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Terms and Conditions

PROP FABRICATION AND SALE

STANDARD TERMS & CONDITIONS

THESE PROP FABRICATION AND SALE STANDARD TERMS & CONDITIONS are incorporated into and form a part of the purchase order (the “Purchase Order”) you have entered into with us for the fabrication and sale of Props (the Purchase Order together with these Standard Terms & Conditions are collectively, the “Agreement”).  This Agreement is hereby entered into by the “Customer” reflected in the Purchase Order (“you” or “your”), and BRENBRI PROPERTIES LIMITED LIABILITY COMPANY, a New Jersey limited liability company (“us” or “we” or “our”), effective as of the date such Purchase Order was signed by us. Any services provided or performed by us pursuant to the Purchase Order (the “Services”) and our manufacturing and your purchase of any goods from us (the “Props”) are exclusively subject to the terms of this Agreement, and we hereby object to and reject any additional or different terms not contained therein. This Agreement prevails over any other terms and conditions related to the subject matter of this Agreement, regardless of whether or when you have submitted your purchase order. Our fulfillment of your order does not constitute our acceptance of any other terms and conditions and does not serve to modify or amend this Agreement.  In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

  1. Purchase Orders; Quotations; Errors. All orders, whether or not submitted pursuant to a quotation, are subject to acceptance by us. We reserve the right to accept or reject all orders including, but not limited to, purchase orders entered pursuant to an expired quotation. Unless stated otherwise in a quotation, prices quoted are valid for a period of thirty (30) calendar days after which we have the right to adjust quoted prices upon written notice to you. Further, we may, upon written notice to you, assess a surcharge on any Props and/or without prior notice, choose to pass along any price increase in our cost of the subject Props and/or any service or surcharge imposed on us by our suppliers. Any outstanding quotation may be amended or terminated by written notice from us to you. Any typographical or clerical errors or discrepancies in a quotation or marketing information such as catalogs, brochures, websites, and drawings available to you are subject to correction in our sole discretion. Any quotation prepared for you is based on various business factors and considerations and, without our prior written consent, is not valid for any party other than you.
  2. Prices; Payment Terms.
    • Prices are in U.S. dollars and are subject to change without prior notice for any reason. All orders are accepted subject to our price in effect at the time of shipment. If there is a price increase before Products are shipped, the Agreement between us and you will be constituted as if the increased prices were originally included and we will invoice you accordingly.
    • We will invoice you in accordance with the terms set forth in the Purchase Order. All amounts billed are due within ten (10) days from the date of our invoice unless otherwise specified.  You will pay all bank charges, taxes, duties, levies and other costs and commissions associated with any bank wire transfers or other means of payment.
    • Any overdue and unpaid portion of the amounts you are required to pay will bear interest, compounded at one and one-half percent (1.5%) per month or the maximum rate allowed by applicable law, whichever is less. We may suspend performance of orders until the overdue amounts are paid in full. You will reimburse us for reasonable attorneys’ fees and any other costs associated with collecting delinquent payments.
    • All Fees quoted and payable under the Agreement exclude taxes. You will pay or reimburse us for all applicable sales, services and other taxes (excluding taxes on our net income) levied upon the rental or sale of Props and Services unless you are exempt and provides us with a valid tax exemption certificate prior to our invoice date. When required to comply with any law or regulation, we will add such taxes to the sales price when invoicing you and you shall pay the same unless you have provided us with a valid tax exemption certificate or similar document satisfactory in form to us.
    • In the event of your failure to timely pay or our reasonable doubt as to your ability to pay, we may require advance payment or collateral and may refuse fulfillment of further shipments until our demand is fulfilled. In addition to all other remedies available under this Agreement or at law (which we do not waive by the exercise of any rights under this Agreement), if you fail to pay any amounts when due as required by this Agreement, we may suspend the delivery of any Props, cancel any or all accepted purchase orders and declare all unpaid amounts for Props previously delivered immediately due and payable, all without liability to us. If production or shipment of Props, or other performance by us, is delayed by any action or inaction by you, we may immediately invoice and you shall pay the percentage of the purchase price corresponding to the percentage of completion. In addition, you shall compensate us for storage of Props and work in process during any such delay at our then-current rates for preparation and storage for the materials as determined by us. This applies whether storage is at our facility or a third-party storage facility.
    • All shipments are subject to our prior written approval of your credit. Where we have extended credit to you, we reserve the right, at any time, to modify the amount of credit or terms of payment or to revoke your credit.
    • Disputes will not be a basis for withholding payment of any undisputed amounts due under the Agreement or offsetting other amounts due, whether or not the disputed item is on the same order or invoice, nor will any amount be retained in anticipation of a dispute for which notice has not been received.
  3. Security Interest. To secure your obligations to pay for any Prop, you hereby grant to us a security interest in the Prop(s), wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the applicable Uniform Commercial Code. You authorizes us to file such financing statements relating to our security interest in the Props as we deem appropriate. You agree to take any action reasonably requested by us in connection with the granting of the security interest.
  4. Cancellation. We may cancel any purchase order or terminate any agreement relating to the purchase of Props upon reasonable prior written notice to you. Once we have acknowledged acceptance of a purchase order or have begun taking actions with respect to a purchase order, you do not have the right to cancel that purchase order. If, however, we agree in writing to permit a requested cancellation, you shall immediately pay to us a cancellation charge in an amount equal to all costs incurred and committed to by us for the order or in connection with the cancellation or modification, together with a reasonable allowance for our prorated expenses and anticipated profits.
  5. Custom Parts, Equipment and Fabrications. Quoted prices for custom equipment and fabrications do not include freight or crating charges. We determine freight arrangements but will, in our discretion, consider your written request for special freight arrangements and will advise you if the special arrangements will be allowed. All freight and crating charges will be added to the invoices and are your responsibility. If you specify that we must use any equipment not manufactured by us in a fabrication, you are responsible for ordering and paying for such equipment. You are also responsible for making arrangements to ship such equipment to us with delivery to occur on a schedule agreed upon in writing by the parties. You shall bear all risk of loss of such equipment in shipment and while held at our location.
  6. Shipping; Delivery. All shipping and delivery dates are approximate and are based upon prompt receipt of all necessary information from you. Delay in delivery of any shipment does not relieve you of your obligation to accept remaining shipments.
  7. Title and Risk of Loss. Title and risk of loss pass to you upon our delivery of Props in accordance with the applicable delivery terms. You shall fully insure the Props against all risks from the time of such delivery. You are responsible for filing any claims for loss or damage with the carrier.
