Lenard Healthcare Repair and Sale Terms & Conditions
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY
Our invoice and/or quote (together with these terms and conditions, collectively, the “Terms”) is an offer by Lenard
Healthcare, Inc. (hereinafter referred to as “us”, “we”, “our” or “LH”) to sell repair Services, and related Components if
applicable as per our invoice our quote. These Terms are made between LH and the customer indicated on our invoice or
quote (hereinafter referred to as “you” or “Customer”).
Acceptance of the Terms shall be deemed given by Customer upon the earlier of its acceptance, making a purchase, placing an
order, acceptance of delivery, confirmation or other performance. The Terms are conditioned upon Customer’s complete
acceptance of the Terms without additions or modifications. CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS.
EXCEPT FOR ADDITIONAL WARRANTIES GIVEN IN WRITING BY LH, THE CONTRACT FOR REPAIR SERVICES OR SALE OF
COMPONENTS IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS STATED IN THE TERMS, INCLUDING WITHOUT LIMITATION
FOR DOCUMENTS USED BY THE PARTIES FOR EASE OF ADMINISTRATION. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY
CUSTOMER ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS
HEREBY GIVEN, UNLESS EXPRESSLY AGREED TO IN WRITING BY LH. NO CONTRACT SHALL EXIST EXCEPT AS HEREIN PROVIDED.
ANY GENERAL DESCRIPTION OF THE TYPES OF SERVICE OR COMPONENTS AND RESULTS THEREOF POSTED ON ANY LH WEBSITE OR
MOBILE APPLICATION DO NOT CONSTITUTE PART OF THE TERMS BETWEEN LH AND CUSTOMER.
Important Information About The Terms
These Terms and Conditions are subject to change without prior notice, except that the Terms posted on a website at the time
Customer places an order will govern the order in question, unless otherwise agreed in writing by LH and Customer.
Customer consents to receiving electronic records, whether provided via a Web browser, e-mail application connected to the
Internet or otherwise. In addition, Internet connectivity requires that you set up and secure independent access services from
an Internet access provider. Contact your local access provider for details. Electronic signatures (or copies of signatures sent
via electronic means) are the equivalent of written and signed documents.
Customer may issue a purchase order for administrative purposes only or for acceptance purposes as stated above. Additional
or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings
between the parties and no usage of trade will be relevant to determine the meaning of the Terms or any purchase order or
invoice, or any document in electronic or written form. The Terms contain the entire understanding of the parties with
respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and
contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties
with respect to the subject matter hereof.
“Services” or “Repair Services” shall mean only those certain services defined in our quote or invoice.
“Components” shall mean only those certain components defined in our quote or invoice.
Governing Law
THESE TERMS, THE SERVICES HEREUNDER AND ANY SALE OF COMPONENTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE
PROVINCE OF ONTARIO, CANADA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES AND TREATIES. ANY ARBITRATION,
ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN TORONTO, ONTARIO, AND CUSTOMER
CONSENTS TO THE JURISDICTION OF THE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE
RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT
WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any
form arising out of the Terms more than one (1) year after the cause of action has arisen. The rights and remedies provided to
LH under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or
remedy available at law or in equity.
Title; Risk of Loss
Title to Components and risk of loss or damage during shipment pass from LH to Customer upon delivery to the carrier Ex
Works Origin as that term is defined under the latest published ICC rules. Notwithstanding the foregoing, title to software will
remain with the applicable licensor(s), and Customer’s rights therein are contained in the license agreement between such
licensor(s) and Customer.
Services
Certain Services may be provided by third parties, including, but not limited to, extended warranty service by manufacturers,
and are sold by LH as distributor or sales agent (“Third Party Services”).
In the case of Third Party Services, Customer shall consider the third party to be the contracting party and the third party
shall be the party responsible for providing the services to the Customer and Customer will look solely to the third party for
any loss, claims or damages arising from or related to the provision of such Third Party Services. Customer and Customer’s
Affiliates (defined below) hereby release LH and LH’s Affiliates (defined below) from any and all claims arising from or relating
to the purchase or provision of any such Third Parties Services. Any amounts, including, but not limited to, taxes, associated
with Third Party Services which may be collected by LH will be collected solely in the capacity as an independent sales agent.
