order without Buyer’s prior written consent. Such consent (if given) shall not relieve Seller from any duty to perform or liability for breach. The Order will be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors and permitted assigns. Any attempted assignment by Seller in violation of this paragraph shall be null and void. Buyer will not be liable for any acts or omissions due to causes beyond its control (including, without limitation, fire, flood, strike, civil disturbance, terrorism, war or Acts of God). If any such circumstances occur, Buyer shall provide notice to Seller and Buyer’s time for performance will be extended for a period of time equal to the duration of the delay caused thereby. The California Commercial Code shall govern this Order, which shall construed and enforced in accordance with the internal laws of the State of California, excluding its conflict of law provisions. The parties hereby expressly agree that no effect shall be given to any provision of the United National Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions. Any claim, controversy, action, dispute, suit or proceeding (“Dispute”) arising out of, related to, or in connection with this Order shall be brought in the state and federal courts in the County of Orange in the State of California. The parties hereby expressly consent to the exclusive venue and personal jurisdiction of such courts. In the event of any Dispute arising from, related to or in connection with the Order, the prevailing party thereof shall be entitled to recover its reasonable expenses, including (without limitation) attorneys’ fees and court costs. Notwithstanding anything to the contrary herein, in no event shall Buyer be liable (regardless of the theory of liability, whether in contract, tort strict liability or otherwise) for: (a) any indirect, special, consequential, incidental or punitive damages (including, without limitation, for lost profits or revenues or business interruption) related to, in connection with or arising from the Order (and even if Buyer was informed of the possibility of such damages); (b) total cumulative liability hereunder in connection with, related to or arising from the Order in an aggregate amount greater than One Hundred Dollars ($100.00). The parties expressly acknowledge and agree that the limitations of liability set forth in this paragraph are an essential part of the Order. Prior to the commencement of this Order (and the delivery of any goods or performance of any services hereunder) and from time to time as requested by Buyer, Seller shall provide Buyer with certificates showing the following types of insurance in the amounts and by the insurance carriers that are acceptable to Buyer (in its sole and absolute discretion): worker’s compensation, public liability, property damage, automobile, and such other coverage as Buyer requires. Seller must provide advance written notice to Buyer of any expected actual changes in any such insurance coverage.