Sale of Goods Agreement
This Sale of Goods Agreement, dated as of [DATE] (this “Agreement”), is entered into between eTrikeCo Corp., a Florida Corporation (“Seller”), and [Name] a [State of Organization] [Type of Entity]
(“Buyer”, and together with Seller, the “Parties”, and each, a “Party”).
Recitals
WHEREAS Seller is in the business of selling electric tricycles;
WHEREAS Buyer desires to purchase from Seller, and Seller desires to sell to Buyer the Goods. OW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

I. Definitions

Capitalized terms have the meanings set forth or referred to in this Article ARTICLE I.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or otherwise, whether at law, in equity or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. “Agreement” has the meaning set forth in the preamble.
“Antiboycott Laws” means all Laws that encourage or require US individuals and companies to refuse to participate in or cooperate with foreign boycotts that are not sanctioned by the US government, including the Anti-Boycott Act of 2018 (Title XVII, Subtitle B, Part II or Pub. L. No. 115-232), the Export Administration Regulations, Part 760, Restrictive Trade Practices and Boycotts of the Export Administration Regulations (EAR) (15 C.F.R. pt. 760 (2008)), and the Ribicoff Amendment to the Tax Reform Act of 1976, which added Section 999 to the Internal Revenue Code of 1986, as amended.
“Basic Purchase Order Terms” means, collectively, any one or more of the following terms specified by Buyer in a Purchase Order pursuant to Section 5.01: (a) a list of the Goods to be purchased, including make/model number; (b) the quantity of each of the Goods ordered; (c) the requested delivery date; (d) the unit Price for each of the Goods to be purchased; (e) the billing address; and (f) the Delivery Location. For the avoidance of doubt, the term “Basic Purchase Order Terms” does not include any general terms or conditions of any Purchase Order.
“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in Florida are authorized or required by Law to be closed for business.
“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to (i) Patents; (ii) Trademarks; (iii) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, websites, and URLs; (iv) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) Trade Secrets; (vi) semiconductor chips, mask works, and the like; and (vii) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the Laws of any jurisdiction throughout in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order, or other requirement or rule of law of any Governmental Authority.
“Losses” has the meaning set forth in Section 15.01.
“Nonconforming Goods” means any goods received by Buyer from Seller pursuant to a Purchase Order that: (i) do not conform to the make/model number listed in the applicable Purchase Order; (ii) do not significantly conform to the Specifications; or (iii) materially exceed the quantity of Goods ordered by Buyer pursuant to this Agreement or any Purchase Order. Where the context requires, Nonconforming Goods are deemed to be Goods for purposes of this Agreement. “Notice” has the meaning set forth in Section 18.04.
“Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names, and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.
“Trade Secrets” means all inventions, discoveries, trade secrets, business and technical information, and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein. “Warranty Period” has the meaning set forth in Section 14.01.

II. Agreement To Purchase And Sell Goods

(a) Buyer is not obligated to purchase any annual minimum quantities from Seller under this Agreement; and
(b) Seller is not obligated to sell any annual minimum quantities to Buyer under this Agreement

III. Terms Of Agreement Prevail Over Buyer’s Purchase Order

This Agreement is expressly limited to the terms of this Agreement and the Basic Purchase Order Terms contained in the applicable Purchase Order. The terms of this Agreement prevail over any terms or conditions contained in any other documentation and expressly exclude any of Buyer’s general terms and conditions contained in any Purchase Order or other document issued by Buyer. In the event of any conflict between the terms of this Agreement and the terms of any Purchase Order or any other document issued by Buyer, the terms of this Agreement prevail.

IV. Non-binding Forecasts

V. Order Procedure

V.1. Purchase Orders. Buyer shall initiate all Purchase Orders in written form via facsimile, e-mail, or US mail, and cause all Purchase Orders to contain the Basic Purchase Order Terms. By placing a Purchase Order, Buyer makes an offer to purchase the Goods pursuant to the terms and conditions of this Agreement, including the Basic Purchase Order Terms, and on no other terms. Except with respect to the Basic Purchase Order Terms, any variations made to the terms and conditions of this Agreement by Buyer in any Purchase Order are void and have no effect.
V.2.Seller’s Right to Accept or Reject Purchase Order. Seller has the right, in its sole discretion, to accept or reject any Purchase Order. Seller may accept any Purchase Order by confirming the order (whether by written confirmation, invoice or otherwise) or by delivering such Goods, whichever occurs first. No Purchase Order is binding on Seller unless accepted by Seller as provided in this Agreement.