“Affiliate” means, with respect to a party, an entity that controls, is controlled by, or is under common control with such
party.
Where Services are offered by LH in these Terms, each such offer hereby incorporates these Terms and constitutes a separate
agreement with respect to the Services performed. In the event of an addition to or a conflict between any term or condition
in LH’s quote or invoice, the present document will control, except as expressly amended in the applicable quote or invoice
by specific reference to present document. Each such amendment will be applicable only with respect to such separate
agreement and not to future agreements for Services or sale of Components. Changes to the scope of the Services described in
a the Terms will be made only in a writing executed by authorized representatives of both parties. LH will have no obligation
to commence work in connection with any such change, unless and, until the change is agreed upon in that writing executed
by both parties. All such changes to the scope of the Services will be governed by the present document and the applicable
quote or invoice.
LH only provides Services on its own or it’s agent’s premises, never at Customer’s premises. It shall be a condition precedent
to the performance of any Services that Customer delivers the goods to be repaired DDP (as per latest published ICC rules) at
LH’s premises identified in the Terms.
Cooperation
In addition to any specific Customer duties set forth in any applicable Terms, Customer agrees to cooperate with LH in
connection with performance of the Services by providing: (i) timely responses to LH’s inquiries and requests for approvals and
authorizations, (ii) access to any information or materials reasonably requested by LH which are necessary or useful as
determined by LH in connection with providing the Services, including, but not limited to, computer access to Customer’s
computer systems, and (iii) all Required Consents necessary for LH to provide the Services. “Required Consents” means
consents or approvals required to give LH, its Affiliates, and its and their subcontractors the right or license to access, use and
modify all data and third-party Components. Customer acknowledges and agrees that the Services are dependent upon the
completeness and accuracy of information provided by Customer and the knowledge and cooperation of the agents,
employees or subcontractors (“Personnel”) engaged or appointed by Customer who are selected by Customer to work with LH.
LH will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to LH in a
timely manner prior to undertaking the Services.
Payment
Customer agrees to pay the total purchase price for the Services and Components, plus shipping if LH has expressly accepted
to ship in writing. Terms of payment are net thirty (30) days from invoice date. For each calendar month, or fraction thereof,
that payment is late, Customer shall pay a late payment charge computed at the rate of 1.5% per month on the overdue
balance, or the maximum rate permitted by law, whichever is less. LH may invoice Customer separately for partial shipments.
Customer will pay for, and will indemnify and hold LH and its Affiliates harmless from, any applicable sales, use, transaction,
excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar
fees), imposed on, in respect of or otherwise associated with any Services or Components. Customer must claim any
exemption from such taxes, fees or charges at the time of purchase and provide LH with the necessary supporting
documentation. In the event of a payment default, Customer will be responsible for all of LH’s costs of collection, including,
but not limited to, court costs, filing fees and attorneys’ fees. In addition, if payments are not received as described above,
LH reserves the right to suspend Services and delivery until payment is received. Customer hereby grants to LH a security
interest in the Components to secure payment in full. Customer authorizes LH to file a financing statement reflecting such
security interest.
Export
If any transaction made under these Terms involves an export of items (including, but not limited to, commodities, software
or technology) subject to the import or export regulations, compliance with such regulation is Customer’s entire responsibility.
Customer agrees that it will not divert, use, export or re-export such items contrary to the laws of Canada or the United
States. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or
person within any country that is subject to United States or Canada economic sanctions imposing comprehensive embargoes
without obtaining prior authorization from the Canadian or United States Government. The list of such countries subject to
economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, Sudan, and Syria.
Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and
persons that are ineligible under United States or Canadian law to receive such items, including but not limited to, any person
or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce
Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers’ warranties for exported
Components may vary or may be null and void for Components exported outside Canada and the United States.
