THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN BUYER AND HOVERFISH BABY, LLC. BY INITIALING “I AGREE” BELOW WHERE INDICATED AND PURCHASING THE PRODUCT, BUYER AGREES AND IS SUBJECT TO THE AGREEMENT TERMS SET FORTH AT CHECKOUT AND CONFIRMS BUYER IS DOMICILED IN THE UNITED STATES. BY INITIALING “I AGREE” AND PURCHASING THE PRODUCT, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE BUYER HEREUNDER. IF YOU DO NOT AGREE WITH ANY OF THIS AGREEMENT, DO NOT PURCHASE THE PRODUCT.
Please print a copy of this Agreement for your records.
WHEREAS, Hoverfish Baby, LLC, a Delaware limited liability company, having its registered offices at 300 Delaware Avenue, Suite 210-A, Wilmington Delaware 19801 (“Hoverfish”) provides a specialized infant floatation device (the “Product”), and Buyer desires to purchase a certain quantity of such Product from Hoverfish in accordance with the terms and conditions set forth in this Purchase Agreement (“Agreement”).
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. PRODUCT PRICING AND PAYMENT.
Buyer shall make payment to Hoverfish for each Product in the amount identified in Hoverfish’s then-current price list in U.S. Dollars, plus all related handling, transportation and shipping costs. Hoverfish’s price list does not include any applicable sales, use, excise or other taxes, whether federal, state or local. Buyer shall be responsible for all payment and reporting obligations with respect to such taxes.
Hoverfish shall initiate shipment of the Product to Buyer upon receipt of payment in full from Buyer. Shipment and delivery dates are estimates only and are not binding.
2. PRODUCT DELIVERY.
Product shall be delivered and risk of loss transferred to Buyer EXW Hoverfish premises (or the premises of Hoverfish’s distributor or third-party manufacturer, if Hoverfish so elects). The term “EXW” shall have the meaning given to it in INCOTERMS 2010 published by the International Chamber of Commerce effective January 1, 2011.
Buyer shall immediately inspect the Product upon receipt. Unless Buyer provides Hoverfish with written notice of any claim for shortage or damage during shipment within forty-eight hours after receipt of shipment, Buyer will be deemed to have inspected, checked and accepted the Product.
4. DISCLAIMER OF WARRANTIES.
HOVERFISH DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE OR NEED, TITLE, AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM CONDUCT, USAGE, COURSE OF DEALING OR CUSTOM OF TRADE.
5. LIMITATION OF LIABILITY AND INDEMNIFICATION.
In no event shall Hoverfish’s liability to Buyer arising out of or relating to this Agreement or any use of the Product exceed the total amount paid by Buyer to Hoverfish under this Agreement, regardless of whether Buyer’s claim is based on contract, tort, product liability, strict liability or any other theory. Further, Hoverfish shall not be liable for any incidental, consequential, punitive, exemplary, special or indirect damages arising out of or relating to this Agreement or any use of the Product.
To the fullest extent permitted by law, Buyer shall indemnify and hold Hoverfish, Hoverfish’s owners and affiliates, and their respective officers, directors, employees, agents, shareholders, members, managers, successors and assigns (collectively, the “Indemnitees”) harmless against any and all causes of action, claims, losses, costs, expenses, liabilities, litigation, damages or other expenses (including, but not limited to, settlement costs and attorneys’ fees) arising directly or indirectly from, as a result of, or in connection with use of the Product (notwithstanding any claims that the Indemnitees are or were negligent). Buyer agrees that with respect to any threatened or actual litigation, proceeding or dispute which could directly or indirectly affect any of the Indemnitees, the Indemnitees shall have the right, but not the obligation, in their discretion, to: (i) choose counsel, (ii) direct, manage and/or control the handling of the matter; and (iii) settle on behalf of one or more of the Indemnitees any claim against the Indemnitees. All canceled checks, receipts, receipted bills or other evidence of payments for any such losses, liabilities, costs, damages, charges or expenses of whatsoever nature incurred by any Indemnitee shall be taken as indisputable evidence of Buyer’s obligation hereunder.
Buyer acknowledges Hoverfish’s ownership of the trademark(s) in and to the Product names, and all related trademarks and service marks, whether or not any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.
Buyer further acknowledges that Buyer shall acquire no interest or goodwill in such trademarks and service marks by virtue of this Agreement or the performance or exercise by Buyer of its rights, duties and obligations under this Agreement. Buyer agrees that it will not claim any ownership rights in such trademarks or service marks, nor attempt to register such trademarks or service marks with any governmental authorities, nor take any other action that could infringe on Hoverfish’s proprietary rights in and to such trademarks and service marks. Buyer further agrees not to use the name of the Product or Hoverfish’s trademarks or service marks (or any confusingly similar names or symbols), in whole or in part, as part of Buyer’s business or trade name.
