This sale of goods agreement is between , an individual a(n) (the "Seller") and , an individual a(n) (the "Buyer").
The Seller is engaged in the business of selling goods.
The Seller wishes to sell and transfer, and the Buyer wishes to purchase and acquire, certain goods of the Seller.
The parties therefore agree as follows:
1. AGREEMENT OF PURCHASE AND SALE.
- (a) Orders. From time to time during the Term, the Seller may place one or more orders (each an "Order") for the purchase of the goods listed in Exhibit A (the "Goods"), in amounts listed in the Orders.
- (b) Sale of Goods. After each Order, the Seller shall transfer ownership and deliver possession to the Buyer, and the Buyer shall pay for and accept from the Seller, the Goods as set forth in this agreement.
2. DELIVERY OF GOODS / SHIPPING.
- (a) Date of Delivery. The Buyer may specify the date and time of delivery (the "Delivery Date") in an Order, which shall be during normal business hours. Unless otherwise agreed by the parties in writing, the Delivery Date shall be any date within days of the Buyer's specified date. The Seller shall give the Buyer reasonable notice of the pending delivery of the Goods.
- (b) Location of Delivery. On the Delivery Date, the Seller shall deliver the Goods to a location designated by the Buyer (the "Delivery Point").
- (c) Packaging. The Seller shall use its standard packaging on the Goods and shall set forth the Buyer's order number, contents, and weight on each package. All Goods shall be properly packed for shipping.
- (d) Notice. As soon as the Goods are shipped to the Delivery Point, the Seller shall notify the Buyer of the shipment in a commercially reasonable time and list the dates and times at which the Buyer may take delivery after inspection.
- (e) Risk of Loss. The Seller assumes responsibility for the Goods, and all risk of damage, loss, or delay of the Goods, until the Goods are delivered to or collected by the Buyer at the Delivery Point. Once the Goods have been delivered to or collected by the Buyer at the Delivery Point, the Buyer assumes all responsibility for and risk of damage to those Goods.
- (f) Title. Title in and to the Goods shall pass from the Seller to the Buyer when the Buyer receives the Goods from the Seller or receives from the Seller an endorsed registerable bill of sale or similar document of title, or any other documentation required by the state of . However, the Seller shall retain a security interest in the Goods until full payment is obtained from the Buyer.
3. PAYMENT TERMS.
- (a) Pricing. The Seller shall sell the Goods to the Buyer at the prices specified in the Order. The initial price list for the Goods is listed in Exhibit A. The price of each Good includes packaging costs, all applicable taxes, customs duties, export duties, or similar tariffs or fees that the Seller may be required to pay or collect in connection with the performance of its obligations under or in furtherance of this agreement. The Buyer will not be charged for insurance on or storage of the Goods.
- (b) Invoices. On or before the Delivery DateWithin days after the Delivery Date, the Seller shall send an invoice to the Buyer at its address listed in section requesting payment for the Goods. The Buyer shall remit payment to the Seller at its address listed in section within days of its receipt of that invoice via wire transfercorporate checkACHwire, corporate check, or ACH.
- (c) Late Fees. All payments still owing after the due date will bear interest at the greater of (i) an annual rate of percent, calculated monthly on the date payment was initially due and (ii) the highest rate allowed under applicable law, until the amounts are paid.
4. SALE BY SAMPLE.
A sample of the Goods has been exhibited to the Buyer, and that sample has been marked for identification with the word "sample." The Seller warrants that the remainder of the Goods will conform to the sample, but disclaims any other express or implied warranties.
The Buyer shall inspect and accept, or reject, the Goods delivered under an Order immediately after taking custody of those Goods. If any unit or product or part of the Goods do not comply with the samples or other specifications (each a "Defective Good"), the Buyer shall notify the Seller of these defects and give the Seller a reasonable opportunity to correct these defects. The Buyer will be assumed to have accepted the Goods unconditionally and waived any right to replacement or repair under this agreement unless a claim that a Good is a Defective Good is made within of the Delivery Date.
6. DEFECTIVE GOODS REPLACEMENT OR REPAIR.
- (a) Repair or Replacement. Notwithstanding any inspection or approval of the Goods by the Buyer, by preshipment inspection or otherwise, the Seller shall, at its own cost, repair or replace any Defective Good. The Seller shall bear all freight costs of repairing or replacing any Defective Good.
- (b) Remedy. If any delivered Goods are Defective Goods, the Buyer's exclusive remedy shall be the repair or replacement of those Defective Goods. The Seller's acceptance of returned Goods will not be deemed an admission that the Goods are defective and, if the Seller finds that any Goods returned are not Defective Goods, those Goods will be returned to the Buyer and the Buyer will be responsible for any shipping charges incurred by the Seller.
- (a) Of the Seller. The Seller hereby represents to the Buyer as follows:
- (i) the Seller is the sole owner of the Goods, and the Goods are now, and will be at the time of delivery, free of all encumbrances;
- (ii) the Seller has full right, power, and authority to sell the Goods;
- (iii) neither the Goods nor their manufacturing process infringe or will infringe the intellectual property rights or any other rights of any third party;
- (iv) the Seller neither knows nor has reason to know of the existence of any outstanding title or claim of title hostile to the rights of the Seller in the Goods;
- (v) the Seller is not bound by any warranty, representation, or affirmation outside the scope of this agreement concerning the Goods by any of its agents, employees, or representatives; and
- (vi) the Goods will conform to the description and specifications made by the Buyer and are free from defects in material and workmanship.; and
- (vii) the Seller does not warrant that the Goods are merchantable or fit for any particular purpose and this sale is made "AS IS." There are no express or implied warranties made by the Seller, except as expressly stated in this agreement.
