PHOTOBOOTH SUPPLY CO. SALE OF GOODS AGREEMENT
This Sale of Goods Agreement (this "Agreement") is entered into by and between Photobooth Supply Co. ("Seller") and the customer ("Buyer"), collectively (the “Parties”), as stated in the attached Invoice, with the effective date being the date of the Invoice, which is incorporated herein by reference. Whereas, Seller is in the business of selling photo kiosks (the "Goods"), and, Buyer desires to purchase the Goods from Seller. Now, for acknowledged good and valuable consideration, the Seller and Buyer agree as follows:
AGREEMENT TO PURCHASE AND SELL GOODS
Section 1.01 Purchase and Sale. Subject to the terms and conditions of this Agreement, the Seller shall, on a non-exclusive basis, sell to Buyer, and Buyer shall, on a non-exclusive basis, purchase from Seller, the Goods.
SHIPMENT AND DELIVERY
Section 2.01 Shipment. Unless expressly agreed to by the Parties in writing, Seller shall select the method of shipment of, and the carrier for, the Goods.
Section 2.02 Delivery. Unless expressly agreed to by the Parties, Seller shall deliver the Goods to the Buyer’s address as provided in the Invoice, using Seller's (or manufacturer's, as the case may be) standard methods for packaging and shipping the Goods.
Section 2.03 Late Delivery. Any time quoted by Seller for delivery is an estimate only. Seller is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery. No delay in the shipment or delivery of the Goods relieves Buyer of its obligations under this Agreement.
Section 2.04 No Right of Return. Once Goods are shipped, it is deemed accepted and Buyer has no right to return Goods.
Section 2.05 Export and Re-Export Restrictions and Regulations. Buyer agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with Buyer’s use of Photobooth Supply Co. products and services. Buyer agrees to not violate any local, state, federal or foreign laws. Buyer agrees not to transfer or authorize the transfer of any materials to a prohibited country in violation of any laws. In particular, but without limitation, the materials may not, in violation of any laws, be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders or U.S. Department of Commerce Entity List of proliferation concern, or the U.S. State Department Debarred Parties List. By using any materials subject to any such restrictions and regulations, Buyer represents and warrants that Buyer is not located in, under the control of, or a national or resident of any such country or on any such list.
TITLE AND RISK OF LOSS
Section 3.01 Title. Title to Goods are transferred to Buyer once Goods are shipped and Buyer has paid the Invoice in full.
Section 3.02 Risk of Loss. Risk of loss to all Goods ordered under any purchase order passes to Buyer upon Seller's tender of Goods to a commercial carrier.
Section 4.01 Inspection. Buyer shall inspect the Goods with fifteen (15) days of receipt ("Inspection Period") of the Goods and either accept or, if such Goods are Defective Goods, shall notify Seller within the Inspection Period. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Defective Goods during the Inspection Period. If Buyer timely notifies Seller of any Defective Goods, Seller shall determine, in its sole discretion, whether the Goods are Defective Goods. If Seller determines that the Goods are Defective Goods, Seller will replace the Defective Goods with Conforming Goods at Seller’s expense.
Section 5.01 Limited Warranty. Seller warrants to Buyer that for a period of one (1) year from the date of shipment of the Goods (the "Warranty Period"), that such Goods will materially conform to the specifications set forth in Seller's published specifications in effect as of the date of the tender of Goods to a commercial carrier and will be free from significant defects in material and workmanship.
Section 5.02 Buyer's Exclusive Remedy for Defective Goods. Notwithstanding any other provision of this Agreement, this contains Buyer's exclusive remedy for Defective Goods. Buyer's remedy is conditioned upon Buyer's compliance with its obligations stated below during the Warranty Period, with respect to any allegedly defective goods:
a) Buyer shall notify Seller, in writing, of any alleged claim or defect and request a Return Merchandise Authorization (“RMA”) from Seller.
b) If shipment of Defective Goods is necessary, the Defective Goods must be shipped to Seller within ten (10) days after the RMA was issued at Buyer’s expense Buyer understands and acknowledges that Buyer will be subject to a $100 diagnostic fee, and a 20% replacement part fee based on the current retail price of the replacement part. Buyer further understands and acknowledges that if no defect is discovered, Buyer will be charged an additional $100 no defect fee.
Section 5.03 Warranty Limitations. The warranties under this Section do not apply where the Goods have:
(a) been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Seller;
(b) been reconstructed, repaired or altered by persons other than Seller or its authorized representative;
(c) been used with any third-party product, software, hardware or product that has not been previously approved in writing by Seller;
(d) minor cosmetic imperfections that do not impair the functionality that may be caused by powder coating process, and
(e) normal wear and tear on the Goods, including paint chipping and denting.
Section 5.04 Third-Party Products. Products manufactured by a third party ("Third Party Product") may contain, be contained in, incorporated into, attached to or packaged together with the Goods. Third Party Products are not covered by the warranty in Section 5.01. For the avoidance of doubt, Seller makes no representations or warranties with respect to any Third Party Product.
Section 5.05 Defect Discovered Outside Warranty Period. Seller does not guarantee the replacement of any defect discovered outside the Warranty Period. Any request to cure defect outside of the Warranty Period is subject to the availability of the replacement part, and Seller shall be responsible for costs of replacement parts and labor (approximately 20% of the current retail cost of replacement part) plus a $100 fixed restocking fee. In addition, Buyer must submit proof to Seller that Buyer contacted the original manufacturer (if applicable) to request the replacement of the defective part and the original manufacturer was unable to fulfill Buyer’s request.
Section 5.06 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN Section 5.01, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, AND (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF. THIS SETS FORTH THE BUYER'S SOLE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.
Section 6.01 Ownership. Buyer acknowledges and agrees that:
(a) any and all Seller's intellectual property, such as patents, copyrights, and trademarks, whether registered or not, ("Seller’s intellectual property rights") are the sole and exclusive property of Seller or its licensors;
(b) Buyer shall not acquire any ownership interest in any of Seller's intellectual property rights under this Agreement;
(c) Buyer shall use Seller's intellectual property rights solely for purposes of using the Goods under this Agreement and only in accordance with this Agreement and the instructions of Seller.
Section 6.02 Prohibited Acts. Buyer shall not
(a) take any action that might interfere with any of Seller's intellectual property rights in or to Seller's intellectual property rights, including Seller's ownership or exercise thereof;
(b) challenge any right, title or interest of Seller in or to Seller's intellectual property rights;
(c) register or apply for registrations, anywhere in the world, for Seller's Trademarks or any other Trademark that is similar to Seller's Trademarks or that incorporates Seller's Trademarks in whole or in confusingly similar part;
(d) use any mark, anywhere that is confusingly similar to Seller's Trademarks in whole or in confusingly similar part;
(e) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any Seller's Trademarks;
(f) misappropriate any of Seller's Trademarks for use as a domain name without prior written consent from Seller; or
(g) alter, obscure or remove any Seller's Trademarks, or Trademark or copyright notices or any other proprietary rights notices placed on the Goods, marketing materials or other materials that Seller may provide.
Section 7.01 Scope of Confidential Information. Any and all confidential information and materials comprising or relating to Seller’s intellectual property rights, trade secrets, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information").
Section 7.02 Protection of Confidential Information. Buyer shall:
(a) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as Buyer would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care, and
(b) not use the Seller’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement.
LIMITATION OF LIABILITY
Section 8.01 No Liability for Consequential or Indirect Damages. SELLER NOR ITS REPRESENTATIVES IS LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY SELLER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Section 8.02 Maximum Liability. SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO SELLER PURSUANT TO THIS AGREEMENT.
Section 8.03 ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY GOODS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE GOODS.
Section 9.01 Governing Law, Jurisdiction and Venue. This Agreement, for all purposes, shall be construed in accordance with the laws of the state in which the Seller’s principal place of business is located. Any action or proceeding by either of the Parties to enforce this Agreement shall be brought in the state in which the Seller’s principal place of business is located.
Section 9.02 Entire Agreement. Unless specifically provided herein, this Agreement contains all of the understandings and representations between the Buyer and the Seller pertaining to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
Section 9.03 Modification and Waiver. No provision of this Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by the Buyer and by the Seller. No waiver by either of the Parties of any breach by the other Party hereto of any condition or provision of this Agreement to be performed by the other Party hereto shall be deemed a waiver.
Section 9.04 Severability. Should any provision of this Agreement shall be held as unenforceable, such holding shall not affect the validity of the remainder of this Agreement.
Section 9.05 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
Section 9.06 Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts beyond the affected Party's reasonable control.
Section 9.07 Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Buyer is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.
Section 9.08 Acknowledgement of Full Understanding. THE BUYER ACKNOWLEDGES AND AGREES THAT HE HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY ENTERS INTO THIS AGREEMENT.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
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