Sales Presale Agreement

Sales Presale Agreement

Parties

Recitals

This Sales Presale Agreement (the Agreement) is entered into as of by and between Seller Name: and Buyer Name: .

WHEREAS, Seller is engaged in the design, manufacture, or distribution of the product(s) described herein and intends to offer units for presale prior to final production or public release; and

WHEREAS, Buyer desires to purchase, and Seller desires to sell, presale units of the product(s) on the terms and conditions set forth in this Agreement.

Scope of Work

Seller shall manufacture, allocate and deliver presale units described below and perform any services necessary to complete delivery in accordance with the delivery schedule and specifications set forth in this Agreement.

Payment Terms

Buyer shall pay Seller the total purchase price for presale units as set forth below. All amounts are stated in United States dollars unless otherwise agreed in writing. Unless otherwise specified, payments are non-refundable except as expressly provided in this Agreement.

Payments shall be credited in the order received. If Buyer fails to pay any amount when due, Seller may suspend performance and delivery and pursue any remedies available at law or in equity. Buyer acknowledges that any deposit is earned upon Seller's reliance and is non-refundable except in the event of Seller's material failure to deliver as expressly set forth herein.

Term and Termination

This Agreement commences on the Start Date and continues until the earlier of completion of Seller's obligations or the End Date, unless terminated earlier in accordance with this Agreement.

Either party may terminate this Agreement for material breach by the other party if the breaching party fails to cure such breach within the notice period specified above after receiving written notice. Termination shall not relieve Buyer of payment obligations for goods delivered or services performed prior to termination.

Confidentiality

Each party acknowledges that during performance it may receive or have access to confidential or proprietary information of the other party. "Confidential Information" includes trade secrets, product specifications, prototypes, pricing, marketing plans, and any non-public business information disclosed in connection with this Agreement. Each party shall: (a) hold Confidential Information in strict confidence; (b) not disclose Confidential Information to third parties except to employees, agents or contractors with a bona fide need to know who are bound by confidentiality obligations at least as protective as those herein; and (c) use Confidential Information solely to perform its obligations under this Agreement. Confidentiality obligations shall survive termination or expiration of this Agreement for a period of three (3) years, except for trade secrets which shall be protected for so long as they meet the legal definition of a trade secret.

Delivery, Inspection and Acceptance

Delivery terms, risk of loss, and acceptance criteria shall be as set forth in the Scope of Work. Buyer shall inspect delivered units within a commercially reasonable inspection period and shall notify Seller in writing of any nonconformity. Failure to provide timely written notice shall constitute acceptance of the units.

Representations and Warranties; Limitation of Liability

Each party represents that it has the full right and authority to enter into this Agreement. Seller represents that delivered products will materially conform to the specifications described in the Scope of Work for a period described in any express warranty provided at time of sale. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES; TOTAL DIRECT DAMAGES SHALL BE LIMITED TO THE AMOUNTS PAID BY BUYER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the state of , without regard to conflict of laws principles.

Assignment

Neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party, except that Seller may assign to an affiliate or in connection with a merger, acquisition or sale of substantially all of Seller's assets, provided the assignee assumes Seller's obligations hereunder.

Entire Agreement

This Agreement, including any exhibits or attachments hereto and the specific Order or Scope of Work executed by the parties, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, and communications, whether oral or written. Any amendment or modification of this Agreement must be in writing and signed by authorized representatives of both parties.

Notices

All notices, requests, consents, claims, demands and other communications hereunder must be in writing and addressed to the respective party at the addresses set forth below or at such other address as may be designated by a party in writing.

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