Warranties
Customer understands that LH is not the manufacturer of the goods repaired under the Services and is also not the
manufacturer of Components purchased by Customer hereunder and the only warranties offered are those of the
manufacturer, not LH or its Affiliates, unless LH has offered an express additional warranty on the Components in its invoice or
quote (the “Additional Warranty”). In purchasing the Components, Customer is relying on the manufacturer’s specifications
only and is not relying on any statements, specifications, photographs or other illustrations representing the Components that
may be provided by LH or its Affiliates. EXCEPT FOR ANY ADDITIONAL WARRANTY (AS DEFINED BELOW), LH AND ITS AFFILIATES
HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO COMPONENTS, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF
NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH
DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY. Notwithstanding any other term, Customer expressly
waives any claim that it may have against LH or its Affiliates based on any product liability or infringement or alleged
infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any
Product and also waives any right to indemnification from LH or its Affiliates against any such Claim made against Customer by
a third party. Customer acknowledges that no employee of LH or its Affiliates is authorized to make any representation or
warranty on behalf of LH or any of its Affiliates that is not in the Terms.
Customer further acknowledges and agrees that LH makes no representations, warranties or assurances that the Components
are designed for or suitable for use in any high-risk environment, including but not limited to aircraft, marine, life support
systems or nuclear facilities, and Customer agrees to indemnify LH in connection with any such use of the Components.
Customer further agrees to review and comply with the manufacture’s disclaimers and restrictions regarding the use of the
Components in high risk environments.
If an Additional Warranty is expressly purchased by Customer under LH’s quote or invoice, and subject to Customer’s prior and
full payment of the related invoice, LH warrants any Component expressly covered by an Addition Warranty against any
repairable defect in material or workmanship under normal use, which is notified in writing to LH within a period of one (1)
year as from the time of delivery to Customer. LH does now warrant design defects. Customer’s sole and exclusive remedy in
case of breach of an Additional Warranty shall be to return the defective component to LH for repair or reimbursement at LH’s
sole discretion within thirty (30) days from receipt of the warrantied component. Under the Additional warranty, LH does not
warrant, nor is LH required to provide, any Service on any Component defects (i) resulting from a) the Component being
modified by any person other than LH, (b) incorrect use of the Component, (c) unsuitable environmental conditions, or (d)
causes not attributable to the Component. LH will submit to the Customer an estimate of the additional repair work required
to correct any such defects. Said estimate will be based on LH labour and spare parts price list in force when the estimate is
issued. LH will not perform any additional Services without having obtained the Customer’s written contract to the estimate.
The opinion of LH as to whether or not the work is additional maintenance work and therefore not covered under the
Additional Warranty shall be conclusive. Furthermore, LHis not responsible for any software, firmware, information or
memory data of Customer or end users contained in, stored on, or integrated with any Components returned to LH for repair,
whether under warranty or not.
LH warrants that the Services will be performed in a good and workmanlike manner. Customer’s sole and exclusive remedy and
LH’s entire liability with respect to this warranty will be, at the sole option of LH, to either (a) use its reasonable commercial
efforts to reperform or cause to be reperformed any Services not in substantial compliance with this warranty or (b) refund
amounts paid by Customer related to the portion of the Services not in substantial compliance; provided, in each case,
LH warrants that the Services will be performed in a good and workmanlike manner. Customer’s sole and exclusive remedy and
LH’s entire liability with respect to this warranty will be, at the sole option of LH, to either (a) use its reasonable commercial
efforts to reperform or cause to be reperformed any Services not in substantial compliance with this warranty or (b) refund
amounts paid by Customer related to the portion of the Services not in substantial compliance; provided, in each case,
Customer notifies LH of defect in writing within six (6) months after performance of the applicable Services. EXCEPT AS SET
FORTH HEREIN OR IN ANY QUOTE OR INVOICE THAT EXPRESSLY AMENDS LH’S WARRANTY, AND SUBJECT TO MANDATORY LAW, LH
MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS,
EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT
OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY
WARRANTY RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR
SOFTWARE USED IN PERFORMING SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE
SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH
HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF LH OR OF ITS AFFILIATES IS
AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF LH OR ANY OF ITS AFFILIATES THAT IS NOT IN THE
TERMS OR THAT EXPRESSLY AMENDS LH’S WARRANTY WITH REFERENCE TO THIS DOCUMENT.
