If any confirmation or acceptance issued by Lascar Electronics, Inc. (Lascar) contains any term or condition which is different from or additional to any term or condition contained in any order such as confirmation or acceptance is expressly made conditional on assent by the purchaser to all such different and additional terms and conditions, unless Lascar expressly agrees specifically otherwise in writing, whether before or after shipment, acceptance or payment. Acceptance of, payment for, or use of the products ordered (the Goods) shall each conclusively evidence such assent by the purchaser. Further, without limitation, acceptance by the purchaser of any offer made by Lascar is expressly limited to the terms hereof, unless Lascar expressly agrees specifically otherwise in writing, whether before or after shipment, acceptance or payment. Quotations, price lists, and other like do not constitute offers to sell and are not binding on Lascar, unless, in the case of quotations and the like, Lascar expressly states otherwise in writing.
The contract (Contract) for the sale of the goods formed between the parties pursuant to Paragraph 1, above, shall constitute the entire agreement between the parties, and no representations or warranties not embodied herein shall have any force or effect. These Standard Terms and Conditions of Sale shall be an integral part of the Contract, and references hereto include the Contract when formed.
No change to the Contract shall be binding on Lascar unless set forth in a writing signed by Lascar. Design and other specifications for the Goods and other descriptions of the Goods are subject to the change by Lascar at any time prior to shipment without notice, provided only that the Goods shipped are the general kind ordered and that the usability of the Goods shipped is not materially decreased from that of the Goods ordered.
4. Governing Law
All offers to sell and acceptances of offers to buy by Lascar are made at the principal office of Lascar in Pennsylvania, and, together with the Contract, shall be construed in accordance with and governed by the Uniform Commercial Code of Pennsylvania and the other laws of Pennsylvania.
5. F.O.B. Origin
The Goods are sold for delivery F.O.B. the point of shipment in Erie, Pennsylvania. Lascar shall use reasonable efforts to comply with any specified terms respecting shipping but Lascar shall always have the option to ship in any reasonable alternative means and/or manner selected by it in its discretion. All freight costs are in addition to the purchase price and shall be borne by the purchaser as provided in the Contract (or as Lascar may reasonably determine if no such provision is made). Lascar, at its expense, will attend to customary and reasonable packing and loading of the Goods, but any other packing and loading which may be necessary or which may be requested by the purchaser and assented to by Lascar shall be at the purchaser’s expense. Title to (subject to Paragraph 14, below) and the risk of loss and of casualty to the Goods shall pass to the purchaser upon delivery
of the Goods to the carrier.
Lascar’s obligation to supply the Goods is limited to its ability to do so from stock and its ability to supply all customers of Lascar through the exercise of Lascar’s reasonable efforts. Unless otherwise agreed in writing, Lascar may accept offers to purchase for a lesser quantity of Goods than that specified in the offer in which case the purchase price will be calculated at the Contract rate. Variances in the quantity of Goods shipped or received from the quantity specified in the Contract shall, in no event, constitute a breach of the Contract, and no credit or reduction shall be allowed for shortages unless a claim therefore is made in writing before expiration of the 7-day inspection period set forth in Paragraph 15(d) below.
7. Delivery Schedule
Shipment or delivery shall be in accordance with such delivery schedule as Lascar may reasonably determine from time to time. Although Lascar will use reasonable efforts to comply with any estimate of shipment or delivery time given by Lascar (or absent such estimate with any such time specified by the purchaser), no such estimate or specification shall be binding on Lascar, even if set forth in this form.
Any provision hereof to the contrary notwithstanding, Lascar shall have no liability for delay in shipment or delivery or for non-shipment or non-delivery of the Goods arising wholly or partially out of any cause wholly or partially beyond Lascars control (including, without limitation, defaults by or delays on the part of any domestic or foreign carrier or of any domestic or foreign sub-contractor or supplier of Lascar), and the delivery schedule shall be extended for the period of delay, even though it may follow a period of excusable delay caused by other reasons. In the event of any such cause which permits performance by Lascar of some, though not all, of its obligations to its customers Lascar shall be entitled to the benefit of this Paragraph 8, at its option.
