EQUIPMENT PURCHASE AGREEMENT
This Equipment Purchase Agreement (the “Agreement”) is made and entered into this on February 8, 2023 (the “Effective Date”), by and between TUORE-V LLC (“Seller”) and the “Purchaser” or “You”. All capitalized terms in this Agreement have the meanings provided in this Agreement, unless stated otherwise.
WHEREAS, Purchaser desires to have Seller manufacture and sell to Purchaser each of the products, services, parts and/or components set forth on Exhibit A attached hereto and made a part hereof (the “Equipment”); and;
WHEREAS, Seller manufactures and assembles certain parts and components necessary for the Equipment and performs certain services in connection therewith; and
WHEREAS, Purchaser desires to purchase and Seller desires to sell the Equipment according to the terms and conditions contained herein.
In consideration of the foregoing and other good and valuable consideration, the parties intending to be legally bound agree as follows:
Section 1. PURCHASE OF EQUIPMENT; WARRANTY
1.1 Sellers agrees to assemble and sell to Purchaser, and Purchaser agrees to purchase from Seller the Equipment on the terms and conditions set forth in this Agreement.
1.2 Seller represents and warrants that the attached New Vehicle Warranty attached hereto as Exhibit B and made a part hereof (the “Warranty”) applies only to new Seller vehicles, hitch carriers, and trailers included with this Agreement.
Section 2. PRICE AND PAYMENT
2.1 Purchaser shall pay to Seller the amounts set forth on Exhibit A (the “Purchase Price”) in accordance with the payment provisions of this Agreement.
2.2 Payment in full for the Equipment is due upon the date of delivery of the Equipment.
Section 3. ORDERS; DELIVERIES; SHIPPING
3.1 Orders; Non-Refundable Deposit. Seller shall, in its discretion and upon provision of written notice thereof to Purchaser, accept orders for Equipment upon receipt of Purchaser’s purchase order. If Purchaser’s purchase is part of a “pre-order program” or any program where a deposit is paid to purchase Equipment, Purchaser hereby agrees and acknowledges that any such deposit is non-refundable and will not be refunded for any reason (including cancellation other than cancellation under Section 5.1(c) below).
3.2 Delivery. Delivery of the Equipment shall be at such time and place as agreed to by the parties.
3.3 Title Transfer, Risk of Loss.
(a) Title to the Equipment shall pass upon receipt of full payment for the Equipment by Seller. Risk of loss shall pass to Purchaser upon delivery of the Equipment to the carrier by Seller. Upon delivery, Purchaser shall be responsible for all damage, loss, theft, destruction or seizure of the Equipment.
(b) Seller holds, and will convey to Purchaser, title to the Equipment, free and clear of any and all claims, encumbrances, liens, security interests or rights or interests of any kind or nature of any person or entity. At the time that title passes to Purchaser, Seller will provide a Bill of Sale to Purchaser evidencing such conveyance.
Section 4. STANDARD TERMS AND CONDITIONS
4.1 Standard Terms and Conditions. Seller’s standard terms and conditions shall apply. A copy of such terms and conditions are attached hereto and made a part hereof as Exhibit C.
Section 5. TERMINATION
5.1 Termination. A party may terminate this Agreement prior to delivery of the Equipment under the following circumstances:
(a) Either party may terminate this Agreement immediately by notice to the other party if the other party is declared insolvent or becomes subject to bankruptcy proceedings or makes an assignment or similar arrangement for the benefit of its creditors.
(b) Seller may terminate this Agreement if Purchaser breaches its obligations under this Agreement and fails to cure such breach within 30 days following written notice by Seller specifying such breach.
(c) Seller may terminate this Agreement upon notice given to Purchaser for any reason or no reason, provided that in such event Purchaser shall be refunded its deposit paid, if any.
5.2 If Seller terminates this Agreement pursuant to Section 5.1, such termination shall not constitute a waiver or election of remedies, and Seller shall have the right to pursue all other remedies to which it may be entitled at law or equity, subject to any limitation of remedies, disclaimers, or other provisions of this Agreement.