Customer shall be solely responsible for daily back-up and other protection of its data, configuration and software against
loss, damage or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data
located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of Services.
LH, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL
CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND
SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED
TO OR RESULTING FROM THE SERVICES.
LH will not be responsible for and no liability shall result to LH or any of its Affiliates for any delays in delivery or in
performance which result from any circumstances beyond LH’s reasonable control, including, but not limited to, Component
unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, power surge, labor problems,
acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency. Any shipping dates or completion
dates provided by LH or any purported deadlines contained in the Terms or any other document are estimates only.
Pricing Information; Availability Disclaimer
LH reserves the right to make adjustments to pricing, Components and Service offerings for reasons including, but not limited
to, changing market conditions, Component discontinuation or unavailability, manufacturer price changes, supplier price
changes and errors in advertisements. All offers are subject to Component availability and the availability of Personnel to
perform the Services. Therefore, LH cannot guarantee that it will be able to fulfill Customer’s orders. If Services are being
performed on a time and materials basis, any estimates provided by LH are for planning purposes only.
Credits
Any credit issued by LH to Customer for any reason must be used within ONE (1) year from the date that the credit was issued
and may only be used for future purchases of Components and/or Services. Any credit or portion thereof not used within the
ONE (1) year period will automatically expire.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH
HEREIN, WILL LH, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY
INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF
PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF LH HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF
SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED
UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY
CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN
CONNECTION WITH CUSTOMER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY LH OR ITS AFFILIATES
BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE COMPONENTS OR SERVICES; OR (D) ANY
UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT
OF ANY LIABILITY INCURRED BY LH OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF LH AND ITS AFFILIATES FOR
DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER
FOR THE SERVICES AND COMPONENTS GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM;
OR (B) CAN $1,000.00.
Limited License
Customer’s sole rights to the work product, materials and other deliverables to be provided or created (individually or jointly)
in connection with the Services, including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas,
concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary
tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret,
confidentiality, or other proprietary rights) or discovered in the course of performance of the Terms that are embodied in such
work or materials (“Work Product”) will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to
use such Work Components solely for Customer’s internal use. Customer will have no ownership or other property rights
thereto and Customer shall have no right to use any such Work Product for any other purpose whatsoever. Customer
acknowledges that LHs may incorporate intellectual property created by third parties into the Work Product (“Third Party
Intellectual Property”). Customer agrees that its right to use the Work Product containing Third Party Intellectual Property
may be subject to the rights of third parties and limited by agreements with such third parties.
Confidential Information
Each party anticipates that it may be necessary to provide access to information of a confidential nature of such party, the
Affiliates or a third party (hereinafter referred to as “Confidential Information”) to the other party in the performance of the
Terms. “Confidential Information” means any information or data in oral, electronic or written form which the receiving party
knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with the Terms or
which the receiving party may have access to in connection with the Terms, including but not limited to the terms and
conditions of each quote or invoice. Confidential Information will not include information which: (a) becomes known to the
public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party
from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect
to the applicable information; or (c) is independently developed by agents, employees or subcontractors of the receiving party
who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified
or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so
identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Each party agrees to hold the other party’s Confidential Information confidential for a period of three (3) years following the
date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but
to use no less than a reasonable degree of care. Disclosures of the other party’s Confidential Information will be restricted (i)
to those individuals who are participating in the performance of the Terms and need to know such Confidential Information for
purposes of providing or receiving the Components or Services or otherwise in connection with the Terms, or (ii) to its
business, legal and financial advisors, each on a confidential basis. Each party agrees not to use any Confidential Information
of the other party for any purpose other than the business purposes contemplated by the Terms. Upon the written request of a
party, the other party will either return or certify the destruction of the Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any
governmental or regulatory authority, to disclose Confidential Information of the other party, the receiving party will give the
disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar
protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so
disclosed.
Return Privileges
LH allows Customer returns based on the policies of the original component manufacturer. Customers should contact LH to
initiate a return or for additional information. Customers must notify LH of any damaged Components within five (5) days of
receipt.