  8. Inspection/Non-Conforming Shipments. You shall inspect Props within three (3) days after delivery (“Inspection Period”). You must notify us in writing within the Inspection Period of any damage, or other non-conformity in our filling of your order, including any non-conforming Props, and afford us a reasonable opportunity to inspect such Props and cure any nonconformity. Your failure to provide the required written notice to us within the Inspection Period constitutes your confirmation that (i) you have accepted the Props without qualification and waive any claims with respect thereto, and (ii) you have tested the Props in accordance with reasonable industry standards and found them to be in working order.
  9. Other Changes.
    • By US. Unless otherwise agreed in writing by the parties, we may, at any time and without notice to you, make changes in design and construction of Props, components or parts if the changes are deemed appropriate by us and if the changes substantially conform to your specifications. We may furnish suitable substitutes for materials which cannot, for any reason, be reasonably obtained.
    • By You. Any changes or modifications requested by you after our acknowledgement of your Purchase Order must be expressly agreed to in writing by us. We reserve the right, in our sole discretion, to adjust the time for performance and you are responsible for all charges and expenses reasonably incurred with respect to such change.
  10. Occupational Safety and Health Act (OSHA). Products manufactured by us are designed to meet existing specifications and are provided with standard safety features in line with sound design practice. However, we do not certify that the Prop will comply with all applicable OSHA provisions. It is your responsibility to request an inspection of the Props prior to shipping. Upon receipt of an inspection request, we will make all necessary arrangements for same. If, after your inspection and prior to delivery of Props you determine additional guards or safety devices are required, you shall provide information to us regarding your needs. We will then provide you with a quotation reflecting the cost of any additional work desired by you.
  11. Indemnity. You agree to defend, indemnify, and hold harmless us, our affiliates, each of our and their respective equity owners, officers, directors, employees, representatives and agents from and against any and all claims, actions, causes of action, demands, rights, damages of any kind, costs, loss of profit, expenses and compensation whatsoever including costs and reasonable attorneys’ fees (“Claims”), in any way arising from, or in connection with, or resulting from the use, maintenance, storage or possession of the Props, including, without limitation, (a) improper selection, improper application or other use or misuse of Props purchased by you from us, (b) as a result of your breach or Default under this Agreement, or (c) negligence or willful misconduct by you, your employees or agents. The terms of this Section survive the expiration or earlier termination of this Agreement.
  12. DISCLAIMER OF WARRANTIES. YOU HEREBY ACKNOWLEDGE THAT THE PROPS ARE MANUFACTURED AND SOLD “AS IS” AND “WITH ALL FAULTS.” WE MAKE NO WARRANTY, AND SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY WHATSOEVER, WITH RESPECT TO THE PROPS REGARDING TITLE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY, FREEDOM FROM CLAIMS OF INFRINGEMENT OR THE LIKE, FITNESS FOR USE FOR A PARTICULAR PURPOSE, QUALITY OF MATERIALS OR WORKMANSHIP, OR ABSENCE OF DISCOVERABLE OR NON-DISCOVERABLE DEFECTS. YOU SHALL EXAMINE AND INSPECT ANY PROPS RENTED HEREUNDER TO DETERMINE THAT THE PROPS ARE IN GOOD WORKING ORDER. SUCH EXAMINATION AND INSPECTION SHALL OCCUR AT THE TIME OF DELIVERY, AND IN ANY EVENT BEFORE THE FIRST USE OF THE PROPS. YOUR USE OF ANY PROPS SHALL CONSTITUTE AN ACKNOWLEDGEMENT BY YOU THAT SUCH PROPS ARE IN GOOD WORKING ORDER, AND YOU ASSUME ALL RISK OF LIABILITY RESULTING FROM ANY MALFUNCTIONING, DAMAGED OR OTHERWISE UNSAFE PROPS. WITHOUT LIMITATION OF THE FOREGOING, WE HAVE NO LIABILITY WHATSOEVER FOR THE FOLLOWING: (A) DAMAGE RESULTING FROM: (I) SHIPPING, ACCIDENT, NEGLECT, OR IMPROPER INSTALLATION, SETUP OR USE; (II) FAILURE TO FOLLOW OPERATING INSTRUCTIONS AND/OR SCHEDULED MAINTENANCE PROCEDURES; (III) MODIFICATION OF PROPS IN ANY MANNER FROM ORIGINAL MODEL, (IV) SUBSTITUTION OF PARTS OTHER THAN FACTORY AUTHORIZED PARTS, (V) UNAUTHORIZED REMOVAL OR UNAUTHORIZED ADDITION OF ANY PARTS; OR (VI) NORMAL WEAR AND TEAR; AND (B) NATURALLY OCCURRING COSMETIC VARIATIONS IN MATERIALS SUCH AS STONE AND WOOD USED IN THE FABRICATION OF CUSTOM EQUIPMENT.
  13. Exclusive Remedy. If we determine in good faith that any Prop is non-conforming or defective and if you have timely notified us as required under this Agreement, our sole obligation to you and your SOLE AND EXCLUSIVE REMEDY is for us to repair or replace the Prop. We may condition repair, replacement or credit upon your return of the Props to us. Failure to promptly return the Prop(s) will result in your being charged for it/them.
  14. Limitation of Liability.
    • IN NO EVENT WILL WE OR OUR AFFILIATES, OR ANY OF OUR OR THEIR RESPECTIVE EQUITY OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES OR AGENTS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, OR COST OF COVER. THE LIMITATIONS OF LIABILITY IN THIS SECTION APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR ESSENTIAL PURPOSE.
    • OUR LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH ANY PROPS OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT OF THE FEES PAYABLE FOR THE SPECIFIC PROPS OR SERVICES MOST DIRECTLY RELATED TO THE CLAIM. OUR TOTAL AGGREGATE LIABILITY FOR EACH AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE LESSER OF: (i) AN AMOUNT EQUAL TO THE AGGREGATE TOTAL AMOUNT OF ALL FEES PAID UNDER THE AGREEMENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM; OR (ii) $5,000.
  15. Use of Props. You are solely responsible for determining if a Prop is fit for a particular purpose and suitable for your method of application. Accordingly, and due to the nature and manner of use of the Props, we are not responsible for the results or consequences of use, misuse or application of the Props. All physical properties, statements and recommendations are either based on the tests or experience that we believes to be reliable, but they are not guaranteed.
  16. Tooling/Molds/Dies. All material, equipment, facilities and special tooling (including tools, jigs, dies, fixtures, molds, patterns, special taps, special gauges, special test equipment and manufacturing aids and replacements thereof) manufactured or purchased by us which is used in the manufacture of Props will be our property. Any material, tooling or equipment funded by you and furnished to us for you will be held by us at your sole risk and expense and will remain your property with title to and right of possession remaining in you.
  17. Intellectual Property; Confidential Information.
    • All sketches, models, drawings, renderings, virtual or augmented reality files, samples, know-how, designs, specifications, inventions, devices, developments, processes, copyrights and other such information or intellectual property disclosed or otherwise provided to you by us and all rights therein (“Intellectual Property”) are our property and shall be kept confidential by you in accordance with this Agreement. You have no claim to, nor ownership interest in, any Intellectual Property, and such information, in whatever form and any copies thereof, must be promptly returned to us upon our request. You acknowledge that no license or rights of any sort are granted to you under this Agreement in respect of any Intellectual Property, other than the limited right to use Props purchased from us.
    • All information, including Intellectual Property, furnished by us or any other person acting on behalf of us and all information learned about us or our operations through performance of any order or this Agreement is confidential and you shall not, without our express written consent, disclose any such information to any other person, or use such information for any purpose other than performing any order or the terms of this Agreement. This Section does not apply to information that is (a) in the public domain; (b) known to you at the time of disclosure without an obligation of confidentiality; or (c) legally made available to you by or through a third party having no direct or indirect confidentiality obligation to us with respect to such information.
