THIS CONTRACT for the sale of goods is made by and between Glice LLC, 50 West Mashta, Suite 6, Key Biscayne, FL 33149, USA (“SELLER”) and the buyer (“BUYER”) (collectively, SELLER and BUYER are referred to as the “PARTIES”). The PARTIES agree to the following terms:
1. BUSINESS IDENTIFICATION
SELLER is in the business of manufacturing synthetic ice rinks.
BUYER shall have the right to inspect the goods upon receipt, and within one (1) business day after delivery, BUYER must give notice to seller of any claim for damages on account of condition, quality, or grade of the goods, and BUYER must specify the basis of the claim in detail, including submitting photographs to SELLER. Failure of BUYER to comply with these conditions will constitute irrevocable acceptance of the goods by BUYER. All notices between the parties must be in writing and delivered by courier, by certified mail, or by electronic means with confirmation of receipt. Potential returns are at the discretion of the SELLER.
Goods are deemed received by BUYER upon delivery to BUYER’s address as set forth above.
3. SELLER’S REPRESENTATIONS AND WARRANTIES
SELLER disclaims liability for incidental or consequential damages and assumes or undertakes no responsibility or liability for any loss or damage of any sort suffered by any person as a result of the use or misuse of any product or information of the SELLER.
Disclaimer of all warranties: THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION OF THE GOODS PROVIDED ON THE FACE OF THIS CONTRACT. SELLER DISCLAIMS ANY WARRANTY OF ANY OTHER KIND, INCLUDING ANY WARRANTY THAT THE GOODS ARE MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE. No agent, employee, or other representative of SELLER shall have authority to bind SELLER to any representation, promise, affirmation, or warranty regarding the goods purchased under this Agreement. BUYER acknowledges that it shall not rely on any representation by SELLER other than a representation expressly set forth in this Agreement. SELLER warrants that the goods are free from any and all security interests, liens, and encumbrances. No other warranty, express or implied is made by SELLER and none shall be imputed or presumed.
4. TAXES AND GOVERNMENTAL APPROVAL COSTS
BUYER shall be responsible for the payment of all sales taxes, tariffs or governmental charges including but not limited to costs of construction; any and all approval(s), and BUYER further agrees to be responsible for all costs associated as may be required by any Federal, State or local governmental agency, body or entity, including the owner of the property or facility in which the Goods are to be installed or located. SELLER accepts no liability or responsibility of the payment of any of the costs associated with the use of the Goods sold to BUYER.
5. RELEASE OF LIABILITY AND INDEMNITY AGREEMENT
BUYER ACKNOWLEDGES and ACCEPTS THAT THE INSTALLATION AND USE OF SELLER’S GOODS ARE INHERENTLY HAZARDOUS AND DANGEROUS AND INCLUDE A HIGH RISK OF INJURY AND DEATH.
Furthermore, BUYER agrees to execute EXHIBIT B, which is attached hereto and by this reference incorporated herein. BUYER acknowledges that its execution of EXHIBIT B is an express condition precedent to the formation of a contract between SELLER and BUYER and that SELLER shall have no duty to perform any act unless BUYER returns to SELLER a properly executed EXHIBIT B.
BUYER also agrees to post clear signage within ten (10) feet of the location of SELLER’S installed Goods providing notice to and advising those who may come into contact with SELLER’S Goods that use of the GOODS is inherently dangerous and hazardous and includes a high risk of injury or death.
6. GOVERNING LAW & CHOICE OF FORUM
This Contract shall be governed either by the laws of the State of California or the State of Florida, which election shall be made in SELLER’s sole discretion. SELLER AND BUYER agree that the chosen state’s applicable UNIFORM COMMERCIAL CODE (UCC) sections shall govern the interpretation of this Contract. If one of the states’ laws are elected by SELLER, and the court determines that, for any reason, the chosen state’s laws are not applicable, then the other of the two states’ laws shall apply.
The Parties consent to personal jurisdiction in the State of California, and agree that the forum for any action brought in connection with this Agreement shall be the state courts of the State of California.
7. FORCE MAJEURE
SELLER may without liability, delay performance or cancel this Contract on account of force majeure events or other circumstances beyond its control, including, but not limited to, strikes, delays of shipping lines as well as delays at ports or customs, acts of God, political unrest, embargo, failure of source of supply or casualty.
Entire Contract. This Contract contains the entire agreement between the PARTIES and supersedes and replaces all such prior agreements with respect to matters expressly set forth herein. No modification shall be made to this Contract for Sales of Goods except in writing and signed by both PARTIES. This Contract shall be binding upon the PARTIES and their respective heirs, executors, administrators, successors, assigns and personal representatives.
Revocable Offer. This order may be revoked at any time prior to receipt of full payment by BUYER. If SELLER has not previously revoked it, then the order will terminate if SELLER does not receive full payment within thirty days of SELLER’S first submission of this Contract to BUYER.