5.3 The following sections of the Agreement shall survive termination: 1, 7, 8, 9, 10.1, 10.3, and 10.5.
Section 6. REPRESENTATIONS AND WARRANTIES
6.1 Representations And Warranties of Seller. Seller represents and warrants to Purchaser that: (i) Seller is a limited liability company duly organized, validly existing and in good standing under the laws of Virginia and (ii) Seller has the power and authority to enter into this Agreement and to perform the obligations of Seller hereunder.
6.2 Representations And Warranties of Purchaser. Purchaser represents and warrants to Seller that (i) Purchaser has the power and authority to enter into this Agreement and to perform the obligations of Purchaser hereunder and (ii) the execution, delivery and performance of this Agreement by Purchaser will not conflict with or result in any violation of or constitute a default under any term of the organization documents or bylaws of Purchaser, any other agreement to which the Purchaser is a party, or any applicable law or governmental regulation, order or decree which applies to Purchaser.
Section 7. HOLD HARMLESS; INDEMNIFICATION; REMEDIES; EXCLUSION OF DAMAGES
7.1 Assumption of Risk. Purchaser understands, acknowledges, and agrees (i) there are risks associated with the use of the Equipment, (ii) use of the Equipment is a hazardous activity, and (iii) Purchaser’s use of the Equipment may result in injury or death including, but not limited to, BODILY INJURY, DISEASE, STRAINS, FRACTURES, PARTIAL OR TOTAL PARALYSIS, OTHER AILMENTS THAT COULD CAUSE SERIOUS DISABILITY, MENTAL OR PHYSICAL ANGUISH, OR DEATH; these risks and dangers may be caused by the negligence or omission of Seller, the negligence of others, including but not limited to other pedestrians or motorists, or may arise from the repair, maintenance or operation of the Equipment, weather conditions at the time of use, limited visibility, variation in slope, surface and/or sub surface conditions, roadway conditions, or other causes, including from any other additional foreseeable or unforeseeable causes. By purchasing and/or using the Equipment, Purchaser, on behalf of it/yourself, your personal representatives and your heirs, hereby EXPRESSLY AGREE TO ASSUME ALL RISKS AND ACCEPT ALL RESPONSIBILITY FOR ANY ACCIDENT, PERSONAL INJURY, PROPERTY DAMAGE, DEATH OR DISABILITY THAT YOU MAY SUFFER AS A RESULT OF USING THE EQUIPMENT for any such injuries, losses, and/or damages, including those caused solely or in part by the negligence or omission of Seller and the Released Parties.
7.2 Indemnification. To the fullest extent permitted by law, you, your heirs, beneficiaries, successors, and assigns AGREE TO FOREVER DEFEND AND INDEMNIFY AND HOLD HARMLESS THE SELLER, ITS EMPLOYEES, AND AGENTS of and from any and all claims, actions, damages, penalties, fines, demands, losses, liabilities, costs and expenses, injuries or payments for injury to any person or property caused or claimed to be caused by the active or passive negligence of any of the Seller and its agents, arising out of or in connection with (i) your use, ownership, or possession of the Equipment, (ii) your breach or violation of this Agreement or any applicable law, or (iii) your violation of the rights of any third party. The Seller reserves the right to assume the exclusive defense of any claims or lawsuits, and you agree not to settle any of the foregoing without the Seller’s prior written consent.
7.3 WAIVER AND RELEASE OF CLAIMS: Purchaser, on behalf of it/yourself, your personal representatives and your heirs, beneficiaries, successors, and assigns, hereby EXPRESSLY AGREE TO WAIVE AND RELEASE SELLER, ITS EMPLOYEES AND AGENTS FROM ANY AND ALL CLAIMS (INCLUDING THOSE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY AND/OR ANY OTHER GROUNDS), INCLUDING WITHOUT LIMITATION CLAIMS FOR OR RELATING TO ANY ACCIDENT, PERSONAL INJURY, PROPERTY DAMAGE, DEATH OR DISABILITY THAT YOU OR ANYONE ELSE MAY SUFFER AS A RESULT OF USING THE EQUIPMENT, including those caused solely or in part by the negligence or omission of any of the Seller or its employees or agents. The WAIVER AND RELEASE includes any claims for injury or illness including, but not limited to, BODILY INJURY, DISEASE, STRAINS, FRACTURES, PARTIAL OR TOTAL PARALYSIS, OTHER AILMENTS THAT COULD CAUSE SERIOUS DISABILITY, MENTAL OR PHYSICAL ANGUISH, OR DEATH; these risks and dangers may be caused by the negligence or omission of Seller, the negligence of others, including other pedestrians or motorists, or may arise from the repair, maintenance or operation of the Equipment, weather conditions at the time of use, roadway conditions, or other causes, including from any other additional foreseeable or unforeseeable cause.
