NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Sale of Goods
Seller (Freedom Stone + Pondscapes, LLC) shall sell to Buyer (the undersigned), and Buyer shall purchase from Seller the goods described on Exhibit A attached hereto (the “Goods”), in the quantities and at the prices set forth therein (the “Prices”), upon the terms and conditions contained in this Agreement.
2. Delivery
(a) Seller estimates delivery of the Goods within 30 days after submission of Buyer’s purchase order, subject to availability of finished Goods. Such time of delivery is an estimate only, and Seller shall not be liable for any delay in delivery or loss or damage of the Goods in transit.
(b) Unless otherwise agreed in writing by the Parties, Seller shall deliver the Goods to Buyer’s address provided in the preamble to this Agreement (the “Delivery Location”) using, as applicable, the methods selected by Seller, in Seller’s sole discretion, for packaging and shipping such Goods. Buyer shall be deemed to have received the Goods on the date the Goods are delivered to the Delivery Location (“Delivery Date”).
(c) Seller may, in its sole discretion, without liability or penalty, tender delivery of Goods to Buyer in partial fulfillment of the quantity purchased under this Agreement. Buyer shall pay, in accordance with Section 7 hereof, for the Goods tendered for delivery, whether such tender is in whole or partial fulfillment of the quantity purchased hereunder.
(d) If for any reason Buyer fails to accept delivery of any of the Goods by the Delivery Date, or if Seller is unable to deliver the Goods at the Delivery Location owing to any act or omission of Buyer or its representatives, including without limitation the failure to provide appropriate instructions, documents, licenses, or authorizations: (i) Buyer shall bear the risk of loss to the Goods; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. Non-Delivery
The quantity of any delivery of Goods as recorded by Seller on tender of delivery is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide documentary evidence as Seller may reasonably require to establish the contrary. Seller shall not be liable for any non-delivery of Goods unless Buyer gives written notice to Seller of the non-delivery within five (5) business days of the Delivery Date. Any liability of Seller for non-delivery of Goods shall be limited to either, at Seller’s sole option: (i) Seller’s delivery of the undelivered Goods at the Delivery Location within a commercially reasonable period of time; or (ii) pro rata adjustment of the invoice to reflect the quantity of Goods actually delivered by Seller.
4. Title and Risk of Loss
Title and risk of loss pass to Buyer upon tender of delivery of the Goods at the Delivery Location.
5. Inspection and Rejection of Nonconforming Goods
(a) Buyer shall inspect the Goods within one (1) business day of receipt (the “Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as may be reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) the product’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, either (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Prices for such Nonconforming Goods. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at Seller’s address provided in the preamble to this Agreement within three (3) business days of Seller’s receipt of Buyer’s written notice and any written evidence or other documentation of Nonconforming Goods reasonably required by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, within a commercially reasonable time after receiving Buyer’s shipment of Nonconforming Goods, tender delivery of the replacement Goods to Buyer, at Buyer’s expense and risk of loss, at the Delivery Location.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 5(b), Buyer has no right to return Goods purchased under this Agreement to Seller.
6. Taxes
All Prices are exclusive of all sales, use, excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, real property, personal property, or other assets.
7. Payment Terms
Seller shall issue an invoice to Buyer upon receipt of Buyer’s purchase order. Buyer shall pay all invoiced amounts due to Seller on receipt of Seller’s invoice. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder.
8. No Setoff
Buyer shall perform its obligations under this Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed (or to become due and owing) or payable to it by Seller, whether under this Agreement, applicable law, or otherwise, and whether relating to Seller’s breach, bankruptcy, or otherwise.
9. Warranties
(a) Seller warrants to Buyer that for a period of one (1) year from the Delivery Date (the “Warranty Period”), the Goods will be free from material defects in material and workmanship.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, including any (i) warranty of merchantability or (ii) warranty of fitness for a particular purpose, whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise.
(c) Seller shall not be liable for a breach of the warranty set forth in Section 9(a) unless: (i) Buyer gives written notice of a claimed defect, reasonably described, to Seller within fifteen (15) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving such notice to examine the Goods affected and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that such Goods are defective.
