Equipment Sale Agreement

Subject to the terms and conditions of this Equipment Sale Agreement (the “Agreement”), Surplus Solutions, LLC. (the “Seller”) agrees to sell to you (the “Buyer”), and Buyer agrees to purchase from Seller, all of Seller’s right, title and interest in the Equipment (as defined below), free and clear of liens and encumbrances. This Agreement prevails over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend this Agreement.

Buyer acknowledges that Seller may not own the Equipment, which may be owned by Seller’s client (“Owner”) and that Seller is acting solely as Owner’s broker or dealer. In that case, Buyer acknowledges and agrees that Seller has no knowledge regarding the Equipment, its condition, functionality or history and Buyer agrees to conduct its own due diligence and investigation regarding all aspects of the Equipment, its condition, functionality, safety, and feasibility for Buyer’s intended use. While Seller believes that all information it possesses regarding the Equipment is correct in all material respects, it has not taken any effort to verify that information and assumes no obligation to do so.

As used in this Agreement, “Equipment” means all equipment, machinery, accessories, attachments, spare or replacement parts, tools, supplies, merchandise or goods listed on the attached Exhibit A. With respect to Equipment that is being sold tested or refurbished (as described below), such Equipment may also be referred to as “Covered Equipment.”

In exchange for the Equipment, Buyer agrees to pay to Seller an amount equal to (the “Purchase Price”) upon execution of this Agreement. The Purchase Price is exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Should any payment from Buyer be dishonored by Buyer’s bank, Buyer shall pay Seller a service charge equal to 5% of the gross amount of the payment, up to a maximum of $200 per instance of dishonor, to cover Seller’s out-of-pocket expenses and related administrative costs.

ACCEPTANCE; INSPECTION. Buyer shall inspect and reconcile all shipments from Seller. Any short or defective shipment shall be reported to Seller by the Buyer within 48 hours of receipt of shipment, in order for Seller to honor any disparity identified from its internal assessment. Any additional or different terms or conditions set forth in any communication from Buyer, whether in writing or orally, including but not limited to terms and conditions in Buyer’s request for quotation or purchase order, are hereby rejected by Seller and superseded by this Agreement. If there is any inconsistency between this Agreement and the terms of a purchase order, this Agreement will control and prevail.

EXPORT CONTROL RESTRICTIONS. Buyer represents and warrants that none of the Equipment or any components thereof, or related software or technology is being purchased for export from the United States to countries which are subject to comprehensive embargoes or support for terrorism under its Export Control Laws (e.g. Russia, Crimea - Region of Ukraine, Republic of China, Iran, Iraq, North Korea, Afghanistan, Pakistan, Democratic Republic of the Congo, Haiti, Libya, Vietnam, Myanmar (formerly Burma), Somalia, Sri Lanka, Liberia, Cyprus, Zimbabwe, Lebanon, Central African Republic, Sudan, as the same may change from time to time).

TAXES. All prices are stated in U.S. Dollars and do not include any federal, state or local taxes, all of which are Buyer’s responsibility, and which are charged to Buyer in addition to the Purchase Price, and which must be paid by the Buyer along with payment of the Purchase Price. All foreign duties and taxes are the responsibility of the Buyer. Unless Buyer furnishes Seller with a valid tax exemption certificate, Buyer will pay to Seller all sales, use and other taxes on the Equipment, however designated, levied or based by any taxing authority, whenever applicable.

SHIPMENT. Buyer shall pay all crating, skidding, rigging, packing, customs, freight, shipping, insurance and common carrier charges on all shipments in conjunction with Seller's chosen method of shipment of the Equipment. Shipment shall be F.O.B. Shipping Point, with all risks of loss and damage passing to Buyer as soon as the Equipment leaves Seller’s facility. Seller shall not be liable to Buyer for Equipment which is damaged or lost while in transit or in the possession of a common carrier, and it shall be Buyer's sole responsibility to insure the Equipment and to recover any and all damage directly from such common carrier or its insurer.

DELAYS; FORCE MAJEURE. Seller shall not be liable for delay or default in delivery and all quotations, agreements, and deliveries are subject to, and contingent upon, any cause beyond Seller's reasonable control, including but not limited to, inclement weather, acts of God, epidemics, pandemics, strikes, labor difficulties, riot, civil unrest, war, fire, delay or defaults of common carriers, failure or curtailment in the Seller's usual sources of supply, governmental decrees or orders, damage or destructions of goods, or any other cause beyond Seller's control (collectively, “Force Majeure Events”). Seller shall not be liable for any loss or damage arising out of delay or default in delivery and the Seller shall have the additional right, in the event of a Force Majeure Event, at its option and sole discretion, to cancel this Agreement without any resulting liability. Shipments made within 30 days after specified date of delivery shall constitute a proper delivery. Any delivery not in dispute shall be paid for regardless of other controversies relating to other delivered or undelivered Equipment.

