THIS PURCHASE AGREEMENT (“Agreement”) is made and entered into the _____ day of ______________, 20___ (the “Effective Date”) by and between Hoverfish Baby, LLC, a Delaware limited liability company, having its registered offices at 300 Delaware Avenue, Suite 210-A, Wilmington Delaware 19801 (“Hoverfish”), and ____________________________ , a ___________ located at address ____________________, (collectively, together with all affiliates, partners, family members, representatives and agents, referred to as “Buyer”).
WHEREAS, 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 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, PAYMENT AND COMPLIANCE.
Buyer shall make payment to Hoverfish for the Product in an amount equal to Hoverfish’s then-current price list in U.S. Dollars, plus all related handling, transportation and shipping costs.
Hoverfish shall issue an invoice to Buyer upon receipt of Buyer’s purchase order of a certain quantity of Product. Alternatively, Buyer may purchase the Product via the Hoverfish e-commerce online portal. In either case,
Hoverfish shall initiate shipment of the Product to Buyer upon receipt of full payment for the quantity of Product ordered. In the event of discrepancies between this Agreement and any purchase order for Product, this Agreement shall control.
Buyer shall timely pay all taxes, including any applicable sales or value-added tax, export/import fees and tariffs.
Buyer shall be responsible for compliance with all applicable laws relating to the importation and usage of the Product.
2. PRODUCT DELIVERY.
Product shall be delivered and risk of loss transferred to Buyer EXW (Incoterms 2010) Hoverfish premises, its distributors, or third-party manufacturers, as mutually agreed.
3. WARRANTIES AND DISCLAIMERS.
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, QUIET ENJOYMENT, AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM CONDUCT, USAGE, COURSE OF DEALING OR CUSTOM OF TRADE.
4. LIMITATION OF LIABILITY AND INDEMNIFICATIONS.
In no event shall Hoverfish’s liability to Buyer hereunder exceed the total amount paid for under this Agreement by Buyer, 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. Buyer shall indemnify and hold Hoverfish, Hoverfish’s owners and affiliates, and their respective officers, directors, employees, agents, employees, shareholders, members, managers, successors and assigns (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 the Indemnitees, and/or Hoverfish, any claim against the Indemnitees. All vouchers, 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, nor attempt to register such trademarks with any governmental authorities, nor take any other action that could infringe on Hoverfish’s proprietary rights in and to such trademarks. 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.
Upon the written consent of Hoverfish, Buyer may use the Hoverfish trademark(s) to market use of the Product, provided that such use of the trademark(s) shall be only as specifically directed by Hoverfish.
Buyer hereby consents to Hoverfish’s use of Buyer’s name and business information on the Hoverfish website as an indication of Buyer’s use of the Product.
6. 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.
7. LIABILITY WAIVER AND RELEASE FORM.
Buyer agrees to require that each of its customers using the Product sign a liability waiver and release form provided to and approved by Hoverfish, and shall refrain from allowing customers to use the Product prior to the signing of such form.
Buyer shall procure at its expense and maintain in full force and effect during the term of this Agreement, an insurance policy or policies protecting Buyer and Hoverfish, and their owners, officers, directors, partners and employees against any and all losses, liabilities, damages or other expenses whatsoever arising or occurring upon or in connection with Buyer’s use of the Product, as Hoverfish may reasonably require from time to time for its own and
Buyer’s protection. Hoverfish and such of its respective affiliates shall be named additional insured in such policy or policies. Required insurance policy coverages shall be provided by Hoverfish to Buyer by separate notification, and such coverages may be modified at any time in Hoverfish’s sole discretion. Buyer shall provide evidence or certificates of such insurance coverage prior to the shipment of Product to Buyer and as directed by Hoverfish on an ongoing basis.
9. PROPER USAGE.
Buyer agrees to use the Product in strict conformity with this Agreement, Hoverfish’s user manual and such standards and specifications 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. In the event Buyer breaches this Section 9, Hoverfish reserves the right to enjoin Buyer from continuing to use the Product. Buyer acknowledges that Hoverfish’s rights of injunctive relief are reasonable, are not vague or indefinite, and are designed to protect the legitimate interests of Hoverfish and users of the Product. Rights of injunctive relief are in addition to any and all other rights and remedies otherwise available to Hoverfish.
10. NO RESALE.
Buyer acknowledges and agrees that it is purchasing the Product as an end-user, and that it shall have no rights to and shall refrain from distribution or resale of the Product to any third parties.
The terms and conditions of this Agreement and certain information regarding the Product are confidential, trade secret, or proprietary in nature. This includes, but is not limited to, the Product’s pricing, technical specifications, detailed workings, and technical design, (collectively, the “Confidential Information”). Buyer agrees to keep the Confidential Information strictly secret and confidential, except as permitted under this Agreement. Buyer agrees not to use (or permit use of) the Confidential Information for any purpose other than for customary use of the Product. Buyer may disclose the Confidential Information if necessary, in the reasonable and written opinion of Buyer’s attorney, to comply with any law applicable after giving prompt notice and cooperating with Hoverfish’s efforts to avoid the requirement to disclose the Confidential Information. Buyer agrees to safeguard the Confidential Information with a degree of care commensurate with reasonable standards of industrial security for protection of this information or with the standards Hoverfish uses to protect the Confidential Information, if greater.
12. TERM AND TERMINATION.
Commencing on the Effective Date, this Agreement shall remain effective for as long as Buyer is promoting and/or allowing customers to use the Product.
13. GENERAL PROVISIONS.
13.1 This Agreement does not create any relationship of association, partnership, joint venture or agency between the parties. Neither party will have any right or authority to assume, create or incur any liability or obligation of any kind against or in the name of the other party.
13.2 This Agreement sets forth the entire agreement and understanding between the parties with respect to the defined Product and subject matter of this Agreement. This Agreement merges all previous discussions and negotiations between the parties and supersedes and replaces any and every other agreement, which may have existed between Hoverfish and Buyer with respect to the defined Products and contents of this Agreement.
13.3 Except to the extent and in the manner specified in this Agreement, any modification or amendment of any provision of this Agreement, including this Section must be in writing and bear the signature of the duly authorized representative of each party.
13.4 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.
13.5 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.
13.6 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.
13.7 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 a 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 (5) days after its being deposited in the United States mail, or one (1) day after being deposited with a nationally-recognized courier for overnight delivery.
13.8 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.
13.9 Buyer may not publicize or disclose to any third party any of the terms or provisions of this Agreement, or the discussions relating to any of the contents of this Agreement, without the prior written consent of a duly authorized officer of the Hoverfish, except as required by law.
13.10 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, 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.
13.11 The parties agree that, except as provided below, no mediation or arbitration proceeding, 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 mediation or arbitration proceeding, action or suit before expiration of two (2) years and a day after the cause of action has accrued.
13.12 This Agreement may be executed in multiple copies, each of which shall for all purposes constitute an Agreement, binding on the parties, and each partner hereby covenants and agrees to execute all duplicates or replacement counterparts of this Agreement as may be required.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the above Effective Date.
HOVERFISH BABY, LLC