Our invoice and/or quote (together with these terms and conditions, collectively, the “Terms”) is an offer by Lenard
Healthcare, Inc. (hereinafter referred to as “us”, “we”, “our” or “LH”) to sell repair Services, and related Components if
applicable as per our invoice our quote. These Terms are made between LH and the customer indicated on our invoice or
quote (hereinafter referred to as “you” or “Customer”).
Acceptance of the Terms shall be deemed given by Customer upon the earlier of its acceptance, making a purchase, placing an
order, acceptance of delivery, confirmation or other performance. The Terms are conditioned upon Customer’s complete
acceptance of the Terms without additions or modifications. CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS.
EXCEPT FOR ADDITIONAL WARRANTIES GIVEN IN WRITING BY LH, THE CONTRACT FOR REPAIR SERVICES OR SALE OF
COMPONENTS IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS STATED IN THE TERMS, INCLUDING WITHOUT LIMITATION
FOR DOCUMENTS USED BY THE PARTIES FOR EASE OF ADMINISTRATION. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY
CUSTOMER ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS
HEREBY GIVEN, UNLESS EXPRESSLY AGREED TO IN WRITING BY LH. NO CONTRACT SHALL EXIST EXCEPT AS HEREIN PROVIDED.
ANY GENERAL DESCRIPTION OF THE TYPES OF SERVICE OR COMPONENTS AND RESULTS THEREOF POSTED ON ANY LH WEBSITE OR
MOBILE APPLICATION DO NOT CONSTITUTE PART OF THE TERMS BETWEEN LH AND CUSTOMER.
Important Information About The Terms
These Terms and Conditions are subject to change without prior notice, except that the Terms posted on a website at the time
Customer places an order will govern the order in question, unless otherwise agreed in writing by LH and Customer.
Customer consents to receiving electronic records, whether provided via a Web browser, e-mail application connected to the
Internet or otherwise. In addition, Internet connectivity requires that you set up and secure independent access services from
an Internet access provider. Contact your local access provider for details. Electronic signatures (or copies of signatures sent
via electronic means) are the equivalent of written and signed documents.
Customer may issue a purchase order for administrative purposes only or for acceptance purposes as stated above. Additional
or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings
between the parties and no usage of trade will be relevant to determine the meaning of the Terms or any purchase order or
invoice, or any document in electronic or written form. The Terms contain the entire understanding of the parties with
respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and
contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties
with respect to the subject matter hereof.
“Services” or “Repair Services” shall mean only those certain services defined in our quote or invoice.
“Components” shall mean only those certain components defined in our quote or invoice.
Governing Law
THESE TERMS, THE SERVICES HEREUNDER AND ANY SALE OF COMPONENTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE
PROVINCE OF ONTARIO, CANADA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES AND TREATIES. ANY ARBITRATION,
ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN TORONTO, ONTARIO, AND CUSTOMER
CONSENTS TO THE JURISDICTION OF THE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE
RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT
WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any
form arising out of the Terms more than one (1) year after the cause of action has arisen. The rights and remedies provided to
LH under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or
remedy available at law or in equity.
Title; Risk of Loss
Title to Components and risk of loss or damage during shipment pass from LH to Customer upon delivery to the carrier Ex
Works Origin as that term is defined under the latest published ICC rules. Notwithstanding the foregoing, title to software will
remain with the applicable licensor(s), and Customer’s rights therein are contained in the license agreement between such
licensor(s) and Customer.
Services
Certain Services may be provided by third parties, including, but not limited to, extended warranty service by manufacturers,
and are sold by LH as distributor or sales agent (“Third Party Services”).
In the case of Third Party Services, Customer shall consider the third party to be the contracting party and the third party
shall be the party responsible for providing the services to the Customer and Customer will look solely to the third party for
any loss, claims or damages arising from or related to the provision of such Third Party Services. Customer and Customer’s
Affiliates (defined below) hereby release LH and LH’s Affiliates (defined below) from any and all claims arising from or relating
to the purchase or provision of any such Third Parties Services. Any amounts, including, but not limited to, taxes, associated
with Third Party Services which may be collected by LH will be collected solely in the capacity as an independent sales agent.