DISCLAIMER OF WARRANTIES.

Tested Equipment

Equipment sold as Tested is provided with a 30 day warranty unless otherwise stated.

Refurbished Equipment

Equipment sold as Refurbished is provided with a 90 day warranty unless otherwise stated.
Appendix 1 provides the specifics of the limited warranty for Tested and Refurbished Equipment.

As Is Equipment

EXCEPT FOR THE PRODUCT WARRANTIES SET FORTH IN APPENDIX A, ALL EQUIPMENT OTHER THAN THAT SPECIFICALLY SOLD AS TESTED OR REFURBISHED IS IN USED CONDITION AND IS SOLD BY SELLER TO BUYER "AS IS," "WHERE-IS," “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY WHATSOEVER. SELLER NEITHER MAKES NOR ASSUMES ANY WARRANTY, WHETHER STATUTORY, BY OPERATION OF LAW, OR OTHERWISE, EXPRESS OR IMPLIED, WITH RESPECT TO ANY EQUIPMENT OR WITH RESPECT TO THE MERCHANTABILITY OR FITNESS OF SUCH EQUIPMENT FOR ANY PURPOSE OR ANY OTHER WARRANTIES. SELLER DOES NOT WARRANT THAT SUCH EQUIPMENT CONFORMS TO ANY PLANS OR SPECIFICATIONS OF BUYER OR OTHERS OR MEETS ANY REQUIREMENTS OF ANY COUNTRY, FEDERAL, STATE OR LOCAL LAWS, REGULATIONS OR ORDINANCES PERTAINING TO SAFETY OR INSURANCE REQUIREMENTS. BUYER ACKNOWLEDGES THAT IT WILL BE RESPONSIBLE FOR INSPECTING ALL EQUIPMENT PRIOR TO PURCHASE AND ENSURING THAT ALL EQUIPMENT PURCHASED FROM SELLER IS INSTALLED AND OPERATED IN A PROPER AND SAFE MANNER. Buyer has not received from Seller or any of its employees or agents, and is not relying on, any representations, warranties or guarantees regarding the condition, functionality, compatibility, feasibility or other aspects of the Equipment – any such statements are opinions only and should not be construed promises or guarantees about the Equipment. Buyer acknowledges that the Equipment may contain technology, software, code, data, controlled items or other intellectual property, none of which is included in the Sale (collectively, “Intellectual Property”). Unless Buyer has a valid license for the Intellectual Property, as soon as reasonably practicable, Buyer agrees to “wipe,” destroy or otherwise remove any and all such Intellectual Property from the Equipment.

BUYER’S RESPONSIBILITY AND INDEMNITY. BUYER ALSO ACKNOWLEDGES THAT IT MAY HAVE TO PURCHASE SOFTWARE, LICENSES, INSTALL OR CHANGE GUARDS, SAFETIES, WARNINGS OR OTHER COMPONENTS TO ENSURE THAT THE EQUIPMENT WILL CONFORM TO ALL LAWS, REGULATIONS, INSURANCE REQUIREMENTS AND INDUSTRY STANDARDS. BUYER AGREES TO DEFEND (BY COUNSEL SATISFACTORY TO SELLER), INDEMNIFY AND HOLD HARMLESS SELLER AND ITS AFFILIATES FROM AND AGAINST ALL SUITS, CLAIMS, TAXES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS OF INVESTIGATION) ARISING OUT OF, RESULTING FROM, OR CONNECTED WITH THE SALE AND DELIVERY OF THE EQUIPMENT TO BUYER BY SELLER, AND ANY USE OF THE EQUIPMENT BY BUYER.

LIMITATION OF SELLER'S LIABILITY; CLAIMS LIMITATION. SELLER'S LIABILITY, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), UNDER ANY WARRANTY, OR OTHERWISE, WILL NOT EXCEED THE REFUND OF THE PURCHASE PRICE PAID BY BUYER FOR THE EQUIPMENT, AND UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE FOR LOST PROFITS, BUSINESS INTERRUPTION, DIMINUTION IN VALUE, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY BUYER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

SECURITY INTEREST. Buyer hereby grants Seller a purchase money security interest in all Equipment purchased hereunder and the proceeds therefrom to secure Buyer’s payment obligations under this Agreement. Seller may file a financing statement for such security interest and Buyer shall execute any such statements or other documentation necessary to perfect Seller’s security interest.

