Any purchase order, e-mail, phone call, fax, or other form of communication from a Customer that communicates an order to purchase one or more Products directly or indirectly from LSI SOLUTIONS® is considered an offer by the Customer.
All offers are subject to approval and acceptance by LSI SOLUTIONS®, which LSI SOLUTIONS® may accept or reject in its sole discretion. Any acknowledgement by LSI SOLUTIONS® that the offer is accepted (e.g., via an order confirmation) must be communicated in writing, such as an e-mail, fax, or any other written form of communication to the Customer that acknowledges that the Customer’s order has been received and will be processed as an acceptance by LSI SOLUTIONS®. Any automatic or computer-generated response to an order shall not be deemed an acceptance of an order. LSI SOLUTIONS®’ acceptance will be governed by these Terms of Sale.
These Terms of Sale are an integral part of the agreement between the Customer and LSI SOLUTIONS® and shall contain the entire agreement between the Customer and LSI SOLUTIONS® for the purchase of the requested Product(s) and supersede all prior proposals and agreements between the parties, whether oral or written, relating to the requested Product(s). Notwithstanding the foregoing, any agreement between LSI SOLUTIONS® and the Customer relating to the sale of the Products that has been executed by both LSI SOLUTIONS® and the Customer shall supersede these Terms of Sale.
Any terms proposed by the Customer including, without limitation, those set forth in or referenced by the Customer’s initial offer, which are different from or in addition to the Terms of Sale are hereby expressly rejected by LSI SOLUTIONS® unless specifically accepted by LSI SOLUTIONS® in a separate document signed by both the Customer and LSI SOLUTIONS®, regardless of whether such other terms would materially alter the Terms of Sale.
Both parties acknowledge and agree that these Terms of Sale supersede the terms and conditions of any purchase order used by the Customer and, except for identification of the Products, delivery location, desired delivery date and quantities ordered, any conflicting or additional terms are void and have no effect, but that the Customer may place orders by use of purchase orders for its convenience and to comply with its internal procedures and requirements.
Prices are subject to change without prior notice. Prices are in United States dollars and are stated FCA LSI SOLUTIONS®’ facility (Incoterms 2020). Prices do not include taxes (sales, excise, use, ad valorem, etc.) or any tariff, export or import duties imposed on the manufacture or sale of the Products. Those charges may be prepaid by LSI SOLUTIONS® and / or added to the Customer’s commercial invoice.
(a) Standard Payment Terms
All invoiced amounts are due within thirty (30) days of the date of the invoice (not to be misinterpreted as the date the invoice is received by the Customer), unless stated otherwise on the invoice. Credit card payments or alternative payment methods (including business-to-business payment networks) will not be accepted without prior written approval from LSI SOLUTIONS®, and if approved, all credit card payments and alternative payment methods are due within five (5) days of the date of the invoice. Any taxes imposed upon the Product, its sale, transportation, delivery, use or consumption shall be the sole responsibility of the Customer. All payments shall be made in United States dollars and shall be made without any deduction or offset for any costs, expenses or credits of any kind. Application of credit memos by the Customer to invoiced amounts require five (5) day written notification (email is adequate) to LSI SOLUTIONS® to enable reconciliation of the Customer account.
(b) Past Due Amounts & Disputed Amounts
Any invoiced amounts remaining unpaid after the due date will be deemed “Past Due” and will be subject to service or finance charges at the highest rate permitted by law, or one and one-half percent (1.5%) per month, whichever is lower, until the balance is paid. Any discounts, rebates, administrative fees, credits, or other fees due or owed by LSI SOLUTIONS® to the Customer will be applied against the Past Due balance before payment or reimbursement is made. Any disputed invoice amounts or line items must be reported in writing to LSI SOLUTIONS® immediately, but not less than thirty (30) days of the applicable invoice date. LSI SOLUTIONS® will not make payments for, or investigate, any invoice claims or disputes which are made more than thirty (30) days after the invoice date. In the event of any such dispute, the Customer must pay the undisputed portion of the invoice by the due date.
