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1.
Other
Documents.
This Agreement may NOT be altered, supplemented or amended by
the use of any other document(s) unless otherwise agreed to in
a separate written agreement signed by both you and LMC. If
you do not receive an invoice or acknowledgement in the mail
or with your Product, information about your purchase may be
obtained by contacting your sales representative.
2.
Reselling.
You may resell Products to end-users approved by LMC, in LMC's
sole discretion, only after you have added value to the
Products through the addition of hardware, software, or
services. Approval by LMC shall not be deemed from the sale of
Product to you. You may not resell to Consumer, Education,
Healthcare, Federal, State or Local sector customers nor to
distributors, third party sales agents, remarket or sell
through retail storefronts or auction-type Web sites. This
Agreement is not exclusive. LMC may market Products to any
third party directly or indirectly without any obligation or
liability to you. This Agreement does not guarantee that you
will make any sales of the Products. You determine or set your
resale Product pricing. LMC reserves the right to restrict or
prohibit your participation in certain promotions, add,
modify, or discontinue pricing, Products and/or parts. LMC may
require you to meet additional obligations not outlined
herein, which will be disclosed to you prior to your purchase
of Products. You will provide LMC such information and reports
as may reasonably be requested by LMC.
3.
Trademarks;
Copyrights.
You may use the "LMC" name and LMC's product names
solely for the purpose of accurately identifying the LMC-branded
Products you market and/or sell under this Agreement. You
agree to change or correct, at your own expense, any material
or activity that LMC decides is inaccurate, objectionable or
misleading or a misuse of LMC's name, trademarks, service
marks, or LMC's logos or copyrighted works. You may not use
the LMC name and LMC's product names for any other purpose.
You may not use other LMC trademarks or service marks, or
LMC's logos or copyrighted works, at any time. You are
prohibited from referring to yourself as an authorized
reseller of LMC, implying that you and LMC are partners,
creating the impression that LMC is affiliated with you or has
sponsored, authorized, approved or endorsed your business, or
any offer or any marketing, advertising or promotion thereof.
You may not register or use any domain name or business name
containing or confusingly similar to any name or mark of LMC's.
You will clearly and prominently identify yourself in all
offers and advertising, marketing and promotional materials
relating to this Agreement.
4.
Quotes;
Orders; Payment Terms; Interest.
Payment terms are within LMC's sole discretion. You agree not
to violate the terms of any offer or concession made available
by LMC. LMC may invoice and/or ship parts of an order
separately. LMC reserves the right to cancel an order or
transaction, in whole or in part. If you breach the provisions
of this Agreement or the terms of any offer, LMC may charge or
re-debit your account or credit card the full list price for
your purchase (in lieu of a discounted or special price
included in the offer). You agree to pay interest on all
past-due sums at the highest rate allowed by law. You hereby
grant LMC, and LMC hereby retains, a purchase money security
interest and lien on any and all of your rights, title and
interest in Products, wherever located, and all replacements
or proceeds of the Products, until the invoice for the
applicable Products is paid in full, including any late
charges and costs of collection. You consent to LMC's use of
this Agreement, as well as Product invoices, as financing
statements for protecting this security interest and appoint
LMC as your agent for service of process. Unless you and LMC
have agreed to a different discount, LMC's standard pricing
policy for LMC-branded systems, which include both hardware
and services in one discounted price, allocates the discount
off list price applicable to the service portion of the system
to be equal to the overall calculated percentage discount off
list price on the entire system.
5.
Shipping
Charges; Taxes.
Shipping dates provided by LMC are estimates only. Shipping
and handling are additional and will be shown on the invoice(s)
or other documentation. Loss or damage that occurs during
shipping by a carrier selected by LMC is LMC's responsibility.
Loss or damage that occurs during shipping by a carrier
selected by you is your responsibility. Unless you provide LMC
with a valid and correct tax exemption certificate applicable
to the Product ship-to location at the time of purchase, you
will be responsible for sales and all other taxes associated
with the order, however designated, except for LMC's franchise
taxes and taxes on LMC's net income.
6.
Title;
Risk of Loss; Insurance.
Title to products passes from LMC to you on shipment from
LMC's facility or third party manufacturers facility. Title to
software will remain with the applicable licensor(s). You will
maintain comprehensive general liability, including products
liability, insurance in an amount appropriate for your
business, but in no event less than $1,000,000.00 (US) with an
insurance company having a Best rating of A. Upon LMC's
request, you will provide to LMC a certificate of such
insurance (including any new or amended certificates of
insurance) and/or name LMC as an additional insured.
7.
Warranties.