  18. Default. We may, by written notice to you, declare you in default on the occurrence of any of the following (each, a “Default”): (a) failure by you to make payments or perform as required hereunder, or breach of, any of your obligations under this Agreement; (b) institution by or against you of any proceedings in bankruptcy or insolvency, or reorganization under any law, or the appointment of a receiver or trustee for your assets or any assignment by you for the benefit of creditors; or (c) transfer of your interest in this Agreement by operation of law. Upon notice from us to you that you are in default, we have the following options: (i) to terminate the Agreement and your rights under the Agreement; or (ii) to declare the balance of all unpaid fees or charges of any kind required of you under the Agreement to be payable immediately, in which event we will be entitled to the balance due together with interest at the rate of ten percent (10%) per annum, from the date of notification of default to the date of payment. After Default, you will reimburse us for all reasonable expenses of enforcement of our rights and remedies, including, but not limited to, reasonable attorneys’ fees, together with interest at the rate of ten percent (10%) per annum from the date of Default. You further agree that the continuation of our performance hereunder after a Default shall not constitute a waiver or operate as any form of estoppel with respect to our later assertion of our right to cease such performance at any time so long as such Default has not been cured. Our remedies will be cumulative to the extent permitted by law, and may be exercised partially, concurrently, or separately. The exercise of one remedy will not be deemed to preclude the exercise of any other remedy.
  19. Force Majeure. We are not liable for any loss, damage or expense of any nature incurred by you as a result of any delay or failure to manufacture, ship, or deliver any Props to you if the delay or failure is caused, in whole or in part, by the occurrence of any contingency beyond our reasonable control or that of our suppliers. Such events may include, but are not limited to, floods, storms or other acts of God, your acts, acts of any governmental authority or agent, fire, accident, strike, slowdown, war, act of terrorism, riot, epidemic, pandemic, quarantine, outbreaks of infectious disease or other public health crises, inability to obtain raw materials at a reasonable cost, failure or delay in transportation, shortage of labor, fuel, materials or manufacturing facilities or any other cause or circumstance that is beyond our reasonable control. In the event of any such delay, the time for performance will extend for such time as reasonably necessary to enable us to perform.
  20. Applicable Law; Venue. The Agreement and any disputes arising out of or relating to the Agreement will be governed by the laws of the state of New Jersey, excluding conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.  Any action or other judicial proceeding arising out of or relating to the Agreement or the transactions or other activities contemplated by the Agreement shall be instituted only in state court located in Bergen County, New Jersey. Each of the parties irrevocably and unconditionally submits to the jurisdiction of such courts in any such action and agrees that all claims in respect of such action may be heard and determined in such courts. Each of the parties irrevocably and unconditionally waives any objection it may now or later have as to the venue of any such action brought in such a court or that such court is an inconvenient forum.
  21. WAIVER OF JURY TRIAL. EACH PARTY HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY DISPUTE RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER THEREOF, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY EACH PARTY AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
  22. Severability. If any provision of this Agreement or the application of any of its provisions to any party or circumstance is held invalid or unenforceable, the remainder of this Agreement, and the application of those provisions to the other parties or circumstances, will remain valid and in full force and effect.
  23. Counterparts. This Agreement may be executed in counterparts and by facsimile signature, electronic signature (such as, without limitation, using the electronic signature software known as “DocuSign”) or signature that is scanned and transmitted by e-mail; such forms of signature shall be deemed to be original and fully binding.
  24. Notices. All notices under this Agreement shall be sent by express delivery service to each party to the respective address set forth in the Purchase Order (or such other address as one party shall inform the other by like written notice). Notices shall be deemed delivered upon proof of delivery of such notice to the party intended to receive the same.
  25. Rights, Power and Authority. Each party hereto represents and warrants that it has the exclusive right, power and authority to enter into this Agreement and to grant the rights granted herein, and that no other consents, permissions or approvals are required for it to perform its obligations as contemplated under this Agreement. Each party hereto represents and warrants that the person(s) executing this Agreement on such party’s behalf is/are authorized to do so, and that the execution of this Agreement by such person(s) shall bind such party to the terms and conditions of this Agreement.
  26. Relationship of the Parties. The relationship between the parties is that of independent contractors. This Agreement does not create any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever.
  27. No Third-Party Beneficiaries. Other than with respect to indemnification rights and obligations under this Agreement, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, confers upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms.
  28. Assignment; Binding Effect. You may not assign any rights or interest or delegate any obligations under the Agreement or any purchase order without our prior written consent. Any attempted assignment will be void and of no force of effect. We may assign the Agreement or otherwise transfer our rights and/or obligations under this Agreement. This Agreement will inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns.
  29. Rights and Remedies. We have all rights and remedies that applicable law gives to vendors. Our rights and remedies are cumulative and we may exercise them from time to time. No waiver is effective unless it is in writing. Any failure by us to require performance under any provision of this Agreement in no way affects our right to require full performance at any subsequent time, nor does our waiver of a breach of anything required by this Agreement Terms on one occasion constitute a waiver of any other breach of the same or any term.
  30. Time for Bringing Action. Unless prohibited by applicable law, and except with respect to indemnity claims by us, any action arising out of or relating to this Agreement or any order of Props, whether alleging breach of warranty or other breach or default, must be brought by you within one (1) year after the cause of action accrues. You shall pay costs and expenses incurred by us in enforcing any provision of this Agreement, including our reasonable attorneys’ fees.
  31. Headings. The captions and section headings in this Agreement are for convenience of reference only and are not to be considered a part of this Agreement, or limit, or otherwise affect in any way, the meaning or interpretation of this Agreement.
  32. Entire Agreement. This Agreement and any attached invoices and schedules, which are incorporated by reference and made an integral part of the Agreement, constitute the entire agreement between the parties. No agreements, representations, or warranties other than those specifically set forth in this Agreement or in the attached schedules will be binding on any of the parties unless set forth in writing and signed by both parties.
  33. Advice of Counsel. IN EXECUTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT WILL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION OF THIS AGREEMENT.