“Affiliate” means, with respect to a party, an entity that controls, is controlled by, or is under common control with such
party.
Where Services are offered by LH in these Terms, each such offer hereby incorporates these Terms and constitutes a separate
agreement with respect to the Services performed. In the event of an addition to or a conflict between any term or condition
in LH’s quote or invoice, the present document will control, except as expressly amended in the applicable quote or invoice
by specific reference to present document. Each such amendment will be applicable only with respect to such separate
agreement and not to future agreements for Services or sale of Components. Changes to the scope of the Services described in
a the Terms will be made only in a writing executed by authorized representatives of both parties. LH will have no obligation
to commence work in connection with any such change, unless and, until the change is agreed upon in that writing executed
by both parties. All such changes to the scope of the Services will be governed by the present document and the applicable
quote or invoice.
LH only provides Services on its own or it’s agent’s premises, never at Customer’s premises. It shall be a condition precedent
to the performance of any Services that Customer delivers the goods to be repaired DDP (as per latest published ICC rules) at
LH’s premises identified in the Terms.
Cooperation
In addition to any specific Customer duties set forth in any applicable Terms, Customer agrees to cooperate with LH in
connection with performance of the Services by providing: (i) timely responses to LH’s inquiries and requests for approvals and
authorizations, (ii) access to any information or materials reasonably requested by LH which are necessary or useful as
determined by LH in connection with providing the Services, including, but not limited to, computer access to Customer’s
computer systems, and (iii) all Required Consents necessary for LH to provide the Services. “Required Consents” means
consents or approvals required to give LH, its Affiliates, and its and their subcontractors the right or license to access, use and
modify all data and third-party Components. Customer acknowledges and agrees that the Services are dependent upon the
completeness and accuracy of information provided by Customer and the knowledge and cooperation of the agents,
employees or subcontractors (“Personnel”) engaged or appointed by Customer who are selected by Customer to work with LH.
LH will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to LH in a
timely manner prior to undertaking the Services.
Payment
Customer agrees to pay the total purchase price for the Services and Components, plus shipping if LH has expressly accepted
to ship in writing. Terms of payment are net thirty (30) days from invoice date. For each calendar month, or fraction thereof,
that payment is late, Customer shall pay a late payment charge computed at the rate of 1.5% per month on the overdue
balance, or the maximum rate permitted by law, whichever is less. LH may invoice Customer separately for partial shipments.
Customer will pay for, and will indemnify and hold LH and its Affiliates harmless from, any applicable sales, use, transaction,
excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar
fees), imposed on, in respect of or otherwise associated with any Services or Components. Customer must claim any
exemption from such taxes, fees or charges at the time of purchase and provide LH with the necessary supporting
documentation. In the event of a payment default, Customer will be responsible for all of LH’s costs of collection, including,
but not limited to, court costs, filing fees and attorneys’ fees. In addition, if payments are not received as described above,
LH reserves the right to suspend Services and delivery until payment is received. Customer hereby grants to LH a security
interest in the Components to secure payment in full. Customer authorizes LH to file a financing statement reflecting such
security interest.
Export
If any transaction made under these Terms involves an export of items (including, but not limited to, commodities, software
or technology) subject to the import or export regulations, compliance with such regulation is Customer’s entire responsibility.
Customer agrees that it will not divert, use, export or re-export such items contrary to the laws of Canada or the United
States. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or
person within any country that is subject to United States or Canada economic sanctions imposing comprehensive embargoes
without obtaining prior authorization from the Canadian or United States Government. The list of such countries subject to
economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, Sudan, and Syria.
Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and
persons that are ineligible under United States or Canadian law to receive such items, including but not limited to, any person
or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce
Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers’ warranties for exported
Components may vary or may be null and void for Components exported outside Canada and the United States.
