SWIMSAFE SWIM MONITOR SYSTEM SALES AND SERVICE AGREEMENT STANDARD TERMS AND CONDITIONS
WARNING: Customer expressly acknowledges that the SEAL SwimSafe Swim System is designed as an aid to detect prolonged submerged swimmers but may not, even when used correctly, prevent injury or drowning.
This SwimSafe Swim Monitor System Sales and Service Agreement is between SEAL INNOVATION, Inc., a North Carolina corporation having its principal place of business at 17 Glenwood Ave., Suite A, Raleigh, NC 27603 (“SEAL”), and the person or Company identified on the attached Contract Agreement (the “CUSTOMER”). The parties agree and contract as follows:
SEAL agrees to Sell to Customer, and Customer agrees to Buy from SEAL, the Swim Monitor System and swim monitor bands described on the attached Contract Agreement (the “System”).
2. Services Included
SEAL will repair or replace, at its discretion, defective System components, as further provided in Section 5. Customer shall promptly notify SEAL of any known problems with the System. Customer shall use the System only for its intended purpose and follow SEAL’s reasonable instructions regarding the use and storage of the System.
In order to secure the next available SEAL SwimSafe system for the customer, customer shall issue a deposit of 50% of the Sales cost of the Contract agreement within 5 business days of signing the sales agreement. This deposit is fully refundable if the SEAL SwimSafe system is not delivered to Customer within 10 business days of the Delivery Date.
4. Sales Payments
In consideration of Customer’s right to possess and use the System, Customer shall pay Total Amount the balance of the Sales Price, plus taxes and shipping, as specified in the Contract agreement minus the Deposit issued per Section 3. Customer shall pay interest on all late payments at the lesser of the rate of 1.0% per month and the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse SEAL for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Payment of any late charge does not excuse Customer of any default under this Agreement. Customer shall not construe anything contained in this Section, including Customer’s payment of Delinquent Sales Payments, as SEAL’s (a) waiver of Customer’s failure to perform any obligation under this Agreement; or (b) assent to any renewal of this Agreement.
5. Limited Product Warranty
SEAL warrants that the Products are free from defects in material and workmanship under normal use and service with proper maintenance and storage for the duration of the Term. The Term of this warranty shall begin upon Customer’s receipt of the System and shall end on the one-year anniversary of the receipt of the system. Customer shall promptly notify SEAL of any known warranty claims and shall cooperate in the investigation of such claims.
SEAL shall, at its exclusive option, either repair or replace the system or affected component if the System or a component fails to operate in accordance with the manufacturer’s specifications and operation instructions. Such repair or replacement shall be made as soon as practical after Customer returns the non-conforming System or components. Customer shall return all non-conforming Systems or components at its expense and risk of loss to SEAL to the destination specified by SEAL. Products manufactured by a third party (“Third-Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the System. Third-Party Products are not covered by the above limited warranty.
The limited warranty above does not apply where the System has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by SEAL, or used with any Third-Party Product, hardware, software or product that has not been previously approved in writing by SEAL.
SEAL shall have no obligation under the warranty set forth above if Customer:
a) fails to notify SEAL in writing during the warranty period of a non-conformity; or
b) uses, misuses or neglects the Product in a manner inconsistent with the Product’s specifications or use or maintenance directions, modifies the Product or improperly installations, handles or maintains the Product. Except as explicitly authorized in this Agreement or in a separate written agreement with SEAL, Customer shall not service, repair, modify, alter, replace, reverse engineer or otherwise change the Products. Other than as set forth above, seal makes no warranty whatsoever, including any (a) warranty of merchantability; (b) warranty of fitness for a particular purpose; (c) warranty against interference; or (d) warranty against infringement of any patent, copyright, trademark, trade secret or other proprietary rights of a third party; whether arising by law, course of dealing, course of performance, usage of trade or otherwise.
Customer expressly acknowledges and agrees that its use of the system does not substitute or ameliorate any of duty of care that customer may owe to third parties, including third party swimmers. Customer expressly assumes all risk arising from its use of the system. Customer expressly acknowledges that the system is designed as an aid to detect prolonged submerged swimmers but may not, even when used correctly, prevent injury or drowning. The remedies set forth in this Section 5 are customer’s sole and exclusive remedies and seal’s entire liability for any breach of the limited warranty set forth herein.
6. Risk of Loss
Customer shall bear all risk of loss, damage, destruction, theft and condemnation to or of the System from any cause whatsoever (“Loss”) until the System has been returned to SEAL to the destination specified in Section 11. Customer shall notify SEAL in writing within 10 days of any such Loss.
7. Compliance with Law
Customer shall (a) comply with all applicable laws, regulations, and ordinances and (b) maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
Customer shall indemnify, defend and hold harmless SEAL and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party arising out of or occurring in connection with the Customer’s (or Customer’s invitees’ or other person’s) use of the System or Customer’s negligence, willful misconduct or breach of this Agreement. Customer shall not enter into any potentially relevant settlement without SEAL’s or Indemnified Party’s prior written consent.
11. Delivery of System
SEAL shall deliver System to Customer’s designated shipping address using SEAL’s standard methods for packaging and shipping.
12. Confidential Information
All non-public, confidential or proprietary information of SEAL, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by SEAL to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by SEAL in writing. SEAL shall be entitled to injunctive relief for any violation of this Section.
13. Entire Agreement
This Agreement, including and together with any related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) Sections 4 through 24 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
All notices, requests, consents, claims, demands, waivers, summons and other legal process, and other similar types of communications hereunder must be in writing and addressed to the relevant Party at the address set forth on the Price Quote to this Agreement (or to such other address that may be designated by the receiving Party from time to time in accordance with this Section 15). All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). A notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the notice has complied with the requirements of this Section 15.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each Party.
No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving.
19. Cumulative Remedies
All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. Notwithstanding the previous sentence, the Parties intend that Customer’s rights under Section 5 are Customer’s exclusive remedies for the events specified therein.
20. No Third-Party Beneficiaries
Subject to the next paragraph, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
21. Choice of Law and Choice of Forum
This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of North Carolina, without regard to the conflict of laws provisions of such State. Any legal suit, action or proceeding arising out of or relating to this Agreement must be instituted in the federal courts of the United States of America or the courts of the State of North Carolina, in each case located in the City of Raleigh and County of Wake, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by certified mail in accordance with Section 15 will be effective service of process for any suit, action or other proceeding brought in any such court.
22. Waiver of Jury Trial
Each Party acknowledges and agrees that any controversy that may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments or appendices attached to this Agreement, or the transactions contemplated hereby.
23. Limitation of Liability
In no event shall seal be responsible or liable for any consequential, indirect, incidental, special, exemplary, punitive or enhanced damages, lost profits or revenues or diminution in value, arising out of or relating to any breach of any provision of this agreement, regardless of (a) whether such damages were foreseeable, (b) whether or not seal was advised of the possibility of such damages and (c) the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall seal’s aggregate liability under this agreement exceed the total of the amounts paid to seal hereunder.
24. Force Majeure
SEAL shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of SEAL including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 15, a signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Headings in this Agreement are for convenience of reference only, and are not to be used in any interpretation of the agreement between the parties.