Attorney’s Fees. In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its contractual rights under this Agreement or seeks a declaration of any rights or obligations under this Agreement, in addition to any other relief to which the prevailing party may be entitled, the prevailing party shall be entitled to recover its reasonable attorney fees, costs and expenses to resolve the dispute and to enforce the final judgment.
Limitation on Actions. The PARTIES further agree that any action against SELLER, arising out of this Contract, must be brought within one year from the date of accrual.
Knowing Execution. The BUYER and SELLER have reviewed this Contract for the sale of Goods and fully understand its contents. BUYER is aware of the release of liability and obligation to indemnify contained herein. BUYER acknowledges that it has been given the opportunity to seek legal advice prior to the execution and acceptance of this Contract for Sales of Goods with SELLER.
Contract Interpretation. No party shall have any portion of this Contract interpreted against it by virtue of having drafted that portion or any other portion of this Contract.
Dispute Resolution. If a dispute arises out of or relates to this contract, or the breach thereof, and if the dispute cannot be settled through negotiation, the PARTIES agree first to try in good faith to settle the dispute by mediation before resorting to arbitration, litigation, or some other dispute resolution procedure. The PARTIES agree to equally share the costs of mediation. If either party commences arbitration, litigation or some other dispute resolution procedure before making a good faith attempt to mediate the dispute, that party waives its rights to recover its costs and attorney’s fees in that procedure, even if it is deemed the prevailing party. The Parties agree that the mediation called for by this provision shall take place in Los Angeles, California.
Limitation of Liability. The SELLER’S obligations with respect to goods accepted by the BUYER are limited to replacement or repair of defective parts and equipment or, at the SELLER’S option, to refund of the purchase price without further responsibility. The SELLER is not responsible for consequential damages. This provision will not be affected by the SELLER’S failure to repair any defect or replace defective parts or equipment to the BUYER’S satisfaction. The BUYER has accepted this restriction on its right to recover consequential damages as part of its bargain with the SELLER. The BUYER realizes and acknowledges that the price of the goods would be higher if the SELLER were required to bear responsibility for the BUYER’S damages.
Severability. If a court or an arbitrator of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid for any reason, the validity and enforceability of the remaining provisions of this Agreement shall not be affected.
As consideration for SELLER agreeing to sell its GOODS to BUYER, BUYER agrees to the following:
ASSUMPTION OF RISK. BUYER IS AWARE OF THE INHERENT RISKS OF INJURY, DEATH, AND PROPERTY DAMAGE INVOLVED IN THE USE OF THE GOODS. BUYER IS AWARE OF THE RISKS OF INJURY, DEATH, AND PROPERTY DAMAGE THAT MAY RESULT FROM, AMONG OTHER CAUSES, THE ACTIVE OR PASSIVE NEGLIGENCE OF GLICE LLC AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, MEMBERS AND REPRESENTATIVES (COLLECTIVELY, THE “RELEASED PARTIES”), INCLUDING WITHOUT LIMITATION THE RISK OF NEGLIGENT MANUFACTURING AND ASSEMBLY. BUYER VOLUNTARILY PURCHASES THE GOODS WITH KNOWLEDGE OF THE RISKS OF INJURY, DEATH, PROPERTY DAMAGE, AND OTHER RISKS, AND ASSUMES ANY AND ALL KNOWN AND UNKNOWN RISKS OF INJURY, DEATH, AND PROPERTY DAMAGE THAT MAY RESULT FROM THE USE OF THE GOODS.
RELEASE OF LIABILITY. BUYER RELEASES THE RELEASED PARTIES FROM ALL LIABILITY TO BUYER AND BUYER’S PRINCIPALS, EMPLOYEES, AGENTS, REPRESENTATIVES, GUARDIANS, SUCCESSORS, ASSIGNS, HEIRS, CHILDREN, AND NEXT OF KIN FOR ALL LIABILITY, CLAIMS, DAMAGE, OR DEMANDS FOR PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE, ARISING FROM OR RELATED TO THIS AGREEMENT OR TO THE USE OF THE GOODS. THIS RELEASE INCLUDES, WITHOUT LIMITATION, ANY PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE CAUSED BY THE ACTIVE OR PASSIVE NEGLIGENCE OF ANY OF THE RELEASED PARTIES. BUYER BEARS SOLE RESPONSIBILITY FOR ANY LOSS.
INDEMNIFICATION FOR THIRD PARTY CLAIMS. BUYER (THE “INDEMNITOR”) SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS GLICE LLC, AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, MEMBERS AND REPRESENTATIVES (COLLECTIVELY, THE “INDEMNITEE”), AGAINST ALL LIABILITY, DEMANDS, CLAIMS, COSTS, LOSSES, DAMAGES, RECOVERIES, SETTLEMENTS, AND EXPENSES (INCLUDING INTEREST, PENALTIES, ATTORNEY FEES, ACCOUNTING FEES, AND EXPERT WITNESS FEES) INCURRED BY INDEMNITEE (“LOSSES”), KNOWN OR UNKNOWN, CONTINGENT OR OTHERWISE, DIRECTLY OR INDIRECTLY ARISING FROM OR RELATED TO THE GOODS SOLD TO BUYER.