 

 

 

 

PROP RENTAL

STANDARD TERMS & CONDITIONS

THESE PROP RENTAL STANDARD TERMS & CONDITIONS are incorporated into and form a part of the purchase order (the “Purchase Order”) you have entered into with us for the rental of Props (the Purchase Order together with these Standard Terms & Conditions are collectively, the “Agreement”).  This Agreement is hereby entered into by the “Customer” reflected in the Purchase Order (“you” or “your”), and BRENBRI PROPERTIES LIMITED LIABILITY COMPANY, a New Jersey limited liability company (“us” or “we” or “our”), effective as of the date such Purchase Order was signed by us. Any services provided or performed by us pursuant to the Purchase Order (the “Services”) and your rental of any goods from us (the “Props”) are exclusively subject to the terms of this Agreement, and we hereby object to and reject any additional or different terms not contained therein. This Agreement prevails over any other terms and conditions related to the subject matter of this Agreement, regardless of whether or when you have submitted your purchase order. Our fulfillment of your order does not constitute our acceptance of any other terms and conditions and does not serve to modify or amend this Agreement.  In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

  1. Purchase Orders; Quotations; Errors. All orders, whether or not submitted pursuant to a quotation, are subject to acceptance by us. We reserve the right to accept or reject all orders including, but not limited to, purchase orders entered pursuant to an expired quotation. Unless stated otherwise in a quotation, prices quoted are valid for a period of thirty (30) calendar days after which we have the right to adjust quoted prices upon written notice to you. Further, we may, upon written notice to you, assess a surcharge on any Props and/or without prior notice, choose to pass along any price increase in our cost of the subject Props and/or any service or surcharge imposed on us by our suppliers. Any outstanding quotation may be amended or terminated by written notice from us to you. Any typographical or clerical errors or discrepancies in a quotation or marketing information such as catalogs, brochures, websites, and drawings available to you are subject to correction in our sole discretion. Any quotation prepared for you is based on various business factors and considerations and, without our prior written consent, is not valid for any party other than you.
  2. Rental. You agree that you are renting the Props in accordance with the terms of this Agreement, and that you have acquired no right, title or interest (including any security interest) in or to the Props, other than the right to possess and use the Props in accordance with the terms of this Agreement. At no time will you contest our sole ownership of the Props.
  3. Prices; Payment Terms.
    • Prices are in U.S. dollars and are subject to change without prior notice for any reason. All orders are accepted subject to our price in effect at the time of shipment. If there is a price increase before Products are shipped, the Agreement between us and you will be constituted as if the increased prices were originally included and we will invoice you accordingly.
    • We will invoice you in accordance with the terms set forth in the Purchase Order. All amounts billed are due within ten (10) days from the date of our invoice unless otherwise specified.  You will pay all bank charges, taxes, duties, levies and other costs and commissions associated with any bank wire transfers or other means of payment.
    • Any overdue and unpaid portion of the amounts you are required to pay will bear interest, compounded at one and one-half percent (1.5%) per month or the maximum rate allowed by applicable law, whichever is less. We may suspend performance of orders until the overdue amounts are paid in full. You will reimburse us for reasonable attorneys’ fees and any other costs associated with collecting delinquent payments.
    • All Fees quoted and payable under the Agreement exclude taxes. You will pay or reimburse us for all applicable sales, services and other taxes (excluding taxes on our net income) levied upon the rental or sale of Props and Services unless you are exempt and provides us with a valid tax exemption certificate prior to our invoice date. When required to comply with any law or regulation, we will add such taxes to the sales price when invoicing you and you shall pay the same unless you have provided us with a valid tax exemption certificate or similar document satisfactory in form to us.
    • In the event of your failure to timely pay or our reasonable doubt as to your ability to pay, we may require advance payment or collateral and may refuse fulfillment of further shipments until our demand is fulfilled. In addition to all other remedies available under this Agreement or at law (which we do not waive by the exercise of any rights under this Agreement), if you fail to pay any amounts when due as required by this Agreement, we may suspend the delivery of any Props, cancel any or all accepted purchase orders and declare all unpaid amounts for Props previously delivered immediately due and payable, all without liability to us. If production or shipment of Props, or other performance by us, is delayed by any action or inaction by you, we may immediately invoice and you shall pay the percentage of the purchase price corresponding to the percentage of completion. In addition, you shall compensate us for storage of Props and work in process during any such delay at our then-current market rates for preparation and storage for the materials as determined by us. This applies whether storage is at our facility or a third-party storage facility.
    • All shipments are subject to our prior written approval of your credit. Where we have extended credit to you, we reserve the right, at any time, to modify the amount of credit or terms of payment or to revoke your credit.
    • Disputes will not be a basis for withholding payment of any undisputed amounts due under the Agreement or offsetting other amounts due, whether or not the disputed item is on the same order or invoice, nor will any amount be retained in anticipation of a dispute for which notice has not been received.
  4. Cancellation. We may cancel any purchase order or terminate any agreement relating to the purchase of Props upon reasonable prior written notice to you. Once we have acknowledged acceptance of a purchase order or have begun taking actions with respect to a purchase order, you do not have the right to cancel that purchase order. If, however, we agree in writing to permit a requested cancellation, you shall immediately pay to us a cancellation charge in an amount equal to all costs incurred and committed to by us for the order or in connection with the cancellation or modification, together with a reasonable allowance for our prorated expenses and anticipated profits.
  5. Shipping; Delivery. All shipping and delivery dates are approximate and are based upon prompt receipt of all necessary information from you. Delay in delivery of any shipment does not relieve you of your obligation to accept remaining shipments.
  6. Title and Risk of Loss. Title and risk of loss pass to you upon our delivery of Props in accordance with the applicable delivery terms. You shall fully insure the Props against all risks from the time of such delivery. You are responsible for filing any claims for loss or damage with the carrier.
  7. Inspection/Non-Conforming Shipments.
    • You shall inspect Props within three (3) days after delivery (“Inspection Period”). You must notify us in writing within the Inspection Period of any damage, or other non-conformity in our filling of your order, including any non-conforming Props, and afford us a reasonable opportunity to inspect such Props and cure any nonconformity. Your failure to provide the required written notice to us within the Inspection Period constitutes your confirmation that (i) you have accepted the Props without qualification and waive any claims with respect thereto, and (ii) you have tested the Props in accordance with reasonable industry standards and found them to be in working order.
    • You assume all obligation and liability with respect to the possession of Props, and for their use, condition (ordinary wear and tear excepted) and storage during the term of this Agreement. The rental fees on any of the Props will not be prorated or abated while the Props are being serviced or repaired for any reason for which you are liable. We are not obligated to provide service, maintenance, repairs, or parts for the Props, except as we may otherwise agree.
  8. Other Changes.
    • By US. Unless otherwise agreed in writing by the parties, we may, at any time and without notice to you, make changes in design and construction of Props, components or parts if the changes are deemed appropriate by us and if the changes substantially conform to your specifications. We may furnish suitable substitutes for materials which cannot, for any reason, be reasonably obtained.
    • By You. Any changes or modifications requested by you after our acknowledgement of your Purchase Order must be expressly agreed to in writing by us. We reserve the right, in our sole discretion, to adjust the time for performance and you are responsible for all charges and expenses reasonably incurred with respect to such change.
  9. Maintenance. You shall (a) use, operate, maintain, transport and store the Props in a careful and proper manner consistent with customary industry practice, and in any event, using commercially reasonable care; (b) protect the Props from deterioration and damage; and (c) use the Props only for their intended use.
  10. Identification. We have the right to note the following on the exterior or interior of each Prop: Property of Brenbri Properties Limited Liability Company. You will not permit the removal or defacing of such notation.
  11. Return. Upon the expiration date of your rental as reflected in the Purchase Order with respect to any or all Props, you will return the Props to us, together with all accessories, free from all damage and in the same condition and appearance as when received by you, ordinary wear and tear excepted. Whether or not damage constitutes ordinary wear and tear shall be determined by us in our sole judgment.
  12. Additional Props. Additional Props may from time to time be added as the subject matter of this Agreement as agreed on by the parties. Any additional Props will be added in an amendment describing the Props, the monthly rental, security deposit, and any other material terms. All amendments must be in writing and signed by both parties.
