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Terms and Conditions - Sales Agreement

BOB’S CONTAINERS
CONTAINER SALES AGREEMENT

THIS CONTAINER SALES AGREEMENT (“Agreement”) is made and entered into effective the date stated on the signature page (the “Effective Date”) by and betweenBob’s Containers (the “Seller”), a Texas limited liability company, and____ (hereinafter referred to as the “Buyer”). In this Agreement, “Buyer” includes Buyer’s officers, directors, members, managers, agents, employees, affiliates, drivers, independent contractors, laborers, assistants, and/or any Persons under Buyer’s supervision or control.


FOR AND IN CONSIDERATION of the mutual covenants, rights, and obligations contained in this Agreement, the parties to this Agreement agree as follows:


  1. Sale of Goods.Subject to Section 10 Seller will sell, transfer, and make best efforts to deliver to Buyer on or before the date of delivery described inExhibit A (the “Delivery Date”) the goods described inExhibit A (the “Goods”).

  1. Purchase Price

  1. Buyer will accept the Goods and pay for the Goods with the payment amount set forth inExhibit A (the “Price”) and in accordance with Subsection 2(c) below.

  1. Taxes: Seller and Buyer both acknowledge the sufficiency of this consideration. In addition to the Price specified inExhibit A of this Agreement, the amount of any present or future sales, use, excise, or similar tax applicable to the sale of the Goods will be paid by Buyer, or alternatively, Buyer will provide Seller with a tax exemption certificate acceptable to the applicable taxing authorities.

  1. Payment for the Goods will be made to Seller in full when Buyer is notified that the Goods have been delivered by Seller to Buyer (or a carrier for shipment to Buyer) or, in the alternative, when any document of title or registrable bill of sale, bearing any necessary endorsement, is tendered to Buyer.

  1. Delivery of Goods.The Goods will be deemed received by Buyer when delivered to Buyer at Buyer’s address listed inExhibit A (the “Delivery Location”). The method of shipment will be within the discretion of Buyer. However, Seller will only be responsible for the lesser of truck freight or rail freight to Buyer.

  1. Intentionally Removed.

  1. Disclaimers of Warranties. (See attached “Warranty” exhibit)


  1. Title.Title to the Goods will remain with Seller until delivery and actual receipt of the Goods by Buyer or, in the alternative, Seller delivers a document of title or registrable Bill of Sale of the Goods, bearing any necessary endorsement, to Buyer.

  1. Security Interest.Seller retains a security interest in the Goods until paid in full.

  1. Inspection.Inspection will be made by Buyer at the time and place of delivery (the “Inspection Period”), and the Buyer will either accept or, if such Goods are Nonconforming Goods or Excess Goods, reject such Goods. Buyer will be deemed to have accepted the Goods unless it notifies Seller in Writing of any Nonconforming Goods or Excess Goods during the Inspection Period and furnishes such Written evidence or other documentation as reasonably required by Seller. If Buyer timely notifies Seller of any Nonconforming Goods or Excess Goods, Seller shall determine, in its sole discretion, whether the Goods are Nonconforming Goods or Excess Goods. 

  1. If Seller determines that the Goods are:

  1. Nonconforming Goods, Seller shall (i) repair and/or replace such Nonconforming Goods with conforming Goods, or (ii) refund the Price for such Nonconforming Goods, together with all shipping and handling expenses incurred by Buyer in connection therewith; or

  1. Excess Goods, Seller shall refund the Price for such Excess Goods, together with all shipping and handling expenses incurred by Buyer in connection therewith.

  1. Buyer shall ship, at Seller’s expense and risk of loss, the Nonconforming Goods or Excess Goods to Seller’s facility. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replacement  Goods to the Delivery Location.

  1. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer's exclusive remedies for the delivery of Nonconforming Goods or Excess Goods with respect to any Nonconforming Goods for which Buyer has accepted delivery under this Section.

  1. Claims.Buyer’s failure to give notice of any claim within ten (10) days from the Delivery Date will constitute an unqualified acceptance of the Goods and a waiver by Buyer of all claims with respect to the Goods.

  1. Excuse for Delay or Failure to Perform.Seller will not be liable in any way for any delay, non-delivery, or default in shipment due to labor disputes, transportation shortage, delays in receipt of material, priorities, fires, accidents, extreme weather, and other causes beyond the control of Seller or its suppliers. If Seller, in its sole judgment, will be prevented directly or indirectly, on account of any cause beyond its control, from delivering the Goods at the time specified or within one month after the date of this Agreement, then Seller will have the right to terminate this Agreement by notice in Writing to Buyer, which notice will be accompanied by full refund of all sums paid by Buyer pursuant to this Agreement.