V.3.Cancellation of Individual Transactions.
(a) Seller may, in its sole discretion, without liability or penalty, cancel any Individual Transaction:
(i) if Seller determines that Buyer is in violation of its payment obligations or has breached or is in breach of this Agreement; or
(ii) pursuant to Seller’s rights under Section 8.04.
(b) With the exception of Buyer’s right to cancel any Purchase Order pursuant to Section 6.03, Buyer shall have no right to cancel or amend any Purchase Order submitted by it. 

VI. Shipment And Delivery

VI.1. Shipment. Unless expressly agreed to by the Parties in writing, Seller shall select the method of shipment of, and the carrier for, the Goods. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of a Purchase Order.
VI.2. Delivery. Unless expressly agreed to by the Parties in any Individual Transaction, Seller shall deliver the Goods to the Delivery Location, using Seller’s (or manufacturer’s, as the case may be) standard methods for packaging and shipping such Goods.
VI.3. 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. However, if Seller delays shipment of all or any Goods for more than ten days after the estimated delivery date (the “Delayed Shipment Date”), then Buyer may, as its sole remedy therefor, cancel the related Purchase Order with respect to the delayed Goods by giving Seller Notice within ten days of the Delayed Shipment Date. No delay in the shipment or delivery of any Goods relieves Buyer of its obligations under this Agreement, including without limitation accepting delivery of any remaining installment(s) of Goods.
VI.4. Packaging and Labeling. Seller shall properly pack, mark, and ship Goods and provide Buyer with shipment documentation showing the Purchase Order number, Seller’s identification number for the subject Goods, the quantity of pieces in shipment, the number of cartons or containers in shipment, Seller’s name, the bill of lading number, and the country of origin.
VI.5. Inspection. Buyer shall inspect the Goods within five days of receipt (“Inspection Period”) of the Goods and either accept or, if such Goods are Nonconforming Goods or Excess Goods, reject such Goods. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods or Excess Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. If Buyer timely notifies Seller of any Nonconforming Goods or Excess Goods, Seller shall determine, in its sole discretion, whether the Goods are Nonconforming Goods or Excess Goods. If Seller determines that the Goods are Nonconforming Goods or Excess Goods, it shall, in its sole discretion:
(a) if such Goods are Nonconforming Goods, (i) replace such Nonconforming Goods with conforming Goods, or (ii) refund the Price for such Nonconforming Goods, together with all shipping and handling expenses incurred by Buyer in connection therewith; or
(b) if such Goods are Excess Goods, refund the Price for such Excess Goods, together with all shipping and handling expenses incurred by Buyer in connection therewith.
Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods or Excess Goods to Seller’s facility. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Location.
BUYER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH IN Section 6.05(a) AND Section 6.05(b) OF THIS SECTION 6.5 ARE BUYER’S EXCLUSIVE REMEDIES FOR THE DELIVERY OF NONCONFORMING GOODS OR EXCESS GOODS, SUBJECT TO BUYER’S RIGHTS UNDER Section 14.03 WITH RESPECT TO ANY NONCONFORMING GOODS OR EXCESS GOODS FOR WHICH BUYER HAS ACCEPTED DELIVERY UNDER THIS SECTION 6.5.
VI.6.Limited Right of Return. Except as provided under Section 6.05 and Section 14.03, Buyer has no right to return Goods purchased under this Agreement to Seller.

