THESE TERMS ARE A BINDING CONTRACT BETWEEN YOU AND EQUIPPED. PLEASE READ THEM CAREFULLY. BY ACCESSING AND USING OUR SITE AND SERVICES YOU CONFIRM YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS. WE RECOMMEND THAT YOU PRINT A COPY OF THESE TERMS FOR FUTURE REFERENCE.
- Services Generally.
In exchange for our fees which we list before any transaction, we provide platforms that allow users to list items for sale (“Listed Item(s)”) and for other users to view those Listed Items, but we are not the Seller (defined below) or buyer of any Listed Items. Any users who choose to use our Services are acting on their own behalf and are responsible for any actions that they may take with respect to any transactions that they may enter into. We do not represent any users of our Site or Services, and we are not a party to any transaction that may occur between users. You are solely responsible for resolving any disputes that you have with other users of our Site or Services. However, we may, in our sole discretion, monitor or inquire about disputes or issues between users in order to protect our Sites and Services and address potential non-compliance with these Terms by a user. We reserve the right at any time, for any reason or no reason, and in our sole discretion to refuse to list any Listed Item or to remove any Listed Item without notice or recourse to you.
- Access and Use.
While we use reasonable efforts to provide our Sites and Services to you for so long as you are compliant with these Terms, we do not guarantee that they will be secure, or free from bugs or viruses. You are responsible for configuring your information technology, computer programs and platforms in order to access or use our Sites and Services. You should use your own virus protection software.
You may use our Sites and Services only if you can form a binding contract with us, and in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use of our Sites or Services by anyone under the age of majority in his/her state of residence is strictly prohibited. Our Services are not available to any users we have previously removed or suspended from our Services. We may suspend or terminate your access to our Services at any time, for any reason (such as your material breach of these Terms, our reasonable belief that it is necessary to protect the safety or property of others, to prevent fraud or for risk assessment purposes) or for no reason. We reserve the right to limit your use of our Site or Services or terminate your account immediately, without notice or refund of any amounts that you may have paid to us. All Equipped fees are non-refundable once paid.
By registering a user account with us or using our Sites and Services, you represent and warrant that you (a) will abide by all of the terms set forth herein; (b) will not provide false or misleading information about yourself or the Listed Item(s); (c) are age 18 or older; you may not use the Site or Services if you are under 18 years of age; (d) will maintain the security of any user identification code and/or password associated with your account, notify us immediately if you suspect that such security has been breached, and accept all risks of authorized and unauthorized access to your account and the information you provide to us; and (e) will not violate the intellectual property or privacy rights of any third party.
If you register a user account or use our Site and Services on behalf of a third party (such as another person or legal entity), then you represent and warrant that you are an authorized representative of that person or entity with the authority to bind such person or entity to these Terms, and you agree to these Terms on behalf of that person or entity.
User accounts are non-transferable. Only you may use your user account. You are liable for all activities that are undertaken using your user account. We may verify your account by collecting contact information (including, but not limited to, legal company name, street address, and employer identification number) and banking information from you, directly calling you to confirm the accuracy of your account information, and taking whatever additional steps we deem necessary.
We may update these Terms, at our sole discretion, from time to time by notifying you of such changes by any reasonable means, including by posting revised Terms to the Site. Any such changes will not apply to any dispute arising prior to the date on which the revised Terms were posted on the Site incorporating such changes or you were otherwise notified of such changes. You agree that it is your responsibility to regularly check the Terms for any update. Your continued use of this Site or Service following our posting of the revised Terms constitutes your acceptance of the revised Terms.
- Intellectual Property Rights.
We are the owner or the licensee of all intellectual property rights to and in our Site and Services, and in the content published on them. Those rights are protected by copyright, trademark and other applicable laws, as well as by treaties around the world. You will not use, copy or otherwise take any action with respect to our Site and Services or such content except as expressly permitted by these Terms. You will, likewise, respect the intellectual property rights of others in exercising the rights granted to you hereunder.
- Acceptable Usage.
You may access and use our Services solely to list Listed Item(s) for sale or to view Listed Item(s) for your potential purchase. If you copy, redistribute or resell any of our Services or any content made available to you through our Site or our Services, your right to access and use both will cease immediately, and you must take down or destroy any content you have obtained in violation of these Terms.
- Prohibited Uses.
As part of our Site and Services, we may provide access to data, information, and content relating to Listed Item(s), including without limitation current and historical Listed Item(s) and related information, materials, and content (our “Site Information”). You shall not:
- modify or alter any Site Information, content, materials or portions of our Site or Services in any way;
- use any Site Information, illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text, or any text separately from any accompanying illustrations, photographs, video or audio sequences or any graphics;
- remove any indications of ownership from any Site Information or content which came from our Site or Services, or claim it as your own or as that of any other entity or individual;
- use any part of our Services, Site Information, or content on our Services for any purpose not expressly provided for in Section 4 without obtaining a license to do so from us or our licensors;
- access, or attempt to access, parts of our Site or Services that are not intended for public use (including but not limited to website administration areas);
- modify, adapt or reverse engineer any aspect of our Site, Services or Site Information;
- conduct any web scraping, web harvesting, web data extraction, or any other data scraping of Site Information or our Sites or Services;
- use any robot, spider, scraper, data mining tool, data gathering tools, data extraction tools, or any other automated means to access our Site or Services, or collect, copy or record our Site Information or content off our Site or Services;
- take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
- copy, download, distribute, transmit, reuse, report, reproduce, modify, use, create derivative works from, or publicly display any Site Information or content of our Site or Services, including the text, images, audio, and video, for public or commercial purposes, including generating any reports or aggregating any data or content;
- extract reports from our Site Information or Services;
- take photos, screenshots or other images of our Site Information, Site or Services or any content therein;
- use our Site Information or our Site or Services in competition with us, to develop competing products or services, or otherwise to our detriment or commercial disadvantage;
- use our Site Information or our Services for benchmarking or competitive analysis of our Services;
- identify us or display any portion of our Site Information, Site or Services on any website or service that disparages us or our products or services, or infringes any of our intellectual property or other rights;
- bypass any measures we may use to prevent or restrict access to our Services, including our robot exclusion headers;
- attempt to disrupt or interfere with the Site Information or our Site or Services in any way or with another user’s/visitor’s use of our Site or Services, or use the Site Information or our Site or Services as a means of disrupting or interfering with other websites or networks;
- probe, scan or test for vulnerabilities of our Site, Services, other websites, or any networks connected to them;
- willfully corrupt any Site Information, data, documents or content available through our Site or Services;
- knowingly or recklessly transmit or distribute a virus into our network and computer systems; or
- assist, encourage or permit any other person to do any of the acts described above.