LMC MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN THIS
SECTION AND IN LMC'S APPLICABLE LIMITED WARRANTY STATEMENT IN
EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP OR
ACKNOWLEDGEMENT FOUND AT http://www1.us.LMC.com/content/topics/global.aspx/policy/en/policy?c=us&l=en&s=gen&~section=010
OR THE DOCUMENTATION PROVIDED WITH THE PRODUCT(S). LMC
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION IMPLIED WARRANTIES OF NONINFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THERE
ARE NO WARRANTIES BY LMC FOR NON-LMC BRANDED PRODUCTS, SERVICE
OR SOFTWARE PRODUCTS. ALL SUCH PRODUCTS ARE PROVIDED BY LMC
"AS IS". NO REVISION IN LIMITED WARRANTIES WILL
AFFECT PRODUCTS ALREADY ORDERED BY YOU.
8.
Additional
Remedies & Responsibilities. LMC RESERVES THE RIGHT TO
DISCONTINUE OR OTHERWISE VOID ANY WARRANTY, SERVICE OR
TECHNICAL SUPPORT IT OFFERS IN WHOLE OR IN PART IF YOU BREACH
ANY OF YOUR OBLIGATIONS UNDER THIS AGREEMENT OR IF YOU FAIL TO
PAY AMOUNTS DUE FOR PRODUCTS YOU PURCHASE FROM LMC. YOU SHALL
BE SOLELY RESPONSIBLE FOR ALL REPRESENTATIONS OR OMISSIONS YOU
MAKE TO YOUR CUSTOMERS INCLUDING BUT NOT LIMITED TO ANY
REPRESENTATION OR OMISSION YOU MAKE ABOUT PRODUCT WARRANTIES,
FEATURES, PERFORMANCE, SUPPORT AND SERVICE. YOU WILL INFORM
YOUR CUSTOMERS OF LMC'S RIGHTS AND YOUR OBLIGATIONS UNDER THIS
AGREEMENT.
9.
Software.
All software is provided subject to the license agreement that
is provided with the Product. You agree that you and your
customers will be bound by such license agreement.
10.
No
Returns.
LMC's return policies including but not limited to LMC's
"Return Policies" do not apply to your purchase of
Product or to your customers.
11.
Products.
LMC's policy is one of on-going Product update and revision.
LMC may revise and discontinue Products at any time without
notice to you. LMC will ship Products that have the
functionality and performance of the Products ordered, but
changes between what is shipped and what is described in a
specification sheet or catalog are possible. The parts and
assemblies used in building Products and spare parts are
selected from new, equivalent-to-new or reconditioned parts
and assemblies.
12.
Limitation
of Liability.
LMC DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH
HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR
PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST OR CORRUPTED
DATA OR SOFTWARE, LOST PROFITS, LOSS OF BUSINESS, YOUR BREACH
OF THIS AGREEMENT OR THE PROVISION OF SERVICES AND SUPPORT.
LMC WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL,
INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD
PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. NOTWITHSTANDING
ANYTHING IN THIS AGREEMENT OR ON OUR WEB SITE TO THE CONTRARY,
LMC IS NOT RESPONSIBLE FOR INFORMATION YOU PROVIDE TO US
UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT OTHERWISE. YOU
AGREE THAT FOR ANY LIABILITY ARISING FROM OR RELATED TO THE
PURCHASE OF ANY PRODUCTS, LMC IS NOT LIABLE OR RESPONSIBLE FOR
ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT
INVOICED BY LMC FOR THE RESPECTIVE PRODUCTS. NOTWITHSTANDING
ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET
FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL
THEIR ESSENTIAL PURPOSE.
13.
Service
and Support.
Service offerings may vary from product to product. If you
purchase optional services and support, LMC or a third party
service provider will provide the optional service and support
to you or your customer in the United States in accordance
with the terms and conditions in effect at the time of your
purchase located at.
LMC
may, at its discretion, revise its general and optional
service and support programs and the terms and conditions that
govern them without prior notice to you or your customer. LMC
HAS NO OBLIGATION TO PROVIDE WARRANTY OR SUPPORT SERVICES TO
YOU OR YOUR CUSTOMERS UNTIL LMC HAS RECEIVED FULL PAYMENT FOR
THE PRODUCT THAT YOU PURCHASE. To transfer service, contact
LMC's customer service.
14.
YOUR
INDEMNITY TO LMC.
To the fullest extend permitted by law, you will indemnify,
defend and hold LMC, including LMC's partners, officers,
directors, agents, employees, subsidiaries, affiliates,
parents, successors and assigns, harmless from any claim,
demand, cause of action, debt or liability (including
reasonable attorneys fees, expenses and court costs) arising
from: (a) your modification(s) of and/or addition(s) to
Product(s); (b) your breach of this Agreement, (c) your
omissions, misrepresentations, or negligence, and (d) the
Products sold by you damage a third party to the extent such
claim is based on (i) your modification of and/or addition to
the Products, misuse or abuse of the Products, negligence or
breach of any provision in this Agreement; (ii) your failure
to abide by all applicable laws, rules, regulations and orders
that affect the Products; (iii) your omission,
misrepresentation, or negligence, or (iv) you or your
end-users cause intentional harm to any person or property.
