This Sale of Goods Agreement for purchases of ELECTRO FLASH MEDIA LLC with its principal
offices at 8517 Holloway Drive; West Hollywood, CA 90069; and online with its principal purchasers of ELECTRO FLASH MEDIA
APPAREL. The Seller and the Buyer may be referred to individually as a “Party” or collectively
as the “Parties.”
Pursuant to the terms and conditions of this Agreement, the Seller agrees to transfer ownership
and deliver possession to the Buyer, and the Buyer shall pay for and accept from the Seller, the
Goods listed in Exhibit A hereto, in such amounts and at such prices as agreed by the Parties.
The Seller shall sell the Goods to the Buyer at the prices specified in the price list in Exhibit B
attached hereto and made a part hereof. The price of each Good includes packaging costs, all
applicable taxes, customs duties, export duties, or similar tariffs or fees that the Seller may be
required to pay or collect in connection with the performance of its obligations under or in
furtherance of this Agreement. The Buyer will not be charged for insurance on or storage of the
The Seller hereby represents and warrants to the Buyer as follows:
(a) The Seller is the sole owner of the Goods, and the Goods are now, and will be at the
time of delivery, free and clear of all liens, charges, and encumbrances.
(b) The Seller has full right, power, and authority to sell the Goods.
(c) Neither the Goods nor the manufacturing process thereof infringe or will infringe the
intellectual property rights or any other rights of any third party.
(d) As of the Effective Date, the Seller neither knows nor has reason to know of the
existence of any outstanding title or claim of title hostile to the rights of the Seller in the Goods.
(e) The Seller is not bound by any warranty, representation, or affirmation outside the scope
of this Agreement concerning the Goods by any of its agents, employees, or representatives.
(f) The Goods will conform to the description and specifications made by the Buyer and are
free from defects in material and workmanship.
(g) (Optional) [The Seller does not warrant that the Goods are merchantable or fit for any
particular purpose and this sale is made “AS IS.” There are no express or implied warranties
made by the Seller, except as expressly stated in this Agreement.]
The Seller agrees to immediately notify the Buyer in writing if any facts or circumstances arise
that would make any of the representations in this Agreement inaccurate.
The Buyer hereby represents and warrants to the Seller that:
(a) The Agreement constitutes a legal, valid, and binding obligation enforceable in
accordance with its terms.
(b) Any taxes or other governmental charges imposed on the sale of the Goods under this
Agreement shall be paid by the Buyer.
(c) [Except as expressly stated in this Agreement, neither the Seller nor any party acting on
its behalf has made any representation or warranty, express or implied, concerning the Goods,
or their fitness for any particular use, it being the intention of the Parties that the Goods are sold
“AS IS.”]
The Buyer agrees to immediately notify the Seller in writing if any facts or circumstances arise
that would make any of the representations in this Agreement inaccurate.
A sample of the Goods has been exhibited to the Buyer, and such sample has been marked for
identification with the word “sample.” The Seller warrants that the remainder of the Goods will
conform to the sample, but disclaims any other express or implied warranties.]
The Buyer shall have the right to inspect the Goods, at its own expense and in any reasonable
manner, at the Seller’s online/live events facilities The Seller will permit the Buyer to enter its
premises at any time during normal business hours for purposes of performing this inspection. If
the Buyer fails to inspect the Goods after purchase, it will be deemed to have waived inspection
and to have unequivocally accepted the Goods. Once the Buyer has inspected the Goods, or
has waived or been deemed to have waived inspection, the Buyer may not reject or revoke
acceptance of the Goods thereafter. Once the Goods are delivered to the Buyer, the sale shall
be deemed final and conclusive.]
The Seller shall use its standard packaging on the Goods and shall set forth the Buyer’s order
number, contents, and weight on each package. All Goods shall be properly packed for
(a) Date of Delivery. The Buyer shall have the right to specify the date of delivery, which
shall be during normal business hours. Unless otherwise agreed by the Parties in writing, the
delivery date shall be any date within 30 days of the Buyer’s specified date. The Seller shall give
the Buyer reasonable notice of the pending delivery of the Goods.
(b) Location of Delivery. The Seller shall deliver the Goods to a location designated by the
Buyer (the “Delivery Point”)
(c) Notice. As soon as the Goods are shipped to the Delivery Point, the Seller will send
notification of such shipment to the Buyer in a commercially reasonable time and list the dates
and times at which the Buyer may take delivery after inspection.
