Terms and Conditions
This Agreement for Sale of Equipment (hereinafter, this “Agreement”) is made between Patton’s of California, LLC (hereinafter, “Seller”), a California limited liability company, with its principal office located at 16312 Bloomfield Avenue, Cerritos, California 90703, and buyer Seller and Buyer are hereinafter referred to collectively as the “Parties” and each a “Party.”
Seller warrants the Equipment to be free from defective material and workmanship and agrees to furnish free of charge any part or parts necessary to make good any defect directly traceable to a fault in material or workmanship of Seller, provided that the claim for any such defect is made within an agreed upon time period after installation of the Equipment and provided the defective part or parts are promptly returned to Seller’s factory, freight prepaid by Buyer. Equipment and accessories not of Seller’s sale and/or manufacture are warranted only to the extent that they are warranted by the manufacturers of the same.
Seller’s liability or warranty shall not exceed the amount of the Purchase Price indicated below. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
Buyer agrees that there have been no representations upon which it relied other than those set forth herein. Buyer further agrees that the use of the compressed air provided by the Equipment is the sole responsibility of Buyer, and Seller shall not be liable in any regard for Buyer’s misuse or misapplication of the Equipment.
In the event that Seller recommends higher quality air in critical applications, and Buyer decides against following Seller’s recommendation, then Seller shall not be liable in any regard for Buyer’s failure to follow Seller’s recommendation. For example, if Seller recommends a “class 0” air quality for food or pharmaceuticals, and Buyer elects to purchase equipment providing them with lower quality (“class 1” or greater), the Seller shall not be liable in any way to Buyer. Furthermore, should microbial contamination occur in Buyer’s supply lines as a result a result of failing to follow Seller’s recommendation, Seller has no liability to Buyer.
Security Interest in Equipment
As further consideration to Seller for the sale of the Equipment to Buyer, Buyer further agrees as follows: Obligations.
The obligations secured by this Agreement (hereinafter collectively, the “Obligations”) shall consist of any and all obligations of Buyer to Seller under this Agreement, and all debts, obligations, and liabilities of Buyer to Seller, of any kind and nature, whether due or not due, and whether the obligations may be or hereafter become otherwise invalid or unenforceable (including, without limitation, costs and expenses incurred by Seller in enforcing its rights under this Agreement).
Grant of Security Interest
In order to secure payment and performance of the Obligations, Buyer hereby pledges, assigns and grants to Seller a security interest in all right, title and interest of Buyer in and to the Equipment. Buyer grants to Seller all rights and remedies accorded to secured parties under the California Commercial Code including the right to unilaterally file a financing statement with the Secretary of State, or any other such documents that are necessary to perfect, renew or continue the grant of the security interest herein, as appropriate.
Representations and Warranties
Buyer hereby represents and warrants that: If Buyer is an entity, the exact legal name of Buyer as that name appears on its articles of incorporation, the type and jurisdiction of organization of Buyer are as set forth at the top of this Agreement;
If Buyer is an entity, Buyer is duly organized, existing and in good standing under the laws of the state of its incorporation and in every other state in which it is doing business; and If Buyer is an entity, the execution, delivery and performance of this Agreement are within the corporate power of Buyer, have been duly authorized, are not in contravention of law or any of the terms of Buyer’s articles of incorporation or bylaws, or of any other indenture, agreement or undertaking to which Buyer is a party or by which it is bound.
Covenants and Agreements of Buyer
Buyer hereby agrees, at no cost or expense to Seller: To do all acts (including execution of such other documents as Seller may request) that may be reasonably necessary to maintain, preserve, protect, and defend the Equipment, including Buyer’s title thereto, and the security interest of Seller therein; To not, without the prior written consent of Seller, pledge, mortgage, encumber, or otherwise permit the Equipment to be subject to any lien, security, or charge other than that created by this Agreement; To not, without the prior written consent of Seller, remove the Equipment or any records concerning the Equipment from its chief executive office; If Buyer is an entity, to not change its legal name, location, mailing address, type of organization, jurisdiction of organization, or chief executive office prior to giving at least ten (10) days’ written notice to Seller; and To allow, at all reasonable times, and from time to time, without the necessity of any prior notice or demand, Seller by or through any of its officers, agents, attorneys, accountants, or other representative, to examine or inspect the Equipment wherever the same may be located and to examine, inspect, and make copies of Buyer’s books and records respecting any or all of the Equipment.
Authorized Action by Seller
Buyer hereby agrees that, at any time, without presentment, or demand, and without affecting or impairing in any way the rights of the Seller with respect to the Equipment, the obligations of Buyer hereunder or the Obligations, Seller may, but shall not be obligated to and shall incur no liability to Buyer or any third party for failure to, take any action that Buyer is obligated by this Agreement to do and to exercise such rights and powers as Buyer might exercise with respect to the Equipment, and Buyer hereby irrevocably appoints Seller as its attorney-in-fact to exercise such rights and powers. Buyer agrees to reimburse Seller upon demand for any costs and expenses, including, without limitation, reasonable attorney’s fees, Seller may incur while acting as Buyer’s attorney-in-fact hereunder, all of which costs and expenses are included in the Obligations secured hereby. Buyer further agrees that Seller will not be responsible for any error, negligence, or for any sort of act or omission not amounting to willful misconduct, arising out of the exercise of the rights and powers of Buyer by Seller as attorney-in-fact.
As used herein, the term “Event of Default” shall mean, with respect to Buyer, the occurrence of any of the following: Failure of Buyer at any time to pay in full and as and when due any Obligations or failure of Buyer to perform any of the warranties, covenants or provisions contained or referred to herein or in any Agreement, document or other instrument evidencing any of the Obligations; Subjection by Buyer of any of the Equipment to execution or other judicial process, or the loss, theft, substantial damage, destruction, transfer (other than in the ordinary course of Buyer’s business) or the encumbrance of any of the Equipment; Death, dissolution, termination of existence, insolvency, business failure, appointment of a receiver of any part of the property of, assignment for the benefit of creditors by, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Buyer or any guarantor or surety for the Obligations; and breach by Buyer of any term of this or any other Agreement between Buyer and Seller.
Upon the occurrence of an Event of Default, Seller: Shall have and may exercise all rights and remedies accorded to Seller by the California Uniform Commercial Code. May declare all unperformed Obligations, in whole or in part, of Buyer immediately due and payable without demand or notice.
May require Buyer to take any and all action necessary to make the Equipment available to Seller. Buyer expressly waives any constitutional or other right to a judicial hearing prior to the time Seller takes possession or disposes of the Equipment upon occurrence of an Event of Default. Any deficiency with respect to the Obligations that exists after the disposition or liquidation of the Equipment shall be a continuing liability of Buyer to Seller and shall be immediately paid by Buyer to Seller.
All of Seller’s rights and remedies, whether evidenced by this Agreement or by any other writing, shall be cumulative and may be exercised singularly or concurrently. Election by Seller to pursue any remedy shall not exclude pursuit of any other remedy.
Freight Charges; Risk of Loss
Buyer agrees to pay the railway and freight charges on the Equipment from the point of shipment to destination, the cost of cartage, the cost of unboxing the Equipment and the handling the Equipment from depot to the floor where the Equipment is to be installed or erected. The risk of loss of or damage to the Equipment shall be on Buyer from point of shipment.
Foundation; Wiring and Other Equipment
Buyer agrees to furnish a suitable foundation upon which to install and/or erect the Equipment, with free and ready ingress and egress to and from the same, and Buyer further agrees to furnish all necessary wiring and other ancillary equipment, unless otherwise agreed upon in the provided proposal.
Seller and Buyer agree that the installation and/or erection of the Equipment shall be under the supervision of a competent erector, whose services shall be furnished without cost to Seller, and that Buyer shall furnish and pay for all equipment, materials and labor necessary for the installation and/or erection of the Equipment, including machinists, if required. Buyer further agrees to indemnify and save harmless Seller against any and all claims of any persons whatsoever, arising out of or resulting from the erection and operation of the Equipment; Seller will rely on Buyer’s representations that the Equipment is suitable and Buyer shall be solely liable for personal injuries or Equipment damage, whether to the Equipment, other ancillary equipment or otherwise, occasioned by or resulting from an unsuitable foundation.