Indemnified claims, debts and liabilities include the amount
of any discount in price or concession that is made available
by LMC to you.
15.
Dispute
Resolution.
The parties will attempt to resolve any claim, or dispute or
controversy (whether in contract, tort or otherwise) against
LMC, its agents, employees, successors, assigns or affiliates
(collectively for purposes of this paragraph, "LMC")
arising out of or relating to this Agreement, LMC's
advertising, or any related purchase (a "Dispute")
through face to face negotiation with persons fully authorized
to resolve the Dispute or through mediation utilizing a
mutually agreeable mediator, rather than through litigation.
If the parties are unable to resolve the Dispute through
negotiation or mediation within a reasonable time after
written notice from one party to the other that a Dispute
exists, the Dispute will be settled by binding arbitration in
accordance with the then current CPR Rules for
Non-Administered Arbitration. The Arbitration will be
conducted before three (3) independent and impartial
arbitrators. LMC will appoint one (1) arbitrator and the other
party or parties will appoint one (1) arbitrator. The two (2)
appointed arbitrators will then select a third arbitrator, who
shall be the presiding arbitrator. The arbitration hearing
shall take place in Austin, Texas and will be governed by the
United States Federal Arbitration Act to the exclusion of any
inconsistent state laws. The arbitrators shall base their
award on the terms of this Agreement, and will follow the law
and judicial precedents that a United States District Judge
sitting in the Western District of Texas would apply to the
Dispute. The arbitrators shall render their award in writing
and will include the findings of fact and conclusion of law
upon which their award is based. Judgment upon the arbitration
award may be entered by any court of competent jurisdiction.
The existence or results of any negotiation, mediation or
arbitration will be treated as confidential. Notwithstanding
the foregoing, either party will have the right to obtain from
a court of competent jurisdiction a temporary restraining
order, preliminary injunction or other equitable relief to
preserve the status quo or prevent irreparable harm, although
the merits of the underlying Dispute will be resolved in
accordance with this paragraph.
16.
Independent
Contractors.
No provision of this Agreement will or shall be deemed to
create a partnership, joint venture or other combination
between LMC and you. You and LMC are independent contractors.
Neither party will make any warranties or representations or
assume any obligations on the other party's behalf. Neither
party is nor will claim to be a legal representative, partner,
franchisee, agent or employee of the other party. Each party
is responsible for the amounts it incurs arising from this
Agreement and for the direction and compensation, and is
liable for the actions of, its employees and subcontractors.
17.
Governing
Law. THE LAWS OF THE STATE OF TEXAS GOVERN THIS AGREEMENT,
EXCLUDING ITS CONFLICTS OF LAWS RULES AND EXCLUDING THE UNITED
NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.
18.
Export.
You acknowledge that the purchased goods licensed or sold
under this Agreement, and the transaction contemplated by this
Agreement, which may include technology and software, are
subject to the customs and export control laws and regulations
of the United States ("U.S.") and may also be
subject to the customs and export laws and regulations of the
country in which the products are manufactured and/or
received. You acknowledge that it is your sole responsibility
to comply with and abide by those laws and regulations.
Further, under U.S. law, the goods shipped pursuant to this
Agreement may not be sold, leased or otherwise transferred to
restricted countries or utilized by restricted end-users or an
end-user engaged in activities related to weapons of mass
destruction, including without limitation, activities related
to the design, development, production or use of nuclear
weapons, materials, or facilities, missiles or the support of
missile projects, and chemical or biological weapons. You
agree not to provide any written regulatory certifications or
notifications on behalf of LMC. LMC has not tested Products
for use in high-risk activities including but not limited to
any life sustaining, chemical, or mission critical use. LMC
WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE
USE OF THE PRODUCTS IN ANY HIGH RISK ACTIVITY, INCLUDING, BUT
NOT LIMITED TO, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT
NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL,
MEDICAL SYSTEMS, LIFE SUPPORT, OR WEAPONS SYSTEMS.
19.
Headings.
The section headings used herein are for convenience of
reference only and do not form a part of these terms and
conditions, and no construction or inference shall be derived
there from. If any provision of this Agreement is void or
unenforceable, the remainder of this Agreement will remain in
full force and will not be terminated. Neither party will be
liable for any delays resulting from circumstances or causes
beyond the party's reasonable control. (REV 05/05/04)
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