(d) Risk of Loss. The Seller assumes responsibility for the Goods, and all risk of damage,
loss, or delay of the Goods, until the Goods are delivered to or collected by the Buyer at the
Delivery Point. Once the Goods have been delivered to or collected by the Buyer at the Delivery
Point, the Buyer assumes all responsibility for and risk of damage to such Goods.
10. TITLE.
Title in and to the Goods shall pass from the Seller to the Buyer when the Buyer receives the
Goods from the Seller or receives from the Seller an endorsed register able bill of sale or similar
document of title, or such other documentation as may be required by all the state of United
States; that the Seller shall retain a security interest in the Goods until full payment is obtained
from the Buyer.
Notwithstanding any inspection or approval of the Goods by the Buyer, by preshipment
inspection or otherwise, the Seller shall, at its own cost, repair or replace any unit or product or
part of such Goods that prove to be defective (each a “Defective Product”). The Seller shall bear
all freight costs of repairing and/or replacing any Defective Product. The Buyer will be assumed
to have accepted the Goods unconditionally unless a claim that a Good is a Defective Good is
made within 30 days from the date of delivery.
The Buyer will use the Seller’s trademark or trade names both on the Goods and in the
advertising for the Goods. The Seller will cooperate with the Buyer’s marketing, advertising, and
packaging personnel to coordinate use of the Seller’s trademarks or trade names, and any other
text that mentions the Seller. The Buyer is not entitled, either by implication or otherwise, to any
title or interest in any trademark, trade name, logo, design, or copyright developed by the Seller
in connection with the Goods.]
This Agreement may be terminated:
(a) By either Party, at any time, on provision of (7) days’ written notice to the other Party;
provided, however, that orders for Goods manufactured to the Buyer’s specifications may only
be terminated prior to the commencement of production;
(b) By either Party, at any time, for a material breach of any provision of this Agreement by
the other Party, if the other Party’s material breach is not cured within 7 days of its receipt of
written notice thereof.
(c) By either Party, at any time, without prior notice, if the other Party has instituted a
proceeding seeking relief under the Bankruptcy Code or similar law, makes an assignment for
the benefit of the creditors, or admits in writing its inability to pay its debts as they become due.
Immediately on the termination of the Agreement for any reason the Buyer must return to the
Seller all documents, technical data, and equipment loaned by the Seller to Buyer for the
purposes of or in connection with the Agreement.
(a) If either Party terminates this Agreement because of the other Party’s default, the nonbreaching
Party, in addition to all rights it has under this Agreement, shall have the right to
exercise any and all remedies available at law or in equity (including any remedies afforded
each Party under the Uniform Commercial Code). All rights and remedies are cumulative, and
the election of one remedy shall not preclude another. Any termination shall be without
prejudice to accrued rights. Specifically, a termination due to default of delivery or payment for
the Goods required hereunder shall not in any manner affect or terminate the rights and
obligations of the Parties hereto that have accrued hereunder prior or subsequent to such
default in delivery or payment. Notwithstanding the expiration or termination of this Agreement,
the obligations intended to survive termination or expiration of this Agreement shall continue in
full force and effect.
(b) If any of the Goods do not conform to their description or the Seller’s standard warranty,
the Buyer’s exclusive remedy shall be the replacement of such nonconforming Goods. All
Goods claimed to be nonconforming must be shipped to the Seller, at the Seller’s expense, and
will be returned, repaired or replaced, within a reasonable time. The Seller’s acceptance of any
Goods so shipped shall not be deemed an admission that the Goods are nonconforming and, if
the Seller finds that any Goods returned are not nonconforming, such Goods will be returned to
the Buyer and the Buyer will be responsible for any shipping charges incurred by the Seller.
(c) If the Agreement is terminated by the Seller based on the Buyer’s breach, then:
i. the full price for all Goods delivered and not yet paid for shall be immediately due and
payable, notwithstanding that the normal terms of payment as set out in Section 3 above may
not have been exceeded; and
ii. at the Seller’s discretion, it may either sell to the Buyer or dispose of elsewhere Goods in
the course of manufacture or manufactured and not yet delivered, or delivered and not yet paid
for; provided, however, that if the Seller elects to dispose of such Goods elsewhere the Buyer
will be liable to pay to the Seller any loss incurred by the Seller as a result thereof.
(d) Any action for a breach of this Agreement must be commenced within 5 year(s) after the
cause of action has accrued.