If you are a seller of a Listed Item(s) (“Seller”), you represent and warrant that you:
- Will only attempt to list indoor farming equipment as Listed Items; all other items are prohibited;
- Shall fully and accurately disclose the legal name of the owner(s) of the Listed Item(s);
- Shall fully and accurately disclose any liens, leases, encumbrances of title on each Listed Item;
- Will provide complete and accurate responses to all applicable fields or questions pertaining to a Listed Item and be truthful in all your communications and User Content (defined below) on the Site;
- Are the registered owner of the Listed Equipment in question and hold valid and transferable title (if applicable) thereto;
- If the Listed Item has a title, will provide such title to buyer upon completion of any sale;
- Are not a dealer of new Listed Items, or an employee or agent of a such a dealer; and
- Will only list Listed Items which are physical and of the kind and type we permit for listing; you will not list intangible items or securities.
Seller’s submission of a Listed Item and/or acceptance of an offer as detailed below will constitute its agreement to use our form Purchase Agreement for all sales facilitated through the Site, whether that sale occurs with one or multiple buyers.
If you as Seller choose to set a price at which a buyer may automatically purchase your Listed Item (the “Asking Price”), you authorize us to complete the transaction at the Asking Price.
Clicking the “Make an Offer” button on the relevant Site page constitutes an offer. This offer is an irrevocable offer to purchase the Listed Item that remains outstanding for the first to occur of (i) the Seller’s acceptance of the offer, (ii) the Seller’s counter-offer, (iii) the Seller’s rejection of your offer, or (iv)five calendar days from the date that you submit the offer. If no action occurs on your offer within five calendar days, the offer is void. Once you submit the offer, you cannot cancel or retract it. Upon the submission of the offer, a hold may be placed on your payment method for the funds necessary to purchase the Listed Item(s). You will receive an email promptly after you place your offer. Neither of these actions complete the sale. Rather, the Seller will have the option to accept, counter, or decline your offer.
- If the Seller accepts your offer, you and Seller will enter into a Purchase Agreement and complete the transaction based on the terms therein.
- If the Seller counters your offer, you will have the option to accept or decline the Seller’s counter-offer. If you do not accept, no contract is formed. If you do accept the counter-offer, a contract for sale is formed at that price.
- If the Seller declines your offer, there is no contract formed between you and Seller. Seller’s refusal is final and non-appealable.
- If no contract is formed, the payment hold, if any, will be released.
We are not able to confirm the veracity or conformity of every offer. We are not responsible for typographical errors within the Listed Items. If an error occurs in processing your offer, you will be notified of the error and provided with available options.
- Breach of Usage.
All the prohibited uses set forth in Section 5 above are forbidden regardless of the means used, including but not limited to, hacking or by the introduction of any worms, Trojan horses, viruses, unauthorized, malicious or harmful code or other harmful software. By breaching this provision, you may be committing a criminal offense. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our Services will cease immediately.
- Uploading or Posting Content to Our Sites or Services
We will collect data, content and information that you provide us or that is collected by us as you use the Site or Services (“User Content”). You hereby grant to us, and represent and warrant that you have all rights necessary to grant to us, a worldwide, perpetual, irrevocable, non-exclusive, sub-licenseable, transferable, and royalty-free right and license to use, store, copy, distribute, and make available on our Site all User Content. We are not responsible for any loss or damage to your User Content while it is in our possession, and you should separately maintain copies of the User Content you provide to us. We have the right to disclose your identity to any third party who is claiming that any content submitted or uploaded by you to our Site or Services constitutes a violation of their intellectual property rights, or of their right to privacy. At any time, we have the right to remove any User Content you submit to our Site or Services if, in our sole discretion, your post does not comply with these Terms. You agree not to post any User Content that is obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.
OUR SITE AND SERVICES MAY INCLUDE CONTENT UPLOADED BY OTHER USERS OF THE SITE. THIS CONTENT HAS NOT BEEN REVIEWED, VERIFIED OR APPROVED BY US. THE VIEWS EXPRESSED BY OTHER USERS ON OUR SITE DO NOT REPRESENT OUR VIEWS OR VALUES.
WE TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY OF YOUR USER CONTENT BUT WE RESERVE THE RIGHT TO REVIEW AND/OR REMOVE USER CONTENT AND USER ACCOUNTS THAT BREACH THESE TERMS.
WITHOUT LIMITING THE LICENSE GRANTED TO EQUIPPED IN THIS SECTION 9 IN ANY WAY, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT LISTED ITEMS PLACED BY YOU ON ONE OF OUR WEBSITES MAY (AT OUR SOLE DISCRETION) BE PLACED OR MADE VIEWABLE ON OTHER WEBSITES PROVIDED BY EQUIPPED, ITS AFFILIATES, OR PARTNERS.
- Suggestions and Submissions.
- Compliance With Laws.