7. INTELLECTUAL PROPERTY OWNERSHIP.
Buyer hereby acknowledges and agrees that all intellectual property rights in the Product, and interest in all improvements, enhancements, modifications, and derivative works of the Product, including all rights to patent, copyright, trade secret and trademark, shall be the exclusive property of Hoverfish, so that all rights to and property interest in the Product shall vest in Hoverfish, and Buyer shall have no rights or property interest in the Product whatsoever. Further, Buyer shall not (i) attempt to duplicate, copy, or reverse engineer, attempt to reconstruct or discover, in any way, any design specification of the Product for any purpose, (ii) remove any identification markings, alter, disfigure or cover any marks or identification displayed on the Product, or (iii) make any modification, enhancement, or derivative work of the Product, or incorporate the Product, or any portion thereof, into or with any other product. Buyer also agrees that the Product and its packaging may bear markings, legends, labels, trade dress, graphics, artwork, and product descriptions belonging to Hoverfish. Buyer agrees that all ownership rights in and to such items are the sole and exclusive property of Hoverfish.
8. COMPLIANCE AND PROPER USAGE.
Buyer agrees to use the Product in strict conformity with this Agreement, Hoverfish’s Instructions for Use, user manual and such standards and specifications and procedures as Hoverfish may from time to time prescribe in writing, and shall refrain from deviating from such standards, specifications, and procedures without the prior written consent of Hoverfish. Buyer also agrees that Buyer at all times shall comply with all applicable laws, rules and regulations that govern the use, operation, storage, maintenance and disposal of the Product.
9. NO RESALE OR EXPORT.
Buyer acknowledges and agrees that it is purchasing the Product as an end-user and that it shall have no right to, and shall refrain from, any resale, distribution or export of the Product.
10. GENERAL PROVISIONS.
10.1.HOVERFISH’S ACCEPTANCE OF EACH ORDER IS EXPRESSLY LIMITED TO, AND EXPRESSLY MADE CONDITIONAL ON, BUYER’S ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. HOVERFISH REJECTS ANY DIFFERENT OR ADDITIONAL TERMS.
10.3. The failure of either party to exercise any right granted under this Agreement, or to require the performance by the other party of any provision of this Agreement, or the waiver by either party of any breach of this Agreement, will not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of this Agreement.
10.4. No right or remedy conferred upon or reserved to Hoverfish or Buyer by this Agreement is intended to be, nor shall be deemed, exclusive of any other right or remedy provided herein or permitted by law or equity, but each shall be cumulative of every other right or remedy.
10.5. Buyer may not sell, assign or transfer any of its rights, duties or obligations under this Agreement without the prior written consent of Hoverfish. Hoverfish may assign or transfer this Agreement or any of its rights, duties or obligations hereunder.
10.6. All notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given to a party if delivered personally or mailed by registered or certified mail, postage prepaid, return receipt requested, or by overnight delivery by an internationally-recognized courier, to the address for such party set forth above or to such other address or person as either party may from time to time designate to the other in writing. Any such notice or other communication shall be deemed to be given as of the date it is personally delivered, five days after its being deposited in the United States mail, or one day after being deposited with a nationally-recognized courier for overnight delivery.
10.7. If any provision of this Agreement is determined by a court of competent jurisdiction to be in violation of any applicable law or otherwise invalid or unenforceable, such provision will to such extent as it is determined to be illegal, invalid or unenforceable under such law be deemed null and void, but this Agreement will otherwise remain in full force and effect. Furthermore, it is the intention of the parties that in lieu of such illegal, invalid, or unenforceable provision, there automatically be added as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.
10.8. This Agreement is performable in Harris County, Texas. Buyer agrees that, during and after this Agreement, any lawsuit or other legal proceeding between the parties (including Hoverfish’s affiliates, agents, employees, officers, directors, shareholders, members, managers, contractors, suppliers and licensors) shall be brought only in the Civil District Courts of Harris County, Texas, or the United States District Court for the Southern District of Texas, Houston Division. The parties hereby consent to the personal and exclusive jurisdiction and venue of said court. This Agreement, the entire relationship of the parties hereto, as well as any claim by a party against another party, whether grounded in tort, contract, law or equity, shall be governed by, construed and enforced in accordance with the laws of the State of Texas, without regard to its choice of law principles. The United Nations Convention on the International Sale of Goods is expressly disclaimed.
The sole and official language of this Agreement is English.
10.9. The parties agree that, except as provided below, no action or suit (whether by way of claim, counterclaim, cross-complaint, raised as an affirmative defense or otherwise) by either party will lie against the other, whether for damages, rescission, injunctive or any other legal and/or equitable relief, in respect of any alleged breach of this Agreement, or any other claim of any type, unless such party will have commenced such proceeding, action or suit before expiration of two years and one day after the cause of action has accrued.