  13. No Assignment or Sublease. You will not sublease any of the Props or enter into any assignment of this Agreement without our prior written consent, which may be given or withheld in our sole and absolute discretion. Any attempt to assign this Agreement or sublease any of the Props absent such consent shall be deemed invalid, void and of no force or effect. You must seek our express written consent to assign this Agreement or sublease any of the Props. Any such sublease or assignment, to the extent consented to by us, shall be documented in a manner acceptable to us and, in all events, the sublessee or assignee shall provide waivers and indemnifications in favor of us at least as broad as those set forth in this Agreement.
  14. Loss of or Damage to Property. You are responsible for loss, damage (ordinary wear and tear excepted) or destruction of the Props, including, but not limited to, losses while in transit, while loading and unloading, while at any and all locations, while in storage or while on your premises. You are also responsible for loss of use and you shall fully compensate us for the loss of use of the Props during the time they are being repaired or replaced, as applicable, at the rental rates provided for in the Purchase Order.
  15. Protection of Others. You will take all reasonable precautions in connection with the use of the Props to protect all persons and property from injury or damage. The Props may only be used by your employees or agents who are qualified and possess the necessary experience and skill to properly use the Props in accordance with their intended use.
  16. Casualty Reports. If any of the Props are damaged, lost stolen, or destroyed, or if any person is injured or dies in connection with or as a result of the use of any of the Props, or if any property is damaged as a result of the use, maintenance, storage or possession of the Props, you will promptly notify us of the occurrence telephonically and in writing at our contact information reflected in the Purchase Order, and will file all necessary accident reports, including those required by law and those required by applicable insurers. You will fully cooperate with us and all insurers in the investigation and defense of any claims related to any casualty, injury or damage related to or caused by the Props. You will promptly deliver to us any documents in your possession, custody or control related to any claim or proceeding at law or in equity related to the use, maintenance, storage or possession of the Props.
  17. Occupational Safety and Health Act (OSHA). Products manufactured by us are designed to meet existing specifications and are provided with standard safety features in line with sound design practice. However, we do not certify that the Prop will comply with all applicable OSHA provisions. It is your responsibility to request an inspection of the Props prior to shipping. Upon receipt of an inspection request, we will make all necessary arrangements for same. If, after your inspection and prior to delivery of Props you determine additional guards or safety devices are required, you shall provide information to us regarding your needs. We will then provide you with a quotation reflecting the cost of any additional work desired by you.
  18. Indemnity. You agree to defend, indemnify, and hold harmless us, our affiliates, each of our and their respective equity owners, officers, directors, employees, representatives and agents from and against any and all claims, actions, causes of action, demands, rights, damages of any kind, costs, loss of profit, expenses and compensation whatsoever including costs and reasonable attorneys’ fees (“Claims”), in any way arising from, or in connection with, or resulting from the use, maintenance, storage or possession of the Props, including, without limitation, (a) improper selection, improper application or other use or misuse of Props rented by you from us, (b) as a result of your breach or Default under this Agreement, or (c) negligence or willful misconduct by you, your employees or agents. The terms of this Section survive the expiration or earlier termination of this Agreement.
  19. DISCLAIMER OF WARRANTIES.
    • YOU HEREBY ACKNOWLEDGE THAT THE PROPS ARE RENTED “AS IS” AND “WITH ALL FAULTS.” WE MAKE NO WARRANTY, AND SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY WHATSOEVER, WITH RESPECT TO THE PROPS REGARDING TITLE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY, FREEDOM FROM CLAIMS OF INFRINGEMENT OR THE LIKE, FITNESS FOR USE FOR A PARTICULAR PURPOSE, QUALITY OF MATERIALS OR WORKMANSHIP, OR ABSENCE OF DISCOVERABLE OR NON-DISCOVERABLE DEFECTS. YOU SHALL EXAMINE AND INSPECT ANY PROPS RENTED HEREUNDER TO DETERMINE THAT THE PROPS ARE IN GOOD WORKING ORDER. SUCH EXAMINATION AND INSPECTION SHALL OCCUR AT THE TIME OF DELIVERY, AND IN ANY EVENT BEFORE THE FIRST USE OF THE PROPS. YOUR USE OF ANY PROPS SHALL CONSTITUTE AN ACKNOWLEDGEMENT BY YOU THAT SUCH PROPS ARE IN GOOD WORKING ORDER, AND YOU ASSUME ALL RISK OF LIABILITY RESULTING FROM ANY MALFUNCTIONING, DAMAGED OR OTHERWISE UNSAFE PROPS. WITHOUT LIMITATION OF THE FOREGOING, WE HAVE NO LIABILITY WHATSOEVER FOR THE FOLLOWING: (i) DAMAGE RESULTING FROM: (A) SHIPPING, ACCIDENT, NEGLECT, OR IMPROPER INSTALLATION, SETUP OR USE; (B) FAILURE TO FOLLOW OPERATING INSTRUCTIONS AND/OR SCHEDULED MAINTENANCE PROCEDURES; (C) MODIFICATION OF PROPS IN ANY MANNER FROM ORIGINAL MODEL, (D) SUBSTITUTION OF PARTS OTHER THAN FACTORY AUTHORIZED PARTS, (E) UNAUTHORIZED REMOVAL OR UNAUTHORIZED ADDITION OF ANY PARTS; OR (VI) NORMAL WEAR AND TEAR; AND (ii) NATURALLY OCCURRING COSMETIC VARIATIONS IN MATERIALS SUCH AS STONE AND WOOD USED IN THE FABRICATION OF CUSTOM EQUIPMENT.
    • You shall not modify any Props without our prior written consent, and you shall restore any modified Props to their original condition prior to the return of such Props to us. You are responsible for the cost, as determined by us, to repair or replace any modified Props to their original condition. In the event that any modification is made to any of the Props while it is in your possession, custody or control, you shall be responsible for all damage and liability which may arise in connection with the modification of such Props.
  20. Exclusive Remedy. If we determine in good faith that any Prop is non-conforming or defective and if you have timely notified us as required under this Agreement, our sole obligation to you and your SOLE AND EXCLUSIVE REMEDY is for us to repair or replace the Prop. We may condition repair, replacement or credit upon your return of the Props to us. Failure to promptly return the Prop(s) will result in your being charged for it/them.
  21. Limitation of Liability.
    • IN NO EVENT WILL WE OR OUR AFFILIATES, OR ANY OF OUR OR THEIR RESPECTIVE EQUITY OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES OR AGENTS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, OR COST OF COVER. THE LIMITATIONS OF LIABILITY IN THIS SECTION APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR ESSENTIAL PURPOSE.
    • OUR LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH ANY PROPS OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT OF THE FEES PAYABLE FOR THE SPECIFIC PROPS OR SERVICES MOST DIRECTLY RELATED TO THE CLAIM. OUR TOTAL AGGREGATE LIABILITY FOR EACH AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE LESSER OF: (i) AN AMOUNT EQUAL TO THE AGGREGATE TOTAL AMOUNT OF ALL FEES PAID UNDER THE AGREEMENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM; OR (ii) $5,000.
    • Property Insurance. You shall, at your own expense, maintain at all times during the term of this Agreement, all risk perils property insurance (“Property Insurance”) covering the Props from all sources, including coverage for, without limitation, (i) theft by force; (ii) theft by fraudulent scheme and/or “voluntary parting”; and (iii) loss of use of the Props, from the time the Props are picked up by you or a shipper at our place of business or placed upon a common carrier for forwarding to you, as applicable, until the Props are returned to and accepted by us, including, without limitation, during the process of loading and unloading. The Property Insurance shall name is and such other parties as we may specify as an additional insureds and as the loss payee with respect to the Props and shall cover all risks of loss of, or damage or destruction to the Props. The Property Insurance coverage shall be sufficient to cover the Props at their replacement value but shall, in no event, be less than $1,000,000. The Property Insurance shall be primary coverage over our insurance.
    • Liability Insurance. You shall, at your own expense, maintain commercial general liability insurance (“Liability Insurance”), including coverage for the operations of independent contractors and standard contractual liability coverage. The Liability Insurance shall name us and such other parties as we may specify as additional insureds and provide that said insurance is primary coverage. Such insurance shall remain in effect during the term of this Agreement, and shall include, without limitation, the following coverages: standard contractual liability, personal injury liability, completed operations, and product liability. The Liability Insurance shall provide general liability aggregate limits of not less than $5,000,000 (including the coverage specified above) and not less than $2,000,000 per occurrence.
    • Insurance Generally. All insurance required to be maintained by you under this Agreement shall contain a waiver of subrogation rights in respect of any liability imposed by this Agreement on you as against us. You shall hold us harmless from and shall bear the expense of any applicable deductible amounts and self insured retentions provided for by any of the insurance policies required to be maintained by you under this Agreement. You hereby agree that we shall be subrogated to any recovery rights you may have for damage to the Props. In the event of loss, you shall promptly pay the amount of the deductible or self-insured retention or the applicable portion thereof to us or the insurance carrier, as applicable. Notwithstanding anything to the contrary contained in this Agreement, the fact that a loss may not be covered by insurance provided by you under this Agreement or, if covered, is subject to deductibles, retentions, conditions or limitations, shall not limit your liability for any loss. Should you fail to procure or pay the cost of maintaining in force the insurance specified herein, or to provide us upon request with satisfactory evidence of the insurance, we may, but shall not be obliged to, procure the insurance and you shall reimburse us upon demand for our costs. Lapse or cancellation of the required insurance shall be deemed to be an immediate and automatic Default of your obligations under this Agreement.
