Equipment Sale Agreement

Master Sales Agreement for Sale of Equipment

Master Sales Agreement made on the (date), between , a corporation organized and existing under the laws of the state of , with its principal office located at

(street address, city, county, state, zip code), referred to herein as Buyer, and , a corporation organized and existing under the laws of the state of , with its principal office located at

(street address, city, county, state, zip code), referred to herein as Seller.

1. Governing Law

This Agreement shall be governed, construed, and enforced in accordance with the laws of the state of (state), excluding any choice of law rules. Any services provided by Seller in connection with transactions under this Agreement shall be considered ancillary to a sale of goods and the State’s Uniform Commercial Code (UCC) shall apply to all such goods and services. Any declaration of unenforceability of a provision shall be narrowly construed and shall not affect the enforceability of any other provisions.

2. Formation, Integration and Modification

A. The terms and conditions stated or referred to in this Agreement apply to all sales of Equipment sold by Seller to Buyer and, except as otherwise specifically provided in a document signed by Seller, shall take precedence over any conflicting terms or conditions stated in any offer, proposal, quotation, purchase order (including preprinted terms or conditions), or other document or communication submitted by one party to the other in connection with such a sale.

B. The Seller is willing to negotiate written changes to these terms and conditions, but reserves the right to make an adjustment in the price of the goods to which the changes will apply. No modification, limitation, waiver, or discharge of this Agreement shall bind Seller unless in a writing signed by an authorized employee of Seller. Seller may correct unilaterally any mathematical or typographical errors in this Agreement. A course of performance shall not constitute a modification or waiver by Seller of any right.

C. This Agreement is only for the benefit of the parties. No third party rights are to be implied from the terms and conditions of this Agreement.

D. Equipment quoted to Buyer is subject to prior sale or other commitment.

E. Buyer and Seller acknowledge that: (1) they have had an opportunity to review the Equipment for sale; (2) they have had an opportunity to review this Agreement; and (3) the provisions of this Agreement are reasonable when considered as a whole.

3. Obligations of Buyer

Buyer shall purchase the Equipment as identified in Exhibit A (the Equipment) in an as is, where is, and without recourse condition without any additional charges. Buyer shall pick up the Equipment on a time schedule and in a manner as reasonably determined by Seller. Buyer will insure that Equipment is removed promptly as to not disrupt any of Seller's operations. Buyer will provide, at Buyer's sole expense, all Equipment necessary to transport, clean, and otherwise handle the Equipment.

4. Authority of Seller’s Agents

Seller's agents, employees, and representatives have no authority to bind Seller to any affirmation, waiver, representation, or warranty inconsistent with this Agreement.

5. Prices, Taxes, Payment, and Risk of Loss

A. Prices quoted by Seller as listed in Exhibit A are exclusive of any applicable taxes. Buyer shall pay all applicable taxes, inspection fees, and import or export duties. Buyer shall reimburse Seller for any such items Seller pays on Buyer's behalf.

B. The Equipment shall be delivered F.O.B. Seller's plant. Risk of loss and all other incidents of ownership with all responsibility for the safe and lawful performance of Buyer's obligations under this Agreement, passes to Buyer upon such delivery. Seller's breach of this Agreement shall not affect the passing of title, risk of loss, and all other incidents of ownership to Buyer.

C. Buyer shall be responsible for all freight, transportation, insurance, shipping, storage, handling, or similar charges.

D. Invoices may be rendered separately for each delivery by Seller and, subject to other provisions of this Agreement, Equipment picked up from the Seller on the first day through the last day of any month shall be paid on the day of the following month. All amounts not paid to Seller when due shall incur a service charge of the lesser of % per month or the highest written contract rate for interest and handling charges allowed by law. If, at any time, reasonable grounds for insecurity arise with respect to Buyer's performance of its obligations, Seller may demand immediate payment in full, provision of reasonable financial security may immediately terminate this Agreement with respect to any incomplete sale of Equipment or may proceed with any other remedies available under this Agreement.

6. Delay of Delivery or Performance Excused for Various Reasons

A. If delivery or other performance by Seller is delayed at the request of or due to Buyer, Seller may hold the Equipment at the risk and expense of Buyer. Full and final payment for such items shall be due and payable days after Buyer is notified that the Equipment is ready for delivery. If Seller is unwilling to hold such items, Buyer must accept delivery immediately or pay the difference between the agreed price Buyer and lower bona fide price Seller is able to obtain from another purchaser.

B. Neither party shall be in default because of delay or failure to deliver or perform resulting from any circumstance beyond its reasonable control (including but not limited to acts of God, strikes, lockouts, work stoppages or delays, fire, flood, windstorm, explosion, riot, war, sabotage). If any delivery is delayed for days or longer, Seller may cancel the subject sale or waive such delay.

7. Inspection, Rejection, and Records

A. If the parties agree to a pre-delivery inspection and acceptance of the Equipment, Buyer shall use industry recognized standard test procedures and shall provide results to Seller. Such tests shall be performed before removal of the Equipment from Seller's premises. Seller reserves the right to run tests of its own and Buyer agrees to cooperate fully should any such testing be desired by Seller.

B. The Equipment shall be deemed accepted by Buyer if Buyer does not reject them at the time of delivery.

C. Seller shall have the right to inspect and copy all written licenses, permits or approvals issued by any governmental entity or agency to Buyer relating to Buyer's obligations under this Agreement. Seller shall also be entitled to observe and inspect Buyer's activities and facilities used in the performance of its obligations under this Agreement, including, but not limited to, the pickup, handling, loading, transportation, storage, and processing of the Goods.