  1. Remedies.Subject to Section 8, Buyer’s exclusive remedy, and the Seller’s limit of liability, for any and all losses or damages resulting from defective goods or from any other cause will be for the purchase price of the particular delivery with respect to which losses or damages are claimed, plus any transportation charges actually paid by Buyer. Notwithstanding any provision contained in this Agreement to the contrary, Seller will not be liable to any other party for any incidental, indirect, special, consequential, or punitive damages (including damages for loss of use, power, business goodwill, revenue or profit, nor for increased expenses, or business interruption) arising out of or related to the performance or nonperformance of this Agreement.

  2.  ESCALATION OF CERTAIN MATERIALS CATEGORIES – Building materials utilized in the construction of new homes can be subject to price variation based on local, regional, and national supply and demand issues, and, additionally, catastrophic events such as hurricanes, tornadoes, floods, earthquakes, terrorism and wars can dramatically affect the price of delivered materials.  Categories of materials most commonly affected by these variations in demand are sheet goods such as drywall, insulated wiring, soffit trim, plywood, OSB, structural members commonly referred to as 2x material, concrete and steel products, and petroleum based roofing materials.  In the event that there is a price increase in these construction materials categories in excess of 25% from the average of similar materials purchased by Builder in the preceding 30-day period from the execution of this Contract, the excess charges will be passed through to Owner, resulting in an increase in the Total Contract Price.  Builder will keep Owner informed of cost variations, and prior to contracting Builder will attempt to verify the price of materials in these categories, thus limiting exposure to Owner for any subsequent price changes. 

  1. Cancellation.

 Seller reserves the right to cancel this Agreement:


  1. If Buyer fails to pay for any shipment when due;

  1. In the event of Buyer’s insolvency or bankruptcy; or

  1. If the Seller deems that its prospect of payment is impaired.

The buyer  reserves the right to cancel order at any time and can process cancellation :

The Buyer must send a written notice tofinance@bobscontainers.com andlegal@bobscontainers.com in following format

Subject Line: Cancellation of Build # {Customer Invoice number}

Body of email should container the following

  • Name- 
  • Invoice number - 
  • Cancellation reason -

Please note one email or letter per invoice/build


The Seller reserves the right to withhold the entire  deposit per sales agreement.

On a per case basis  the Seller may refund a portion of deposit less the cost for construction, parts, and opportunity cost within 60 days.

Note : There is no 100% refund of deposit.

 

  1. Indemnity. Buyer will indemnify, hold harmless, and defend Seller and its respective officers, directors, principals, partners, members, managers, agents, attorneys, representatives, contractors, and employees (collectively the “Indemnified Persons”) from and against any and all actions and causes of action, threatened or actual claims, demands, injuries, and suits of every kind, damages,  losses, costs, liens, or liability, including reasonable outside attorneys’ fees and expenses (collectively “Losses”) actually and reasonably incurred by any Indemnified Persons, to the extent such claim arises directly or indirectly out of or is related to: (a) Buyer’s performance of its obligations under this Agreement and the actions or omissions of Buyer and/or any persons under Buyer’s control and/or direction; and/or (b) any breach of this Agreement by Buyer; except to the extent that such Losses are caused by the gross negligence or willful misconduct of the Indemnified Persons. Notwithstanding the foregoing, Buyer shall not indemnify, nor hold harmless, Seller for any claims, cost, expenses, damages, liabilities, losses, or judgments arising out of Seller’s own intentional, willful, or deliberate misconduct, or criminal or wanton activity. For the avoidance of doubt, this Section shall survive the termination of this Agreement.

  1. Non-Disparagement. The parties agree that neither will make or cause to be made any statement or communicate any information (whether oral or Written, or whether it believes such statement to be true or untrue) that disparages or reflects negatively on the other party. This includes communication on social media and websites.

  1. Notices.Any notice to be given or document to be delivered to either Seller or Buyer pursuant to this Agreement will be sufficient if delivered personally or sent by prepaid registered mail to the address specified below the signature line of this Agreement or any subsequent address provide in Writing to the other party. Any Written notice or delivery of documents will have been given, made, and received on the day of delivery if delivered personally, or on the third (3rd) consecutive business day next following the date of mailing if sent by prepaid registered mail. Additionally, a copy of any notices to Seller shall also be sent simultaneously to theLaw Offices of Chris Douglas at P.O. Box 41333 Austin, Texas 78704 and emailed toChris@DouglasLaw.us.

  1. Intentionally Removed..

  1. Headings.Headings are inserted for the convenience only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.

  1. Survival.All representations and warranties of the Seller contained in this Agreement will survive the closing of this Agreement.

  1. Assignment.This Agreement will insure to the benefit of and be binding upon Seller and Buyer and their respective successors and assigns. Notwithstanding the preceding sentence, neither party may assign, by operation of law or otherwise, this Agreement or any of the rights, benefits or obligations under this Agreement, without the other party’s prior Written consent. Any attempt to assign without the other party’s Written consent will be null and void and will give the non-assigning party the right to cancel and terminate this Agreement. Each party has a substantial interest in having the other party perform or control the acts required by this Agreement.