You are responsible for, and agree to abide by, all local, state, federal and international laws, rules and regulations applicable to your use of our Site and Services, and any other tools, services or products offered on our Site and Services and any transaction you may enter into with other users in connection with using our Site or Services.
Any users located outside the United States must comply with laws, regulations, rules and regulatory orders of the United States, including the Foreign Corrupt Practices Act and the U.S. Export Control Act, in addition to applicable local laws. You may not use our Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government or under similar laws or regulations applicable in other jurisdictions.
Listed Items may be subject to EXPORT AND IMPORT PROHIBITIONS, RESTRICTIONS OR COSTS. You are solely responsible for identifying and complying with any applicable export/import laws, rules, regulations, licensing, and/or customs requirements associated with Listed Items and any transaction you may enter into with other users. If a Listed Item is seized or destroyed by any governmental customs agency or returned, we will not be responsible for the losses, the Listed Item or shipping refunds.
Please be aware that, even though we are not a party to any transaction between users and we assume no liability for legal or regulatory compliance pertaining to Listed Item(s) on our Site or Services, there may be circumstances where we are nevertheless legally obligated (as we may determine in our sole discretion) to provide information relating to our Services and Listed Item(s) in order to comply with requests from governmental bodies in relation to investigations, litigation or administrative proceedings, and we may choose to comply with such obligations in our sole discretion.
We are not responsible for determining whether tax applies to any transaction between users, or for withholding, collecting, reporting, or remitting any tax arising from any Listed Item(s). We do not give tax advice, and nothing we say or do should be interpreted as such, including our providing you with the opportunity to learn about, and separately utilize, tax-related services or solutions (for example, automated tax compliance software). Unless we agree with you in writing otherwise, the payment and collection of applicable taxes (including income, sales, excise, import, export, VAT and other taxes or duties associated with the purchase/use and sale/solicitation of any Listed Item(s) must be, and are, the exclusive responsibility of the buyer and Seller, as applicable. Though we may offer third-party services to assist Seller with its obligations, it is the Seller’s responsibility to determine what taxes, if any, apply to a transaction and to collect, report, and/or remit the correct tax to the appropriate tax authority; to the extent that you have any questions about your own payment, collection, reporting or remittance obligations, you should consult a qualified tax advisor.
- Financing, Shipping, Insurance and Other Services.
We may provide links on our Site or Services to other websites operated by us, third-party providers or affiliates who provide various services or other offerings, including, without limitation, warranty transfer, lien searches, financing, shipping, and insurance services, and other offerings that might be of interest to you (“Third-Party Services”), and only for the convenience of our users. It is your responsibility to obtain all Third-Party Services you require before making an offer for a Listed Item. In consideration for providing any such link(s), we may receive a fee from the third party(ies) or affiliates whose goods or services you may choose to obtain. We will not be liable for any acts or omissions of any such third-parties or affiliates, whom you use at your own discretion and risk. Absent a signed writing between you and us, we are not responsible for financing, shipping, insurance, or any other services in conjunction with the sale of Listed Items on the Services. Your access to and use of our other websites and third-party or affiliate services and websites may be subject to the applicable terms and conditions of that respective website, third-party or affiliate.
- Disclaimer; No Warranty.
TO THE FULLEST EXTENT PERMITTED BY LAW, OUR SITES AND SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH OUR SITES OR SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE ARE SOLELY A PASSIVE CONDUIT TO PROVIDE CONTENT AND TO FACILITATE COMMUNICATIONS BETWEEN A BUYER AND A SELLER, AND IN NO EVENT DO WE SELL ANY LISTED ITEM(S). WE MAKE NO WARRANTY THAT THE LISTED ITEM(S) WILL PROPERLY FUNCTION OR OPERATE WHEN YOU RECEIVE THEM, NOR THAT THEY WILL CONTINUE TO OPERATE OR FUNCTION FOR ANY PERIOD OF TIME AFTER YOU RECEIVE THEM. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR ANY PRODUCTS OR SERVICES OR FOR THE SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH OUR SITES, SERVICES OR ANY LINKED SITE, EVEN IF WE BECOME AWARE OF ANY ISSUES THEREWITH.
YOU ACKNOWLEDGE AND AGREE THAT YOU WILL NOT HOLD OR SEEK TO HOLD US RESPONSIBLE FOR THE CONTENT PROVIDED BY ANY USER, INCLUDING, WITHOUT LIMITATION, ANY TRANSLATION THEREOF, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT WE ARE NOT A PARTY TO ANY LISTED ITEM(S) TRANSACTION OR OTHER TRANSACTION BETWEEN USERS OF OUR SITES OR SERVICES. WE HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE SAFETY OF ANY TRANSACTION, LISTED ITEM(S) OR THE TRUTH OR ACCURACY OF ANY LISTED ITEM(S) OR OTHER CONTENT PROVIDED ON OUR SITE AND SERVICES.
You will indemnify, defend, and hold harmless Equipped, its subsidiaries, affiliates, and each of their respective officers, directors, employees, agents, successors, and assigns (the “Indemnified Parties”) from and against any claim or demand (including reasonable attorneys’ and experts’ fees and costs), made by any third party due to or arising out of (i) your breach of these Terms; (ii) your improper use of our Site or Services; (iii) any personal injury, death, or property damage caused by or arising out of the listing, sale, transportation or use of any Listed Item(s); (iv) your use of a Third-Party Service, or (v) your violation of any law or rights of a third party, including related to any User Content you provide or post. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle any matter without our written consent. While some jurisdictions may limit your liability hereunder, this indemnity shall apply to the fullest extent permissible by applicable law.
IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE OTHER USERS OF OUR SITE OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY SELLER OR THIRD PARTY VISITOR TO THE SITE OR THE PROVIDER OF ANY THIRD PARTY WEBSITE OR APPLICATION THAT MAY BE LINKED TO OR FROM OUR SITE OR SERVICES, YOU HEREBY AGREE TO RELEASE, REMISE, AND FOREVER DISCHARGE THE INDEMNIFIED PARTIES FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH SUCH DISPUTE.
- California Notice.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
- Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE INDEMNIFIED PARTIES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, ANTICIPATED PROFITS, BUSINESS OR SALES, ANY LOSS OF GOODWILL OR REPUTATION, OR THE COSTS OF SUBSTITUTE GOODS OR SERVICES, EVEN IF THE INDEMNIFIED PARTIES, OR AN AUTHORIZED REPRESENTATIVE THEREOF, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF, BASED ON, OR RESULTING FROM (A) OUR SERVICES; (B) OUR SITE; (C) THESE TERMS; (D) ANY BREACH OF THESE TERMS BY YOU OR A THIRD PARTY; (E) YOUR, OR ANY THIRD-PARTY’S USE OF OUR SITE OR SERVICES, OR THE SERVICES ANY THIRD PARTY PROVIDES, RELATED TO THE BUSINESS WE OPERATE; (F) ANY USER INFORMATION OR USER CONTENT; (G) ANY INTERACTION BETWEEN OUR SITE OR SERVICES AND ANY THIRD PARTY SITE; AND (H) ANY ACTUAL OR ATTEMPTED COMMUNICATION OR TRANSACTION, INCLUDING WITHOUT LIMITATION, ANY PAYMENT OR PURCHASE TRANSACTION (EVEN IF WE OR ANY THIRD PARTY RECEIVES A FEE IN CONNECTION THEREWITH) BETWEEN USERS OF OUR SITE OR SERVICES.
IN NO EVENT SHALL THE TOTAL LIABILITY OF THE INDEMNIFIED PARTIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) ARISING FROM THESE TERMS, THE PURCHASE, SALE OR USE OF ANY LISTED ITEM(S), OR YOUR USE OF OUR SITE OR SERVICES EXCEED, IN THE AGGREGATE, THE LESSER OF ONE THOUSAND DOLLARS ($1,000.00) OR THE TOTAL FEES EARNED BY US IN CONNECTION WITH THE LISTED ITEM(S) TO WHICH THE APPLICABLE CLAIM RELATES.
PLEASE READ THE FOLLOWING CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
You and Equipped agree that you will notify each other in writing of any dispute under these Terms within thirty (30) days of when it arises. Notice to Equipped shall be sent to the address first set forth above. Any dispute between the parties will be governed by this Agreement and the laws of the State of Nevada and applicable Federal law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, you and Equipped will not commence against the other a class action, class arbitration, or other representative action or proceeding.
If a dispute does arise out of these Terms or related to your use of Equipped, and it cannot be resolved after you notify us in writing, then it must be resolved by binding arbitration. This arbitration must be administered by the American Arbitration Association (“AAA”) by a single arbitrator in accordance with its Commercial Arbitration Rules, taking place either virtually or in Washoe County, Nevada. You may only request arbitration, on your own behalf and on an individual basis, provided that the AAA, upon our request only, may consolidate the arbitration proceeding with any other arbitration proceeding relating to these Terms if it determines that (i) there are issues of fact or law common to the two proceedings so that a consolidated proceeding would be more efficient than separate proceedings, and (ii) no party would be prejudiced as a result of such consolidation through undue delay or otherwise. You hereby waive any right to object to or oppose such consolidation. By agreeing to these Terms you are waiving your right to trial by jury or to participate in a class action or representative proceeding. Unless prohibited by applicable law or arbitrators, we reserve the right to speak publicly regarding any disputes.
YOU AND EQUIPPED AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE EQUIPPED SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Governing Law. These Terms are governed by and construed in accordance with the laws of the State of Nevada, without regard to its conflict of law provisions.
- Amendments. We may modify, add, or remove any portion of these Terms (including any documents incorporated herein), from time to time, in our sole discretion, with or without notice to you, by posting such change on our Site and/or Services. Once posted, such changes shall come into full force and effect.
- Entire Terms. The introductory paragraph, and any documents that are linked to or referenced in these Terms, are hereby incorporated by reference and made part of these Terms. Collectively, the foregoing constitute the entire agreement between the parties and supersede all prior agreements and understandings, whether written or oral, relating to the subject matter of these Terms.
- Advice. Any guidance, discussions, or advice provided by Equipped, its employees, independent contractors and agents related to using our Site and Services, including but not limited to guidance for placing or reviewing Listed Item(s), is intended for general information purposes only. It is not intended as legal advice, and you agree that you will independently evaluate and not rely on such advice for any purpose.
- Headings. Headings used in this agreement are intended, and shall for all purposes be deemed to be, for convenience only and shall have no force or affect whatsoever in the interpretation of this agreement.
- Reformation. If a court of competent jurisdiction determines that the scope of any provision of these Terms is too broad to be enforced, the court shall reform such provisions to such narrower scope as it determines to be enforceable.
- Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of these Terms, including but not limited to, Sections 3, 6, 7, 10, 14-20.
- Severability. If any provision of these Terms is determined to be unenforceable for any reason and is unable to be reformed by a court of competent jurisdiction as provided above, such provision shall be deemed separate and severable and the unenforceability of any such provision shall not invalidate or render unenforceable any of the remaining provisions hereof.
- Successors and Assigns. These Terms shall be binding upon and inure to the benefit of both parties and their respective successors and permitted assigns. These Terms may not be assigned by you without our prior written consent. We may freely assign these Terms to any third party.
- Waiver. No delay or omission by a party in exercising any right under these Terms shall operate as a waiver of that or any other right. A waiver or consent given by a party on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.
- International Availability.