    • Cancellation of Insurance. You and your insurance company shall provide us with written notice no later than thirty (30) days prior to the effective date of any cancellation to any insurance maintained by you pursuant to the foregoing provisions, in accordance with the policy provisions.
    • Certificates of Insurance. Before obtaining possession of the Props, you shall provide to us certificates of insurance confirming the insurance coverages required pursuant to this Agreement. All certificates shall be signed by an authorized agent or representative of the insurance carrier. We shall have no obligation to deliver possession of any Props to you unless and until such certificates have been delivered to us.
  23. Valuation of Loss. You shall be responsible to us for the replacement cost value or repair cost of the Props (if the Props can, in our sole judgment, be restored, by repair, to their pre-loss condition) whichever is less, reasonable wear and tear excepted. If there is a reason to believe a theft has occurred, you shall file a police report. Loss of use damages shall be calculated at the rental rate provided for in the Purchase Order. Accrued rental charges shall not be applied against the purchase price or cost of repair of the lost, stolen or damaged Props.
  24. Default. We may, by written notice to you, declare you in default on the occurrence of any of the following (each, a “Default”): (a) failure by you to make payments or perform as required hereunder, or breach of, any of your obligations under this Agreement; (b) institution by or against you of any proceedings in bankruptcy or insolvency, or reorganization under any law, or the appointment of a receiver or trustee for your assets or any assignment by you for the benefit of creditors; (c) expiration or cancellation of any insurance policy to be paid for by you as provided for under the terms of this Agreement; (d) transfer of your interest in this Agreement by operation of law; or (e) destruction or removal of the Props from the state in which the Props were leased, unless you had specific written permission from us to transport the Props to a specific state. Upon notice from us to you that you are in default, we have the following options: (i) to terminate the Agreement and your rights under the Agreement; (ii) to declare the balance of all unpaid rent or fees and all other charges of any kind required of you under the Agreement to be payable immediately, in which event we will be entitled to the balance due together with interest at the rate of ten percent (10%) per annum, from the date of notification of default to the date of payment; or (iii) to repossess the Props without legal process free of all of your rights to use the Props. You authorize us or our agents to enter on any premises where the Props are located and repossess and remove same. You specifically waive any right of action you might otherwise have arising out of the entry and repossession, and release us of any claim for trespass or damage caused by reason of the entry, repossession, or removal and removal of any discounts provided to you by us. After Default, you will reimburse us for all reasonable expenses of repossession and enforcement of our rights and remedies, including, but not limited to, reasonable attorneys’ fees, together with interest at the rate of ten percent (10%) per annum from the date of Default. You further agree that the continuation of our performance hereunder after a Default shall not constitute a waiver or operate as any form of estoppel with respect to our later assertion of our right to cease such performance at any time so long as such Default has not been cured. Our remedies will be cumulative to the extent permitted by law, and may be exercised partially, concurrently, or separately. The exercise of one remedy will not be deemed to preclude the exercise of any other remedy.
  25. No Encumbrance. You will not pledge, encumber, create a security interest in, or permit any lien or encumbrance to become effective on or attach to any of the Props. You will promptly notify us of any liens or other encumbrances of which you have knowledge on any of the Props. You will promptly pay or satisfy any obligation from which any lien or encumbrance arises and will otherwise keep the Props, and all title and interest therein, free of any liens and encumbrances. You will deliver to us appropriate satisfactions, waivers, and evidence of payment.
  26. Force Majeure. We are not liable for any loss, damage or expense of any nature incurred by you as a result of any delay or failure to manufacture, ship, or deliver any Props to you if the delay or failure is caused, in whole or in part, by the occurrence of any contingency beyond our reasonable control or that of our suppliers. Such events may include, but are not limited to, floods, storms or other acts of God, your acts, acts of any governmental authority or agent, fire, accident, strike, slowdown, war, act of terrorism, riot, epidemic, pandemic, quarantine, outbreaks of infectious disease or other public health crises, inability to obtain raw materials at a reasonable cost, failure or delay in transportation, shortage of labor, fuel, materials or manufacturing facilities or any other cause or circumstance that is beyond our reasonable control. In the event of any such delay, the time for performance will extend for such time as reasonably necessary to enable us to perform.
  27. Applicable Law; Venue. The Agreement and any disputes arising out of or relating to the Agreement will be governed by the laws of the state of New Jersey, excluding conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.  Any action or other judicial proceeding arising out of or relating to the Agreement or the transactions or other activities contemplated by the Agreement shall be instituted only in state court located in Bergen County, New Jersey. Each of the parties irrevocably and unconditionally submits to the jurisdiction of such courts in any such action and agrees that all claims in respect of such action may be heard and determined in such courts. Each of the parties irrevocably and unconditionally waives any objection it may now or later have as to the venue of any such action brought in such a court or that such court is an inconvenient forum.
  28. WAIVER OF JURY TRIAL. EACH PARTY HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY DISPUTE RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER THEREOF, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY EACH PARTY AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
  29. Severability. If any provision of this Agreement or the application of any of its provisions to any party or circumstance is held invalid or unenforceable, the remainder of this Agreement, and the application of those provisions to the other parties or circumstances, will remain valid and in full force and effect.
  30. Counterparts. This Agreement may be executed in counterparts and by facsimile signature, electronic signature (such as, without limitation, using the electronic signature software known as “DocuSign”) or signature that is scanned and transmitted by e-mail; such forms of signature shall be deemed to be original and fully binding.
  31. Notices. All notices under this Agreement shall be sent by express delivery service to each party to the respective address set forth in the Purchase Order (or such other address as one party shall inform the other by like written notice). Notices shall be deemed delivered upon proof of delivery of such notice to the party intended to receive the same.
  32. Rights, Power and Authority. Each party hereto represents and warrants that it has the exclusive right, power and authority to enter into this Agreement and to grant the rights granted herein, and that no other consents, permissions or approvals are required for it to perform its obligations as contemplated under this Agreement. Each party hereto represents and warrants that the person(s) executing this Agreement on such party’s behalf is/are authorized to do so, and that the execution of this Agreement by such person(s) shall bind such party to the terms and conditions of this Agreement.
  33. Relationship of the Parties. The relationship between the parties is that of independent contractors. This Agreement does not create any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever.
  34. No Third-Party Beneficiaries. Other than with respect to indemnification rights and obligations under this Agreement, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, confers upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms.
  35. Assignment; Binding Effect. You may not assign any rights or interest or delegate any obligations under the Agreement or any purchase order without our prior written consent. Any attempted assignment will be void and of no force of effect. We may assign the Agreement or otherwise transfer our rights and/or obligations under this Agreement. This Agreement will inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns.
  36. Rights and Remedies. We have all rights and remedies that applicable law gives to vendors. Our rights and remedies are cumulative and we may exercise them from time to time. No waiver is effective unless it is in writing. Any failure by us to require performance under any provision of this Agreement in no way affects our right to require full performance at any subsequent time, nor does our waiver of a breach of anything required by this Agreement Terms on one occasion constitute a waiver of any other breach of the same or any term.
  37. Time for Bringing Action. Unless prohibited by applicable law, and except with respect to indemnity claims by us, any action arising out of or relating to this Agreement or any order of Props, whether alleging breach of warranty or other breach or default, must be brought by you within one (1) year after the cause of action accrues. You shall pay costs and expenses incurred by us in enforcing any provision of this Agreement, including our reasonable attorneys’ fees.
  38. Headings. The captions and section headings in this Agreement are for convenience of reference only and are not to be considered a part of this Agreement, or limit, or otherwise affect in any way, the meaning or interpretation of this Agreement.
  39. Entire Agreement. This Agreement and any attached invoices and schedules, which are incorporated by reference and made an integral part of the Agreement, constitute the entire agreement between the parties. No agreements, representations, or warranties other than those specifically set forth in this Agreement or in the attached schedules will be binding on any of the parties unless set forth in writing and signed by both parties.
  40. Advice of Counsel. IN EXECUTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT WILL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION OF THIS AGREEMENT.