Warranties
Customer understands that LH is not the manufacturer of the goods repaired under the Services and is also not the
manufacturer of Components purchased by Customer hereunder and the only warranties offered are those of the
manufacturer, not LH or its Affiliates, unless LH has offered an express additional warranty on the Components in its invoice or
quote (the “Additional Warranty”). In purchasing the Components, Customer is relying on the manufacturer’s specifications
only and is not relying on any statements, specifications, photographs or other illustrations representing the Components that
may be provided by LH or its Affiliates. EXCEPT FOR ANY ADDITIONAL WARRANTY (AS DEFINED BELOW), LH AND ITS AFFILIATES
HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO COMPONENTS, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF
NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH
DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY. Notwithstanding any other term, Customer expressly
waives any claim that it may have against LH or its Affiliates based on any product liability or infringement or alleged
infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any
Product and also waives any right to indemnification from LH or its Affiliates against any such Claim made against Customer by
a third party. Customer acknowledges that no employee of LH or its Affiliates is authorized to make any representation or
warranty on behalf of LH or any of its Affiliates that is not in the Terms.
Customer further acknowledges and agrees that LH makes no representations, warranties or assurances that the Components
are designed for or suitable for use in any high-risk environment, including but not limited to aircraft, marine, life support
systems or nuclear facilities, and Customer agrees to indemnify LH in connection with any such use of the Components.
Customer further agrees to review and comply with the manufacture’s disclaimers and restrictions regarding the use of the
Components in high risk environments.
If an Additional Warranty is expressly purchased by Customer under LH’s quote or invoice, and subject to Customer’s prior and
full payment of the related invoice, LH warrants any Component expressly covered by an Addition Warranty against any
repairable defect in material or workmanship under normal use, which is notified in writing to LH within a period of one (1)
year as from the time of delivery to Customer. LH does now warrant design defects. Customer’s sole and exclusive remedy in
case of breach of an Additional Warranty shall be to return the defective component to LH for repair or reimbursement at LH’s
sole discretion within thirty (30) days from receipt of the warrantied component. Under the Additional warranty, LH does not
warrant, nor is LH required to provide, any Service on any Component defects (i) resulting from a) the Component being
modified by any person other than LH, (b) incorrect use of the Component, (c) unsuitable environmental conditions, or (d)
causes not attributable to the Component. LH will submit to the Customer an estimate of the additional repair work required
to correct any such defects. Said estimate will be based on LH labour and spare parts price list in force when the estimate is
issued. LH will not perform any additional Services without having obtained the Customer’s written contract to the estimate.
The opinion of LH as to whether or not the work is additional maintenance work and therefore not covered under the
Additional Warranty shall be conclusive. Furthermore, LHis not responsible for any software, firmware, information or
memory data of Customer or end users contained in, stored on, or integrated with any Components returned to LH for repair,
whether under warranty or not.
LH warrants that the Services will be performed in a good and workmanlike manner. Customer’s sole and exclusive remedy and
LH’s entire liability with respect to this warranty will be, at the sole option of LH, to either (a) use its reasonable commercial
efforts to reperform or cause to be reperformed any Services not in substantial compliance with this warranty or (b) refund
amounts paid by Customer related to the portion of the Services not in substantial compliance; provided, in each case,
LH warrants that the Services will be performed in a good and workmanlike manner. Customer’s sole and exclusive remedy and
LH’s entire liability with respect to this warranty will be, at the sole option of LH, to either (a) use its reasonable commercial
efforts to reperform or cause to be reperformed any Services not in substantial compliance with this warranty or (b) refund
amounts paid by Customer related to the portion of the Services not in substantial compliance; provided, in each case,
Customer notifies LH of defect in writing within six (6) months after performance of the applicable Services. EXCEPT AS SET
FORTH HEREIN OR IN ANY QUOTE OR INVOICE THAT EXPRESSLY AMENDS LH’S WARRANTY, AND SUBJECT TO MANDATORY LAW, LH
MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS,
EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT
OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY
WARRANTY RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR
SOFTWARE USED IN PERFORMING SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE
SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH
HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF LH OR OF ITS AFFILIATES IS
AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF LH OR ANY OF ITS AFFILIATES THAT IS NOT IN THE
TERMS OR THAT EXPRESSLY AMENDS LH’S WARRANTY WITH REFERENCE TO THIS DOCUMENT.