- (b) Of the Buyer. The Buyer hereby represents to the Seller that:
- (i) except as expressly stated in this agreement, neither the Seller nor any party acting on its behalf has made any representation or warranty, express or implied, concerning the Goods, or their fitness for any particular use, it being the intention of the parties that the Goods are sold "AS IS."
The Seller may change the Goods being delivered under an Order without any obligation to incorporate those changes into any Good manufactured, sold, or delivered before the incorporation of those changes.
9. INTELLECTUAL PROPERTY.
The Buyer shall use the Seller's trademark or trade names both on the Goods and in the advertising for the Goods. The Seller will cooperate with the Buyer's marketing, advertising, and packaging personnel to coordinate use of the Seller's trademarks or trade names, and any other text that mentions the Seller. The Buyer is not entitled, either by implication or otherwise, to any interest in any trademark, trade name, logo, design, or copyright developed by the Seller in connection with the Goods.
- (a) Of the Buyer. The Seller shall at all times indemnify the Buyer against any award, charge, claim, compensatory damages, cost, damages, exemplary damages, diminution in value, expense, fee, fine, interest, judgment, liability, settlement payment, penalty, or other loss (a "Loss") or any attorney's or other professional's fee and disbursement, court filing fee, court cost, arbitration fee, arbitration cost, witness fee, and each other fee and cost of investigating and defending or asserting a claim for indemnification (a "Litigation Expense") arising out of:
- (i) any claim of breach of any express or implied warranty or negligence or strict liability, product liability, or similar theory in connection with the production, design, sale, or use of any of the Goods purchased by the Buyer; and
- (ii) any claims of patent or trademark infringement, or other violation of intellectual property rights, of third persons in connection with the production, design, sale, or use of any of the Goods purchased by the Buyer under this agreement or the use of the trademarks, trade names, logos, or other intellectual property pertaining to those; and
- (ii)(iii) all other claims related to the production, design, sale, or use of the Goods purchased by the Buyer under this agreement, unless those claims result solely from the Buyer's gross negligence or knowing violation of law.
- (b) Of the Seller. The Buyer shall at all times indemnify the Seller against Loss or Litigation Expense caused by any breach of any of the representations or agreements made by the Buyer under this agreement.
11. TERM AND TERMINATION.
- (a) Term. This agreement will become effective as described in section . Unless it is terminated earlier in accordance with subsection (b), this agreement will continue for an initial term of year(s) (the "Term"). Unless either party gives written notice to the other at least days before the end of the Term, this agreement will renew automatically for an additional -year term. This automatic extension will continue to apply at the end of each extended period until the agreement is terminated. However, this agreement may not remain effective for more than years.
- (b) Termination. This agreement may be terminated:
- (i) by the Buyer, if the Goods are not delivered within days of a Delivery Date;
- (ii) by the Seller, if the Buyer has not paid for the Goods in accordance with section 3(b); or
- (iii) by either party for a material breach of any provision of this agreement by the other party, if the other party's material breach is not cured within days of receipt of written notice of the breach.
- (c) Effect of Termination. If the agreement is terminated by the Seller based on the Buyer's breach, then:
- (i) the full price for all Goods delivered and not yet paid for shall be immediately due, notwithstanding that the normal terms of payment as set out in section 3(b) above may not have been exceeded; and
- (ii) at the Seller's discretion, it may either sell to the Buyer or dispose of elsewhere Goods in the course of manufacture or manufactured and not yet delivered, or delivered and not yet paid for. However, if the Seller elects to dispose of those Goods elsewhere the Buyer will be liable to pay to the Seller any loss incurred by the Seller as a result.
- (d) Cumulative Remedies. If either party terminates this agreement because of the other party's default, the nonbreaching party, in addition to all rights it has under this agreement, shall have the right to exercise all remedies available at law or in equity (including any remedies afforded each party under the Uniform Commercial Code). All rights and remedies are cumulative, and the election of one remedy shall not preclude another. Any termination shall be without prejudice to accrued rights. Specifically, a termination due to default of delivery or payment for the Goods required under this agreement will not in any way affect or terminate the rights and obligations of the parties that have accrued under this agreement before or after that default in delivery or payment. Notwithstanding the termination of this agreement, the obligations intended to survive termination will continue in full force and effect.
12. FORCE MAJEURE.
A party will not be considered in breach of or in default because of, and will not be liable to the other party for, any delay or failure to perform its obligations under this agreement by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that party's reasonable control (each a "Force Majeure Event"). However, if a Force Majeure Event occurs, the affected party shall, as soon as practicable:
- (a) notify the other party of the Force Majeure Event and its impact on performance under this agreement; and
- (b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations under this agreement.
13. GOVERNING LAW.
- (a) Choice of Law. The laws of the state of govern this agreement (without giving effect to its conflicts of law principles).
- (b) Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in , .
No amendment to this agreement will be effective unless it is in writing and signed by a party.
15. ASSIGNMENT AND DELEGATION.
- (a) No Assignment. Neither party may assign any of its rights under this agreement, except with the prior written consent of the other party. All voluntary assignments of rights are limited by this subsection.
- (b) No Delegation. Neither party may delegate any performance under this agreement, except with the prior written consent of the other party.
- (c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.
16. COUNTERPARTS; ELECTRONIC SIGNATURES.
- (a) Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
- (b) Electronic Signatures. This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.
- (a) Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
- (b) Addresses. A party shall address notices under this section to a party at the following addresses:
- If to the Buyer:
- (c) Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
20. ENTIRE AGREEMENT.
This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement about the subject matter of this agreement. All prior and contemporaneous communications,negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.
The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement's construction or interpretation.
This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this agreement.
23. NECESSARY ACTS; FURTHER ASSURANCES.
Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
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Each party is signing this bill of sale on the date stated opposite that party's signature.
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PRODUCT AND PRICING LIST