(c) Credit Hold Status
LSI SOLUTIONS® may place the Customer on credit hold and restrict the Customer’s credit terms and product shipments upon the Customer remaining Past Due on invoiced amounts and/or displaying erosion of solvency or financial status. LSI SOLUTIONS® will give written notification (via email) to the Customer of any change to credit hold status. Customers placed on credit hold may have credit terms reduced or removed at the sole discretion of LSI SOLUTIONS®, requiring prepayment of orders.
(d) Bankruptcy & Insolvency
In the event the Customer files or is involved in any bankruptcy, insolvency, or similar case or proceeding, LSI SOLUTIONS® shall apply any amounts owed by LSI SOLUTIONS® to the Customer, first to any pre-bankruptcy, non 11 U.S.C. SS 503(b)(9) claims and then to the 11 U.S.C. SS 503 (b)(9) claims.
All Prices are exclusive of sales, use, value-added, gross receipts, and other transaction taxes, which will be separately stated on the applicable invoice. The Customer will promptly pay and indemnify LSI SOLUTIONS® against all such taxes legally imposed upon and payable by the Customer, unless the Customer provides LSI SOLUTIONS® satisfactory evidence of a valid tax exemption certificate within the applicable statutory requirements.
If the Product is provided to the Customer by LSI SOLUTIONS® at no charge for evaluation or demonstration purposes, the Customer agrees to not bill any third party for such no-charge Product, and if covered under a government reimbursement program, the Customer will not seek reimbursement under the billing procedures applicable to the payment system. Unless purchased or consigned, any unused Product at the end of an evaluation period must be destroyed or returned per LSI SOLUTIONS®’ instructions. Notwithstanding anything to the contrary in these Terms of Sale, LSI SOLUTIONS® will not be liable for any claims arising from such no-charge Products.
The Customer will be solely responsible for any shipping and handling charges. The Customer may request that LSI SOLUTIONS® engage a freight handler on behalf of the Customer, in which case any shipping and handling charges will be separately stated on the applicable invoice. Unless otherwise stated in a written agreement between the Customer and LSI SOLUTIONS®, shipment of the Product(s) will be made FCA LSI SOLUTIONS®’ facility (Incoterms 2020). Title to the Product(s) shall pass from LSI SOLUTIONS® to the Customer upon delivery to a carrier at LSI SOLUTIONS®’ facility. Shipment schedules are approximate and are as accurate as conditions permit on the date of such schedule is prepared.
Any damaged or lost Product(s) shipped and arranged by LSI SOLUTIONS® to the Customer via third party logistics provider must be identified and noted on the Customer’s copy of delivery document by an agent of the transportation company. If damage is discovered after the receipt of shipment, the Customer must notify the carrier immediately and request that inspection be made and an inspection report rendered.
Any return of one or more Products must be submitted within 90 days of receipt of product and be pre-authorized by LSI SOLUTIONS® before the Product(s) is/are shipped and will be subject to a 20% restocking fee. Authorization may be obtained through the LSI SOLUTIONS® Customer Service department. A Return Material Authorization (“RMA”) number will be issued upon approval of the return and the number must be referenced on all returned packages. The Customer will be solely responsible for any such return shipping. The following merchandise is not acceptable for return: (1) sterile items that are returned without factory seals intact; (2) Product(s) that are special ordered; (3) incomplete cases or kits; (4) expired Product(s); (5) Product(s) which has been marked or labeled with anything other than the standard LSI SOLUTIONS® label. Upon receipt of returned Products complying with the requirements of this Section 8, LSI SOLUTIONS®’ sole obligation shall be to issue to Customer a credit to be applied to future orders.