NECESSARY DOCUMENTS, GOVERNING LAW. At Seller's request, Buyer will furnish information to Seller that, according to U.S. Federal law, Seller must report to the U.S. Customs, Drug Enforcement Administration or other governmental agency. The parties shall each deliver or cause to be delivered to the other, at such other times and places as shall be commercially reasonably agreed to, such additional instruments, and take such additional actions as can be taken without unreasonable expense, as any other may reasonably request for the purpose of carrying out this Agreement. This Agreement shall be governed by, enforced and construed according to the laws of The State of Rhode Island. The United Nations Convention on Contracts for the Sale of Equipment does not apply to any sales of Equipment to Buyer.

ARBITRATION. The parties shall submit any and all controversies, claims, disputes and matters of difference arising out of or relating to this Agreement and the Equipment exclusively to arbitration in Providence County, Rhode Island in accordance with the Commercial Arbitration Rules of the American Arbitration Association from time to time in effect (the "Rules”). Notwithstanding anything to the contrary contained in this Agreement, each of the parties agrees that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act applies to and governs this arbitration provision and shall preempt any inconsistent state or federal rule or law. The parties agree to grant all powers to the arbitrator to the fullest extent of the Rules. The parties may agree on a retired judge as sole arbitrator. In the absence of such agreement, there will be three arbitrators, selected in accordance with the Rules. If there are three arbitrators, a decision reached by at least two of the three arbitrators will be the decision of the arbitration panel; provided, however, that in the case of monetary damages, if there is no agreement of two arbitrators as to the amount of the award, then the highest and lowest amounts will be disregarded, and the remaining amount will be the final award of the arbitration panel. Any award of the arbitrator(s) will include costs and reasonable attorneys' fees to the prevailing party. The parties agree to abide by any decisions reached and awards rendered in such arbitration proceedings, and all such decisions and awards will be final and binding on both parties. There will be no appeal from any such decision or award other than for fraud or misconduct in connection with the arbitration proceedings. Judgment upon such award or decision may be entered in any court in Providence County, Rhode Island. Each of the parties consents to the exclusive jurisdiction of the state and federal courts located in the County of Providence, State of Rhode Island (and of the appropriate appellate courts therefrom) in any such action or proceeding (including an action to compel arbitration or to stay any proceeding inconsistent with this provision) and in any other action or proceeding arising out of or relating to this Agreement, including but not limited to its performance, enforcement, scope and/or interpretation, and waives any objection to venue or to the jurisdiction of such courts. Each of the parties agrees that process in any action or proceeding may be served personally or by registered mail anywhere in the world. Notwithstanding the foregoing, insofar as injunctive relief is sought in any action or proceeding initiated by any party to this Agreement, such injunctive relief may be sought in a judicial proceeding consistent with the jurisdiction and venue provisions below. If any party files a court action arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, to compel or stay arbitration (by petition, motion or otherwise), or to confirm, vacate or modify an arbitration award (except for a noncontested application to confirm), or to seek payment of any attorneys' fees and/or costs awarded by the arbitrator(s) but not paid by the non-prevailing party in the arbitration, or in the event any party seeks enforcement of any arbitration award or judgment arising out of an arbitration award, reasonable attorney’s fees and other costs incurred by the prevailing Party in such court action or in connection with such judgment enforcement shall be reimbursed by the non-prevailing party. THE PARTIES UNDERSTAND AND AGREE THAT, ABSENT THIS AGREEMENT TO ARBITRATE, THEY WOULD HAVE THE RIGHT TO SUE EACH OTHER IN COURT, AND THE RIGHT TO A JURY TRIAL, BUT THEY GIVE UP THOSE RIGHTS VOLUNTARILY AND AGREE TO RESOLVE ANY AND ALL GRIEVANCES BY ARBITRATION IN ACCORDANCE WITH THIS SECTION.

ENTIRE AGREEMENT. This Agreement and any attachments or exhibits constitute the sole and entire understanding between Buyer and Seller and supersedes all prior representations, agreements and understandings between Buyer and Seller related to the subject matter hereof, whether oral, written or otherwise. This Agreement supersedes any provisions, terms, and conditions contained on any confirmation order, purchase order or other writing the Buyer may give or receive in connection with the Equipment, and the rights of the parties shall be governed exclusively by the provisions of this Agreement.

SEVERABILITY. The provisions of this Agreement shall be severable. Should any part, term or provision of this Agreement be construed by any court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, the legality, validity and enforceability of the remaining parts, terms and provisions shall not be affected thereby.