 

 

STORAGE

STANDARD TERMS & CONDITIONS

THESE STORAGE STANDARD TERMS & CONDITIONS are incorporated into and form a part of the purchase order (the “Purchase Order”) you have entered into with us for the storage of your property (the “Property”) (the Purchase Order together with these Standard Terms & Conditions are collectively, the “Agreement”).  This Agreement is hereby entered into by the “Customer” reflected in the Purchase Order (“you” or “your”), and BRENBRI PROPERTIES LIMITED LIABILITY COMPANY, a New Jersey limited liability company (“us” or “we” or “our”), effective as of the date such Purchase Order was signed by us. Each of our respective rights and obligations are exclusively subject to the terms of this Agreement, and we hereby object to and reject any additional or different terms not contained therein. This Agreement prevails over any other terms and conditions related to the subject matter of this Agreement, regardless of whether or when you have submitted your purchase order. Our fulfillment of your order does not constitute our acceptance of any other terms and conditions and does not serve to modify or amend this Agreement.  In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

  1. Storage of Property. You hereby agree to store your Property, and we agree to permit you to store your Property at premises owned or leased by us (the “Premises”). You acknowledge and agree that we shall have the right to determine in our discretion the location(s) at the Premises at which your Property may be stored from time to time. Your right to store your Property at the Premises shall be limited to terms and conditions specified in this Agreement.
  2. Prices; Payment Terms.
    • Prices are in U.S. dollars and are subject to change without prior notice for any reason. All orders are accepted subject to our price in effect at the time of our execution of the Purchase Order.
    • We will invoice you in accordance with the terms set forth in the Purchase Order. All amounts billed are due within ten (10) days from the date of our invoice unless otherwise specified.  You will pay all bank charges, taxes, duties, levies and other costs and commissions associated with any bank wire transfers or other means of payment.
    • Any overdue and unpaid portion of the amounts you are required to pay will bear interest, compounded at one and one-half percent (1.5%) per month or the maximum rate allowed by applicable law, whichever is less. We may suspend performance of orders until the overdue amounts are paid in full. You will reimburse us for reasonable attorneys’ fees and any other costs associated with collecting delinquent payments.
    • All Fees quoted and payable under the Agreement exclude taxes. You will pay or reimburse us for all applicable sales, services and other taxes (excluding taxes on our net income) levied upon the services provided for under this Agreement unless you are exempt and provides us with a valid tax exemption certificate prior to our invoice date. When required to comply with any law or regulation, we will add such taxes to the sales price when invoicing you and you shall pay the same unless you have provided us with a valid tax exemption certificate or similar document satisfactory in form to us.
    • In the event of your failure to timely pay or our reasonable doubt as to your ability to pay, we may require advance payment or collateral and may refuse your further right to store your Property at the Premises until our demand is fulfilled. In addition to all other remedies available under this Agreement or at law (which we do not waive by the exercise of any rights under this Agreement), if you fail to pay any amounts when due as required by this Agreement, we may suspend your right to continue storing your Property at the Premises, cancel any or all accepted purchase orders and declare all unpaid amounts immediately due and payable, all without liability to us. In addition, you shall compensate us for storage of your Property during any such delay at our then-current rates for storage as determined by us. This applies whether storage is at our facility or a third-party storage facility.
    • All shipments are subject to our prior written approval of your credit. Where we have extended credit to you, we reserve the right, at any time, to modify the amount of credit or terms of payment or to revoke your credit.
    • Disputes will not be a basis for withholding payment of any undisputed amounts due under the Agreement or offsetting other amounts due, whether or not the disputed item is on the same order or invoice, nor will any amount be retained in anticipation of a dispute for which notice has not been received.
  3. Non-Payment. If any amounts required to be paid by you under this Agreement are not paid on or before their respective due date, or if any check delivered in payment is dishonored, you shall be deemed to be in default under the terms of this Agreement. You agree that partial payments made to cure a Default for nonpayment will not delay or stop foreclosure and sale of your Property. The tender of partial payments shall not serve to waive or avoid the legal effect of prior notices given to you. Only full payment on your account prior to the published auction date will stop a scheduled sale of your Property.
  4. Denial of Access. If any amounts required to be paid by you under this Agreement are not paid before the date they are due, we may, without notice, deny you access to your Property. We may condition your access to the Property in any manner deemed reasonably necessary by us to maintain order on the Premises. Such manners may include, but are not limited to, restricting hours of operation, requiring verification of your identity and inspecting vehicles that enter the premisess.
  5. Our Right to Enter. In cases where we consider it necessary to enter area where the Property is stored (the “Area”) for purposes of examining such Area for violations of this Agreement or conditions in the such Area, or for making repairs or alterations thereto, or to otherwise comply with this Agreement, you agree that we, or our representative, shall have the right without notice to enter into such Area and to move Property to another area.