Prior to shipment, the Customer may cancel or suspend an order by giving written notice of cancellation or suspension to LSI SOLUTIONS®; provided, however, that the Customer will be liable to LSI SOLUTIONS® for any Products, supplies and other materials that cannot reasonably be repurposed for use with another of LSI SOLUTIONS®’ existing customers. The Customer may cancel after shipment only if the Product(s) is/are re-saleable and the Customer pays a restocking fee, shipping and handling charges as reasonably determined by LSI SOLUTIONS®. Upon cancellation pursuant to this Section 9, LSI SOLUTIONS®’ sole obligation shall be to issue to Customer a credit to be applied to future orders.
(a) LSI SOLUTIONS® warrants to the Customer that the Product(s) are free from defect in material and workmanship. This warranty shall run for a period of 90 days from the date of shipment, unless the Product(s) is/are subject to an expiration date, in which case, the expiration date shall apply. The foregoing warranties do not apply to damage resulting from unauthorized or improper installation, accident, neglect, casualty, alteration, repair by any person other than LSI SOLUTIONS®, misuse, abnormal physical stress, abnormal environmental conditions, or failure to follow LSI SOLUTIONS®' written instructions. EXCEPT FOR THE FOREGOING WARRANTY, LSI SOLUTIONS® MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY OTHER WARRANTY INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED.
(b) The Customer's sole and exclusive remedy for breach of the foregoing warranties shall be the repair or replacement of the defective Product, or, at LSI SOLUTIONS®' option, a refund of the purchase price; provided the Customer promptly sends to LSI SOLUTIONS® notice of defect within the time period required under Section 10(a) and satisfactory proof thereof, including allowing LSI SOLUTIONS® the opportunity to inspect the Product, and in the event of repair or replacement, returns the Product to LSI SOLUTIONS®. Defective parts replaced by LSI SOLUTIONS® shall become the property of the LSI SOLUTIONS®. Repaired or replacement parts will be shipped to the Customer FCA LSI SOLUTIONS®’ facility (Incoterms 2020).
(c) LSI SOLUTIONS® is not responsible for any charges relating to warranty work or replacement that have not been authorized by LSI SOLUTIONS® in writing.
(d) NEITHER LSI SOLUTIONS® NOR THE CUSTOMER SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, REGARDLESS OF WHETHER SUCH DAMAGES ARISE DIRECTLY OR INDIRECTLY FROM ANY BREACH OF CONTRACT, MATERIAL OR OTHERWISE, OR FROM ANY TORTIOUS ACTS OR OMISSIONS OF THEIR RESPECTIVE EMPLOYEES OR AGENTS, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. IN NO EVENT SHALL THE LIABILITY OF LSI SOLUTIONS® EXCEED THE PRICE PAID BY THE CUSTOMER TO LSI SOLUTIONS® FOR THE PRODUCT WITH RESPECT TO WHICH LIABILITY IS CLAIMED.
(e) If LSI SOLUTIONS®, without separate compensation therefor, furnishes the Customer with advice or other assistance concerning any Product(s) supplied hereunder or any system or equipment in which any such Product may be installed which is not required hereunder, the furnishing of such advice or assistance will not subject LSI SOLUTIONS® to any liability whether in contract, tort (including negligence and strict liability) or otherwise.
In the event that LSI SOLUTIONS® is required by a regulatory agency to formally recall the Product(s), or LSI SOLUTIONS® voluntarily initiates a recall of the Product(s), the Customer agrees to cooperate with and assist LSI SOLUTIONS® in locating and retrieving the recalled Product(s). The Customer shall promptly report to LSI SOLUTIONS® any complaints or other information regarding the Product(s) of which it becomes aware that could reasonably be expected to lead to recall or other regulatory action.