COUNTERPARTS; EXECUTION. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which, taken together, will constitute one and the same agreement. Delivering signatures electronically or via facsimile shall be an acceptable means of executing this Agreement, and signatures so delivered shall be fully binding on the signing party.

NOTICE. All notices and other communications required or permitted by this Agreement will be effective on receipt and must be in writing and delivered via United States mail or a nationally recognized overnight courier service, postage prepaid and registered or certified with return receipt requested, to the addresses set forth below.

ASSIGNMENT. Buyer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller.

Appendix 1 – Covered Equipment Limited Warranty Statement

SSLLC provides a 30-day limited warranty on all tested Equipment and 90 days for all refurbished Equipment, which extends only to the original purchaser, and warrants that such Equipment will materially conform to the specifications set forth in Seller’s published specifications in effect as of the date of shipment and will be free from material defects in material and workmanship. Warranties are not transferrable.

Seller shall not be liable for a breach of the warranties set forth in this Appendix unless: (i) Buyer gives written notice of the defective or non-conforming Equipment, reasonably described, to Seller within 48 hours of the time when Buyer discovers or ought to have discovered the defect and obtains an RMA; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty to examine such Equipment and Buyer (if requested to do so by Seller) returns such Equipment to Seller's place of business at Seller's cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Equipment is defective or non-conforming.

If a defect exists, Buyer must contact SSLLC customer service in writing (at customerservice@ssllc.com) to obtain a Return Merchandise Authorization (RMA) prior to shipment of the Covered Equipment to SSLLC for repair or replacement, as determined by SSLLC in its sole discretion. Reasonable shipping costs incurred from returns for Covered Equipment with a RMA within the applicable warranty period will be reimbursed once a defect with equipment is confirm by SSLLC.

Upon the return of the Equipment to SSLLC, the Equipment will be inspected and, if confirmed to be defective, repaired at no charge using new or refurbished replacement parts or exchanged for a functionally equivalent Equipment. If SSLLC cannot repair or replace the Equipment within a reasonable timeframe SSLLC shall have the option to refund the purchase price of the Equipment to the Buyer.

This warranty does not cover (i) any software installed on the Equipment, (ii) routine maintenance or service, breakage, or damage by misuse, intentional or unintentional abuse or neglect, or (iii) consumables.

SSLLC expressly disclaims all other warranties, express or implied, including the warranties of fitness for a particular purpose or intended use. SSLLC is not responsible for damages to facilities, other equipment, products, property or personnel of others, or of their agents.

The Buyer’s sole and exclusive remedies under this warranty are set forth in this section. All warranty claims must be made in writing within the warranty period. All claims not made within the warranty period will be deemed waived by the Buyer.

SSLLC is not responsible for any additional costs of repair caused by poor packaging or in-shipment damage during return.

This warranty does not cover:

(i) Improper installation, removal or disposal of the Covered Equipment, or the provision of equipment while the Covered Equipment is being serviced

(ii) Damage caused by (a) a product that is not the Covered Equipment (b) abuse, misuse, natural phenomenon, including but not limited to flood, fire, earthquake or other external cause, (c) operating the Covered Equipment outside the permitted or intended uses described by the manufacturer, or (d) improper storage, installation or service (including upgrades and expansions) performed by anyone who is not a representative of SSLLC.

(iii) Covered Equipment with a serial number that has been altered, defaced or removed, or has been modified to alter its functionality or capability without the written permission of the manufacturer;

(iv) Covered Equipment that has been lost or stolen or transferred to another party. This Warranty only covers Covered Equipment that is returned to SSLLC in its entirety;

(v) Cosmetic damage to the Covered Equipment including but not limited to scratches, dents and broken plastic on ports;

(vi) Consumable components, such as batteries, lightbulbs, or disposable accessories;

(vii) Preventative maintenance on the Covered Equipment;

(viii) Loss of revenue as a direct or indirect result of Covered Equipment loss or interrupted use.

At the sole discretion of SSLLC, your device/equipment may be repaired, or refunded under valid warranty coverage. Depending on the condition of the Equipment, it may need to be sent to a SSLLC facility for service and/or repair. In the event this is required, it is your responsibility to ensure proper packing and shipping for safe transit.

Before receiving warranty service, SSLLC or its agents may require that you furnish proof of purchase details, respond to questions designed to assist with diagnosing potential issues and follow SSLLC procedures for obtaining warranty service. Before submitting your Equipment for warranty service you should create a separate backup copy of the contents of its storage media, remove all personal information that you want to protect and disable all security passwords.