The goods may be delivered in a single lot, or in multiple lots, all as determined by Lascar, and any reference to the Goods shall apply equally to any lot thereof. If the Goods are delivered in more than one lot, the effect of any default by Lascar as to any one lot shall be limited to that lot alone and shall not affect the whole Contract, even though such default substantially impairs the value of the whole Contract.
10. Purchase Price
The purchase price for the Goods is that set forth in the Contact, or, at Lascars option. Lascars price for such Goods according to Lascars general price list as set by Lascar acting in good faith at the time of shipment (taking into account the purchaser distribution level, any discounts and any other factors normally applied by Lascar at the time to such price list).
All sums payable to Lascar hereunder shall be paid in full, without prompt payment discounts, deduction, or offset by the purchaser company check (or by cash or equivalent, if Lascar shall notify the purchaser of its requirement therefore at any time, whether before or after shipment) in legal U.S. tender. Lascar will invoice the purchaser for all sums due hereunder upon shipments of the Goods, and each invoice shall be paid by the purchaser no later than the 10th day of the month following the date of the invoice. If the Goods are shipped in more than one lot, then Lascar may invoice separately for that portion of the purchase price represented by each lot, determined in any manner deemed reasonable by Lascar.
12. Sales Tax
In addition to all other sums payable hereunder, the purchaser shall pay sales and US and other taxs or charges levied or imposed on Lascar or the purchaser or the Goods, or required to be collected by Lascar, and relating in any way to the Contract.
13. Late Charge
If the purchaser fails to pay the purchase price in full promptly when due, and such default continues for 30 days or more, Lascar may assess against the purchaser, and the purchaser shall pay, a late charge at the rate of one and one half percent ( 1 1/2%) of the delinquent portion of the purchase price per month from the date of such default until paid in full, not to exceed, however, the highest amount which the purchaser may contact to pay under applicable law in order to induce prompt payment for goods when due. In addition, should any sum due hereunder be collected by legal process or through an attorney-at-law, Lascar shall also be entitled to collect attorneys fees in an amount equal to 15% of such sum and all cost of collection.
14. Security Interest
The purchaser hereby grants to Lascar a purchase money security interest in the Goods and in all proceeds and products of same (the foregoing being collectively referred to as the Collateral). Said security interest shall secure all obligations and indebtedness, whenever incurred, of the purchaser to Lascar of every kind and nature, including, without limitation, the purchase price due for the Goods and all other sums payable to or for Lascar in connection with the Contact. If Lascar shall so request, the purchaser shall execute and deliver to Lascar such instruments and documents, including but not limited to , financing statements and continuation statements as Lascar shall deem necessary or desirable for the purposes of perfecting and maintaining its security interest and other rights hereunder, and on request of Lascar, the purchaser shall mark and segregate the Collateral to give notice of the interest of Lascar therein.
The following sets forth the final expression of the parties agreement concerning warranties and is a complete and exclusive statement of the terms of that agreement:
(a) Limited Express Warranty. On and subject to the terms and conditions set forth herein, Lascar hereby makes the non-transferable, exclusive Limited Express Warranty to the original purchaser of the Goods that the Goods which are delivered will, at the time of shipment, conform to their description in the Contract, except that variances from such description which do not materially affect the use of the Goods or which are normally permitted by the practices of the electronics industry or by any reference standard contained in such description, whichever is more permissive, shall not be considered non-conformities under such Limited Express Warranty or a breach of any other obligation of Lascar. The consequences of misuse, neglect, accident, or improper installation or use affecting the Goods shall not be considered nonconformities under such Limited Express Warranty or a breach of any other obligation of Lascar.
(b) Disclaimer. THE LIMITED EXPRESS WARRANTY OF LASCAR SET FORTH IN THIS PARAGRAPH IS AGREED UPON AS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF ANY NATURE WHATSOEVER, WHETHER ORAL, WRITTEN, EXPRESS, OR IMPLIED, PARTICULARLY IN LIEU OF THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR ANY PARTICULAR PURPOSE AND
OF ANY WARRANTY AGAINST INFRINGEMENT OR THE LIKE OTHERWISE IMPOSED BY LAW.
