This AGREEMENT FOR SALE OF EQUIPMENT (this ?Agreement?) dated as of
WITNESSETH:
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
date first written above.
By:
WHEREAS, Buyer desires to acquire from Seller certain of Seller?s equipment and
machinery free and clear of all liens and encumbrances; and
WHEREAS, Seller is willing to sell such equipment and machinery, subject to the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein set
forth, and in consideration of other good and valuable consideration, the parties hereto agree as
follows:
1. Sale of Equipment. Subject to and upon the terms and conditions of this
Agreement, Seller hereby sells, transfers, assigns and conveys to Buyer, and Buyer hereby
acquires, purchases and accepts from Seller, free and clear of all liens, claims and encumbrances,
the equipment and machinery-listed and described on the schedule annexed hereto, made a part
hereof and marked Listing
3. Title and Risk of Loss. Title to all Equipment shall remain in Seller until the
Purchase Price and all additional costs and charges, as applicable, are paid by Buyer. Seller shall
retain a security interest in, and right to repossess, any such Equipment until it is paid in full. Risk
of loss shall pass to Buyer upon delivery to carrier.
4. Delivery Date. The promised delivery date is the best estimate possible. Seller shall
have no liability for lost profits or incidental or consequential damage due to delays.
5. Expenses. Seller and Buyer shall each bear their own expenses, including legal
and accounting fees, in connection with the transaction contemplated by this Agreement, including
the negotiation, preparation, execution and performance of this Agreement.
6. Disclaimer of Warranties. ALL GOODS ARE PURCHASED BY THE BUYER
"AS IS" AND "WITH ALL FAULTS", AND SELLER MAKES NO REPRESENTATION OR
WARRANTY, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OR ANY OTHER MATTER WITH RESPECT TO THE GOODS.
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7. Limitation of Liability. In the event Buyer claims that Seller has breached any of
its obligations under this Agreement, Seller may request and require return of the Equipment and
refund the Purchase Price upon Seller?s receipt of the Equipment. If Seller so requests the return
of the Equipment, the Equipment shall be redelivered per Seller?s instructions at Buyer?s expense.
In such event, Seller shall absolutely have no further obligation to Seller except to refund the
Purchase Price. THE REMEDY PROVIDED FOR IN THIS PARAGRAPH SHALL
CONSTITUTE THE SOLE RECOURSE OF BUYER AGAINST SELLER FOR BREACH OF
ANY OF SELLER?S OBLIGATIONS UNDER THIS AGREEMENT, WHETHER THE CLAIM
IS MADE IN TORT, CONTRACT, OR IN ADMIRALTY, EXCEPT TO THE EXTENT
ARISING FROM THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SELLER. Any
cause of action against Seller arising out of this Agreement must be brought within one year after
the cause of action has accrued or be forever barred. NOTWITHSTANDING ANY OTHER
PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL SELLER BE LIABLE FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, NOR SHALL SELLER?S LIABILITY
FOR ANY CLAIMS OR DAMAGE ARISING OUT OF OR CONNECTED WITH THIS
AGREEMENT, OR THE MANUFACTURE, SALE, DELIVERY, OR USE OF THE
EQUIPMENT EXCEED THE PURCHASE PRICE THEREOF EXCEPT TO THE EXTENT
ARISING FROM THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OR SELLER.
8. Entire Agreement. All understandings and agreements between the parties are
merged into this Agreement which fully and completely expresses their agreement and supersedes
any prior agreement or understanding relating to the subject matter hereof. No amendment of this
Agreement shall be effective unless in writing and duly executed by each party.
9. Further Assurances. Each of the parties hereto agrees that they will, whenever
and as often as they shall be requested to do so by the other party hereto, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, any and all further instruments
that may be necessary and expedient in order to consummate the transaction contemplated by this
Agreement and do any and all further acts and things that may be necessary or expedient in order
to carry out the purpose and intent of this Agreement.
10. Contingencies. Seller shall not be liable for any default or delay in performance if
caused, directly or indirectly, by acts of God; war; force of arms; tire; the elements; riot; labor
disputes; picketing or other labor controversies; sabotage; civil commotion; accidents; any
governmental action, prohibition or regulation; delay in transportation facilities; shortage or
breakdown of or inability to obtain or non-arrival of any labor, material, or equipment used in the
manufacture of the Equipment; failure of any party to perform any contract with Seller relative to
the production of the Equipment; or from any cause whatsoever beyond Seller?s control, whether
or not such cause be similar or dissimilar to those enumerated. Seller shall promptly notify Buyer
of the happening of any such contingency and the contemplated effect thereof on the manufacture
and/or delivery of the Equipment.
11. Counterparts. This Agreement may be executed in several counterparts, all of
which taken together shall constitute one instrument.
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12. Headings. The headings of the paragraphs of this Agreement are inserted for
convenience and reference only and shall not be deemed to affect the meaning or construction of
any of the provisions hereof.
13. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
Seller and Buyer and their respective successors and assigns, but may not be assigned without the
prior written consent of the non-assigning party.
14. Applicable Law. This Agreement has been executed and delivered and shall be
construed and enforced in accordance with the laws of the State of New York, including, but not
limited to, matters of construction, validity and performance.
15. Miscellaneous. The invalidity of any part of this Agreement shall not affect the
validity of the remaining provisions. No waiver shall be effective against either Buyer or Seller,
as applicable, unless such party agrees to the same in writing.
[Signature Page Follows]
[Signature Page to Agreement for Sale of Equipment]
THE HAIN CELESTIAL GROUP, INC.
Name:
Title: