BY USING ANY PRODUCTS (“PRODUCTS”) MANUFACTURED, DISTRIBUTED, OR SOLD BY UV3 VENTURES, LLC, D/B/A UV GUARDIAN (the “COMPANY”), YOU (the “BUYER”) AGREE TO THE FOLLOWING TERMS, CONDITIONS AND LIMITATIONS. PLEASE READ THEM CAREFULLY BEFORE PURCHASING OR USING ANY OF THE COMPANY’S PRODUCTS.
1. Use of Products. Buyer acknowledges and agrees that it will use the Products strictly in compliance with the Owner’s Manual provided by Company, subject to all standards, recommendations, guidelines and warranty requirements set forth therein. Buyer further acknowledges and agrees that these Terms and Conditions are contractual in nature and not a mere recital and that, by purchasing and/or using the Products, Buyer intends to and shall be bound by the terms hereof.
2. Representations. Buyer represents, warrants, and acknowledges that: (i) these Terms and Conditions are a material inducement to Company’s willingness to sell the Products and constitute a legal, valid, and binding obligation upon Buyer; (ii) the person purchasing the Products on Buyer’s behalf has the requisite capacity and authority to bind Buyer to these Terms and Conditions; (iii) Company has the legal right to sell, and Buyer has the legal right to purchase, the Products; and (iv) no consent of any other person, political body, board of directors, or entity is necessary for either Party to enter into and fully effectuate the contemplated purchase. Buyer further represents that it is relying solely upon the terms and conditions set forth in these Terms and Conditions and the separate purchase order, if any, and that it is not relying upon any warranties, representations, assurances, or inducements that are not expressly set forth in these Terms and Conditions or any purchase order (and Company hereby expressly disclaims the same).
Buyer further represents and warrants the accuracy of all measurements and dimensions provided to Company in furtherance of ordering any Products (including, but in no way limited to, space available for the installation of any Products and specifications provided by Buyer in order for Company to determine particular sizes or dimensions of any Products) and Buyer acknowledges that the failure to provide accurate measurements and/or dimensions shall constitute a breach of its warranties and representations under this Agreement, entitling Company to indemnification as set forth in this Agreement.
3. Returns. In the event Buyer determines that the Products delivered fail to conform to the purchase order, Buyer must notify Company within three (3) business days of receipt of the Products of such non-conformity and allow Company a reasonable time to cure any defect. Products sold to Buyer shall be deemed received by Buyer when delivered to Buyer at the address provided to Company. If Company agrees that the Products do not conform to the purchase order, Company will take reasonable steps to remedy the situation and may replace any non-conforming portion of the Products within a commercially reasonable period of being placed on notice of the same. In the event, and only in the event, the Parties agree that any Products are non-conforming, and when such Products are to be returned to Company, Company will pay shipping costs associated with the same and will assume title and risk of loss for such non-conforming Product F.O.B. Company’s business address.
All Products returned to Company for work under warranty or work undertaken at Buyer’s request and at its costs, shall be returned in a clean and dry condition, properly packed in original packaging and protected from damage in transit. Should Company judge that the Products are not in fit condition unrelated to the alleged non-conformity, Buyer shall bear all costs of putting such Products in fit condition as reasonable required by Company. Whether repair work is done under warranty or upon Buyer’s commission, or Products are returned to Company for any reason other than the Parties’ agreement that such Products are non-conforming, Buyer is responsible for the costs of shipping Products to and from Company.
4. Title and Risk of Loss. Unless otherwise specified by Company in a purchase order or other written document, title and risk of loss for the Products shall pass to Buyer F.O.B. Company’s distribution center or other location from which Products are being shipped, except that, in the event the full purchase price has not been paid prior to shipping, Company will retain a security interest in and against the Products and the title thereto until such time as Buyer has paid the purchase price specified in the purchase order. Buyer expressly agrees that it is solely responsible for all costs and arrangements for picking up, loading, shipping, and insuring the Products from Company’s facilities on the delivery date. Notwithstanding any failure of Buyer to timely take possession of the Products, Company shall not be liable for consequential loss or any other loss or damages, whatsoever, occurring after the Products arrive at the shipping point.
5. Disclaimer of Warranty. The Products are covered by warranty to the extent specified in the Limited Warranty, attached hereto as Exhibit A and incorporated herein by this reference. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS OR THE WARRANTY GUIDE, ALL PRODUCTS TO BE PURCHASED FROM COMPANY BY BUYER AS PART OF THE CURRENT OR ANY FUTURE OR PAST TRANSACTION ARE FURNISHED AS IS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Buyer expressly agrees that the Products have a limited life, the length of which is determined by the amount of use, and that it has no claim for any loss or damages because of Products deteriorating through use. Buyer further acknowledges that any defect arising from misuse, abuse, improper installation (if not installed by Company), or failure to abide by the requirements and recommendations set forth in the UV Guardian Owner’s Manual (as provided with each Product), shall automatically invalidate any and all warranties that may otherwise apply. Further, while the Products are designed to lessen the possibility of viral transmission, Company expressly disclaims any warranty, representation or guaranty that use of the Products will completely prevent the transmission or contraction of any viral, bacterial, or other type of infectious particle or allergen in any area in which the Products are used.
