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TERMS AND CONDITIONS OF SALE

The following terms and conditions apply to the sale by Electro Rent Corporation and its subsidiaries ("ER") of any "Equipment" (which term includes related accessories, manuals and other items delivered with this order) to Customer. By placing an order with ER, Customer agrees to and accepts these General Terms and Conditions (and together with the terms of any accompanying order, purchase, or sales contract (the “Contract”). All previous communications, representations or agreements between the parties, whether oral or written, regarding the transactions involved are superseded by the Contract. ER HEREBY REJECTS IN ADVANCE ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED OR DEMANDED BY CUSTOMER, WHETHER OR NOT CONTAINED IN ANY CUSTOMER’S BUSINESS FORMS OR PURCHASE ORDERS AND SUCH ADDITIONAL TERMS OR CONDITIONS SHALL BE VOID AND OF NO EFFECT UPON ER.  ER RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY OR REPLACE ANY OF THESE TERMS AND CONDITIONS AT ANY TIME, AND SUCH MODIFICATION OR REPLACEMENT SHALL APPLY TO ALL SALES OF EQUIPMENT FROM ER AFTER THE DATE OF SUCH MODIFICATION OR REPLACEMENT.  IT IS CUSTOMER’S RESPONSIBILITY TO REVIEW THESE TERMS AND CONDITIONS EACH TIME CUSTOMER RENTS EQUIPMENT FROM ER.

1.   Payment Terms; Taxes. Terms are NET THIRTY (30) DAYS from invoice date.  Any amounts not paid by that date are subject to finance charges at the rate of 1-1/2% per month or the highest rate permitted by law. Customer shall pay sales, use, excise, franchise, value added or other taxes, all federal, state, local and foreign taxes, and any other governmental charges in connection with the rental, purchase, possession or use of the Equipment (other than taxes on ER's net income). If Customer delays or cancels an order, ER may charge the Customer 25% of the list price of the Equipment.  In the event that the amount paid by Customer differs from the amount ER’s records indicate to be due, and such difference is less than $50, the amount paid by Customer shall be deemed to be the actual amount due.  Under no circumstances shall Customer have a right of set-off against payments owed to ER or any of its affiliates.

2.   Credits. ER may issue credits to Customer’s account in certain circumstances, including potential overpayments or duplicate payments in excess of $50, for any agreed customer accommodations or incentives or for other reasons In ER’s sole discretion The mere issuance of a credit by ER to Customer’s account shall not constitute a determination or admission by ER that an amount is actually due to Customer, and ER expressly reserves the right to revoke or rescind any credit in the event that ER subsequently determines that the credit is not due or may not be due to Customer. Customer may request to utilize a credit against a future purchase from ER or a refund of such credit. Upon receipt of such request, ER shall confirm whether the credit is actually due to Customer, and if the credit is due, ER shall apply or refund the credit as requested by Customer (except for certain types of credits, such as customer accommodations or incentives, which may not be  refundable).  Any credits not used or refunded within twelve (12) months of issuance will be reduced by a service fee of 8% per month of the initial credit amount. In the event that a credit is issued to Customer, ER shall send periodic credit invoices to Customer notifying Customer of any outstanding credits and also indicating the date by which the credits must be utilized in order to avoid a service fee. Once imposed, the service fee is non-refundable and will not be waived, reversed or restored to Customer by ER. Customer expressly releases and discharges ER from any liability to Customer with respect to any credits that have been reduced by such service fees, or which ER has determined are not due to   Customer.

3.   Delivery FOB Customer’s Destination. For all shipments involving new Equipment, DELIVERY IS Customer’s destination.   All risk of loss or damage from shipping, theft, mysterious disappearance, fire or any other cause, including without limitation any use or misuse, is the responsibility of Customer thereafter. ER will make reasonable efforts to meet any delivery schedule quoted; but shall not be responsible for failure to meet such delivery schedule, regardless of the reason for such failure. ER will ship Equipment according to Customer's reasonable shipping instructions; if no reasonable method is specified, ER will select the method. Equipment shall not be shipped by ER or returned by Customer by U.S. mail. Customer will pay or reimburse ER for all delivery and handling charges.

4.   Title. Title to new Equipment will pass to Customer upon delivery. Acceptance of new Equipment by Customer will occur upon delivery. Customer hereby grants to ER a first priority security interest on the Equipment and all proceeds thereof, which shall expire only upon Customer making payment in full to ER for the Equipment. Customer authorizes ER to file financing statements covering the Equipment in any jurisdictions ER deems appropriate. Customer is deemed to have accepted each Product unless Customer notifies ER of non-acceptance within 7 calendar days of delivery to Customer’s specified address. 

5.   Limited or No Warranty; Limitation on Damages. ER is not the manufacturer of any Equipment. Warranties, if any, are only those offered by the original Equipment manufacturer. ER's sole responsibility for any breach of any warranty it provides will be (a) to repair such Equipment at ER's facility, (b) replace such equipment, or, (c) if ER  determines that neither of these two options is reasonable or practical, to cancel such order with no further obligation to Customer. EXCEPT AS EXPRESSLY SET FORTH IN THE CONTRACT, ER DISCLAIMS ANY AND ALL WARRANTIES EXPRESSED OR IMPLIED; INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR THAT THE EQUIPMENT DOES NOT INFRINGE UPON ANY PATENT OR PROPERTY RIGHT OF ANY THIRD PARTY. The remedies in the General Terms and Conditions are Customer's sole and exclusive remedies. Customer acknowledges that ER has based its pricing on the limitations set forth in this section 5.

