Sale of Goods Agreement
I. DEFINITIONS
“Warranty Period” has the meaning set forth in Section 14.01.
II. AGREEMENT TO PURCHASE AND SELL GOODS
- Buyer is not obligated to purchase any annual minimum quantities from Seller under this Agreement; and
- 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
IV. NON-BINDING FORECASTS
V. ORDER PROCEDURE
V.3. Pre-Orders and Special Orders. Pre-orders and special orders for color and other customizations cannot be canceled.
V.4 Cancellation of Individual Transactions. Seller may, in its sole discretion, without liability or penalty, cancel any individual transaction:
- if Seller determines that Buyer is in violation of its payment obligations or has breached or is in breach of this Agreement; or
- pursuant to Seller's rights under Section 8.04.
- 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
- (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.
VI.6 Limited Right of Return. Except as provided under Section 6.05 and Section 13.03, Buyer has no right to return Goods purchased under this Agreement to Seller.
VII. TITLE AND RISK OF LOSS
VIII. PRICE AND PAYMENT
Name on Card: _________________________________________________
Expiration Date: _______________________________CVV: ________
Credit Card Number: ______________________________________________
Billing ZIP Code: _________________________________________________
IX. COMPLIANCE WITH LAWS
- directly or indirectly export, re-export, transship, or otherwise deliver the Goods or any portion of the Goods to an Embargoed Target; or
- broker, finance, or otherwise facilitate any transaction in violation of any Economic Sanctions Law.
- comply with all Antiboycott Laws; and
- not take any action that violates the Antiboycott Laws; and
- without limiting the generality of the foregoing, not, in connection with or relating in any way to this Agreement:
- 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;
- discriminate against, or agree to discriminate against, any Person on the basis of race, religion, sex, national origin, or nationality;
- furnish, or agree to furnish, information about the race, religion, sex, national origin, or nationality of another Person;
- 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
- 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
- implement letters of credit containing terms or conditions prohibited by the Antiboycott Laws.
- used any corporate funds for any unlawful contribution, gift, entertainment, or other unlawful expense relating to political activity or to influence official action;
- made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds;
- made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment; or
- 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.
X. INTELLECTUAL PROPERTY RIGHTS
- any and all Seller’s Intellectual Property Rights are the sole and exclusive property of Seller or its licensors;
- Buyer shall not acquire any ownership interest in any of Seller’s Intellectual Property Rights under this Agreement;
- any goodwill derived from the use by Buyer of Seller’s Intellectual Property Rights inures to the benefit of Seller or its licensors, as the case may be;
- if Buyer acquires any Intellectual Property Rights, rights in or relating to any Goods (including any rights in any Trademarks, derivative works, or patent improvements relating thereto) by operation of Law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either of the Parties; and
- 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.
- take any action that might interferes with any of Seller’s rights in or to Seller’s Intellectual Property Rights, including Seller’s ownership or exercise thereof;
- challenge any right, title, or interest of Seller in or to Seller’s Intellectual Property Rights;
- make any claim or take any action adverse to Seller’s ownership of Seller’s Intellectual Property Rights;
- 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;
- use any mark, anywhere that is confusingly similar to Seller’s Trademarks in whole or in confusingly similar part;
- engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any Seller’s Trademarks;
- misappropriate any of Seller’s Trademarks for use as a domain name without prior written consent from Seller; or
- 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.
XI. TERMINATION
- if Buyer fails to pay any amount when due under this Agreement ("Payment Failure") and such failure continues for three days after Buyer's receipt of written notice of nonpayment;
- if Buyer breaches any provision of this Agreement or any Individual Transaction (other than a Payment Failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by Buyer within three days after Buyer’s receipt of written notice of such breach; or
- if Buyer (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or
- if Seller terminates any other agreement between (i) Seller and (ii) Buyer or Buyer’s Affiliates, due to Buyer’s or Buyer’s Affiliates’ breach or non-performance thereof.
- if Seller breaches any provision of this Agreement or any Individual Transaction and either the breach cannot be cured or, if the breach can be cured, it is not cured by Seller within ten days after Seller’s receipt of written notice of such breach;
- if Seller (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or
- in the event of a Force Majeure Event affecting the Seller’s performance of this Agreement for more than fifteen consecutive days.
- Expiration or termination of the Term will not affect any rights or obligations of the Parties that:
- come into effect upon or after expiration or termination of this Agreement; or
- otherwise survive the expiration or earlier termination of this Agreement pursuant to Section 18.03 and were incurred by the Parties prior to such expiration or earlier termination.
- Any Notice of termination under this Agreement automatically operates as a cancellation of any deliveries of Goods to Buyer that are scheduled to be made subsequent to the effective date of termination, whether or not any orders for such Goods had been accepted by Seller. With respect to any Goods that are still in transit upon termination of this Agreement, Seller may require, in its sole and absolute discretion, that all sales and deliveries of such Goods be made on either a cash-only or certified check basis.
- Upon the expiration or earlier termination of this Agreement, Buyer shall promptly:
- return to Seller all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on Seller’s Confidential Information;
- permanently erase all of Seller’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery and/or information technology backup systems. Buyer shall destroy any such copies upon the normal expiration of its backup files; and
- certify in writing to Seller that it has complied with the requirements of this clause.
- Subject to Section 11.05(a), the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of any of the terminating Party's rights or remedies/either Party's rights, remedies or defenses under this Agreement, at law, in equity, or otherwise.
