VirtuaPin™ PURCHASE AGREEMENT
(a) "Deliverables" means the deliverables VirtuaPin Cabinets provides to BUYER as described in this Agreement.
(b) "Government Authority" means any governmental authority or court, tribunal, agency, department, commission, arbitrator, board, bureau, or instrumentality of the United States of America or any other country or territory, or domestic or foreign state, prefecture, province, commonwealth, city, county, municipality, territory, protectorate or possession.
(c) "Law" means all laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of law of any Government Authority.
VirtuaPin Cabinets agrees to provide the ordered Deliverables.
(a) Ownership, Title, and Risk of Loss. Ownership of, title to, and risk of loss for the Deliverables passes to BUYER upon VirtuaPin Cabinets's delivery of the Deliverables to a nationally reputable carrier, fully insured with a nationally reputable insurer (such insurance and shipping costs will be invoiced to BUYER at cost).
(b) Pass-Through. Without limiting any other terms and conditions set forth in this Agreement, VirtuaPin Cabinets agrees to pass through or assign to BUYER any third party warranty and any other rights which VirtuaPin Cabinets receives in connection with any Deliverables.
(c) Documentation. VirtuaPin Cabinets agrees to deliver with the Deliverables copies of the documentation and other materials that VirtuaPin Cabinets ordinarily provides to purchasers of the Deliverables.
4. FEES. Except as expressly stated in this Agreement, there are no additional fees, charges or expenses incurred. In consideration for VirtuaPin Cabinets performing all obligations under this Agreement, BUYER agrees to pay VirtuaPin Cabinets a flat fee as denoted in the individual VirtuPin purchase Receipt. Cancellations prior to shipping will incur a 30% restock fee.
(a) Mutual Warranties. Each party represents, warrants and covenants to the other that:
(i) Law Compliance. It complies with all applicable Laws.
(b) Warranties by VirtuaPin Cabinets. VirtuaPin Cabinets represents, warrants and covenants to BUYER that:
(i) Warranty Length. For a period of thirty (30) days after receipt, the Deliverables conform to the requirements of this Agreement, are free from any defect in material and workmanship, and are free of all liens, claims and encumbrances of any kind. Electronic components are to be covered by their individual manufacturer's warranties.
(c) Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, BUYER AND VirtuaPin Cabinets EACH MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OR COVENANTS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. INDEMNIFICATION. The term "Claim" means any claim, suit or action by any third party, and the term "Losses" means any damages awarded and fines assessed in any Claim by a court of competent jurisdiction or pursuant to an arbitration proceeding, any amounts due under Claim settlement, and any other costs or expenses incurred in complying with any injunctive or equitable relief or any settlement requirements.
(a) Party Indemnification.
(i) Indemnification by VirtuaPin Cabinets. Upon receipt of notice from BUYER requesting VirtuaPin Cabinets to do so, VirtuaPin Cabinets agrees to indemnify, defend, and hold harmless BUYER and its affiliates, subsidiaries, shareholders, members, directors, officers, employees, agents, and parents, from and against any Claim, and any associated Losses to the extent caused by violation of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right due to VirtuaPin Cabinets providing the Deliverables (except to the extent a Claim is caused by BUYER's internally created specifications).
(ii) Indemnification by BUYER. Upon receipt of notice from VirtuaPin Cabinets requesting BUYER to do so, BUYER agrees to indemnify, defend, and hold harmless VirtuaPin Cabinets and its affiliates, subsidiaries, members, and employees, from and against any Claim, and any associated Losses to the extent caused by violation of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right to the extent caused by BUYER's internally created specifications or BUYER's use of the Deliverables.
(b) Indemnification Procedures. The term "indemnifying party" means the party assuming indemnification obligations under this Agreement, and the term "indemnified party" means all parties, including any third parties, which the indemnifying party agrees to indemnify under this Agreement.
