SALE AGREEMENT

 

This sale agreement (“Agreement”) governs purchases of the products (“Products”) of RashEndZ Inc., a Florida corporation (“Seller”) and is between Seller and the party identified in the order for Products as the buyer thereof (“Buyer”). The parties agree as follows:

  1. Order; Delivery. Seller will not fulfill an order for Products (“Order”) unless such Order is submitted through Seller’s website at rashendz.com (“Website”) or is otherwise accepted by an authorized representative of Seller. Within a reasonable time after Seller receives and accepts an Order, Seller will provide Buyer with a confirmation of the Order (“Order Confirmation”). The Products will be delivered to Buyer within a reasonable time after the receipt of an Order, subject to available inventory. Seller will not be liable for any delivery delays or loss or damage to Products in transit. Unless otherwise agreed in writing by the parties, Seller shall deliver the Products to the delivery location identified by Buyer in the applicable Order (the “Delivery Point”) using Seller’s standard methods for packaging and shipping the Products. Buyer shall take delivery of the Products within five days of Seller’s written notice to Buyer that the Products have been delivered to the Delivery Point (“Delivery Notice”). Buyer is solely responsible for all loading costs, equipment, and labor reasonably suited for receipt of the Products at the Delivery Point. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Products shipped whether such shipment is in whole or partial fulfillment of the applicable Order. If for any reason Buyer fails to accept delivery of any Products on the date stated in the applicable Delivery Notice, or if Seller is unable to deliver the Products at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses, or authorizations, on such date: (1) risk of loss to the Products will pass to Buyer; (2) the Products will be deemed to have been delivered; and (3) Seller may, at its option, store the Products until retrieved by Buyer, whereupon Buyer will be liable for all related costs and expenses, including storage and insurance.
  2. Website Orders. Before submitting an Order through the Website, Buyer may be required to create a customer account for the Website by providing Seller with certain information of Buyer. Buyer is solely responsible for keeping Buyer’s password for its customer account secure and confidential and maintaining the accuracy of the information associated with Buyer’s customer account. Buyer is solely responsible for any access to or use of the Website through Buyer’s customer account. Buyer shall promptly notify Seller of any authorized access to or use of Buyer’s customer account. Buyer understands and acknowledges that Seller is not meant to be, and does not accept the responsibility to act as, Buyer’s data repository of record. Orders submitted through the Website are subject to the Website’s Terms of Use and Privacy Policy. Seller reserves the right to limit Buyer’s use of the Website, in whole or in part. Seller reserves the right to restrict, suspend, or terminate Buyer’s customer account if Seller believes that Buyer is in breach of this Agreement or any agreement applicable to the Website, including the Website’s Terms of Use.
  3. Non-Delivery. The quantity of any installment of an Order as recorded by Seller on dispatch from Seller’s place of business will be deemed conclusive evidence of the quantity of Products received by Buyer upon delivery unless Buyer provides conclusive evidence proving otherwise. Seller will not be liable for any non-delivery of any Products (even if caused by Seller’s negligence) unless Buyer provides written notice to Seller of such non-delivery within 24 hours of the date when the Products would have been received in the ordinary course of events. Any liability of Seller for non-delivery of the Products will be limited to replacing the Products within a reasonable time or adjusting the respective invoice for the applicable Order to reflect the actual quantity delivered.
  4. Quantity. If Seller delivers to Buyer a quantity of Products that is up to 5% more than or less than the quantity set forth in the Order Confirmation, Buyer will not be entitled to object to or reject the applicable Order or any portion thereof by reason of the surplus or shortfall, and Buyer shall pay for such Products the price set forth in the Order Confirmation adjusted pro rata.
  5. Shipping Terms. Delivery of the Products will be made FOB Seller’s shipping location unless otherwise agreed in the applicable Order Confirmation.
  6. Title and Risk of Loss. Title to and risk of loss of any Order passes to Buyer upon delivery of the Order at the Delivery Point. As collateral security for the payment of the purchase price of an Order, Buyer hereby grants to Seller a lien on and security interest in and to all of the interest of Buyer in, to, and under the Products of such Order, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code.
  7. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Products within 24 hours of receipt of the corresponding Order (”Inspection Period”). Buyer will be deemed to have accepted such Order unless Buyer notifies Seller in writing of any Nonconforming Products (defined below) during the Inspection Period and furnishes such written evidence or other documentation as may be required by Seller. “Nonconforming Products” means (1) the Products shipped are different than identified in the applicable Order Confirmation, or (2) such Products’ label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (1) replace such Nonconforming Products with conforming Products, or (2) credit or refund the Price (defined below) for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at Buyer’s expense and risk of loss, all Nonconforming Products to the facility identified by Seller. If Buyer elects to replace any Nonconforming Products, Seller shall, after receiving the applicable shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the Delivery Point. Buyer acknowledges and understands that the remedy set forth in this section 7 is Buyer’s exclusive remedy for the delivery of Nonconforming Products. Except as provided in this section 7, all sales of Products to Buyer are made on a one-way basis, and Buyer has no right to return any Products purchased under this Agreement to Seller.