XII. REPRESENTATIONS AND WARRANTIES
- Is an individual;
- it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;
- the execution of this Agreement by its Representative whose signature is set forth at the end hereof has been duly authorized by all necessary action of the Party;
- when executed and delivered by each of Seller and Buyer, this Agreement will constitute the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws and equitable principles related to or affecting creditors’ rights generally or the effect of general principles of equity;
- it is in compliance with all applicable Laws relating to this Agreement, the Goods and the operation of its business;
- it is not insolvent and is paying all of its debts as they become due; and
- all financial information that it has provided to Seller is true and accurate and fairly represents Buyer’s financial condition.
- it is a corporation duly organized, validly existing and in good standing in the jurisdiction of its incorporation;
- it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement, except where the failure to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations under this Agreement;
- it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;
- the execution of this Agreement by its Representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; and
- when executed and delivered by each of Buyer and Seller, this Agreement will constitute the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws and equitable principles related to or affecting creditors’ rights generally or the effect of general principles of equity.
XIII. PRODUCT WARRANTIES
- no Goods will be Nonconforming Goods.
- for a period of two years from the date of shipment of the Goods (the “Warranty Period“), that such Goods will materially conform to published specifications in effect as of the date of manufacture and will be free from significant defects in material and workmanship.
- Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens of any kind.
- Warranty Includes: Defective Battery, Motor, Controller and Frame.
- 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;
- been reconstructed, repaired, or altered by Persons other than Seller or its authorized Representative; or
- been used with any third-party product, hardware or product that has not been previously approved in writing by Seller.
- Buyer shall notify Seller, in writing, of any alleged claim or defect within five Business Days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable Warranty Period);
- Buyer shall ship, at its expense and risk of loss, such allegedly Defective Goods to Seller’s facility for inspection and testing by Seller;
- If Seller's inspection and testing reveals, to Seller's reasonable satisfaction, that such Goods are Defective and any such defect has not been caused or contributed to by any of the factors described under Section 13.02, Seller shall in its sole discretion, and at its expense (subject to Section 13.03(b) and Section 13.03(d)), (i) repair or replace such Defective Goods, or (ii) credit or refund the Price of such Defective Goods less any applicable discounts, rebates or credits;
- If Seller exercises its option to repair or replace, Seller shall, after receiving Buyer’s shipment of such Defective Goods, ship to Buyer, at Buyer’s expense and risk of loss, the repaired or replaced Goods to the Delivery Location/a location designated by Seller.
XIV. INDEMNIFICATION
- breach or non-fulfillment of any material representation, warranty, or covenant under/representation or warranty set forth this Agreement by Indemnifying Party or Indemnifying Party’s Personnel;
- any negligent or more culpable act or omission of Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; or
- any bodily injury, death of any Person or damage to real or tangible personal property caused by the negligent acts or omissions of Indemnifying Party or its Personnel;
- any failure by Indemnifying Party or its Personnel to comply with any applicable Laws.
- Negligence or more culpable act or omission (including recklessness or willful misconduct); or
- bad faith failure to materially comply with any of its material obligations set forth in this Agreement; or
- use of the Goods in any manner not otherwise authorized under this Agreement/that does not materially conform with any usage instructions/guidelines/specifications provided by Seller.
- the circumstances described in Section 14.02(a), Section 14.02(b), and Section 14.02(c);
- Buyer’s marketing, advertising, promotion, or sale of any product containing the Goods;
- use of the Goods in combination with any products, materials, or equipment supplied to Buyer by a Person other than Seller or its authorized Representatives, if the infringement would have been avoided by the use of the Goods not so combined; or
- any modifications or changes made to the Goods by or on behalf of any Person other than Seller or its Representatives, if the infringement would have been avoided without such modification or change.
XV. LIMITATION OF SELLER'S LIABILITY
XVI. MISCELLANEOUS
- Subject to Article ARTICLE III, this Agreement, including all related exhibits, schedules, attachments and appendices, together with the Basic Purchase Order Terms, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
- Without limitation of anything contained in Section 16.02(a), Buyer acknowledges that except for the representations and warranties contained in Article ARTICLE XIII and the limited product warranty in this Agreement, neither Seller nor any other Person has made or makes any express or implied representation or warranty, either written or oral, on behalf of Seller, including any representation or warranty arising from statute or otherwise in law.
- 5100 Ulmerton Road Suite 8
- Clearwater, FL 33760
- Facsimile:
- E-mail: info@etrikeco.com
- Website: etrikeco.com
- Attention: eTrikeCo
- Buyer Address__________________________
- Facsimile: _____________________________
- E-mail:_______________________________
- Website:_______________________________
- Attention:_____________________________
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.9.Waiver.
- No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement and signed by an authorized representative of the Party waiving its right.
- Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.
- None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement:
- any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement; or
- any act, omission, or course of dealing between the Parties.
XVI.10 Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
XVI.11 Dispute Resolution. In the event of dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, “Dispute“), the Party seeking to settle the Dispute shall deliver Notice (each, a “Dispute Notice“) of the dispute to the other Party as follows:
The Seller shall send the Dispute Notice to the buyer at [CONTACT INFORMATION] (or to another person of equivalent or superior position designated by Buyer in a Notice to Seller).
The Buyer shall send the Dispute Notice to the Seller at [5100 Ulmerton Road Suite 8, Clearwater, Fl 33760] (or to another person of equivalent or superior position designated by Distributor in a Notice to Buyer).
XVI.12. The Parties shall negotiate in good faith to resolve the Dispute. If the Parties are unable to resolve any Dispute within ten Business Days after the applicable Dispute Notice’s delivery, either Party may file suit in a court of competent jurisdiction
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.
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.
Exhibit A
Description Of Goods
- Name:
- Title:
- Signature:
- Name:
- Address:
- Phone:
- Email:
- Signature: