PURCHASE AND SALE AGREEMENT
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, on the terms and subject to the conditions of this Agreement, certain products as specified in this Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth, the parties hereto, intending to be legally bound, agree as follows:
1. Products. Buyer shall purchase from Seller and Seller shall sell to Buyer the product(s) (the “Product(s)”) described in the quotation of Seller attached hereto as Exhibit A (the “Quotation”).
2. Purchase Price and Payment. Buyer agrees to pay Seller a purchase price for the Product(s) in the amount set forth in the Quotation (the “Purchase Price”). The Purchase Price shall be paid by Buyer as follows:
(a) A deposit in the amount as set forth in the Quotation (the “Deposit”) shall be paid by Buyer to Seller contemporaneously with execution and delivery of this Agreement. The Deposit shall be non-refundable in all cases.
(b) The balance of the Purchase Price shall be paid by the specified payment terms. Any balance unpaid after the required payment date shall be subject to a service charge of one percent (1%) per month from such date until paid. Buyer agrees to pay all out-of-pocket costs and expenses (including, without limitation, all reasonable attorneys’ fees and expenses) incurred by Seller in connection with the collection of amounts not paid by Buyer to Seller when due.
3. Taxes. Any sales, use, excise, gross receipts, privilege and/or other taxes and/or duties applicable to the sale of the Product(s) are not included in the Purchase Price and shall be paid by Buyer when due. If Seller pays any such taxes or duties, Buyer shall reimburse Seller immediately upon demand.
4. Delivery. Delivery of the Product(s) shall be F.O.B. Seller’s point of shipment. Buyer shall be responsible for any and all costs, duties and taxes relating to any importation or exportation of the Product(s). Title and all risk of loss with respect to the Product(s) shall pass to Buyer upon Seller’s delivery of the Product(s) to the carrier. All shipping dates are approximate (and not guaranteed) and Seller shall not be liable for loss or damage because of delays in delivery of the Product(s). With respect to the delivery date of the Product(s), time is not of the essence unless otherwise agreed to in a writing signed by Seller.
5. Installation and Training.
(a) Unless otherwise specifically provided in the Quotation, Buyer shall have full responsibility for the installation and the initial starting up of the Product(s), and Seller shall not be responsible for any damages to the Product(s) or to other property, or any personal injury, or any other damages (including, without limitation, consequential damages), arising out of or in connection therewith, and Buyer shall indemnify and hold Seller harmless with respect to all such damages or claims arising out of or in connection with such installation and starting up. Any materials or other items not specifically listed in this Quotation shall be furnished or otherwise obtained by Buyer, and Seller makes no representations or warranties whatsoever with respect thereto. Installation and training by Seller with respect to the Product(s) can be provided at additional cost to Buyer and is strongly recommended for successful installation.
(b) It is Buyer’s responsibility to identify, define and provide for physical access to the installation area for the Product(s) (i.e. door openings, etc.) It is Buyer’s responsibility to provide willing and able personnel on site to assist in the installation of the Product(s).
6. Inspection. Buyer acknowledges and agrees that ten (10) days after receipt of the Product(s) will provide Buyer with a reasonable opportunity to inspect the Product(s).
(a) Except as otherwise set forth herein, Seller warrants that, for a period of one (1) year from the date of its delivery of the Product(s) to the carrier, the Product(s) will be free from defects in workmanship and materials. An extended warranty may be purchased by Buyer at additional cost to Buyer.
(b) IN THE EVENT OF ANY BREACH OF SUCH WARRANTY, SELLER’S SOLE OBLIGATION SHALL BE EXCLUSIVELY LIMITED TO, AT THE OPTION OF SELLER, REPAIR OR REPLACEMENT, F.O.B. SELLER’S POINT OF SHIPMENT, OF ANY PARTS THAT SELLER DETERMINES TO HAVE BEEN DEFECTIVE, OR A FULL REFUND OF THE PURCHASE PRICE UPON RETURN OF THE PRODUCT(S) TO SELLER. NO CLAIM AGAINST SELLER FOR ANY BREACH OF SUCH WARRANTY SHALL BE VALID OR ENFORCEABLE UNLESS BUYER’S WRITTEN NOTICE THEREOF IS RECEIVED BY SELLER WITHIN ONE (1) YEAR (OR SUCH EXTENDED PERIOD AS SET FORTH IN ANY EXTENDED WARRANTY PURCHASED BY BUYER) FROM THE DATE OF SELLER’S DELIVERY TO THE CARRIER. In the event that Seller elects to repair or replace any parts that Seller shall have determined to be defective, and Seller shall agree that Buyer may (at Seller’s expense) hire or otherwise engage a third party technician in connection with such repair or replacement work, then in such case such third party technician must: (i) be approved by Seller and (ii) communicate with the Seller employee-technician prior to commencing any such work and shall follow the instructions of the Seller employee-technician.