(c) Exclusive Remedy. The exclusive remedy of the purchaser and the sole measure of recoverable damage by the purchaser for breach of the Limited Express Warranty is the replacement of the non-conforming item at Lascars risk and expense or, at Lascars option, the extension of a credit to the purchaser against future purchases in the amount of the purchase price of the non-conforming item. This remedy is provided only if (i) the purchaser notifies Lascar of any claim of defect or non-conformity within the 7-day inspection period set forth in Paragraph 15 (d) below; (ii) the Goods containing the non-conformity are returned to Lascar at the purchasers risk and expense after authorization for its return is obtained from Lascar, and (iii) upon examination by Lascar, the Goods are found non-conforming.
(d) Inspection. If each lot of the Goods is not inspected by the purchaser within 7 days after receipt, or if such lot is so inspected but the purchaser fails to give written notice of any non-conformity to Lascar within such 7-day inspection period, then acceptance of such lot by the purchaser shall be deemed conclusive, and the purchaser shall thereafter be PRECLUDED from asserting any claim or remedy against Lascar with respect to the quality of such lot, whether based on said Limited Express Warranty (including without limitation, any claim of latent or patent defect), contact, tort (including the sole negligence of Lascar, its officers, director, agents, and employees), strict liability, or otherwise.
(e) No Other Warranties. In no event may Lascars Limited Express Warranty or any other obligation of Lascar be enlarged or otherwise changed by statements by any sales or technical personnel, or by any written public sales information, or by any specific drawings or specifications which are not part of the description of the Goods warranted by the Limited Express Warranty, nor may the purchaser rely on any of same.
(f) Use of the Goods. Without limitation, in no event shall Lascar have any responsibility of liability for any industrial or other application to which the Goods may be put, notwithstanding said Limited Express Warranty, nor shall any review or inspection of applications for the Goods by Lascar be considered as creating a warranty of fitness of the Goods for a particular purpose. Without limitation, the purchasers attention is directed to any and all labels appearing on the Goods containers and to any and all technical information available from Lascar for further information. THE PURCHASER ASSUMES THE ENTIRE RISK OF ANY AND ALL USES TO WHICH THE GOODS MAY BE PUT, AND ANY AND ALL THIRD-PARTY CLAIMS ASSOCIATED WITH THE GOODS OR THEIR USE.
16. Limitation of Liability
LASCAR SHALL HAVE NO LIABILITY IN WARRANTY (EXCEPT FOR TITLE AND THE LIMITED EXPRESS WARRANTY), CONTRACT, TORT (INCLUDING THE SOLE NEGLIGENCE OF LASCAR, ITS OFFICERS, DIRECTORS, AGENTS, OR EMPLOYEES), STRICT LIABILITY, OR OTHERWISE, REGARDING THE PRODUCTION OF THE GOODS, QUALITY OF GOODS , OR ANY SERVICES OR OTHER ACTIONS PERFORMED BY LASCAR AND RELATING IN ANY WAY TO THE CONTRACT. IN NO EVENT IS LASCAR LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGE OR LOSS OF ANY NATURE (SUCH AS DAMAGES FOR DELAY, DAMAGE TO PROPERTY, LOST PROFITS, INJURY TO PERSON, OR ANY CLAIMS OF THOSE NOT A PARTY TO THIS AGREEMENT) WHICH MAY ARISE IN CONNECTION WITH THE GOODS OR ANY SERVICES OR OTHER ACTS PERFORMED BY LASCAR RELATING TO THE CONTRACT, REGARDLESS OF WHETHER CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN WARRANTY, CONTRACT, TORT (INCLUDING THE SOLE NEGLIGENCE OF LASCAR, ITS OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES), STRICT LIABILITY, OR OTHERWISE.
17. Limitation of Damages
THE AGGREGATE CUMULATIVE AMOUNT OF ANY LIABILITY OF LASCAR under its Limited Express Warranty herein contained and under any other duty or obligation of Lascar connected with the Contract in any way, whether based on warranty (including the Limited Express Warranty), contract, tort (including the sole negligence of Lascar, its officers, directors, agents, or employees), strict liability otherwise, SHALL NOT EXCEED THE PURCHASE PRICE FOR THE GOODS.
