Terms and Conditions
This agreement is for in-store or in-office sales only. All online sales of Pure-Wave Massagers through any means is not authorized and must be pre-approved by PADO. We reserve the right to revoke reseller agreements. Prices are subject to change. We will issue new price sheets if prices increase or decrease.
By signing this document you agree to our reseller terms and sale of goods agreement.
SALE OF GOODS AGREEMENT
This Sale of Goods Agreement (the “Agreement”) is entered into as of the purchase date of goods (the “Effective Date”), by and between PADO, Inc dba Pure-Wave by PADO, a corporation, with its principal offices at 28340 Ave Crocker Constellation Dr., Valencia CA 91355 (the “Seller”) and you (the “Buyer”). The Seller and the Buyer may be referred to individually as a “Party” or collectively as the “Parties.”
WHEREAS, the Seller is engaged in the business of Manufacturing, distributing and selling Pure-Wave massagers and various other products that make people’s lives better; and
WHEREAS, the Buyer is engaged in their business with an additional revenue source selling the Seller's goods.
WHEREAS, the Seller manufactures and wishes to sell to the Buyer those certain goods more particularly set forth in Exhibit A-’Reseller Program’ price sheet attached hereto and made a part hereof (the “Goods”) on the terms and conditions set forth below; and
WHEREAS, the Buyer wishes to buy the Goods sold in accordance with the terms of this Agreement; and
WHEREAS, each Party is duly authorized and capable of entering into this Agreement.
NOW, THEREFORE, in consideration of the above recitals, and the mutual promises and benefits contained herein, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties hereby agree as follows:
- AGREEMENT OF PURCHASE AND SALE.
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 A attached hereto and made a part hereof. The Seller reserves the right to adjust all pricing as they see fit and will be responsible for notifying the Buyer of any price changes up until the point that the Buyer no longer engages in the direct resale of Seller’s products.. 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 Goods.
- PAYMENT TERMS.
Cash terms (credit card, check, or other acceptable electronic payments). For net terms a separate form and review process is required.
- SELLER’S REPRESENTATIONS AND WARRANTIES.
The Seller hereby represents and warrants to the Buyer as follows:
- 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.
- The Seller has full right, power, and authority to sell the Goods.
- Neither the Goods nor the manufacturing process thereof infringe or will infringe the intellectual property rights or any other rights of any third party.
- 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.
- 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.
- The Goods will conform to the description and specifications made by the Buyer and are free from defects in material and workmanship.
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.
- BUYER’S REPRESENTATIONS AND WARRANTIES.
The Buyer hereby represents and warrants to the Seller that:
- The Agreement constitutes a legal, valid, and binding obligation enforceable in accordance with its terms.
- Any taxes or other governmental charges imposed on the sale of the Goods under this Agreement shall be paid by the Buyer.
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.
- DELIVERY OF GOODS / SHIPPING.
- Location of Delivery. The Seller shall deliver the Goods to a location designated by the Buyer (the “Delivery Point”)
- 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.
- 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.
- DEFECTIVE GOODS REPLACEMENT OR REPAIR.
Notwithstanding any inspection or approval of the Goods by the Buyer, by pre-shipment 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.
- INTELLECTUAL PROPERTY.
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:
- By either Party, at any time, on provision of 1 day 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;
- 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 1 days of its receipt of written notice thereof.
- 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.
- DEFAULT AND REMEDIES.
- If either Party terminates this Agreement because of the other Party’s default, the non-breaching 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.
- 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.
- If the Agreement is terminated by the Seller based on the Buyer’s breach, then:
- 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;
- Any action for a breach of this Agreement must be commenced within 3 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:
- 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;
- 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
- 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.
- SUCCESSORS AND ASSIGNS.
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.
- FORCE MAJEURE.
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.
- NO IMPLIED WAIVER.
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 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, return-receipt requested) to the respective Party.
- GOVERNING LAW.
This Agreement shall be governed by the laws of the state of California. 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.
- COUNTERPARTS/ELECTRONIC SIGNATURES.
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, e-mail, 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 herein.
- ENTIRE AGREEMENT.
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.
- AFFIRMATION OF 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.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date of this purchase.