The Seller shall at all times indemnify, defend, and hold harmless the Buyer against all claims,
actions, damages, losses, liabilities, and expenses, including reasonable attorneys’ fees, arising
out of or caused by any breach of any of the representations, undertakings, or contracts made
by the Seller in connection with:
(a) any claim of breach of any express or implied warranty or negligence or strict liability,
product liability, or similar theory in connection with the production, design, sale, or use of any of
the Goods purchased by the Buyer;
(b) [any claims of patent or trademark infringement, or other violation of intellectual property
rights, of third persons in connection with the production, design, sale, or use of any of the
Goods purchased by the Buyer hereunder or the use of the trademarks, trade names, logos, or
other intellectual property pertaining thereto;] and
(c) any and all other claims and liabilities of every kind or character whatsoever arising out
of, or related to, the production, design, sale, or use of the Goods purchased by the Buyer
hereunder, unless the same result solely from the Buyer’s gross negligence or knowing violation
of law.
The Buyer shall at all times indemnify, defend and hold harmless the Seller against all claims,
actions, damages, losses, liabilities, and expenses, including reasonable outside attorneys’
fees, arising out of or caused by any breach of any of the representations, undertakings, or
agreements made by the Buyer under or pursuant to this Agreement.
All references in this Agreement to the Parties shall be deemed to include, as applicable, a
reference to their respective successors and assigns. The provisions of this Agreement shall be
binding on and shall inure to the benefit of the successors and assigns of the Parties.
This Agreement may be supplemented, amended, or modified only by the mutual agreement of
the Parties, and such amendment must be in writing and signed by both Parties.
Neither Party may assign its respective rights or delegate performance of its respective duties
under this Agreement without the other Party’s express prior written consent.
The Seller and the Buyer shall not be considered in default hereunder or be liable for any failure
to perform or delay in performing any provisions of this Agreement in the customary manner to
the extent that such failure or delay is caused by any reason beyond its control, including any
act of God, fire, explosions, hostilities, or war ,declared or undeclared, strike or work stoppage
involving either Party’s employees, or governmental restrictions; provided, however, that the
Party declaring force majeure shall give prompt written notice to the other Party of the
commencement, nature, and termination of the force majeure condition. The Party whose
performance has been interrupted by such circumstances shall use every reasonable means to
resume full performance of this Agreement as promptly as possible.
The failure of either Party to insist on strict performance of any covenant or obligation under this
Agreement, regardless of the length of time for which such failure continues, shall not be
deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or
waiver, express or implied, to or of any breach or default in the performance of any obligation
under this Agreement shall constitute a consent or waiver to or of any other breach or default in
the performance of the same or any other obligation.
Any controversy or claim arising out of or relating to this Agreement, or the breach, termination,
or invalidity of this Agreement shall be settled by arbitration in accordance with the rules of the
U.S.A. The arbitrator(s) shall be bound by the Agreement and shall interpret the Agreement in
accordance with the applicable laws of the United States. Any award, order, or judgment made
pursuant to such arbitration shall be deemed final and shall be entered and enforced in any
court of competent jurisdiction.]
Any notice or other communication provided for herein or given hereunder to a Party hereto
shall be in writing and shall be given in person, by overnight courier, or by mail (registered or
certified mail, postage prepaid, returnreceipt
requested) to the respective Party as follows:
This Agreement shall be governed by the laws of the all state of the United States. In the event
that litigation results from or arises out of this Agreement or the performance thereof, the Parties
agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other
expenses, whether or not taxable by the court as costs, in addition to any other relief to which
the prevailing Party may be entitled.
This Agreement may be executed in one or more counterparts, each of which shall be deemed
an original but all of which shall constitute one and the same instrument. For purposes of this
Agreement, use of a facsimile, email,
or other electronic medium shall have the same force and
effect as an original signature.
Whenever possible, each provision of this Agreement will be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Agreement is held to be
invalid, illegal, or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any
other jurisdiction, but this Agreement will be reformed, construed, and enforced in such
jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained
This Agreement constitutes the final, complete, and exclusive statement of the agreement of the
Parties with respect to the subject matter hereof, and supersedes any and all other prior and
contemporaneous contracts and understandings, both written and oral, between the Parties.
The Parties affirm that they have entered into this Agreement freely, voluntarily, and without
reliance on any promises, representations, or other statements not contained in this Agreement
and have read and understood this Agreement.
Electro Flash Media LLC