(d) Seller shall not be liable for a breach of the warranty set forth in Section 9(a) if: (i) Buyer makes any further use of the Goods affected after giving notice of a claimed defect; (ii) a defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, use, or maintenance of the Goods; or (iii) Buyer alters or repairs the Goods without the prior written consent of Seller.
(e) Subject to Section 9(c) and Section 9(d), with respect to any Goods affected by a defect during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate, provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
(f) The remedies set forth in Section 9(e) shall be Buyer’s sole and exclusive remedy and Seller’s entire liability for any breach of the limited warranty set forth in Section 9(a).
10. Limitation of Liability
(a) In no event shall Seller be liable for any consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages, lost profits or revenues, or diminution in value, arising out of or relating to or in connection with this Agreement, regardless of (i) whether such damages were foreseeable, (ii) whether or not Seller was advised of the possibility of such damages, (iii) the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based, and (iv) the failure of any agreed or other remedy of its essential purpose.
(b) 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 Goods sold hereunder.
11. Compliance with Law
Buyer is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
12. Indemnification
Buyer shall indemnify, defend, and hold harmless Seller, its officers, directors, managers, members, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement and of pursuing any insurance providers, incurred by Indemnified Party, relating to any claim of a third party or Seller arising out of or occurring in connection with the Goods or Buyer’s negligence, willful misconduct, or breach of this Agreement. Buyer shall not enter into any settlement without Seller’s and any other applicable Indemnified Party’s prior written consent.
13. Termination
In addition to any other remedies that may be available to Seller under this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, is generally unable to pay, or fails to pay its debts as they become due, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
14. Mechanic’s Liens
The Parties acknowledge that the Goods are being purchased for the purpose of being incorporated into real property. Buyer represents and warrants to Seller that Buyer has complied with the provisions of Missouri Revised Statute § 429.013, and Buyer shall provide a copy of the notice required thereby to Seller along with each purchase order submitted by Buyer and immediately upon request by Seller.
15. Confidential Information
The terms and conditions of this Agreement and the transactions contemplated hereby and all non-public, confidential, or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or in written, electronic, or other form or medium, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement are confidential, solely for the purpose of this Agreement and the transactions contemplated hereby, and may not be disclosed or copied unless authorized by Seller in writing. Upon Seller’s request, Buyer shall promptly return all Seller documents and other materials received by Buyer from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
16. Entire Agreement
This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
17. Survival
Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) any provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
18. Enforcement and Attorneys’ Fees
If it becomes necessary for one party to employ the services of an attorney for the protection and enforcement of its rights under this Agreement, or to compel performance of the other party’s obligations under this Agreement, the party prevailing in such action shall be entitled to recover from the non-prevailing party the cost of such action so incurred, including, without limitation, reasonable attorneys’ fees, costs, and necessary disbursements prior to trial, at trial, and on appeal, in addition to any other relief to which such party shall be entitled.
19. Notices
All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth in the preamble to this Agreement (or to such other address as the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid).
20. Severability
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
21. Amendments
No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
22. Waiver
No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
23. Cumulative Remedies
All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Buyer’s rights under Sections 3, 5, and 9 are Buyer’s exclusive remedies for the events specified therein.
24. Assignment
Buyer shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Seller. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations hereunder. Seller may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under this Agreement without Buyer’s prior consent.
25. Successors and Assigns
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
26. No Third-Party Beneficiaries
This Agreement benefits solely the Parties and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other individual or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
27. Choice of Law
This Agreement and all related documents, including all exhibits, schedules, attachments, and appendices attached hereto and thereto, are governed by, and construed in accordance with, the laws of the State of Missouri, without giving effect to the conflict of laws provisions thereof.
28. Choice of Forum
Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of Cass County, Missouri, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
29. Counterparts
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 17, a signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
30. Force Majeure
Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes, or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials, or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
31. Relationship of the Parties
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