We do not represent that our Site and Services are available worldwide, or that any proposed purchase and sale transactions between users can occur in every location in the world. You agree to comply with all local rules regarding online conduct and acceptable content, including, without limitation, applicable laws regarding the transmission of data exported from the United States to the country in which you reside. Please note that additional or different terms may apply if you reside outside of the United States.
- Other Terms.
EQUIPMENT PURCHASE AND SALE AGREEMENT
This Equipment Purchase and Sale Agreement (the “Agreement”) is made as of the date of the last dated signature below (the “Effective Date”), by and between [Seller legal name, jurisdiction of incorporation, and address] (“Seller”) and [Buyer legal name, jurisdiction of incorporation, and address] (“Buyer”).
NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth in this Agreement, the parties agree as follows:
- 1. Purchase and Sale of Equipment. At the Closing (as defined in Section 2) Seller shall sell, transfer, convey, assign, and deliver to Buyer, and Buyer shall purchase, accept, and pay for all right, title, and interest in and to the tangible property or equipment, in quantity and specifications set forth on Exhibit A hereto (the “Equipment”), and Buyer shall pay Seller [Purchase price in USD] (the “Purchase Price”). Except as explicitly set forth herein, Buyer shall not assume any liabilities or obligations of Seller of any kind, whether known or unknown, contingent, matured or otherwise, whether currently existing or hereinafter created.
- 2. Third-Party Services, Shipping, and Closing.
2.1 Third-Party Services. Buyer shall bear all responsibility for procurement, arrangement, and payment of all third-party services including, without limitation, warranty transfer, lien searches, financing, shipping, and insurance services, and other services not explicitly allocated to another party herein (the “Third-Party Services”).
2.2 Shipping. Buyer agrees to procure shipping of the Equipment at its cost and Seller agrees to promptly respond and cooperate with Buyer. Buyer must specify the shipper for the Equipment on the Effective Date and procure and arrange shipping for the Equipment within 10 business days of the Effective Date. Shipping is not included in the Purchase Price and is not refundable under any circumstances. If Buyer fails to procure shipping and share shipping details with Seller within 10 business days, this Agreement will terminate and be of no further force and effect. If Buyer has remitted the Purchase Price but does not arrange shipment, or if Seller does not deliver or release the Equipment for shipping on the appointed date, Buyer will be entitled to the return of the Purchase Price minus a 10% processing fee to Contain, Inc., a Nevada corporation (“Equipped”), after which this Agreement will terminate immediately and be of no further force or effect. Unless agreed otherwise in writing by Buyer and Seller, the risk of loss of the Equipment shall transfer from Seller to Buyer at Seller’s delivery to Buyer’s chosen shipper. Title will only transfer from Seller to Buyer at Closing (defined below).
- The closing and consummation of the transactions contemplated by this Agreement (the “Closing”), shall take place as follows. Buyer will remit the Purchase Price to the control of Equipped on the Effective Date. On the day the Buyer receives the Equipment (the “Delivery Date”), Buyer will submit evidence of delivery or acknowledgment of receipt to Seller and Equipped. Buyer will have two calendar days from the Delivery Date to inspect the Equipment and confirm its conformity with Exhibit A. If the Equipment conforms to the specifications set forth in Exhibit A, Equipped will remit the Purchase Price, minus Equipped’s non-refundable fee, to Seller on the date of confirmation of conformance by Buyer (that day being the “Closing Date”).
2.4 Recourse. Buyer must take possession and inspect the delivered Equipment; refusal to do so will constitute material breach of this Agreement and will cause immediate termination of this Agreement without recourse or refund. Under no circumstances shall Buyer be entitled to a refund except as explicitly set forth in this Agreement. For delivery within the United States only, if an item of Equipment does not materially conform to its description in Exhibit A, Buyer must document such material nonconformance and submit it to Seller in writing and common media formats, if applicable, with a copy to Equipped, no later than two calendar days from the Delivery Date, in a form sufficient to indicate to a reasonable person the nonconformance thereof (a “Dispute Notice”). In the event no Dispute Notice is received within the time specified above, Equipped will release the Purchase Price to Seller. If a Dispute Notice is timely received, Equipped will hold the Purchase Price until Equipped receives a notarized settlement signed by both Buyer and Seller, or order from an arbitrator pursuant to Section 14 hereof, authorizing the release of the Purchase Price or relevant portion thereof to the party(ies) specified therein. For all Buyers taking delivery outside of the United States, Buyer will have no inspection or refund rights under this Section 2.4.
3. Representations and Warranties of Seller. Seller represents and warrants to Buyer that the statements contained in this Section 3 are true, correct and complete as of the Effective Date and will be true, correct and complete as of the Closing Date.
3.1 Organization of the Seller and Authorization of Transaction. The Seller is a [form of entity], duly organized and in good standing in the State of [State of Formation]. Seller has full power and authority, including full corporate power and authority, to execute and deliver this Agreement and to perform and consummate, its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of Seller, enforceable in accordance with its terms and conditions. The Seller need not give any notice to, make any filing with, or obtain any authorization, consent, or approval of any person(s), or government or governmental agency in order to consummate the transactions contemplated by this Agreement. If requested by Buyer, Seller will deliver a certificate of the Secretary or Assistant Secretary (or equivalent officer) of Seller certifying its compliance with this Section 3.1.
3.2 Noncontravention. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will, immediately or with the passage of time: (A) violate any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which any of the Seller or the Equipment is subject; or (B) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Seller is a party or by which it is bound or to which any of the Equipment is subject.
3.3 Consents. No approval, consent, waiver, or authorization of or filing or registration with any governmental authority or third party is required for the execution, delivery, or performance by Seller of the transactions contemplated by this Agreement.