D. Buyer shall keep adequate books, records, and other documentation in accordance with good accounting practices and applicable regulatory requirements pertaining to the performance of its obligations for a period of years. Buyer agrees to permit Seller's representatives to inspect Buyer's books, records, and documentation relating to Buyer's obligations under this Agreement.

8. Express and Implied Warranties

A. Seller warrants only that it has a good faith belief that the Equipment is comprised of the materials specified by Buyer and Seller has no duty to inspect the Equipment for defects. There are no express warranties or representations as to performance, description, or classification. All descriptions, specifications, and illustrations of the Equipment provided by the Seller are intended for general guidance only. The are sold on an as is, where is, and without recourse basis.

B. SELLER DISCLAIMS ALL IMPLIED WARRANTIES (OTHER THAN GOOD TITLE) WITH RESPECT TO THE EQUIPMENT INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT.

9. Remedy and Limitation of Seller’s Liability

Seller's sole liability to Buyer for non-conforming Equipment shall be the difference between the agreed price and the actual market value of the Equipment at the time of delivery. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES. Buyer waives any and all other remedies and claims, whether arising under contract, tort, strict liability, product liability, misrepresentation, fraud, or other theory of law or statute.

10. Indemnification

Buyer shall indemnify and defend Seller, its subsidiaries and affiliates and their respective officers, directors, employees, and agents (Indemnitees) from and against all liabilities, claims, damages, penalties, fines, forfeitures, suits, and expenses incident thereto (including costs of defense and reasonable attorneys' fees), which Indemnitees may incur, become responsible for, or pay out as a result of:

A. Any third-party claims under theories of tort, product liability, negligence, warranty, contract, or statute, arising out of the use, storage, sale, processing, or other disposition of the Equipment after their delivery to Buyer;

B. Contamination of or adverse effects on the environment, or any violation, alleged violation or liability relating to any environmental laws, rules, regulations, or ordinances of any governmental entity or agency (including, but not limited to, liabilities under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. §§ 9601 et seq.; the Clean Air Act, 42 U.S.C.A. §§ 7401 et seq.; the Clean Water Act, 33 U.S.C.A. §§ 1251 et seq.; and the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C.A. §§ 6901 et seq.), directly or indirectly caused by any act or omission by Buyer, its agents or employees in the performance of this Agreement; or

C. Any breach by Buyer of any obligation under this Agreement, including but not limited to Buyer's responsibilities for safety and protection of the environment set forth in this Agreement.

11. Cancellation and Breach

A. Buyer may cancel an order for Equipment by immediate payment to Seller as liquidated damages Seller's expenses (computed using Seller's standard internal costing procedures) plus % of the sale price of the Equipment. Liquidated damages shall include the cost of obtaining another Buyer for the Equipment together with any difference in price between that agreed to by Buyer and the reasonable market price at the time of cancellation. The parties acknowledge the great difficulty of proving damages for such a cancellation and the reasonableness of this liquidated damages provision.

B. If Buyer defaults or advises Seller that it will default or any action is started by or against Buyer seeking the appointment of a trustee or receiver for Buyer then the Seller may cease performance, recover Equipment delivered but not paid for, deny access to the Equipment, and otherwise enforce its remedies for Buyer's default. Seller shall be awarded incidental damages and costs (such as actual reasonable attorney's fees) in any proceeding to enforce its remedies in which it obtains relief or damages.

C. The Seller may require that Buyer post security amounts to be paid if Seller has a good faith doubt as to the Buyer's ability to make prompt payment. If such security is not posted, Seller shall have the right to cease performance and enforce its remedies for Buyer's default.

12. Term

The term of this Agreement shall commence on (date) and continue until (date).

13. Security Interest, Power of Attorney

In addition to any security interest granted by the UCC, the Buyer grants Seller a security interest in all Equipment, proceeds, and products from the same to secure all obligations of the Buyer to the Seller. Buyer shall sign financing statements evidencing the security interest as reasonably requested by Seller. In case of a default by Buyer, Seller may peaceably enter the premises of the Buyer to repossess all Equipment in which it has a security interest. Buyer shall not sell, exchange, transfer, or grant a security interest in any Equipment, which are subject to this Agreement if payment for same has not been made in full to Seller.

14. Solvency of Buyer

Buyer represents that it is solvent and able to pay the price for the Equipment, and that all financial and business information given to Seller is correct. If Buyer becomes insolvent before delivery of the Equipment, it shall notify Seller. Each acceptance of delivery shall be a reaffirmation of Buyer's solvency.

15. Proprietary Information

A. Buyer acknowledges that any information disclosed to Seller is only deemed Confidential or a trade secret if conspicuously noted on the disclosure.

B. All information furnished by the Seller in connection with this Agreement, specifically including the composition of the Equipment, is confidential and shall not be shown or disclosed to any third party or used by Buyer except as necessary to the permitted use of the Equipment.

16. No Waiver

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

17. Notices

Any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

18. Attorney’s Fees

In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees.

19. Mandatory Arbitration

Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

20. Entire Agreement

This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

21. Modification of Agreement

Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

22. Assignment of Rights

The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party.

23. Counterparts

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

In this contract, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine.