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Acordo de vendas
USED EQUIPMENT SALES AGREEMENT
This Used Equipment Sales Agreement (?Agreement?) is dated __ (?the Effective Date?), by and between whose place of business is at __(?Purchaser?), and Kraft Heinz Foods Company (?Seller?). Purchaser and Seller are sometimes referred to herein individually as a ?Party? or collectively as the ?Parties.?
Whereas, Seller?s affiliate, H.J. Heinz Supply Chain Europe B.V. (?B.V.?), has appointed EquipNet, Inc. (?Representative?) to act on its behalf, and on behalf of B.V.?s affiliates, in the sale of certain used equipment owned by the B.V. or its affiliates;
Whereas, Seller is the owner of and desires to sell, and Purchaser desires to buy, the used equipment described herein pursuant to the terms and conditions contained in this Agreement;
Now, therefore, in consideration of the mutual covenants and conditions set forth herein, and other good and valuable consideration, the receipt of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows:
1. Used Equipment Sold to Purchaser.
(a) Sale of Used Equipment. Seller agrees to sell, and Purchaser agrees to buy, the used equipment listed in Exhibit A attached hereto and made part hereof (?Equipment?). Seller shall convey title free and clear of any liens, claims or encumbrances arising from the act or omission of Seller.
(b) Purchase Price, Payment. In full consideration for the sale of the Equipment hereunder, Purchaser shall pay Representative the purchase price amount stated in Exhibit A. The price for the Equipment excludes all transportation costs, freight, commission, and insurance costs. Purchaser shall pay Representative in US Dollars by certified check or by wire transfer to Representative?s account
Payment shall be made on or before the payment date set forth in Exhibit A, and payment of the full purchase price must be made before Purchaser may remove the Equipment from Seller?s (or its Representative?s premises, if applicable) premises.
(c) Taxes. Purchaser shall be responsible for any sales, use, excise, value-added (including any VAT), services, consumption and other tax on the sale of the Equipment to Purchaser (except for taxes based on Seller?s net income from the sale), as well as all fees of any nature related to the sale, transportation, ownership, disposition, and/or disposal of the Equipment.
(d) Late Payment. If Purchaser fails to pay the purchase price on or before the payment date set forth in Exhibit A, without affecting any other right or remedy Seller may have, the amount of such payment so delayed shall bear interest at a rate per annum of 2% above the Prime Rate as reflected in the latest edition of the Wall Street Journal calculated on a daily basis for each day of such delay. This interest shall accrue until payment of the delayed amount is made and at the time of payment this accrued interest shall also be paid.
2. Disclaimer of Warranties. THE EQUIPMENT IS BEING SOLD UNDER THIS AGREEMENT TO PURCHASER ?AS IS? AND ?WITH ALL FAULTS.? SELLER DOES NOT PROVIDE ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND WITH RESPECT TO THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, SELLER DISCLAIMS ANY LIABILITY FOR ANY NON-COMPLIANCE OF THE EQUIPMENT WITH ANY APPLICABLE LAWS OR REGULATIONS.
3. Inspection and Testing. Purchaser has been provided the opportunity to inspect and test the Equipment at Seller?s facilities (or such other location as the Equipment may be located) and is familiar with its condition. Purchaser has conducted the testing and inspection of the Equipment as it deemed appropriate and acknowledges and agrees that it has not been hindered or prevented from conducting any desired testing or inspection. Purchaser is not relying in any manner upon any representation by Seller or its Representative concerning the condition of the Equipment or its ability to perform its function.
4. Delivery. The delivery of the Equipment shall be F.O.B. Seller?s (or its Representative?s) location as set forth in Exhibit A. The date for delivery shall be on the date that Seller receives the full purchase price for the Equipment. Purchaser shall arrange for and bear all costs and expenses incurred in preparing, dismantling, handling and loading the Equipment for shipment to Purchaser. Purchaser and outside service providers it may retain to dismantle, remove and load shall at all times conduct themselves in a lawful and workmanlike manner and in compliance with all of Seller?s (or its Representative?s) workplace and safety rules established for such facility.
5. Risk of Loss and Title. Risk of loss and title to the Equipment shall pass to Purchaser upon Seller?s or its Representative?s receipt of payment of the purchase price as set forth in section 1(b) of this Agreement.
6. Installation. Purchaser shall be solely responsible for installation of the Equipment at Purchaser?s facility and Seller shall have no responsibility or liability arising from such installation.
7. Purchaser Indemnification. Purchaser and its officers, directors, employees, contractors, agents, successors and assigns hereby release Seller, and agree to defend, indemnify and hold Seller and its affiliates, and their respective officers, directors, employees, agents, successors and assigns (collectively the ?Seller Indemnitees?) harmless from and against any and all claims, actions, demands, lawsuits, losses, damages, costs, expenses, judgments, fines, penalties, and liabilities (including but not limited to reasonable attorney?s fees and courts costs) arising directly or indirectly from or related to (1) the Purchaser?s preparation, dismantling, handling, loading and removal of the Equipment from Seller?s (or its Representative?s) facility for shipment to Purchaser, including but not limited to any claim for personal injuries, death, or property damage to any person (including but not limited to the Purchaser and its employees and agents and the Seller Indemnitees); (2) Purchaser?s use and operation of the Equipment after removal from Seller?s (or its Representative?s) facility, including but not limited to any claim for personal injuries, death, or property damage to any person; and (3) any breach of the terms and conditions of this Agreement by Purchaser.
8. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE UNDER THIS AGREEMENT TO THE PURCHASER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER ECONOMIC LOSS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. THE LIABILITY OF SELLER, AND PURCHASER?S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER UNDER THIS AGREEMENT, REGARDLESS OF LEGAL THEORY, SHALL NOT BE GREATER THAN THE ACTUAL PAID PURCHASE FOR THE EQUIPMENT.
9. Purchaser Compliance with Laws. Upon the Effective Date of this Agreement and at all times thereafter, Purchaser shall be solely responsible for compliance with all federal, state and local laws, rules, regulations, and ordinances pertaining to its installation, arrangement, use, export, and/or disposal of the Equipment.
10. Purchaser?s Breach of Agreement. In the event Purchaser breaches its payment obligations set forth in Section 1 of this Agreement or fails to timely remove the Equipment from Seller?s premises as required in Section 4 of this Agreement, Purchaser acknowledges and agrees that it shall lose any and all rights, title to and interest in the Equipment which Purchaser may have obtained pursuant to this Agreement or otherwise, Seller shall have no obligation to refund any monies paid by Purchaser, Seller shall have no obligation to protect the Equipment from damage or destruction, and Purchaser shall be liable to Seller for all costs and expenses incurred by Seller as a result of such breach, including but not limited to Seller?s reasonable attorney?s fees.
11. Excusable Delays. Neither Party shall be in default by reason of failure in performance of its obligations under this Agreement, except for the payment of money, if such failure arises out of causes beyond its reasonable control and without the fault or negligent act or omission of the party failing to perform. Such causes are limited to: acts of God, acts of the government in either its sovereign or contractual capacity, war, fires, floods, epidemics, pandemics, quarantine restrictions, freight embargoes, or work stoppages. Each party shall use reasonable efforts to notify the other party of the occurrence of such an event within three (3) business days of its occurrence, but in no event more than ten (10) business days after its onset. If Purchaser?s performance is delayed over thirty (30) days, Seller may terminate this Agreement without liability.
12. Independent Contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party?s employees or agents. Neither Purchaser nor Seller has the authority to bind the other, to incur any liability or otherwise act on behalf of the other. Each Party shall be solely responsible for payment of its employees? salaries (including but not limited to withholding of income taxes and social security), workers compensation, and all other employment benefits.
13. Dispute Resolution; Choice of Law.
(a) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without regard to its choice of law principles. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Parties agree that this Agreement has been entered into in Illinois.
(b) Dispute Resolution. The Parties hereby agree that any action arising out of or relating to this Agreement will be brought exclusively in the U.S. District Court for the Northern District of Illinois (unless that court does not have jurisdiction over the action or proceeding, in which case the action or proceeding shall be brought exclusively in state court in Cook County, Illinois), and each Party irrevocably submits to the sole and exclusive jurisdiction of these courts in any action or proceeding. The Parties waive their right to a jury trial in any action or proceeding arising out of or related to this Agreement.
14. Attorney?s Fees. If either Party incurs any legal fees associated with the enforcement of this Agreement or any rights hereunder, the prevailing Party shall be entitled to recover its reasonable attorney?s fees and any court, or other litigation expenses from the other Party.
15. Headings. The headings and captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the relevant provisions.
16. Severability. If any provision or portion of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
17. Counterparts, Authorized Signatories. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. It is also agreed and warranted by the Parties that the individuals signing this Agreement on behalf of the respective Parties are authorized to execute such an agreement.
18. Entire Agreement; Modification; Waiver; Confidentiality. This Agreement and any Exhibits hereto is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic or otherwise. This Agreement may be modified only by a written amendment signed by authorized representatives of both Parties. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter. Except as required by law, Purchaser will not disclose to any third party that the Equipment was purchased from Kraft Heinz.
19. Commission (if any). The Parties acknowledge that any commission that may be charged by the Representative to the Purchaser for the Representative's services in relation to the sale of the Equipment shall be the subject of a separate agreement to this Agreement between Purchaser and Representative and does not form part of any amount(s) payable by Purchaser to Seller under this Agreement.
In witness whereof, the Parties hereto have executed this Used Equipment Sales Agreement as of the Effective Date: