This Buying Agreement (“Agreement”) is dated [_______], 2023 (“Effective Date”) and made between DiveDesign, LLC (“3DPets”), a New Jersey limited liability company located at _______________, Boonton, NJ 070__ and its affiliates (“3DPets”), and [_________] (“Buyer”), located at [_____]. 3DPets and Buyer are referred to in this Agreement as a “Party” and/or “Parties.”Buyer wishes to purchase from 3DPets, and 3DPets wishes to sell to Buyer, three-dimensional (“3D”) printed mobility devices for animals (“3D Devices”) and related services in accordance with the terms of this Agreement. Terms and Conditions:Term: The Term begins on the Effective Date and remains in effect until terminated by either party on written notice. Coverage: All 3D Devices sold by 3DPets and purchased by Buyer are covered by this Agreement. 3D Devices Purchases: 3D Devices, or parts thereof, may be accompanied by and subject to End User License Agreement(s) which shall govern the use of the applicable 3D Devices or parts thereof.Veterinarian Recommendations: 3DPets may deal directly with DVMs and/or Rehab Specialists (“Vets”) for Buyer’s pets. 3DPets may discuss prognoses with Vets in determining 3D Device candidacy.Payment Terms for all purchases: Payment is due upon order. Payment must be made by check, ACH, credit card (subject to a 4% convenience charge for credit card payments). Prices: Pricing and price protection terms are exclusive of applicable taxes which are separately noted for each order.Shipping and Freight: Customer is responsible for shipping and freight charges associated with the purchase of 3D Devices. All 3D Devices will not be sent via expediated shipping. Shipping costs will be flat rate for both domestic and international shipping. 3DPets is responsible for remedying any issues with package carriers.No Refunds: All sales are non-refundable. All other refunds are at the discretion of 3DPets. Unused, non-custom parts may be refunded based upon 3DPets’ discretion. Buyer is required to send exchanged items back to 3DPets. Limited Warranty and Limitations of Liability.Except with respect to their indemnification obligations, Buyer’s exclusive remedy and 3DPets’ sole liability in connection with all Products supplied pursuant to this Agreement will be replacement of a damaged or defective Product. In order for 3DPets to replace a damaged or defective Product, the defect must be confirmed in writing by 3DPets. In any event, 3DPets’ sole liability for any claims arising under this Agreement, no matter what the nature of the claim, will be the net price paid by Buyer for Products supplied pursuant to this Agreement. Except with respect to their indemnification obligations, neither party will be liable to the other party for lost profits or any other indirect, incidental, consequential, special, or punitive damages of any kind, including pet injuries. 3DPets will also not be liable for any damages caused by Buyer’s failure to follow 3DPets’ instructions or product specifications, variations of products from their specification which are immaterial to the performance of the Products, or defects not reported to 3DPets by Buyer within one hundred and eighty (180) days after delivery of Products to Buyer.Buyer is required to conduct follow-up correspondence with Layer, in order to fulfil all warranty obligations. 2. BUYER AGREES THAT ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXCLUDED. ALL OBLIGATIONS OF 3DPets SHALL TERMINATE IF BUYER FAILS TO DO ANY OF THE FOLLOWING: (i) PERFORM ITS OBLIGATIONS UNDER THIS OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, OR (ii) COMPLY WITH ALL INSTRUCTIONS, SPECIFICATIONS, AND DIRECTIONS FOR THE PROPER USE AND HANDLING OF THE PRODUCTS.Termination. Either party may terminate this Agreement upon written notice to the other party. Indemnification. Each Party releases and agrees to defend, indemnify and hold harmless the other Party from any and all direct and indirect claims and liabilities arising from any of the following: (a) breach of this Agreement; and (b) personal injury or property damage caused by the any Products purchased under this Agreement or Buyer’s use of the Products; (c) infringement of patents, trademarks and/or copyrights; and (d) pet injuries.Governing Law and Dispute Resolution. This Agreement as well as any disputes will be governed by New Jersey law without regard to its rules regarding conflicts of laws.The Parties waive trial by jury in any dispute arising out of or related to this Agreement. In the event of any disputes and claims that the Parties cannot amicably resolve, the Parties hereby agree to first attempt to settle the dispute in good faith via mediation, before resorting to litigation. The mediation will be held in Morris County, New Jersey, and will be conducted by a mediator of 3DPets’ choice.The Parties irrevocably and unconditionally agree that they will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement in any forum other than the Courts of the State of New Jersey, in the vicinage of Morris County, or in the US District Court for the District of New Jersey, including any appellate courts from any thereof (collectively, “NJ Courts”). Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of NJ Courts. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.Force Majeure. 3DPets will not be liable for any delay or failure in performing its obligations under this Agreement because of circumstances beyond 3DPets’ reasonable control (“Force Majeure Events”), such as Acts of God, war, pandemic or epidemic, riot, flood, industrial or labor disputes, acts of state or governmental action, and/or failure or delay on the part of subcontractors, supplier or carriers. Force Majeure Events will extend 3DPets’ time for performing by the length of the Force Majeure Events. Media: All content sent to or shared to 3DPets may be used for content marketing purposes.General Terms.Confidentiality. The Parties agree to keep the terms of this Agreement confidential and take reasonable care not to distribute each other’s confidential or proprietary information.Entire agreement. This Agreement and any exhibits are together the entire agreement between the Parties concerning the relevant subject matter, and supersedes any prior agreement between the Parties, or any understanding by either Party which is inconsistent with this Agreement.Conflicts. No conflict between the terms of this Agreement and any purchase orders or other discounts related to this Agreement is intended; however, in the event of a conflict, the terms of this Agreement shall control. Compliance with laws and regulations. The Parties shall comply at their own expense with all laws, ordinances, regulations and codes that are applicable to their respective performance pursuant to this Agreement.Waiver. Any failure or delay on the part of either Party in exercising any right or remedy hereunder shall not be held to be a waiver of such right or remedy or any other provision of this Agreement. Assignment. Neither Party may assign the Agreement without the other Party’s consent, which shall not be unreasonably withheld. The Agreement shall inure to the benefit of and be binding upon the successors and agreed assigns of the Parties. In the event of a transaction involving the transfer of ownership of Buyer’s business or assets, Buyer and its successors shall remain fully responsible for all obligations provided by this Agreement. This promise pertains, but is not limited to, equity transactions and transactions involving assets.Notices. All notices given hereunder shall be sent by email or a nationally recognized overnight carrier to the Parties and addresses set forth in the signature blocks below and considered received five (5) days after their postmarks.Amendment. All amendments to this Agreement must be in writing and signed by 3DPets and Buyer. Any change or addition to this Agreement in any order or other written notification from the Buyer, without the written agreement by 3DPets, shall have no effect, even if 3DPets ships subsequent to such notification Headings not controlling. The headings used in this Agreement are for reference purposes only and shall not be deemed part of this Agreement.Survival. The terms, provision, representations and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof by either or both Parties hereunder shall so survive the completion of performance and termination of this Agreement, including, without limitation, confidentiality obligations and the making of any and all payments hereunder.The Parties each warrant that consummating this Agreement will not breach any other agreement.Authority. Each Party represents and warrants that the person signing this Agreement on its behalf has the full legal authority to sign this Agreement and bind that Party to this Agreement’s terms and conditions. Each Party and counsel for each Party has reviewed this Agreement, and the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. Severability. In the event that one or more of the provisions or portions of this Agreement is determined to be illegal or unenforceable, the remainder of this Agreement shall not be affected thereby, and each remaining provision or portion thereof shall continue to be valid and effective and shall be enforceable to the fullest extent permitted by law. The unenforceability of any provision of this Agreement in any competent jurisdiction shall not affect the enforceability of any other provision(s) or of such provision in any other competent jurisdiction. Mutual Cooperation. The Parties shall cooperate mutually to ensure the completion of the transactions contemplated by this Agreement. This Agreement will not become valid and enforceable until signed by both Parties.This Agreement may be executed in any number of counterparts, each of which shall be deemed an original for all purposes, and all of which together shall constitute one agreement.
