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Lecat's Ventriloscope® Domestic Terms and Conditions of Sale of Products
1. General; Entire Agreement.
These Domestic Terms and Conditions of Sale (“Terms”), any attachments or related exhibits, and any additional or different terms appearing on Lecat's Ventriloscope® ’s final order acceptance, shall govern the relationship between the Buyer and Lecat's Ventriloscope® and constitute the entire agreement between Lecat's Ventriloscope® and the Buyer of Lecat's Ventriloscope® products. “Buyer” shall mean the party issuing a purchase order to Lecat's Ventriloscope® , whether or not it is the end user of the Products. “Products” shall mean those items offered for sale by Lecat's Ventriloscope® (including parts) on the date it accepts the Buyer’s purchase order. These Terms shall supersede any previous communications, representations, promises, agreements, warranties, or statements between Lecat's Ventriloscope® and the Buyer, whether oral or written, regarding Product sales, all of which shall be given no effect or force. Any Buyer terms of sale are rejected by Lecat's Ventriloscope® and shall have no force or effect, unless expressly agreed to, in writing, by Lecat's Ventriloscope® . No course of conduct, acquiescence in a course of performance, any prior dealings between Lecat's Ventriloscope® and the Buyer and or usage of the trade shall be relevant to supplement or explain any term used in these Terms. No waiver or modification of any Terms shall be effective or binding on Lecat's Ventriloscope® , unless made expressly, in writing. These Terms shall apply to Product sales between Lecat's Ventriloscope® and a Buyer located within the United States (including the District of Columbia, but excluding its commonwealth, territories, and possessions).
All prices are in U.S. Dollars, F.O.B. Lecat's Ventriloscope® ’s manufacturing site, Tallmadge, Ohio. Any federal, state, or local taxes relating to the sale of Products are NOT included in prices and, as needed, will be invoiced separately for payment by the Buyer. Prices are subject to change without prior notice in the event of any of the following: i) alterations in specifications, quantities, designs, and delivery schedules; ii) increases in the cost of fuel, power, material, supplies, or labor; or iii) any government legislation, decree, or order that increases the cost of production, warehousing, or sale of the Products purchased by the Buyer.
3. Order Acceptance; Cancellation; Modification.
All Buyer purchase orders are subject to acceptance by Lecat's Ventriloscope® and a purchase order shall be effective only when accepted by Lecat's Ventriloscope® , in writing, by any method it deems appropriate, including electronic mail. No order can be validly accepted orally. Lecat's Ventriloscope® may, in its sole discretion, and without obligation to the Buyer (i) reject any purchase order, either in whole or in part; (ii) cancel any purchase order, either in whole or in part, after its acceptance; or (iii) consent to the Buyer’s cancellation of any order, either in whole or in part, before or after shipment of any portion of any order. No order accepted by Lecat's Ventriloscope® can be subsequently terminated, cancelled, modified, or shipping deferred, unless expressly agreed to, by Lecat's Ventriloscope® , in writing, and upon reasonable terms and conditions that shall indemnify Lecat's Ventriloscope® for all liabilities and expenses incurred or pending, and a reasonable profit to Lecat's Ventriloscope® for work-in-progress and the value of Products, parts, and materials already completed.
4. Delivery; Force Majeure.
At the time of order, the Buyer shall provide to Lecat's Ventriloscope® a proposed delivery date and complete “Ship To” addresses in the United States (as defined in Section 1 above) to where the Products are to be delivered. Delivery is subject to material availability, production schedules, and receipt of all necessary information at or soon after the time the Buyer’s order is accepted. Unless expressly specified otherwise, Products in stock will be shipped promptly and Products not in stock will be shipped as soon as practicable. Lecat's Ventriloscope® will ship the Products according to its standard practices. The mode, method, and route of shipment are at the sole discretion of Lecat's Ventriloscope® , unless otherwise agreed, in writing. Lecat's Ventriloscope® will use its good faith efforts to meet proposed delivery dates. Under no circumstances will Lecat's Ventriloscope® be liable for any damages, penalties, costs, or offsets arising out of or in connection to the failure to deliver or late delivery of any order including, without limitation, indirect, incidental, consequential, special, or exemplary damages. Special packing or shipping instructions must be mutually agreed upon, in writing, and all related charges will be invoiced separately to the Buyer for payment. Lecat's Ventriloscope® shall be excused from its delivery obligations and not be liable to the Buyer for failure to sell or supply, for any delay in selling or supplying any of the Products, in the event of or due to acts of God, fire, explosion, flood, war, terrorism, riots, warlike conditions, hostilities, sabotage, civil unrest, labor disputes, epidemic, shortage or failure of supply of raw materials or equipment, shortage or failure of power, interruption, shortage, failure or delay of supply of communications or transportation, or any other similar circumstances or events that is beyond Lecat's Ventriloscope® ’s reasonable control.