7.4 It is your responsibility to use the Equipment safely. Purchaser is responsible for any harm that Purchaser and Purchaser’s agents and/or assigns cause to other people, including any passenger, animals, and/or any property. Purchaser acknowledges and agrees to not allow any person (i) under the age of 16, (ii) under the influence of alcohol or drugs,(iii) without a helmet, or (iv) with any passengers to operate/use the Equipment. Purchaser agrees to never exceed the weight limit and to operate and use the Equipment in accordance with the owner’s manual.
7.5 The Equipment requires periodic battery charging to operate. The level of charge power will decrease with use over both time and distance. The Equipment may lose battery charge for various reasons, including due to weather, road conditions, vehicle type and other factors. It is your responsibility to be aware of the level of charge power in the Equipment.
7.6 Purchaser agrees to use the Equipment only for use as specified in the owner’s manual, in accordance with all applicable laws, ordinances and regulations, safety and warning decals, manuals and other instructions issued by Seller, including any warranty coverage requirements, and insurance policy terms and requirements. Purchaser further agrees to not remove safety decals on the Equipment.
7.7 Remedies. The rights and remedies provided to a party under this Agreement shall be in addition to, and not in lieu of, all other rights and remedies available to such party at law or in equity.
Section 8. INTELLECTUAL PROPERTY
8.1 Purchaser agrees that it does not have any property interest in Seller’s intellectual property, including, but not limited to, its trademarks, trade names, drawings, copyrights, trade secrets, patents, know how or other proprietary rights of any nature whatsoever, whether or not incorporated in the Equipment described in the Agreement, and Purchaser will not attempt to reverse engineer the Equipment or any component thereof or disclose or use any such intellectual property.
Section 9. LIMITATION OF LIABILITY
9.1 No Consequential or Indirect Damages. IN NO EVENT SHALL SELLER OR ANY OF ITS EMPLOYEES OR AGENTS BE LIABLE UNDER THIS AGREEMENT TO PURCHASER OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, REPRESENTATIVES, OR ANY OTHER PERSON OR ENTITY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THE USE OF THE EQUIPMENT OR ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT PURCHASER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
9.2 Maximum Liability. IN NO EVENT SHALL SELLER’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 TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE EQUIPMENT.
9.3 If Remedy Fails of Essential Purpose. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 9 SHALL APPLY EVEN IF PURCHASER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. Each party acknowledges and agrees that the parties entered into the Agreement in reliance upon the limitations of liability set forth in this Section 9, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
Section 10. MISCELLANEOUS
10.1 Parties in Interest. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective agents, heirs, executors, administrators, successors and assigns.
10.2 Assignment. This Agreement shall not be assignable by Purchaser to any other party without the prior written consent of Seller.
10.3 Waivers. Except as provided in this Agreement, no delay on the part of either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of either party of any such right, power or privilege, nor any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
10.4 Counterparts. This Agreement may be executed concurrently in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same Agreement.
10.5 Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia without giving effect to its principles of conflicts of laws. Any dispute of or relating to this Agreement or the Equipment shall be brought in the state or federal court having jurisdiction over the County of Franklin, Virginia.
10.6 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, the remaining provisions of this Agreement shall not be affected thereby.
10.7 Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties with respect to the subject matters hereof. This Agreement may not be modified or amended except by written agreement which specifically references this Agreement and which is signed by both parties. Purchaser understands that this Agreement contains all terms and conditions of purchase and that no verbal discussions supplement or extend the terms in this agreement and only the specific terms set forth in the written agreement constitute the entire agreement between the parties.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the Effective Date.
Name: James Edwards
Title: Partner, Tuore-V
Date: February 8, 2023