VII. Title And Risk Of Loss

VIII. Price And Payment

VIII.4. Invoice Disputes. Buyer shall notify Seller in writing of any dispute with any invoice (along with substantiating documentation/a reasonably detailed description of the dispute) within three Business Days from the Buyer’s receipt of such invoice. Buyer will be deemed to have accepted all invoices for which Seller does not receive timely notification of disputes and shall pay all undisputed amounts due under such invoices within the period set forth in Section 8.03. The Parties shall seek to resolve all such disputes expeditiously and in good faith. Notwithstanding anything to the contrary, Buyer shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, Buyer’s obligation to pay all due and undisputed invoice amounts.
VIII.5. Late Payments. Except for invoiced payments that Buyer has successfully disputed, Buyer shall pay interest on all late payments, calculated daily and compounded monthly at the highest rate permissible under applicable Law, calculated daily and compounded monthly. Buyer shall also reimburse Seller for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at Law (which Seller does not waive by the exercise of any rights under this Agreement), if Buyer fails to pay any undisputed amounts when due under this Agreement, Seller may (a) suspend the delivery of any Goods, (b) reject Buyer’s Purchase Orders pursuant to the terms of Section 5.02, (c) cancel accepted Purchase Orders pursuant to the terms of Section 5.03, or (d) terminate this Agreement pursuant to the terms of Section 11.03(a).
VIII.6. Purchase Money Security Interest. Buyer hereby grants Seller a security interest in all Goods purchased hereunder (including Goods, Nonconforming Goods, and Excess Goods) and the proceeds therefrom to secure Buyer’s payment obligations under this Agreement. Buyer acknowledges that the security interest granted under this Section 8.7 is a purchase money security interest under Florida law. Seller may file a financing statement for such security interest and Buyer shall execute any such statements or other documentation necessary to perfect Seller’s security interest in such Goods.
VIII.7. No Set-off Right. Buyer shall not, and acknowledges that it will have no right, under this Agreement, any Purchase Order, any other agreement, document or Law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing ) to Seller or any of its Affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Seller or Seller’s Affiliates, whether relating to Seller’s or its Affiliates’ breach or non-performance of this Agreement, any Purchase Order, any other agreement between (a) Buyer or any of its Affiliates and (b) Seller or any of its Affiliates, or otherwise.

IX. Compliance With Laws

IX.1. General Compliance With Laws Covenant. Buyer shall at all times comply with all Laws applicable to this Agreement, Buyer’s performance of its obligations hereunder and Buyer’s use or sale of the Goods. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use or otherwise, that violates any Law.
IX.2. OFAC Representation and Warranty. Buyer isin compliance with the International Emergency Economic Powers Act (50 U.S.C. § 1701) and all other Laws administered by OFAC or any other Governmental Authority imposing economic sanctions and trade embargoes (“Economic Sanctions Laws”) against countries (“Embargoed Countries”) and Persons designated in such Laws (collectively, “Embargoed Targets”). Buyer is not an Embargoed Target or otherwise subject to any Economic Sanctions Law.
IX.3.OFAC Covenant. Without limiting the generality of Section 9.01, Buyer shall comply with all Economic Sanctions Laws. Without limiting the generality of the foregoing, Buyer shall not:

(a) directly or indirectly export, re-export, transship, or otherwise deliver the Goods or any portion of the Goods to an Embargoed Target; or
(b) broker, finance, or otherwise facilitate any transaction in violation of any Economic Sanctions Law.
IX.4.Antiboycott Laws Covenant. Without limiting the generality of Section 9.01, Buyer shall:
(a) comply with all Antiboycott Laws; and
(b) not take any action that violates the Antiboycott Laws; and
(c) without limiting the generality of the foregoing, not, in connection with or relating in any way to this Agreement:
(i) refuse, or agree to refuse, to do business with Israel or any other nation or company subject to a boycott not endorsed by the United States;
(ii) discriminate against, or agree to discriminate against, any Person on the basis of race, religion, sex, national origin, or nationality;
(iii) furnish, or agree to furnish, information about the race, religion, sex, national origin, or nationality of another Person;
(iv) furnish, or agree to furnish, information about business relationships with or in Israel or any other nation or company subject to a boycott not endorsed by the United States; or
(v) implement letters of credit containing terms or conditions prohibited by the Antiboycott Laws.