Lascars Limited Express Warranty extends only to the original purchaser of the Goods from Lascar. The purchaser agrees to use, or cause the Goods to be used, in a safe and proper manner, and in accordance with all technical information available from Lascar and in accordance with the highest standards of the electronics industry. The purchaser shall indemnify Lascar against, and hold it harmless from, any and all losses, liabilities, and claims asserted by any customer of the purchase, by any person to whom the Goods may be directly or indirectly supplied by the purchase, or by any third party whatsoever, which relate to the Goods in any way, whether or not based on or arising out of warranty, contact, tort including the sole negligence of Lascar, its officers, directors, agents, or employees), strict liability, or otherwise.
If Lascar is making an offer to sell, all obligations of Lascar thereunder shall be canceled, without notice to or compensation of the purchaser, if the purchaser has not accepted such offer and the Contract has not been formed within thirty (30) days after the date of such offer, provided that Lascar may, at any time prior to the expiration or acceptance thereof, cancel such offer without compensation to the purchaser, upon giving notice to the purchase, and provided further that if a purported acceptance of such offer is not received until after said expiration date, then Lascar shall have the option (unless it have previously canceled such offer) to treat same as a timely acceptance for purposes of the terms and conditions hereof pertaining to acceptance.
The Contract is a binding obligation of both Lascar and the purchaser, and the purchaser may not cancel its order for all or any part of the Goods or return Goods which have been shipped or paid for, without the prior written authorization of Lascar, which authorization Lascar is not obligated to give. Goods which are properly returned in accordance with the foregoing must be shipped back to Lascar at the purchasers risk and expense and in accordance with such reasonable shipping directions as Lascar may impose, including specifications of the destination. In the event of any such cancelation or return, Lascar shall not be obligated to refund any prior payment made by the purchaser, but rather Lascar’s sole liability with respect to payments previously made shall be to extend to the purchaser against its next purchase from Lascar credit in the amount of 90% of the purchase price paid (80% in the case of Goods returned later than 6 months from invoice date). The balance of the purchase price paid shall constitute liquidated damages in compensation of Lascar for its increased selling. Overhead, and administrative costs incurred as a result of such cancelation or return, Lascar’s actual damages in such event being impossible to foresee, and the parties agreeing to this provision as a reasonable liquidation thereof. All returns are subject to inspection by Lascar, and no credit will be allowed for Goods which are not in their original packages or which are otherwise unsaleable.
Except as otherwise provided herein, any and all notice or other communications under or relating to the Contract of any offer to purchase or sell shall be in writing, and the same shall be deemed given when personally served or when sent by first class mail, postage prepaid, or by facsimile, telex, telegram or cable. No offer to sell made by Lascar, nor the Contract, may be transferred, assigned, sold, or any manner hypothecated or pledged by the purchaser unless written consent to such act is first obtained from Lascar. Except as herein limited, the rights, obligations, representations, and warranties herein contained shall be binding upon and inure to the benefit of the parties hereto, their heirs, administrators, executors, successors, and assigns. Should any portion hereof be legally adjudicated invalid or unenforceable, the parties do hereby covenant and agree that such portion or portions are absolutely and completely severable from all other portions hereof, and such other provisions shall constitute the agreement of the parties. The rights and remedies available to Lascar at law or in equity. No failure on the part of Lascar to exercise, and no delay in exercising any right, shall operate as a waiver thereof, nor shall any single or partial exercise by Lascar of any right preclude any other or future exercise thereof or the exercise of any other right. The purchaser must commence any action for breach of any offer to sell made by Lascar or the Contract, if at all, within one (1) year after the cause of action accrued. The paragraph headings herein are not a part hereof. Any provision contained herein or in the Contract in favor of Lascar may be waived by Lascar in whole or in part at its option at any time, but no such waiver shall be binding on Lascar unless contained in a signed writing delivered to the purchaser. Without limitation, Lascar may, by express written agreement to the contrary, vary any provision contained in these Standard Terms and Conditions of Sale, and such variance will control over any provision in these Standard Terms and Conditions of Sale with which it is irreconcilably inconsistent but only to the extent of such inconsistency.