3.4 Title to Equipment. Seller has good and marketable title to the Equipment, free and clear of all security interests, liens and encumbrances, including without limitation any liens on all the property of Seller (“Encumbrance”). If there is an Encumbrance, Seller has fully disclosed the terms of that Encumbrance to Buyer and warrants that Seller will obtain the Encumbrance holder’s written consent, conditional release, payoff certificate, or any other document necessary to effect this transaction prior to Closing. Other than as expressly set forth in this Agreement by Seller, the Equipment is being sold “as-is” “where-is” with no representations or warranties of any kind.
3.5 Equipment Condition. Each item of Equipment materially conforms to the condition set forth in its corresponding entry in Exhibit A;
3.6 Litigation. Neither Seller or the Equipment, in whole or in part: (A) is subject to any outstanding injunction, judgment, order, decree, ruling, or charge that would limit, restrict or prevent consummation of the transactions contemplated hereby; or (B) is a party or the subject of, or is, to the knowledge of Seller’s president, threatened to be made a party to, or the subject of, any action, suit, proceeding, hearing, or investigation of, in, or before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator that would, if determined adversely to Seller: (1) limit, restrict or prevent consummation of the transactions contemplated hereby; or (2) cause any representation or warranty of Seller herein to be not true.
3.7 Brokers’ Fees. Seller has no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which the Buyer could become liable or obligated or for which a lien or encumbrance could be placed on the Equipment.
3.8 Taxes. All transfer, documentary, sales, use, stamp, registration, value added and other such taxes and fees (including any penalties and interest) incurred in connection with this Agreement and the documents to be delivered hereunder shall be borne and paid by Seller when due. Seller shall, at its own expense, timely file any tax return or other document with respect to such taxes or fees (and Buyer shall cooperate with respect thereto as necessary), provided that Equipped may assist Seller with filing such taxes, either as required by applicable local law or as agreed between the applicable parties without incurring any liability or undertaking any duty for Seller’s obligation to timely pay such taxes.
3.9 Disclosure. The representations and warranties contained in this Section 3 do not contain any untrue statement of a fact or omit to state any fact necessary in order to make the statements contained in this Section 3 not misleading.
4. Representations and Warranties of Buyer. Buyer represents and warrants to Seller that the statements contained in this Section 4 are true, correct and complete as of the Effective Date and will be true, correct and complete as of the Closing Date.
4.1 Organization of the Buyer / Authorization of Transaction. The Buyer is a [form of entity or individual], duly organized and in good standing in the State of [State of formation]. Buyer has full power and authority, including full corporate power and authority, to execute and deliver this Agreement and to perform and consummate, its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of Buyer, enforceable in accordance with its terms and conditions. The Buyer need not give any notice to, make any filing with, or obtain any authorization, consent, or approval of any person(s), or government or governmental agency in order to consummate the transactions contemplated by this Agreement.
4.2 Noncontravention. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will, immediately or with the passage of time: (A) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Buyer is subject; or (B) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Buyer is a party or by which it is bound.
4.3 Consents. No approval, consent, waiver, or authorization of or filing or registration with any governmental authority or third party is required for the execution, delivery, or performance by Buyer of the transactions contemplated by this Agreement.
4.4 Litigation. Buyer is not: (A) subject to any outstanding injunction, judgment, order, decree, ruling, or charge that would limit, restrict or prevent consummation of the transactions contemplated hereby; or (B) a party, or, to the knowledge of Buyer’s officers, threatened to be made a party, to any action, suit, proceeding, hearing, or investigation of, in, or before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator that would, if determined adversely to Buyer: (1) limit, restrict or prevent consummation of the transactions contemplated hereby; or (2) cause any representation or warranty of Seller herein to be not true.
4.5 Brokers’ Fees. Buyer has no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which the Seller could become liable or obligated. Buyer agrees that any transaction fees applicable to this transaction and payable to Equipped are Buyer’s sole responsibility; Buyer agrees to indemnify and hold Seller harmless from and against its breach of this Section 4.5.
4.6 Encumbrances. Buyer has been advised of any Encumbrances on the Equipment and been given adequate time to examine any Encumbrances on the Equipment; Buyer has not relied on any representations from Equipped or Buyer regarding Encumbrances.
4.7 Disclosure. The representations and warranties contained in this Section 4 do not contain any untrue statement of a fact or omit to state any fact necessary in order to make the statements and information contained in this Section 4 not misleading.
5. Release. Each of the parties will use its reasonable best efforts to take all actions and to do all things necessary, proper, or advisable in order to consummate and make effective the transactions contemplated by this Agreement. Buyer acknowledges that the Equipment covered by this agreement is preowned (used) goods which were neither designed nor manufactured by the Seller; that Seller does not know the specific application of the Equipment by the Buyer; and that Seller does not know of alterations made by former owners. It is the Buyer’s sole responsibility to provide proper safety devices and notices, equipment and other means which may be necessary or desirable, to safeguard the operator from harm for any particular use, operation, or set up, of the Equipment to adequately safeguard all machinery and equipment to conform to all federal, state, and local government safety standards (including, but not limited to the Occupational Safety and Health Act if 1970 as amended), and all industry safety standards. BUYER HEREBY ACKNOWLEDGES THAT IT HAS THE SOLE AFFIRMATIVE DUTY TO INVESTIGATE AND IMPLEMENT SUCH DEVICES AND PRECAUTIONS AND TO OBTAIN MANUFACTURER INSTRUCTION MANUALS AND MATERIALS. Final determination of the suitability of the Equipment for the use contemplated by Buyer is the sole responsibility of Buyer, and except as explicitly stated in Exhibit A, Seller and Equipped shall in no way be responsible for any suitability of the Equipment for any particular end use. In consideration of one dollar ($1.00), delivery of the subject Equipment, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer, for itself, its successors and its assigns, does hereby remise, release and forever discharge Seller and Equipped, their successors and assigns, of and from all claims, demands, rights and causes of action of whatsoever kind or nature that it has or may have against Seller or Equipped arising from or out of any use whatsoever (including resale) of the Equipment sold pursuant to this Agreement.