Payment of Taxes and Other Charges
Buyer agrees to pay promptly when due all taxes, assessments and other public charges that might be directly or indirectly levied, rated, charged upon, or measured by or arise from the sale, transportation, delivery, use or consumption of the Equipment, or otherwise upon this transaction. If Buyer fails to make payment of the same or to file any required return, Seller shall have the right to file a return and to make payment of the tax and the amount so paid shall then become immediately due and payable by Buyer to Seller and shall be in addition to any and all other money due and payable under this Agreement.
Seller is authorized and empowered to enter in this Agreement the serial or other identification number of the Equipment after this Agreement has been executed.
Seller shall not be liable in any way for delay, non-delivery or default in shipment due to labor disputes, transportation shortage, delays in receipt of material, priorities, fires, accidents and all other causes beyond the control of Seller, affecting Seller or its suppliers. If Seller, in its sole judgment, shall be prevented directly or indirectly, on account of any cause beyond its control, from delivering the Equipment at the time specified or within 90 days after the date of this Agreement, then Seller shall have the right to terminate this Agreement by notice in writing to Buyer, which notice shall be accompanied by full refund of all sums paid by Buyer pursuant to this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of California. Buyer agrees that any legal action or other proceeding in connection with this Agreement must be commenced and prosecuted only in a court or other appropriate authority of competent jurisdiction sitting in the County of Los Angeles, State of California. To the full extent permitted by applicable law, Buyer hereby waives the right to trial by jury in connection with any such legal action related to this Agreement.
This Agreement will bind and inure to the benefit of each Party’s principals, agents, representatives, employees, partners, affiliated and subsidiary companies, and attorneys; all persons acting through, under the authority of, or in concert with any of them; and their successors, assigns, heirs, executors, and administrators.
This Agreement contains the entire agreement between the Parties respecting the matters set forth in the Agreement and supersedes all prior agreements between the Parties respecting those matters.
No amendment or other modification, rescission, release, annulment, or assignment of any part of this Agreement will be effective except pursuant to a written agreement subscribed by the duly authorized representatives of the Parties. No assignment of this Agreement or any portion of it will be effective as to any discharge or release unless specifically provided for in an instrument of consent to the assignment.
A Party may waive rights, powers, or privileges under this Agreement; provided, that any waiver must be in writing; and further provided, that no failure or delay on the part of a Party to exercise any right, power, or privilege under this Agreement will operate as a waiver of that right, power, or privilege, nor will any single or partial exercise of any right, power, or privilege under this Agreement preclude any other or further exercise of that right, power, or privilege, or the exercise of any other right, power, or privilege by a Party under the terms of this Agreement, nor will any such waiver operate or be construed as a future waiver of such right, power, or privilege under this Agreement.
If any provision or portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions will nevertheless continue in full force and effect without being impaired or invalidated in any way; provided, however, that there shall be deemed to be made in any invalid or unenforceable provision or portion of an invalid or unenforceable provision any minor changes, and only those minor changes, as are necessary to make it valid and enforceable.
Any captions to the sections or subsections of this Agreement are solely for the convenience of the Parties, are not a part of this Agreement, and shall not be used for the interpretation or determination of validity of this Agreement, or any provisions of this Agreement.
The Parties to this Agreement agree to make, execute, and deliver or cause to be made, executed, and delivered to the requesting Party any other instruments and to take any other actions as the requesting Party may reasonably require to carry out the terms of this Agreement and the transactions contemplated by this Agreement.
In the event of any litigation or arbitration to enforce the terms of this Agreement, the prevailing Party in the litigation or arbitration is entitled to recover from the other Party the prevailing Party’s costs of litigation or arbitration, including without limitation reasonable attorneys’ fees.
Joint Drafting and Neutral Construction
This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the Parties, and no rule of construction or interpretation shall apply against any particular Party based on a contention that the Agreement was drafted by one of the Parties including, but not limited to, Section 1654 California Civil Code, the provisions of which are hereby waived. This Agreement shall be construed and interpreted in a neutral manner.
Execution in Counterparts
This Agreement may be executed in any number of counterparts and by each Party to the Agreement on separate counterparts, each of which when so executed and delivered will be deemed an original and all of which taken together will constitute but one and the same instrument.