6. Insurance. At all times during which Buyer owns, operates or uses the Products being sold hereunder by Company, Buyer shall maintain in force the following insurance policies with reputable insurance companies authorized by law to conduct business in the United States and Canada with the financial rating of at least A-VII status, as rated in the most recent edition of Best's Insurance Reports: (i) a commercial general liability insurance policy with full limits, achieved either by primary or excess/umbrella insurance, for bodily injury and property damage for not less than One Million Dollars ($1,000,000.00 USD ) per occurrence, with an aggregate limit of Two Million Dollars ($2,000,000.00 USD ), such policies to include products liability and contractual liability; (ii) workers’ compensation in compliance with local legislation and employer’s liability with a One Million Dollars ($1,000,000.00 USD ) limit per occurrence, and (iii) if services are provided by Company under any purchase order or in connection with Products sold under a purchase order, a professional liability or errors and omissions policy with limits not less than Two Million Dollars ($2,000,000 USD) per occurrence and Five Million Dollars ($5,000,000 USD) aggregate. On each policy, Buyer agrees to name Company as an additional insured.
7. Indemnity. Buyer shall defend, indemnify and hold Company (including its parents, subsidiaries, affiliates, officers, directors, members, shareholders, employees, agents, and other representatives) harmless from and against any and all claims, actions, lawsuits, liabilities, costs, expenses, damages and losses (including, without limitation, any direct, indirect, special, or consequential losses, loss of reputation and all interest, penalties and legal and other professional costs and expenses, including without limitation, the cost of internal resources) suffered or incurred by Company arising out of or in connection with: (i) any breach by Buyer of any representations or warranties contained in these Terms and Conditions; (ii) any failure to abide by the Owner’s Manual; (iii) violation of any law by Buyer; (iv) failure, malfunction or defect in any existing trampoline structure or component not provided by Company; (v) improper installation, attachment or securement of any Products to existing structures if such installation is not performed by Company; and, (vi) in the event that Buyer is negligent or fails to comply with the UV Guardian Owner’s Manual, (a) any actual or alleged defect in the Product; and (b) any claim made against Company by a third-party for death, personal injury or damage to property arising out of, or in connection with the Products.
8. Limitation of Liability. Company shall not be liable to Buyer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any: (i) loss of profit; (ii) loss of business; or (iii) indirect, special, punitive, or consequential damages suffered by Buyer that arises under or in connection with Buyer’s purchase or use of the Products, and Company’s total liability arising under or in connection with said purchase or use shall be limited to the purchase price of the Product or price set forth in a corresponding purchase order.
9. Export/Import. Company’s obligations related to the sale, purchase, use, and delivery of the Products are subject to Company’s ability to obtain any necessary export licenses or permits. Buyer agrees that it is solely responsible for obtaining all necessary import licenses or permits.
10. Waiver of Subrogation. Buyer waives all rights against Company, including all of Company’s officers, agents, employees, shareholders and affiliates, for all losses of any variety to the extent such losses are covered by any policy of insurance required in these Terms and Conditions or any other applicable insurance policy applicable to Buyer’s use of the Products, except such rights as Buyer has to the proceeds of such insurance. The policies of insurance purchased and maintained by Buyer in accordance with these Terms and Conditions shall not prohibit this waiver of subrogation. This waiver of subrogation shall be effective as to a person or entity (1) even though that person or entity would otherwise have a duty of indemnification, whether contractual or otherwise, (2) even though that person or entity did not pay the insurance premium directly or indirectly, and (3) whether or not the person or entity had an insurable interest in the damaged property or other covered loss.
11. Intellectual Property. Buyer, by purchasing Products, does not obtain any rights in or to Company’s Intellectual Property. “Intellectual Property” means any patents, utility models, rights to inventions, copyright and neighboring and related rights, trademarks, service marks, business names and domain names, right in get-up and trade dress, unique or distinctive elements of the Product or Product designs, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, Confidential Information (as defined below), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms or protection which subsist or will subsist now or in the future in any part of the world. Company shall at all times own and have exclusive right, title and interest in and to all of its Confidential Information and Intellectual Property, and Company shall retain the exclusive right to license, sell, transfer and otherwise use and dispose of the same. Buyer shall not (a) acquire any interest or claim in any of Company’s Intellectual Property on account of or related to this Agreement, or (b) apply for any patent or other Intellectual Property rights therefore. Buyer hereby acknowledges that the ownership of all Intellectual Property is and shall at all times remain Company’s sole property, and that any use thereof or goodwill associated thereto in relation to the Products shall inure to the exclusive benefit of Company and its affiliates, and that nothing in the Agreement will confer on Buyer any right, title or interest in, to or under any of Company’s Intellectual Property. Buyer, its employees and agents shall not contest or assist a third-party in contesting the validity of Company’s Intellectual Property worldwide. In the event Buyer at any time obtains or claims any rights in or to the Intellectual Property, Buyer shall promptly notify Company of such event and shall immediately transfer such rights to Company or its affiliates, as directed by Company, and provide all required assistance and documentation related to such transfer. For such purposes, Buyer hereby appoints Company as its attorney-in-fact for the transfer of such rights.