6. Post Purchase Covenants. In case at any time after the Closing any further action is necessary or desirable to carry out the purposes of this Agreement, such as the transfer of a transferable warranty, the transfer of title if Equipment carries a title, or the calculation of sales tax, each of the parties will take such further action (including the execution and delivery of such further instruments and documents) as any other party may request, at the sole cost and expense of the requesting party (unless (i) in the case of title transfer, which the Seller shall pay, or (ii) the requesting party is entitled to indemnification therefore under Section 10 below). Without limiting the foregoing, Seller shall from time to time at the request of Buyer and without further consideration, execute and deliver such instruments of transfer, conveyance, and assignment in addition to those delivered hereunder, and will take such other actions as Buyer may request from time to time, to more effectively transfer, convey, and assign to and vest in Buyer, and to put Buyer in possession of, all or any portion of the Equipment.
7. Conditions to Obligation to Close.
7.1 Conditions to Obligation of the Buyer. Subject to Section 2, the obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (A) the representations and warranties of Seller set forth in Section 3.5 shall be true and correct in all material respects at and as of the Closing Date; (B) no third-party action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would: (1) prevent consummation of any of the transactions contemplated by this Agreement, (2) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (3) make any of the representations or warranties set forth in Section 3, not true or not correct; (C) Buyer has received any documentation required by Section 3.4; and (D) all actions to be taken by Seller in connection with consummation of the transactions contemplated hereby, including delivering goods for shipment, and all certificates, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Buyer. Buyer may waive any condition specified in this Section 7.1 if it executes a writing so stating at or prior to the Closing Date.
7.2 Conditions to Obligation of Seller. Subject to Section 2, the obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (A) no third-party action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would: (1) prevent consummation of any of the transactions contemplated by this Agreement, (2) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (3) make any of the representations or warranties set forth in Section 3, not true or not correct; and (B) all actions to be taken by Buyer in connection with consummation of the transactions contemplated hereby, including procuring and paying for shipment, and all certificates, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Seller. Seller may waive any condition specified in this Section 7.2 if it executes a writing so stating at or prior to the Closing Date.
8. Closing Process. Subject to Section 2, on the Closing Date, Seller shall deliver to Buyer a bill of sale substantially in the form attached hereto as Exhibit B to transfer and vest in Buyer good and marketable title to the Equipment, free and clear of all liens and encumbrances.
9. Termination. The parties may terminate this Agreement as set forth in this Section.
9.1 Buyer Termination Generally. Buyer may terminate this Agreement by giving written notice to Seller at any time prior to the Closing: (A) in the event Seller has breached any material representation, warranty, or covenant contained in this Agreement in any material respect, Buyer has provided Seller with three business days’ written notice of the such breach and Seller has not cured such stated breach within five business days; (B) for delivery occurring within the United States, if the Closing Date shall not have occurred on or before the date forty-five calendar days from the Effective Date, or (C) by reason of the failure of any condition precedent under Section 7.1 (unless the failure results primarily from the Buyer itself breaching any representation, warranty, or covenant contained in this Agreement).
9.2 Seller Termination Generally. Seller may terminate this Agreement by giving written notice to the Buyer at any time prior to the Closing: (A) in the event the Buyer has breached any material representation, warranty, or covenant contained in this Agreement in any material respect, Seller has provided Buyer with three business days’ written notice of the such breach and Buyer has not cured such stated breach within the notice period; or (B) by reason of the failure of any condition precedent under Section 7.2 (unless the failure results primarily from Seller itself breaching any representation, warranty, or covenant contained in this Agreement).
9.3 Effect of Termination. If a party terminates this Agreement all rights and obligations of the parties hereunder shall terminate without any liability of any party to the other party, except for any liability of a party then in breach and as set forth in this Agreement. If Buyer terminates this Agreement before the Delivery Date, it must cancel the shipment of the Equipment and return any portion of the Purchase Price it has received to Seller. If a Buyer terminates this Agreement after the Delivery Date pursuant to Section 9.1(C), it shall only be entitled to any refund determined pursuant to Section 2.
9.4 Refund. At the time of termination, if Seller has received the Purchase Price (minus any applicable fees) but has not delivered the Equipment for shipment, Seller shall return the Purchase Price to Buyer or Equipped, as applicable, without setoff or deduction of any kind except as expressly agreed in writing by Buyer and Seller.
- Survival. All representations, warranties, covenants and agreements contained herein and all related rights to indemnification shall survive the Closing.
- Indemnification By Seller. Seller shall defend, indemnify and hold harmless Buyer and Equipped, including affiliates and their respective stockholders, directors, officers and employees from and against all claims, judgments, damages, liabilities, settlements, losses, costs and expenses, including attorneys’ fees and disbursements, arising from or relating to:
- Indemnification By Buyer. Buyer shall defend, indemnify and hold harmless Seller and Equipped, including affiliates and their respective stockholders, directors, officers and employees from and against all claims, judgments, damages, liabilities, settlements, losses, costs and expenses, including attorneys’ fees and disbursements, arising from or relating to:
- Indemnification Procedures. Whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification (the “Indemnified Party“) shall promptly provide written notice of such claim to the other party (the “Indemnifying Party“). In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any action by a person or entity who is not a party to this Agreement, the Indemnifying Party, at its sole cost and expense and upon written notice to the Indemnified Party, may assume the defense of any such action with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall be entitled to participate in the defense of any such action, with its counsel and at its own cost and expense. If the Indemnifying Party does not assume the defense of any such action, the Indemnified Party may, but shall not be obligated to, defend against such action in such manner as it may deem appropriate, including, but not limited to, settling such action, after giving notice of it to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate and no action taken by the Indemnified Party in accordance with such defense and settlement shall relieve the Indemnifying Party of its indemnification obligations herein provided with respect to any damages resulting therefrom. The Indemnifying Party shall not settle any action without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or delayed).