Customer shall be solely responsible for daily back-up and other protection of its data, configuration and software against
loss, damage or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data
located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of Services.
LH, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL
CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND
SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED
TO OR RESULTING FROM THE SERVICES.
LH will not be responsible for and no liability shall result to LH or any of its Affiliates for any delays in delivery or in
performance which result from any circumstances beyond LH’s reasonable control, including, but not limited to, Component
unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, power surge, labor problems,
acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency. Any shipping dates or completion
dates provided by LH or any purported deadlines contained in the Terms or any other document are estimates only.
Pricing Information; Availability Disclaimer
LH reserves the right to make adjustments to pricing, Components and Service offerings for reasons including, but not limited
to, changing market conditions, Component discontinuation or unavailability, manufacturer price changes, supplier price
changes and errors in advertisements. All offers are subject to Component availability and the availability of Personnel to
perform the Services. Therefore, LH cannot guarantee that it will be able to fulfill Customer’s orders. If Services are being
performed on a time and materials basis, any estimates provided by LH are for planning purposes only.
Credits
Any credit issued by LH to Customer for any reason must be used within ONE (1) year from the date that the credit was issued
and may only be used for future purchases of Components and/or Services. Any credit or portion thereof not used within the
ONE (1) year period will automatically expire.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH
HEREIN, WILL LH, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY
INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF
PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF LH HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF
SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED
UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY
CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN
CONNECTION WITH CUSTOMER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY LH OR ITS AFFILIATES
BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE COMPONENTS OR SERVICES; OR (D) ANY
UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT
OF ANY LIABILITY INCURRED BY LH OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF LH AND ITS AFFILIATES FOR
DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER
FOR THE SERVICES AND COMPONENTS GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM;
OR (B) CAN $1,000.00.
Limited License
Customer’s sole rights to the work product, materials and other deliverables to be provided or created (individually or jointly)
in connection with the Services, including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas,
concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary
tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret,
confidentiality, or other proprietary rights) or discovered in the course of performance of the Terms that are embodied in such
work or materials (“Work Product”) will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to
use such Work Components solely for Customer’s internal use. Customer will have no ownership or other property rights
thereto and Customer shall have no right to use any such Work Product for any other purpose whatsoever. Customer
acknowledges that LHs may incorporate intellectual property created by third parties into the Work Product (“Third Party
Intellectual Property”). Customer agrees that its right to use the Work Product containing Third Party Intellectual Property
may be subject to the rights of third parties and limited by agreements with such third parties.
Confidential Information
Each party anticipates that it may be necessary to provide access to information of a confidential nature of such party, the
Affiliates or a third party (hereinafter referred to as “Confidential Information”) to the other party in the performance of the
Terms. “Confidential Information” means any information or data in oral, electronic or written form which the receiving party
knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with the Terms or
which the receiving party may have access to in connection with the Terms, including but not limited to the terms and
conditions of each quote or invoice. Confidential Information will not include information which: (a) becomes known to the
public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party
from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect
to the applicable information; or (c) is independently developed by agents, employees or subcontractors of the receiving party
who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified
or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so
identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Each party agrees to hold the other party’s Confidential Information confidential for a period of three (3) years following the
date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but
to use no less than a reasonable degree of care. Disclosures of the other party’s Confidential Information will be restricted (i)
to those individuals who are participating in the performance of the Terms and need to know such Confidential Information for
purposes of providing or receiving the Components or Services or otherwise in connection with the Terms, or (ii) to its
business, legal and financial advisors, each on a confidential basis. Each party agrees not to use any Confidential Information
of the other party for any purpose other than the business purposes contemplated by the Terms. Upon the written request of a
party, the other party will either return or certify the destruction of the Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any
governmental or regulatory authority, to disclose Confidential Information of the other party, the receiving party will give the
disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar
protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so
disclosed.
Return Privileges
LH allows Customer returns based on the policies of the original component manufacturer. Customers should contact LH to
initiate a return or for additional information. Customers must notify LH of any damaged Components within five (5) days of
receipt.