  1. No Modification.This Agreement cannot be modified in any way except in Writing signed by all the parties to this Agreement.

  1. Governing Law.This Agreement will be governed by and construed in accordance with the laws of the State of Texas, including the Texas Uniform Commercial Code, without regard to conflicts of law. Seller and Buyer hereby subject themselves to the jurisdiction of the Courts of the State of Texas. Actions or claims arising out of this Agreement shall be brought in Travis County, Texas. Except where otherwise stated in this Agreement, all terms employed in this Agreement will have the same definition as set forth in the Uniform Commercial Code in effect in the State of Texas on the date of execution of this Agreement. Before any Party to this Agreement commences a legal proceeding a?? the other Party must first mediate their disputes with a mutually agreed upon mediator.

  1. Section References. When this Agreement references any article, section, paragraph, clause, schedule, or exhibit, such reference is to an article, section, paragraph, clause, schedule, or exhibit of this Agreement unless the context clearly indicates otherwise. Whenever the words “include,” “includes,” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation.” Any reference to gender extends to and includes all genders.

  1. Severability.If any clause of this Agreement is held unconscionable by any court of competent jurisdiction, arbitration panel or other official finder of fact, the clause will be deleted from this Agreement and the balance of this Agreement will remain in full force and effect.

  1. Counterparts.This Agreement may be executed in counterparts. Facsimile and electronic signatures are binding and are considered to be original signatures.

  1. Entire Agreement.This Agreement constitutes the entire agreement between the parties and there are no further items or provisions, either oral or otherwise. Buyer acknowledges that it has not relied upon any representations of Seller as to prospective performance of the Goods but has relied upon its own inspection and investigation of the subject matter.

  1. Construction. All   parties   have been advised to seek their own independent counsel concerning the interpretation and legal effect of this Agreement and have either obtained such counsel or have intentionally refrained from doing so and have knowingly and voluntarily  waived  such  right. Consequently, the normal rule  of construction to the effect that any drafting ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or any amendment or exhibits.

  1. Definitions.

  1. Excess Goods” means any goods received by Buyer from Seller pursuant to this Agreement that materially exceed the quantity of Goods ordered by Buyer pursuant to this Agreement or any Purchase Order. Where the context requires, Excess Goods are deemed to be Goods for purposes of this Agreement.

  1. Nonconforming Goods” means any goods received by Buyer from Seller pursuant to this Agreement that: (i) do not significantly conform to the specifications. Where the context requires, Nonconforming Goods are deemed to be Goods for purposes of this Agreement.

  1. Person” means an individual, a corporation, a limited liability company, a trust, a partnership, a joint stock association, a business trust or other business entity, or a government or agency or subdivision thereof, and shall include the singular and the plural.

  1. Writing” or “Written” means an expression of words, letters, characters, numbers, symbols, figures or other textual information that is inscribed on a tangible medium or that is stored in an electronic or other medium that is retrievable in a perceivable form. Unless the context requires otherwise, the term: (i) includes stored or transmitted electronic data, electronic transmissions, and reproductions of Writings; and (ii) does not include sound or video recordings of speech other than transcriptions that are otherwise “Writings.”

WARRANTY


  1. Seller affirms, as part of the basis of the bargain, that the windows and doors in the shipping container being sold under this Agreement are free from water leakage for a period of three (3) years after the Delivery Date. If such water leakage occurs, Seller shall repair such leakage within a reasonable period of time. 

  1. Seller affirms, as part of the basis of the bargain, that the Goods’ electrical wires and electrical outlets in the shipping container being sold under this Agreement remain in the same working condition as when delivered for a period of three (3) years after the Delivery Date. If such electrical wires and/or electrical outlets fail to work in the condition as delivered, Seller shall repair such within a reasonable period of time.

  1. Seller affirms, as part of the basis of the bargain, that all appliances inside the shipping container being sold under this Agreement shall have a manufacturer’s warranty. Such manufacturer warranty is transferred to Buyer upon payment in full.

  1. Seller affirms, as part of the basis of the bargain, that the shipping container being sold under this Agreement will perform per ISO/TC 104/SC 1 (General Purpose Container) manufacturing standards for a “lifetime” period of shipping container approximately 30  years if maintained properly.

  1. Seller makes no warranty as to the title of the Goods, and Buyer assumes all risks of non-ownership of the Goods by Seller.

  1. Seller expressly disclaims all express warranties and/or implied warranties as to merchantability and/or implied warranties as to fitness for a particular purpose. Furthermore, Seller disclaims any warranty as to the condition of the goods.

  1. The Seller makes no warranty, and no warranty will be deemed to exist, that Buyer holds the Goods free of the claim of any third person that may arise from patent or trademark infringement.

  1. Except for the above warranties, no other warranty (whether expressed, implied or statutory) is made by Seller regarding the Goods.

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