Basic asset purchase agreement that may be suitable for purchase of business equipment (software or hardware), with no warranties made by the Seller.
Asset Purchase Agreement (this “Agreement”) dated as of Date, between Buyer (“Buyer”) and Seller (“Seller”).
Whereas, Seller desires to sell, assign, transfer and convey to Buyer, and Buyer desires to purchase, acquire and accept from Seller, one Inventory Management and Delivery System (the “System”) pursuant to and in accordance with the terms and conditions of this Agreement.
Therefore, in consideration of the mutual representations, warranties, covenants and agreements herein contained, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
Capitalized terms used in this Agreement have the meanings set forth below:
“Business Day” means any day other than a Saturday or a Sunday or other day on which banking institutions in the State of New York are authorized or required by applicable law or other governmental action to close.
“Closing Date” means the date on which the transactions contemplated by this Agreement are consummated.
“Governmental Authority” shall mean any federal, state or local governmental entity, authority or agency, court, tribunal, board, regulatory commission or other body of any federal, state, county, district, municipality, city, foreign or other government unit.
ARTICLE 2. PURCHASE, SALE AND DELIVERY OF ASSETS
2.1 Transfer of Assets.
At the Closing, and upon the terms and subject to the conditions set forth in this Agreement, Seller shall sell, assign, transfer and convey to Buyer, and Buyer shall purchase, acquire and accept from Seller, all right, title and interest in and to the System.
The purchase price for the sale, assignment, transfer and conveyance of the System shall be $Amount (the “Purchase Price”). Buyer shall pay the Purchase Price in full no later than 10 Business Days following the delivery of the System by Seller as provided herein, subject to Buyer’s right of inspection as set forth in Section 2.4 of this Agreement. In the event that the Purchase Price is not timely paid, in addition to other remedies, Seller may impose, and Buyer shall pay, a late payment charge equal to 10% of the overdue amount each month that the full Purchase Price has not been paid.
Seller shall cause the System to be delivered and installed at Buyer’s store, located at Address. The risk of loss from any casualty to the System, regardless of the cause, shall be upon Seller until the System has been delivered to and installed at Buyer’s store.
2.4 Right of Inspection.
Buyer shall have the right to inspect the System for a period of up to 5 days after installation at Buyer’s store. Buyer must give written notice to Seller of any claim with respect to the condition of the System, or non-conformance to this Agreement, specifying the basis of the claim in detail by e-mail, fax or a recognized overnight delivery service such as FedEx. In the event of such a claim, Seller reserves the right to inspect the System at Buyer’s store to confirm the claim. In the event that the System does not conform to this Agreement, Buyer may request that Seller replace the System at Seller’s expense.
2.5. Transfer of Title.
Transfer of title and full ownership rights in the System shall not pass to Buyer until Buyer has paid in full the Purchase Price to Seller, including any late fees, if applicable, as described in Section 2.2.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth herein, Seller makes no warranty to Buyer with respect to the System, and Buyer disclaims all other warranties, express or implied, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose.
The System is in new condition, fit for ordinary use, and Seller has good and valid title to the System, free and clear of all liens.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer shall pay or reimburse Seller, as appropriate, for any sales, use, excise or other tax imposed or levied with respect to the payment of the Purchase Price for the System, or for the conveyance of title in the System to Buyer by any recognized Governmental Authority, whether at the local, state or federal level. In no event shall Buyer be responsible for any tax imposed upon Seller based upon Seller’s income or for the privilege of doing business.
Buyer is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New York, and has all requisite power and authority to own, lease and operate all of its properties and assets, and to carry on its business as now conducted, to enter into this Agreement and to carry out the obligations thereunder.
4.3 No Violation.
Neither the execution and delivery of this Agreement nor the consummation of the transaction contemplated hereby will (i) result in the acceleration of, or the creation in any party of any right to accelerate, terminate, modify or cancel any material indenture, contract, lease, sublease, loan agreement, note or other obligation or liability to which Buyer is a party or by which it is bound, or to which any of its assets is subject or (ii) conflict with or result in a breach of or constitute a default under any provision of the Articles of Association (or other charter documents) of Buyer, or a default under or violation of any material restriction, lien, bond, guarantee, license, permit, agreement, understanding, arrangement, commitment, indenture, contract, lease, sublease, loan agreement, note or other obligation or liability, whether oral or written, to which it is a party or by which it is bound or to which any of its assets is subject or result in the creation of any lien or encumbrance upon any of said assets.
4.4 No Consents.
No consent of, or notice to, any federal, state or local authority, or any third party or entity, is required to be obtained or given by Buyer in connection with the execution, delivery or performance of this Agreement.
ARTICLE 5. TERMINATION
This Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing by (a) mutual written consent of Seller and Buyer; (b) Seller in the event of any breach by Buyer of any of its representations or warranties contained herein, and the failure of Buyer to cure such breach within 10 Business Days after receipt of written notice from Seller requesting such breach to be cured; or (c) Buyer in the event of any breach by Seller of any of its representations or warranties contained herein, and the failure of Seller to
cure such breach within 10 Business Days after receipt of written notice from the Buyer requesting such breach to be cured.
ARTICLE 6. MISCELLANEOUS
6.1 No Waiver.
The waiver or failure of either party to exercise in any respect any right provided in this Agreement shall not be deemed a waiver of any other right or remedy to which the party may be entitled.
6.2 Entirety of Agreement.
The terms and conditions set forth in this Agreement constitute the entire agreement between the parties and supersede any communications or previous agreements with respect to the subject matter of this Agreement. There are no written or oral understandings, directly or indirectly, related to this Agreement that are not set forth herein. No change can be made to this Agreement other than in writing and signed by both parties.
6.3 Governing Law.
This Agreement shall be construed and enforced according to the laws of the State of New York. Any claim or dispute related to this Agreement, including the validity of this arbitration clause, shall be resolved by binding arbitration by the American Arbitration Association, under the arbitration rules then in effect, by a panel of three arbitrators (one to be chosen by Buyer, one to be chosen by Seller, and the third to be chosen by the two arbitrators chosen by Buyer and Seller).
If any term of this Agreement is held found to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
In Witness whereof, the parties have executed this Agreement as of the date first written above.