IX.5. Export Regulation (EAR and ITAR) Covenant. Buyer acknowledges that the Goods, including any software, documentation and any related technical data included with, or contained in, such Goods, and any products utilizing any such Goods, software, documentation, or technical data (collectively, “Regulated Goods”) may be subject to US export control Laws and regulations, including the Export Administration Regulations for which the Export Control Reform Act of 2018 provides permanent statutory authority, and the International Traffic in Arms Regulations administered by the US Department of State. Without limiting the generality of Section 9.01, Buyer shall not, and shall not permit any third parties to, directly or indirectly, export, re-export, or release any Regulated Goods to any jurisdiction or country to which, or any party to whom, the export, re-export or release of any Regulated Goods is prohibited by applicable federal or foreign Law. Buyer shall be responsible for any breach of this Section by its, and its successors’ and permitted assigns’, parent, Affiliates, employees, officers, directors, customers, agents, distributors, resellers, or vendors that are not Buyer or Buyer’s Representatives. Without limiting the generality of Section 9.01, Buyer shall comply with all applicable federal and foreign Laws, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting or releasing any Regulated Goods. Buyer shall provide prior written Notice of the need to comply with such Laws to any Person, firm, or entity which it has reason to believe is obtaining any such Regulated Goods from the Buyer with the intent to export.
IX.6. Foreign Corrupt Practices Act Representation and Warranty. Buyer and its Representatives are in compliance with the Foreign Corrupt Practices Act of 1977, as amended (“FCPA”). Neither Buyer nor any of its Representatives has:

(a) used any corporate funds for any unlawful contribution, gift, entertainment, or other unlawful expense relating to political activity or to influence official action;
(b) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds;
(c) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment; or
(d) failed to disclose fully any contribution or payment made by Buyer (or made by any Person acting on its behalf of which Buyer is aware) that violates the FCPA.
IX.7.Foreign Corrupt Practices Act Covenant. Without limiting the generality of Section 9.01, Buyer shall, and shall cause its Representatives to, comply with the FCPA, including maintaining and complying with all policies and procedures to ensure compliance with the FCPA.

X. Intellectual Property Rights

XI. Termination

XII. Representations And Warranties

XIII. Product Warranties

XIII.4. 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 13.01. For the avoidance of doubt, Seller makes no representations or warranties with respect to any Third-Party Product.
XIII.5. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN Section 13.01, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN Section 12.02 AND Section 13.01 OF THIS AGREEMENT.
XIII.6. Withdrawal of Goods. If Seller determines that any Goods sold to Buyer may be Defective, at Seller’s request, Buyer shall withdraw all similar Goods from sale and, at Seller’s option, either return such Goods to Seller (pursuant to the terms of Section 13.03(b)) or destroy the Goods and provide Seller with written certification of such destruction. Notwithstanding the limitations of Section 13.03, if Buyer returns all withdrawn Goods or destroys all withdrawn Goods and provides Seller with written certification of such destruction within ten days following Seller’s withdrawal request, in either case consistent with Seller’s instructions, Seller shall (a) repair or replace all such returned Goods or (b) replace such destroyed Goods, in either case pursuant to the terms of Section 13.03(d). , Buyer’s remedy hereunder is not available if any such defect has been caused or contributed to by any of the factors described under Section 13.02. THIS SECTION 13.06 SETS FORTH BUYER’S SOLE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY GOODS THAT ARE WITHDRAWN PURSUANT TO THIS SECTION 13.06.

XIV. Indemnification

XIV.1. Buyer Indemnification. Subject to the terms and conditions of this Agreement, including those set forth in Section 15.02, Buyer (as “Indemnifying Party”) shall indemnify, defend and hold harmless Seller and its Representatives/officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party/awarded against Indemnified Party in a final judgment (collectively, “Losses”), relating to/arising out or resulting from any Claim of a third party or Party alleging:
XIV.2. Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify or defend Indemnified Party against any claim (direct or indirect) if such claim or corresponding Losses arise out of or result from, in whole or in part, Indemnified Party’s or its Personnel’s:
XIV.3. Seller Intellectual Property Indemnification. Subject to the terms and conditions of this Agreement, including Section 14.04, Seller shall indemnify, defend and hold harmless Buyer and its Representatives (collectively, the “Buyer Indemnitees”) from and against all Losses arising out of any Claim of a third party alleging that any of the Goods or Buyer’s receipt or use thereof infringes any Intellectual Property Right of a third party.
If the Goods, or any part of the Goods, becomes, or in Seller’s opinion is likely to become, subject to a Claim of a third party that qualifies for intellectual property indemnification coverage under this Section 14.03, Seller shall, at its sole option and expense, notify Buyer in writing to cease using all or a part of the Goods, in which case Buyer shall immediately cease all such use of such Goods on receipt of Seller’s Notice.
XIV.4. Exceptions to Seller’s Intellectual Property Indemnification. Notwithstanding anything to the contrary in this Agreement, Seller is not obligated to indemnify or defend any Buyer Indemnified Party against any claim (direct or indirect) under Section 14.03 if such claim or corresponding Losses arise out of or result from, in whole or in part,:
XIV.5. Exclusive Remedy. Article IV SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF SELLER AND EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR EACH INDEMNIFIED PARTY AND BUYER INDEMNITEE FOR ANY LOSSES COVERED BY Article ARTICLE XV.