5. Acceptance of Products.
The Buyer shall promptly inspect the Products upon receipt. Unless the Buyer provides Lecat's Ventriloscope® with written notice of any claim of shortages or defects in the Products within thirty (30) calendar days after receipt of shipment, the Products shall be deemed fully inspected and accepted by the Buyer.
6. Payment; Transfer of Title.
All payments are due according to terms and schedules set forth by Lecat's Ventriloscope® when it accepts the Buyer’s purchase order. Any late payment is subject to a 1.5% delinquency charge calculated per diem or at the maximum rate allowed by law, whichever is greater. In its sole discretion, Lecat's Ventriloscope® may offer credit terms to the Buyer on any purchase order it has or intends to accept. Lecat's Ventriloscope® reserves the right to decline credit terms on any order and reserves the right to decline shipping Products to the Buyer for any reason, including, but not limited to, the Buyer’s financial condition as determined solely by Lecat's Ventriloscope® . In addition to all rights and remedies available to Lecat's Ventriloscope® under the law, if the Buyer fails to pay any sum when due or fails to perform under these Terms or any other agreement with Lecat's Ventriloscope® , upon giving ten (10) calendar days’s notice, Lecat's Ventriloscope® may discontinue performance under these terms. Should Lecat's Ventriloscope® refer the Buyer’s outstanding account balance to a third-party for collection or if it should take other enforcement action against the Buyer for non-payment, the Buyer agrees to pay any and all collection costs, filing fees, attorney, arbitration, and related legal expenses incurred by Lecat's Ventriloscope® . Lecat's Ventriloscope® shall retain legal and equitable title to the Products and title will pass to the Buyer only when the purchase order, taxes, shipping and all other related charges are paid in full to Lecat's Ventriloscope® . The Buyer agrees to complete and execute all documents required to perfect Lecat's Ventriloscope® ’s legal and equitable title rights in the Products and allows Lecat's Ventriloscope® to repossess the Products in the event the Buyer fails to pay all outstanding amounts upon written demand from Lecat's Ventriloscope® .
7. Warranty; Product Registration; Limitation of Remedies and Liability.
The Company warrants its Products for a period of one (1) year from the invoice date that the Products are in conformity with all written specifications provided by the Buyer; that the Products are free from manufacturing defects; and the Products are suitable for the purposes for which they are manufactured and sold to the Buyer. The warranty on any parts or components not manufactured by Lecat's Ventriloscope® shall not exceed the warranty of the parts and components offered by the manufacturers. The Buyer must inspect all orders upon arrival and handle and store the Products in strict compliance with product specifications and any storage instructions provided by the Company.
Within thirty (30) calendar days of purchase, the Buyer must also register the Products at the Company’s website, www.ventriloscope.com or by sending an email to firstname.lastname@example.org (include “Warranty” in the subject line). Failure to timely and properly inspect, handle, store, or register the Products shall void the Company’s warranty and release the Company from any liability regarding claims of defective or damaged Products. If the Buyer returns or rejects any of the Products due to a claimed manufacturing defect, within thirty (30) calendar days from its receipt of the Products the Buyer must give written notice to the Company. Written notice must be given to the Company by sending an email to email@example.com, with a copy sent by U.S. certified mail or overnight courier to the Company, 164 West Ave., #132, Tallmadge OH 44278 USA, Attn: Warranty Dept. Failure to give written notice of any claimed defect within this time shall void the Company’s warranty and release the Company from any liability regarding claims of defective or damaged Products and release the Company from accepting any return or rejection. This warranty does not apply to any defects in Products resulting from the operation, misapplications or abuse of the Products, including rough handling, mechanical damage, alteration or repair by an unqualified person or by those persons or procedures not authorized, by prior written approval from the Company, or not according to its instruction manuals and specifications. The Company is not responsible for removal or replacement costs, local repair costs, transportation costs, or contingent expenses incurred without its prior written approval. The Company’s only obligation under this warranty shall be limited to repairing or replacing any product which the Company, upon its detailed examination discloses a manufacturing defect. This obligation will be performed at the Company’s sole cost and expense. To receive warranty consideration, all Products must be returned to the Company, with a copy of the invoice and the original packaging. This warranty sets out the full extent of the Company’s obligations with respect to claimed defective Products.
THE COMPANY’S WARRANTY UNDER THIS SECTION SHALL BE THE EXCLUSIVE WARRANTY AND THERE SHALL BE NO OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. NO DESCRIPTION BY THE COMPANY OF THE GOODS BEING SOLD HAS BEEN MADE PART OF THE BASIS OF THE BARGAIN OR HAS CREATED OR AMOUNTED TO AN EXPRESS WARRANTY THAT THE GOODS WOULD CONFORM TO ANY DESCRIPTION. THERE ARE NO WARRANTIES OF MERCHANTABILITY OR FITNESS WHICH EXTEND BEYOND THAT SET OUT IN THIS WARRANTY.
UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER BASED ON CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE OR CLIENTS, LOSS OF PRODUCTION, COSTS OF SUBSTITUTE EQUIPMENT, DELAYS, BUSINESS INTERRUPTIONS, CLAIMS BROUGHT AGAINST BUYER OR CUSTOMERS BY THIRD PARTIES, OR LOSS OF OR DAMAGE TO PROPERTY OR EQUIPMENT OTHER THAN THE DELIVERED PRODUCTS. COMPANY’S LIABILITY SHALL NOT, UNDER ANY CIRCUMSTANCES, EXCEED THE PURCHASE PRICE OF THE PRODUCTS PROVIDED.
8. Intellectual Property Rights.
Lecat's Ventriloscope® asserts all its trademarks, trade names, trade dress, patents, utility models, industrial designs, drawings, copyrights, sounds, internal manufacturing procedures, product specifications, and all other intellectual property (collectively “Intellectual Property”) it owns at the time the Buyer purchases the Products. Unless otherwise agreed in writing, by Lecat's Ventriloscope® , all right, title, and interest in inventions, developments, improvements, or modifications of any Product made by Lecat's Ventriloscope® as a result of the Buyer’s purchase shall remain exclusively with Lecat's Ventriloscope® . The Buyer’s purchase of the Products does not grant to it a license or other rights in Lecat's Ventriloscope® ’s intellectual property rights. In the event a third-party claims any Product sold to the Buyer infringes any intellectual property rights, the Buyer shall (i) promptly notify Lecat's Ventriloscope® , in writing, of the claim; and (ii) upon request, grant SIMPLYSim™ the sole authority to investigate and control the defense of the claim. Whether Lecat's Ventriloscope® defends such a claim brought against the Buyer is within Lecat's Ventriloscope® ’s sole discretion. Lecat's Ventriloscope® has no obligation to defend any such claim. Unless otherwise agreed in writing, the terms of this provision set forth the entire obligation and liability of Lecat's Ventriloscope® to the Buyer for claims of infringement by any Products sold or supplied to the Buyer by Lecat's Ventriloscope® .
9. Compliance with U.S. Trade Laws, and Regulations.
The Buyer warrants and represents that it is familiar and will comply with United States laws, regulations, and executive orders, including but not limited to the Export Administration Regulations, the antiboycott and embargo regulations (including the avoidance of transactions with any party listed on the “Denied Persons List”, the “Denied Parties List” and the “Specially Designated Nationals” list maintained by the Department of Commerce and the Department of the Treasury, Office of Foreign Assets Control), and the International Traffic in Arms Regulations, that may apply to the Buyer or the sale of Products from Lecat's Ventriloscope® . The Buyer agrees to indemnify and hold Lecat's Ventriloscope® harmless from and against claims, fines, penalties, settlements, assessments, damages, costs and expenses (including attorney fees) that may be sustained by reason of the Buyer’s failure to comply with such laws and regulations. If the Buyer exports Products, the Buyer assumes responsibility for obtaining required export and import authorizations and will not export Products or any technical data in violation of applicable export regulations, including their diversion or transshipment. The Buyer agrees to include these requirements in any contracts for the resale of Products.
10. Choice of Law; Exclusive Forum.
Without regard to any conflict of law rules, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio, including its statutes of limitations. The Buyer consents and submits to the personal jurisdiction of the federal and state courts located in Summit County, Ohio, which shall be the exclusive forum in which to resolve any dispute, claims, or controversies arising out of or relating to these Terms and the sale of the Products to the Buyer by Lecat's Ventriloscope®.
11. General Terms.
If any provision of these Terms is held to be invalid, the remainder of these terms will survive and not be affected. If either party becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, the other party may, in addition to any other rights provided by law, cancel any unfulfilled obligations. Neither party may assign any rights or obligations under these Terms without the prior written consent of the other party. Neither party’s failure to exercise any of its rights under these Terms will constitute or be deemed a waiver or forfeiture of those rights. No government procurement regulations or contract clauses are binding on either party unless required by law or mutually agreed.
Copyright 2017 Lecat's Ventriloscope LLC. All rights reserved.