(c) EXCEPT FOR THE WARRANTY SET FORTH ABOVE, SELLER MAKES NO OTHER WARRANTIES WITH RESPECT TO ANY PRODUCT(S), WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY AND/OR THOSE ARISING BY STATUTE OR OTHERWISE BY LAW OR FROM ANY COURSE OF DEALING OR USE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY WITH RESPECT TO ANY PRODUCT, WHETHER IN CONTRACT, TORT OR OTHER THEORY OF LAW, FOR LOSS OF PROFITS OR LOSS OF USE, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, DIRECT OR INDIRECT DAMAGES, HOWSOEVER CAUSED. SELLER’S MAXIMUM LIABILITY TO BUYER WITH RESPECT TO THE PRODUCT(S) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE PRODUCT(S) THAT ARE THE SUBJECT OF THE APPLICABLE CLAIM.
(d) ANY ORAL OR WRITTEN STATEMENT, INFORMATION OR ADVICE GIVEN OR MADE BY SELLER OR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES OR DISTRIBUTORS: (A) SHALL NOT CONSTITUTE A SELLER REPRESENTATION OR WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTY; (B) SHALL NOT BE RELIED UPON BY BUYER OR ANY OTHER PERSON; AND (C) IS NOT A PART OF THE WARRANTY.
(e) Seller’s warranty set forth above shall not apply to Product(s) which are: (1) damaged or misused following Seller’s delivery to the carrier; (2) improperly cared for or stored; (3) not installed, maintained, inspected or used in compliance with Seller’s written instructions and recommendations; or (4) altered in any manner, or used or operated with incompatible supplies or equipment. In addition, Seller’s warranty set forth above shall not apply to any wear and tear of the following part(s) of any Product(s): press bags, press racks, grinder blades, grinder discs, shredder discs, pressing chambers, filter bags, bag connectors, funnels, juice trays, juice buckets, juice collection funnels, vibration pads, bag connectors, rubber seals, backing plates, hopper knobs, and hopper gaskets.
8. Security Interest. Until payment in full of the Purchase Price has been made, Seller shall have a security interest in the Product(s) and the Product(s) shall remain personal property. Upon request, Buyer shall execute and deliver to Seller security agreements and other documents further evidencing Seller’s security interest. Buyer authorizes Seller to file a financing statement or statements relating to the Product(s), as Seller may deem appropriate and appoints Seller as Buyer’s attorney-in-fact for the limited purpose of executing (without requiring Seller to do so) documents in Buyer’s name and performing other acts that Seller deems appropriate to perfect and continue its security interest and to protect and preserve the Product(s). In the event Buyer defaults in making any payment due Seller, Seller, in addition to any other rights or remedies provided by law, shall have the right, with or without legal process, to enter the place where said Product(s) are located and to repossess the Product(s) in accordance with the Uniform Commercial Code.
9. Returns and Restocking. Product(s) may be returned to Seller only with the prior written consent of Seller. In the event that Seller consents to any return of Product(s), Buyer shall be responsible for any and all shipping costs for delivery to Seller’s facility, along with a restocking fee in the amount of 15% of the Purchase Price for such Product(s).
10. Force Majeure. Seller shall not be liable to Buyer for any breach of this Agreement to the extent any such breach is due to any cause which is beyond the reasonable control of Seller, including fire, explosion, flood, or other acts of God; acts, regulations, or laws of any government; war or civil commotion; strike, lock-out or labor disturbances; failure to procure labor; failure to procure materials; or failure of public utilities or common carriers.
(a) Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Nevada without reference to conflicts of law principles. With respect to any matters that may be heard before a court of competent jurisdiction, the parties consent to the jurisdiction and venue of the courts of Clark County, Nevada or of any federal court located in the District of Nevada – Las Vegas.
(b) Entire Agreement. This Agreement, together with the Exhibit hereto, constitute the entire agreement between the parties regarding the subject matter contained herein and supersede all prior and contemporaneous undertakings and agreements of the parties, whether written or oral, with respect to the subject matter herein.
(c) Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(d) Notices. All notices hereunder will be in writing and will be deemed to have been duly given when mailed (by certified mail, postage prepaid) to the party at its address set forth in the Quotation.
(e) Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party. Any assignment or any attempted assignment in contravention of this Section shall be void and without effect.
(f) Binding Provisions. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns, and all other successors in interest, subject to the restrictions on assignment set forth in this Agreement.
(g) Captions. The paragraph captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent of the paragraphs of this Agreement, nor in any way affect this Agreement.
(h) Partial Invalidity or Waiver. The waiver of any breach of any provisions of this Agreement by either party shall not operate or be construed as a subsequent waiver by either party of any term or condition of this Agreement. In case any one or more of the provisions contained in this Agreement shall, for any reason, be declared invalid, illegal or unenforceable, such declarations shall not affect any other provisions of this Agreement, but, this Agreement shall be construed as if the invalid, illegal or unenforceable provision or provisions had never been contained in this Agreement, unless the deletion of the provisions or provisions would result in such a material change as to cause completion of the transactions contemplated under this Agreement to be unreasonable.Conflicts. In the event of any conflict or inconsistency between this Agreement and the Quotation or any purchase order, purchase order acknowledgement, confirmation, acceptance or any similar document, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the day and year first above written.