SALE OF GOODS AGREEMENT
This Sale of Goods Agreement (the “Agreement”) is between GAMRPOD, LLC, a Delaware limited liability company, having its principal place of business at 45 N. Main Street, Unit 4220, Phoenixville, Pennsylvania 19460 (“GAMRPOD”), and the party named on the purchase order (“Buyer”). The effective date of this Agreement is the date of Buyer’s purchase order (the “Effective Date”). GAMRPOD and Buyer are collectively referred to as the “Parties” and individually as a “Party”.
The Parties agree as follows:
1. Sale of Goods and Services. GAMRPOD sells to Buyer and Buyer purchases from GAMRPOD the goods set forth in Buyer’s purchase order (the “Goods”) in the quantities and at the prices stated thereon. All prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer.
2. Delivery.
2.1 Shipment and Location. The goods will be delivered within a reasonable time after the date of this Agreement subject to availability of finished Goods. GAMRPOD shall deliver the Goods to the location set forth in Schedule A. GAMRPOD may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer.
2.2 Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Goods to the location specified by Buyer. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to GAMRPOD a lien on all right, title, and interest of Buyer in the Goods.
3. Warranties. GAMRPOD warrants to Buyer that for a period of 90 days from the date of delivery of the Goods (the “Warranty Period”), the Goods will be free from defects in material and workmanship. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 3, GAMRPOD MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
4. Indemnification. Buyer shall indemnify, hold harmless, and, at GAMRPOD’s option, defend GAMRPOD from and against any losses resulting from a breach of this Agreement by Buyer and from any third-party claim based on Buyer or its customers’: (i) negligence or willful misconduct related to the Goods; (ii) use of the Goods in a manner not authorized or contemplated by this Agreement; (iii) use of the Goods in combination with data, software, hardware, equipment or technology not provided by GAMRPOD or authorized by GAMRPOD in writing; (iv) modifications to the Goods not made by GAMRPOD; and (v) loss, theft, or damage to any equipment provided to Buyer as part of the Goods. Buyer may not settle any third-party claim against GAMRPOD unless such settlement completely and forever releases GAMRPOD from all liability with respect to such third-party claim or unless GAMRPOD consents to such settlement. However, GAMRPOD will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice.
5. Limitations of Liability. IN NO EVENT IS GAMRPOD LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR LOSS OF DATA, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT MAY GAMRPOD’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT OF THE PRICE PAID IN THE TWELVE MONTHS PRECEDING THE DATE OF CLAIM.
6. Notices. All notices, demands, or consents required or permitted in this Agreement must be in writing and hand-delivered, sent by overnight courier, or mailed certified first-class mail (postage prepaid), return receipt requested to the respective Parties at addresses stated below. Any notice required or permitted to be given by the provisions of this Agreement will be conclusively deemed to have been received on the day it is delivered to that party by regular mail with acknowledgment of receipt or by any commercial courier providing equivalent acknowledgment of receipt.
If to Buyer: As stated on Buyer’s purchase order
If to GAMRPOD: GAMRPOD, LLC
45 N. Main Street, Unit 4220,
Phoenixville, Pennsylvania 19460
Attn: Samuel Speaker
7. Miscellaneous.
7.1 Surviving Terms. The provisions of this Agreement that, by their nature, should survive termination of this Agreement, will survive any termination of this Agreement.
7.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement may be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party has authority to contract for or bind the other Party in any manner whatsoever.
7.3 Public Announcements. Neither Party may issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other Party, which consent may not be unreasonably withheld.
7.4 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or because of this Agreement.
7.5 Waiver, Amendment, Modification. No waiver, amendment, or modification, including by custom, usage of trade, or course of dealing, of any provision of this Agreement will be effective unless it is in writing and signed by the Party against whom such waiver, amendment or modification is sought to be enforced. No waiver by either Party of any default in performance on the part of the other Party or of any breach or series of breaches by the other Party of any of the terms or conditions of this Agreement will constitute a waiver of any subsequent default in performance under this Agreement. Performance of any obligation required of a Party under this Agreement may be waived only by a written waiver signed by a duly authorized officer of the other Party. Any such waiver will be effective only with respect to the specific obligation described therein.
7.6 Force Majeure. Neither Party is in default of this Agreement to the extent that performance of its obligations, or attempts to cure any breach, are delayed or prevented by reason of circumstance beyond its reasonable control, including without limitation fire, natural disaster, earthquake, accidents, disease, epidemic or pandemic, public crisis, or other acts of God and which renders their performance impossible or impactable (“Force Majeure”), provided that the Party seeking to delay its performance gives the other written notice of any such Force Majeure within five (5) days after its discovery, and further provided that such Party uses its good faith efforts to cure the Force Majeure.
7.7 Governing Law and Jurisdiction. This Agreement and any disputes arising hereunder are governed by and construed under the laws of the State of Pennsylvania, excluding its conflicts of law rules (so that Indiana law is applied in any dispute). This Agreement is entered into and partly performable in the State of Pennsylvania. Accordingly, both parties agree that they are subject to the jurisdiction of the state and federal courts serving Chester County, Pennsylvania and any legal proceeding arising out of or in connection with this Agreement must be brought solely in the state or federal courts located in Chester County, Pennsylvania, and waives any objection (on the grounds of lack of jurisdiction, or forum nonconvenient or otherwise) to the exercise of such jurisdiction over it by any such courts.
7.8 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by it could cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
7.9 Entire Agreement. The Parties acknowledge that this Agreement expresses their entire understanding and agreement, and that there are no warranties, representations, covenants, or understandings made by either Party to the other except such as are expressly set forth in this Agreement. The Parties further acknowledge that this Agreement supersedes all prior agreements, written or oral, between the Parties with respect to the matters set forth herein.
7.10 Severability. If any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remainder will remain valid and enforceable according to its terms. Without limiting the foregoing, it is expressly understood and agreed that each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended by the Parties to be severable and independent of any other provision and to be enforced as such. Further, it is expressly understood and agreed that in the event any remedy in this Agreement is determined to have failed of its essential purpose, all other limitations of liability and exclusion of damages set forth herein will remain in full force and effect.
7.11 Headings. The headings in this Agreement are for convenience of reference only and do not constitute part of this Agreement.
7.12 Successors. This Agreement will inure to the benefit of, and may be enforced by, and will be binding upon the parties, and their permitted successors and assigns.
7.13 No Construction Against Drafting Party. Each Party expressly recognizes that this Agreement results from a negotiation process in which each was represented by counsel and contributed to the drafting of this Agreement. Given this fact, no legal or other presumptions against the Party drafting this Agreement concerning its construction, interpretation or otherwise accrue to the benefit of any Party to this Agreement, and each Party expressly waives the right to assert such a presumption in any proceedings or disputes connected with, arising out of, or involving this Agreement.
7.14 Counterparts. This Agreement may be executed in multiple counterparts, any of which will be deemed an original, but all of which when taken together will constitute one and the same instrument.
8. Acceptance. Buyer’s acceptance of the Goods constitutes its acceptance of this Agreement.