  8. Price. All purchases of Products from Seller hereunder will be at the prices (the “Prices”) set forth in Seller’s published price list in effect as of the date the applicable Order is accepted by Seller. If any Price is increased by Seller before delivery of an Order to a carrier for shipment to Buyer, then this Agreement will be construed as if such increased Price was originally inserted herein, and Buyer will be billed by Seller on the basis of such increased Price. Seller may increase or decrease Prices at any time, with or without notice to Buyer. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer is solely responsible for all such charges, costs, and taxes; except that Buyer will not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
  9. Payment Terms. With respect to any Order, Buyer shall pay all invoiced amounts due to Seller in accordance with the payment instructions set forth in the invoice for such Order. All payments hereunder must be made by electronic funds transfer or check in accordance with Seller’s instructions and in U.S. Dollars. Buyer shall pay interest on all late payments at a rate of 1.5% per month (subject to applicable law), calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including reasonable attorneys’ fees. In addition to all other remedies available to Seller under this Agreement, whether at law or equity (which Seller does not waive by the exercise of any rights hereunder), Seller will be entitled to suspend the delivery of any Order if Buyer fails to pay any amounts when due hereunder and such failure continues for ten days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
  10. Disclaimer Warranty. ALL PRODUCTS ARE SOLD “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO ANY PROPERTY OF A THIRD PARTY, IF ANY, THAT MAY BE CONTAINED IN, INCORPORATED INTO, ATTACHED TO, PACKAGED WITH, OR USED IN CONNECTION WITH ANY OF THE PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON- INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. ALL SUCH WARRANTIES WITH RESPECT TO ANY SUCH PROPERTY OF ANY THIRD PARTY ARE HEREBY DISCLAIMED.
  11. Limitation of Liability. IN NO EVENT WILL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL 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, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
  12. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on any of the Products.
  13. Termination. In addition to any remedies that may be provided under this Agreement, Seller may immediately terminate this Agreement, effective upon written notice to Buyer, if Buyer: (1) fails to pay any amount when due under this Agreement and such failure continues for ten days after Buyer’s receipt written notice of nonpayment; (2) has not otherwise performed or complied with any of this Agreement, in whole or in part; or (3) 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 its creditors.
  14. Entire Agreement. This Agreement (consisting of this sale agreement and any order forms, Order Confirmations, and invoices) contains the entire agreement between Seller and Buyer regarding the subject matter hereof and supersedes any prior written or oral agreements between the parties. Fulfillment of any Order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend this Agreement.
  15. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
  16. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by an authorized representative of Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  17. Confidential Information. All non-public, confidential, or proprietary information of Seller, including specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, and rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement, and Buyer shall not at any time disclose, copy, or use any such confidential information unless authorized in writing in advance by an authorized representative of Seller. Upon Seller’s request, Buyer shall promptly return, delete, or destroy all documents and other materials received from Seller. Seller will be entitled to injunctive relief for any violation of this section 17. Information of Seller will not be deemed confidential if such information is: (1) in the public domain prior to disclosure to Buyer; (2) known to Buyer at the time of disclosure; or (3) rightfully obtained by Buyer on a non-confidential basis from a third party.
  18. Force Majeure. Seller will not be liable or responsible to Buyer, nor be deemed to have defaulted 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 or circumstances beyond the reasonable control of Seller including, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
  19. Assignment. Buyer shall not assign any of its rights or delegate any of Buyer’s obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this section 19 is void and of no effect. No such purported assignment or delegation relieves Buyer of any of its obligations under this Agreement. Seller may assign this Agreement to a successor entity of Seller (whether by asset or stock sale, merger, or otherwise) without Buyer’s consent or prior notice to Buyer.
  20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
  21. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
  22. Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement are governed by and will be construed in accordance with the internal laws of the State of New York without regard to its choice of law or conflicts of law principles. The parties irrevocably submit to the exclusive jurisdiction of the state courts of the State of New York and to the jurisdiction of the United States District Court for the Southern District of New York, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.
  23. Notices. All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or electronic mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (1) upon receipt of the receiving party, and (2) if the party giving the Notice has complied with the requirements of this section, 23.
  24. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  25. Survival. Sections 12, 16, 17, 21, 22, and 25 will survive any termination of this Agreement. Those other provisions of this Agreement which by their nature should apply beyond their terms will also survive any termination of this Agreement.