If LSI SOLUTIONS® is notified promptly in writing of any claim of infringement of any US intellectual property rights, LSI SOLUTIONS® will defend or may settle at its expense any such claim; provided, however, that the Customer must cooperate with LSI SOLUTIONS® in the defense of any such claim. LSI SOLUTIONS® shall, at its expense and option, either procure for the Customer the right to continue using any infringing Products, or replace or modify them so they become non-infringing, or remove the Products and refund the purchase price. The foregoing states the entire liability of LSI SOLUTIONS® for patent, trademark, or copyright infringement by Products or any part thereof.
The preceding shall not apply to (a) any Product(s) specified by the Customer or manufactured to the Customer's design, (b) to the use of any Product(s) furnished hereunder in conjunction with any other item not furnished by LSI SOLUTIONS® as a part of this transaction, (c) modification of any Product(s) by any person or entity other than LSI SOLUTIONS®, or (d) use of the Product(s) in any manner that contravenes the intended use published by LSI SOLUTIONS® from time to time. As to any claim arising from (a)-(d), LSI SOLUTIONS® shall have no liability whatsoever and the Customer will indemnify, defend and hold LSI SOLUTIONS® harmless against any such claims, liability, damages or expenses, including reasonable attorney fees.
No right accruing to the Customer by virtue of the Terms or Sale or the manufacturer/purchaser relationship between LSI SOLUTIONS® and the Customer, nor any duty of LSI SOLUTIONS® resulting from that relationship, shall be assignable without LSI SOLUTIONS®' prior written consent and any purported assignment absent such consent shall be void.
Invalidity of any provision of the Terms of Sale shall not affect the validity of any other provision hereof and any invalid provision shall be severed from the valid provisions.
No failure by LSI SOLUTIONS® to exercise any right accruing to it by virtue of these Terms of Sale, the manufacturer / purchaser relationship, or under any sales contract with the Customer shall operate as a waiver thereof or preclude the exercise of any other right or privilege by LSI SOLUTIONS®.
Except as expressly provided herein, no changes to the Terms of Sale, or waiver of any of the terms hereof, shall be effective unless in writing and signed by both parties.
These Terms of Sale will be governed by and construed in accordance with the laws of the State of New York, but without regard to the principles of conflicts of laws thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Sale.
Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this these Terms of Sale shall be brought in any federal court in the Western District of New York or any state court having jurisdiction over Ontario County, New York, and each of the parties hereby irrevocably consents to the personal jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum.
Any suit, action or proceeding arising out of these Terms of Sale or arising out of the Customer's acceptance of the Product(s) supplied must be commenced within one year after the cause of action has accrued.
LSI SOLUTIONS® will use its reasonable efforts to fulfill orders, but LSI SOLUTIONS® shall not be liable for nonperformance or delays caused by a shortage of raw materials, manufacturing problems, delivery or labor problems, priorities, acts of regulatory agencies or judicial bodies, discontinuation of a product line, strike or other labor disputes, fire, flood, natural disaster, war, invasion, acts of hostility (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, insurrection, epidemic, acts of God or third parties, or other causes beyond its reasonable control. The Customer agrees that in such events LSI SOLUTIONS® may allocate Products among all of its customers, without liability.
The relationship between theparties is that of independent contractors. Nothing contained in these Terms ofSale shall be construed as creating any agency, partnership, joint venture orother form of joint enterprise, employment or fiduciary relationship betweenthe parties and neither party shall have authority to contract for or bind theother party in any manner whatsoever.
For purposes of the Terms of Sale, the term:
LSI SOLUTIONS® means LSI SOLUTIONS®, Inc. and its affiliates.
Customer means any individual, entity, or organization, including but not limited to doctors, hospitals, clinics, healthcare providers, medical facilities, or authorized representatives, who enters into an agreement with LSI SOLUTIONS® to purchase Products.
Product or Products means the goods, materials, equipment, and/or supplies that are listed and made available for sale on LSI SOLUTIONS®’ website, catalogs, or any other sales literature and sold to the Customer pursuant to these Terms of Sale.
Paragraph headings are for convenience only and shall not be used in interpreting or construing these Terms of Sale.