- Indemnification By Seller. Seller shall defend, indemnify and hold harmless Buyer and Equipped, including affiliates and their respective stockholders, directors, officers and employees from and against all claims, judgments, damages, liabilities, settlements, losses, costs and expenses, including attorneys’ fees and disbursements, arising from or relating to:
11. No Third-party Beneficiaries. This Agreement shall not confer any rights or remedies upon any person other than the parties, Equipped, and their respective successors and permitted assigns.
12. Entire Agreement, Waiver and Modification. This Agreement sets forth the entire understanding of the parties concerning the subject matter hereof and incorporates all prior negotiations and understandings. There are no covenants, promises, agreements, conditions or understandings, either oral or written, between them relating to the subject matter of this Agreement other than those set forth herein. No purported waiver by any party of any default by another party of any term or provision contained herein shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving party. No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained herein. No alteration, amendment, change or addition to this Agreement shall be binding upon any party unless in writing and signed by the party to be charged.
13. Notices. Any consent, waiver, notice, demand, request or other instrument required or permitted to be given under this Agreement shall be in writing and deemed to have been properly given at the earlier of: (A) actual delivery, when delivered in person; (B) the next business day following a complete successful facsimile transmission to the appropriate number first set forth above; (C) the next business day if sent via overnight express courier (e.g., FedEx) to the party’s address first set forth above; or (D) three (3) business days after being sent by certified United States mail, return receipt requested, postage prepaid, to the party’s address first set forth above. Either party may change its address for notices or facsimile phone number in the manner set forth herein.
14. Applicable Law, Venue and Jurisdiction. This Agreement shall be construed and governed under and by the laws of the State of Nevada for contracts entered and to be performed within Nevada. Any dispute relating in any way to this Agreement shall be submitted to confidential arbitration to be conducted virtually. Arbitration under this Agreement shall be conducted pursuant to the applicable Consumer Rules (“Rules”) then prevailing at the American Arbitration Association. Arbitration shall be conducted in English by one (1) arbitrator as selected pursuant to the Rules; the arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. Each party shall be responsible for its own arbitration fees and costs. Where permitted by the Rules, both parties may make any and all appearances telephonically, in written briefs, or electronically. Regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. Notwithstanding the foregoing, either party may seek equitable relief to protect its interests (including but not limited to injunctive relief), or make a claim for nonpayment, in a court of appropriate jurisdiction. In the event that the law does not permit the abovementioned dispute to be resolved through arbitration or if this arbitration agreement is unenforceable, Buyer and Seller agree that any actions and disputes shall be brought solely in a court of competent jurisdiction located within Las Vegas, Nevada.
15. WAIVER OF JURY TRIAL. THE PARTIES KNOWINGLY AND VOLUNTARILY WAIVE ALL OF THEIR RIGHTS TO A TRIAL BY JURY ON ANY AND ALL ISSUES PERTAINING TO OR ARISING OUT OF THIS AGREEMENT AND EQUIPMENT.
16. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” shall mean including without limitation. The parties intend that each representation, warranty, and covenant contained herein shall have independent significance. If any party has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels of specificity) which the party has not breached shall not detract from or mitigate the fact that the party is in breach of the first representation, warranty, or covenant.
17. Attorney’s Fees. In the event any litigation, arbitration, or controversy between the parties hereto arises out of or relates to this Agreement, the prevailing party in such litigation, mediation, arbitration or controversy shall be entitled to recover from the other party all reasonable attorneys’ fees, expenses and suit costs, including those associated with any appellate proceedings or any post-judgment collection proceedings.
18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same Agreement.
19. Survival. Sections 3, 4, 5, 6, and 10 through 17, and 19 shall survive the Closing and shall continue in full force and effect thereafter.
[Signatures on the following page(s)]
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.
|By_____________________ Name: Title:|
|By_____________________ Name: Title:|
Bill of Sale
KNOW ALL PERSONS BY THESE PRESENTS THAT FOR AND IN CONSIDERATION OF THE PAYMENT OF TEN DOLLARS ($10.00), AND OTHER GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged, [Seller name, jurisdiction of incorporation] (“Seller”), pursuant to, and in connection with the consummation of the transactions contemplated by, that certain Equipment Purchase and Sale Agreement dated on or about [Insert Effective Date] (the “Purchase and Sale Agreement”), does hereby grant, bargain, sell, convey, transfer and deliver unto [Buyer legal name, jurisdiction of incorporation] its successors and assigns (“Buyer”), to have and to hold forever, all and singular, all of the Equipment set forth on Exhibit A hereto (the “Equipment”).
(A) warrants and represents that:
(1) it is the lawful owner in all respects of all of the Equipment; and
(2) the Equipment is free and clear of any and all liens, security agreements, Encumbrances, claims, demands and charges of every kind and character whatsoever; and
(B) covenants and agrees at all times and from time to time hereafter, at its expense, to:
(1) warrant and defend the title to all of the Equipment unto the Buyer, its successors and assigns, forever against every person whomsoever makes any claim against or for such herein described property and the Equipment or any part thereof; and
(2) execute and deliver to Buyer such further instruments, documents, consents and assurances as Buyer may reasonably request to fully and effectively sell, convey and transfer the Equipment to Buyer.
IN WITNESS WHEREOF, this Bill of Sale shall have been executed and delivered, and shall be effective to transfer all of the Equipment, as of this ___________________ [Date of final acceptance of Equipment].
|Seller: [Entity Legal Name]|