6.   Indemnity.  Customer will defend, indemnify, and hold harmless ER and its subsidiaries, affiliates, successors and assigns, its directors, officers, shareholders, and employees from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees (including import and export customs fees), or expense (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) (“Claims”) arising out of or occurring in connection with: (a) any misuse or modification of the Equipment by Customer or its employees or agents, (b) any act (or failure to act) by Customer or its employees or agents in contravention of any safety procedures or instructions provided to Customer or its employees or agents, or (c) Customer’s, or its employees’ or agents’, failure to store, install, operate, or maintain the Equipment in accordance with any instructions or manuals.

IN NO EVENT WILL ER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST DATA, AND COSTS OF PROCUREMENT OF SUBSTITUTE EQUIPMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF ER HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES.

7.   Right of Setoff.  In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any  such rights, ER is hereby authorized by Customer at any time and from time to time, without notice or demand to Customer or to any other person (any such notice and demand being hereby expressly waived), to set off, recoup and to appropriate and to apply any and all funds which may be in the possession of, or which may be owed by ER or its affiliates against any obligation of Customer or Customer’s affiliates to ER, whether such obligation is liquidated, unliquidated, fixed, contingent, matured or unmatured, and regardless of whether such obligation arises under the Contract or a different agreement between ER and Customer or Customer’s affiliate.

8.   Compliance. The parties agree to comply with applicable laws and regulations. ER may suspend performance if Customer is in violation of applicable laws or regulations. No U.S. government procurement regulation shall be deemed a part of the Contract or be applicable to ER unless specifically agreed to in writing by ER. The Equipment may not be used as parts, components or assemblies for the planning, construction, maintenance or direct operation of a nuclear facility. Customer agrees to comply with all United States and other applicable laws and regulations regarding the importation, use, sale, and diversion of the Equipment, and assumes responsibility for determining whether any shipment of Equipment requires government authorization or would otherwise violate applicable law. Any included software may only be used strictly in accordance with any applicable license(s). Any party defaulting on any of its obligations hereunder shall pay for all costs, expenses and legal fees incurred by the other party to enforce its rights, whether or not legal action is instituted, including in the case of ER, the costs of recovering, repairing of replacing the Equipment.

9.   Force Majeure.  ER shall not be liable for failure to perform, or delay in performance, or delivery of any Equipment or maintenance due to (a) fires, floods, other natural disaster, strikes, or other labor disputes, accidents, sabotage, terrorism, war, riots, delays in transportation or lack of transportation facilities, restrictions imposed by federal, state or local laws, rules or regulations; or (b) any other cause beyond the reasonable control of ER.

10. Liens.  Customer shall keep the Equipment free from any liens, including without limitation, mechanics’ liens, storage, warehouse or other possessory liens, claims or encumbrances, attachments, rights of others and legal processes (“Liens”) of creditors of Customer or any other persons until such time as the Customer has paid ER in full for the purchase of the Equipment.  Customer shall promptly notify ER upon receipt of notice of any such Liens affecting the Equipment and Customer shall promptly defend at its own expense ER’s title to the Equipment from such Liens.

11. Export Regulations.  Customer shall not transfer or otherwise dispose of any Equipment or related software, know-how, technical data, documentation or materials furnished by ER to any party or in any manner which would constitute a violation of the export control regulations of the United States (now or hereafter in effect).  Such export regulations prohibit, without limitation, exports, transshipments or re-exports of Equipment to:  (a) such countries or regulations that are subject to U.S. sanctions programs, or (b) to entities or individuals that appear on the U.S. government’s (a) Specially Designated Nationals List; (b) Denied Persons List; (c) Unverified List; (d) Debarred List; or (e) Entity List.

12. Termination. In addition to any other remedies that ER may have, ER may terminate the Contract with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under the Contract and the failure continues for five (5) days after Customer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these terms and conditions, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

13.  Other than New Equipment. Sales of all other Equipment, including in the case of direct sales or sales under a purchase option, are without warranty and may not be returned unless expressly stated in writing on the face of the Contract.

14.  Miscellaneous. All notices hereunder shall be in writing. Typographic and/or clerical errors may be corrected by ER on notice to Customer. The Contract shall be governed by and construed in accordance with the laws of the State of California. Any legal action or proceeding with respect to the Contract shall be brought exclusively in the state or federal courts in California without giving any effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction that would cause the application of any laws of any jurisdiction other than those of the State of California, and the parties hereby consent to the venue and jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. To the extent that any provision or a portion of any provision is determined to be illegal or unenforceable, the remainder will remain in full force and effect. Customer may not transfer or encumber any rights hereunder without the consent of ER; ER may assign or transfer any of its rights or obligations upon notice in connection with a transfer of its business. No waiver by either party of any breach of any provision of the Contract shall be construed as a waiver of any subsequent breach or as a continuing waiver of such breach. Any approval, consent or determination of ER shall be given in ER's sole and absolute discretion. Time is of the essence. "Including" means "including without limitation."

Returned Equipment must have a Return Merchandise Authorization Form issued by ER within any applicable warranty period and be packaged in original packing materials and shipped prepaid freight to ER's designated center. For new Equipment, ER may assess a restocking fee.