XV. Limitation Of Seller’s Liability

XV.1. No Liability for Consequential or Indirect Damages. NEITHER 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, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) 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.
XV.2. Maximum Liability. SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT/AN INDIVIDUAL TRANSACTION, 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.
XV.3. 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.

XVI. Miscellaneous

XVI.1. Further Assurances. Upon Seller’s reasonable request, Buyer shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
XVI.3. Survival; Statute of Limitations. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement for a period of twelve months after such expiration or termination; and (b) this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement for the period specified therein, or if nothing is specified for a period of twelve months after such expiration or termination. All other provisions of this Agreement shall not survive the expiration or earlier termination of this Agreement. Notwithstanding any right under any applicable statute of limitations to bring a claim, no Action based upon or arising in any way out of this Agreement may be brought by either Party after the expiration of the applicable survival or other period set forth in this Section 16.03 and the Parties waive the right to file any such Action after the expiration of the applicable survival or other period; provided, however, that the foregoing waiver and limitation do not apply to the collection of any amounts due to Seller under this Agreement.
XVI.4. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier 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 (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
XVI.5. Interpretation. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
XVI.6. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
XVI.7. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction; provided, however, that if any fundamental term or provision of this Agreement, is invalid, illegal, or unenforceable, the remainder of this Agreement shall be unenforceable. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to/the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
XVI.8.Amendment and Modification. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized Representative of each Party.
XVI.13. Equitable Remedies. Buyer acknowledges and agrees that (a) a breach or threatened breach by Buyer of any of its obligations under this Agreement would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Buyer of any such obligations, Seller shall, in addition to any and all other rights and remedies that may be available to Seller at law, at equity, or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Buyer agrees that Buyer will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 16.11.
XVI.14. Assignment. Buyer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Seller may assign any of its rights or delegate any of its obligations to any Person/any Affiliate or to any Person acquiring all or substantially all of Seller’s assets. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement.
XVI.15. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
XVI.16. No Third-Party Beneficiaries.
(a) Subject to Section 16.14(b), this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
XVI.17. Choice of Law. This Agreement, including all Individual Transaction documents and exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the Laws of the State of Florida, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the Laws of any jurisdiction other than those of the State of Florida. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
XVI.18. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all Individual Transaction Documents and exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the US District Court for the Middle District of Florida or, if such court does not have subject matter jurisdiction, the courts of the State of Florida sitting in Pinellas County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the US District Court for the Middle District of Florida or, if such court does not have subject matter jurisdiction, the courts of the State of Florida sitting in Pinellas County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
XVI.19. Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including any Individual Transaction Documents or exhibits, schedules, attachments and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any Individual Transaction documents, exhibits, schedules, attachments or appendices attached to this Agreement, or the transactions contemplated hereby. Each Party certifies and acknowledges that (a) no Representative of the other Party has represented, expressly or otherwise, that such other Party would not seek to enforce the foregoing waiver in the event of a legal action, (b) such Party has considered the implications of this waiver, (c) such Party makes this waiver voluntarily, and (d) such Party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section.
XVI.20. 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. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
XVI.21. 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 (except for any obligations to make payments to the other Party under 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, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) Law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any Governmental Authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate power or transportation facilities; or (j) a pandemic or mass public health incident (each a “Force Majeure Event”).
XVI.22. 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.
XVI.23. No Public Announcements. Neither Party shall make any statement (whether oral or in writing) in any press release, external advertising, marketing or promotion materials regarding the other Party or its business unless: (a) it has received the express written consent of the other Party; or (b) it is required to do so by Law or under the rules of any stock exchange to which it is subject.
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