(i) Notice. The indemnified party must give the indemnifying party prompt written notice of a Claim, provided, however, that failure of an indemnified party to give prompt written notice does not relieve the indemnifying party from its indemnification obligations under this Agreement except to the extent the defense is materially prejudiced by the failure. When the indemnifying party receives notice of a Claim from an indemnified party, the indemnifying party agrees, at its sole cost and expense, to assume the defense of the Claim by representatives chosen by the indemnifying party. The indemnified party may participate in the defense of the Claim and employ counsel at its own expense to assist in the defense of the Claim, subject to the indemnifying party retaining final authority and control over the conduct of the defense.
(ii) Conduct of Defense. The indemnifying party's defense attorneys must be reasonably experienced and qualified in the areas of litigation applicable to the defense. The indemnifying party has the right to assert any defenses, causes of action or counterclaims arising from the subject of the Claim available to the indemnified party and also has the right to settle the Claim, subject to the Indemnified party's prior written consent to the extent the settlement affects the rights or obligations of the indemnified party. The indemnified party agrees to provide the indemnifying party with reasonable assistance, at the indemnifying party's expense, as may be reasonably requested by the indemnifying party in connection with any defense, including, without limitation, providing the indemnifying party with information, documents, records and reasonable access to the indemnified party as the indemnifying party reasonably deems necessary.
7. TERM AND TERMINATION.
(a) Term. The term of this Agreement (together with any renewals, the "Term") begins on the Effective Date and expires 1 year later. Any renewal term shall be mutually agreed to by the parties in writing.
(b) Survival. The following captioned sections survive any termination, expiration or non-renewal of this Agreement: "Disclaimer", "Indemnification", "Survival", "Publicity" and "General", as well as any other provisions expressly stating that they are perpetual or survive this Agreement.
(c) Termination for Insolvency. If either party is adjudged insolvent or bankrupt, or upon the institution of any proceedings by it seeking relief, reorganization or arrangement under any Laws relating to insolvency, or if an involuntary petition in bankruptcy is filed against a party and the petition is not discharged within sixty (60) days after filing, or upon any assignment for the benefit of a party's creditors, or upon the appointment of a receiver, liquidator or trustee of any of a party's assets, or upon the liquidation, dissolution or winding up of its business (each, an "Event of Bankruptcy"), then the party affected by any Event of Bankruptcy must immediately give notice of the Event of Bankruptcy to the other party, and the other party may terminate this Agreement by notice to the affected party.
(d) Termination for Breach. If either party breaches any provision contained in this Agreement, and the breach is not cured within thirty (30) days after the breaching party receives notice of the breach from the non-breaching party, the non-breaching party may then deliver a second notice to the breaching party immediately terminating this Agreement.
8. PUBLICITY. Each party agrees to not make, publish or distribute (whether in print, electronically or otherwise) any public announcements, press releases, advertising, marketing materials or promotional materials regarding the execution or performance of this Agreement without the prior written consent of the other party.
9. GENERAL. Entire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements regarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be amended only in a written document, signed by both parties.
Independent Contractors, Third Party Beneficiaries, and Subcontractors. The parties acknowledge that they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents, has the power or authority to bind or obligate another party. Except if expressly stated, no third party is a beneficiary of this Agreement. BUYER may not subcontract any obligation under this Agreement without VirtuaPin Cabinets's prior written consent. VirtuaPin Cabinets can subcontract without BUYER's consent. Each party is responsible for its subcontractors' compliance with and breach of this Agreement as if the subcontractors' acts and omissions were the party's own. Governing Law and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws of the State of Michigan, applicable to contracts wholly made and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in Michigan, regardless of the inconvenience of the forum, except that a party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
Assignment. This Agreement binds and inures to the benefit of the parties' successors and assigns. This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by any party in whole or in part without the prior written consent of the other party (or parties). Any transfer, assignment, delegation or sublicense by a party without such prior written consent is invalid. However, any party may assign this Agreement to a third party purchasing: (a) majority control of the party's equity shares; or (b) all or substantially all of either (i) a party's assets or (ii) the assets of the party's relevant business unit under this Agreement. No Waivers, Cumulative Remedies. A party's failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly stated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive.
Severability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions.
Notices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery to the address set forth in this Agreement by each party. Captions and Plural Terms. All captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have the same meaning in the plural and vice versa.
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