  6. Use of Premises; Compliance with Law. The Area shall be used by you solely for the purposes of storing the Property. Notwithstanding the foregoing, you agree not to store any explosives, or any flammable, odorous, noxious, corrosive, hazardous or pollutant materials or any other goods at the Premises. You agree that the Area and the Premises will not be used for any unlawful purposes or contrary to any law, ordinance, regulation, fire code or health code and you agree not to commit waste, nor to create a nuisance, and will keep the Area and the Property in good condition during the term of this Agreement. You agree that the Area is not appropriate for the storage of jewels, furs, heirlooms, art works, collectibles or other irreplaceable item having special sentimental or emotional value to you and you agree not to store said items. You hereby waive any claim for sentimental or emotional value for the Property that is stored in the Area or on the Premises. There shall be NO HABITABLE OCCUPANCY of the Area by humans or pets of any kind for any period whatsoever and violation of these prohibitions shall be grounds for immediate termination of this Agreement. If hazardous substances are stored, used, generated, or disposed of in the Area or on the Premises, or it the Area or the Premises shall become contaminated in any manner for which you are directly or indirectly responsible, you shall indemnify and hold us harmless from and against any and all claims, damages, fines, judgments, penalties, costs, liabilities, or losses, and any and all sums incurred or paid for settlement of any such claims, including any attorney’s fees, consultant and expert fees, resulting from or arising out of any contamination, whether incurred during or after the l term of this Agreement. You will indemnify and hold us harmless from and against any and all manner of claims for damages or lost property or personal injury and costs, including attorneys’ fees arising from your use of the Area or from any activity, work or thing done, permitted or suffered by you in the Area or on or about the Premises.
  7. Condition and Alteration of Area. You assume responsibility for having examined the Premises and hereby accept it as being in good order and condition. Should you damage or depreciate the Area, or make alterations or improvements without our prior consent, or require us to incur costs to clean the Area upon termination, then all costs necessary to restore the Area to its prior condition shall be borne by you.
  8. Termination. Unless otherwise stated in the Purchase Order, the term of this Agreement shall continue from month to month unless one party delivers to the other party a written notice of its intention to terminate the Agreement at least five (5) days prior to the end of the then-current monthly period. We may immediately terminate your right to use the Area if you are in breach of this Agreement. Upon termination of this Agreement, you shall remove all Property from the Premises (unless such Property is subject to our lien rights as referenced herein), and shall deliver possession of the Area to us on the day of termination. If you fail to fully remove your Property from the Premises within the time required, we, at our option, may without further notice or demand, either directly or through legal process, reenter the Area and remove all Property therefrom without being deemed guilty in any manner of trespassing or conversion. All items, including boxes and trash left in the Area or on the Premises after vacating will be deemed to be of no value to you and will be discarded by us at your expense. If a cost for removal is incurred, said cost will be considered an additional charge and shall be payable to you immediately. Any prepaid amounts for any period in which you move out early shall not be refunded.
  9. No Bailment. WE ARE NOT A WAREHOUSEMAN ENGAGED IN THE BUSINESS OF STORING GOODS FOR HIRE, AND NO BAILMENT IS CREATED BY THE AGREEMENT. WE EXERCISE NEITHER CARE, CUSTODY, NOR CONTROL OVER YOUR STORED PROPERTY. ALL PROPERTY STORED WITHIN THE AREA OR ON THE PREMISES BY YOU SHALL BE STORED AT YOUR SOLE RISK. You must take whatever steps you deem necessary to safeguard such Property. We and our employees and agents shall not be responsible or liable for any loss of or damage to any personal property stored in the Area or on the Premises resulting from or arising out of your use of the Area or Premises from any cause whatsoever, including but not limited to theft, mysterious disappearance, mold, mildew, vandalism, fire, smoke, water, flood, hurricanes, rain, tornadoes, explosions, rodents, insect, or acts of God.
  10. Insurance. WE DO NOT PROVIDE ANY TYPE OF INSURANCE WHICH WOULD PROTECT YOUR PERSONAL PROPERTY FROM LOSS BY FIRE, THEFT, OR ANY OTHER TYPE OF CASUALTY LOSS. IT IS YOUR RESPONSIBILITY, AT YOUR SOLE EXPENSE, TO SECURE SUCH INSURANCE TO PROTECT YOURSELF AND YOUR PROPERTY AGAINST ALL PERILS OF WHATEVER NATURE IN AN AMOUNT AT LEAST EQUAL TO THE TOTAL VALUE OF ALL STORED PROPERTY. INSURANCE ON YOUR PERSONAL PROPERTY IS STRONGLY RECOMMENDED BY US. IF YOU FAIL TO OBTAIN INSURANCE, THEN YOU HEREBY WAIVE ALL CLAIMS AGAINST US AND RELEASE US FROM ANY AND ALL LIABILITY. YOU ASSUME ALL RISK OF LOSS TO STORED PROPERTY THAT WOULD BE COVERED BY SUCH INSURANCE. YOU SHALL MAKE NO CLAIM WHATSOEVER AGAINST OUR INSURANCE IN THE EVENT OF ANY LOSS. YOU AGREE NOT TO SUBROGATE AGAINST US IN THE EVENT OF LOSS OR DAMAGE OF ANY KIND OR FROM ANY CAUSE. YOU AGREE THAT WE AND OUR AGENTS ARE NOT INSURERS, ARE NOT AFFILIATED WITH ANY INSURANCE COMPANY, AND DO NOT ACT AS ANY INSURANCE COMPANY’S AGENT, BROKER, OR SOLICITOR.
  11. Changes. All items of this Agreement, including but without limitation, fees payable, conditions of use and other fees and charges are subject to change at our option upon thirty (30) days prior written notice to you. If so changed, you may terminate this Agreement on the effective date of such change by giving us ten (10) days prior written notice of termination after receiving notice of the change. If you do not give such notice of termination, the change shall become effective on the date stated in our notice and shall apply to all periods thereafter.
  12. Lien Rights. YOU AGREE THAT WE SHALL HAVE A LIEN ON ALL PERSONAL PROPERTY STORED PURSUANT TO THIS AGREEMENT IN THE AREA OR PREMISES, FOR AMOUNTS DUE UNDER THIS AGREEMENT AND ANY EXPENSES NECESSARY FOR PRESERVATION OR EXPENSES REASONABLY INCURRED IN THE SALE OR OTHER DISPOSITION OF SUCH PROPERTY. SUCH LIEN SHALL ATTACH AS OF THE DATE THE PROPERTY IS STORED WITHIN THE AREA OR PREMISES. SUCH LIEN, TO THE EXTENT THE PROPERTY REMAINS STORED WITHIN THE AREA, SHALL BE SUPERIOR TO ANY OTHER EXISTING LIENS OR SECURITY INTERESTS. IN ADDITION, SUCH LIEN SHALL EXTEND TO THE PROCEEDS, IF ANY, REMAINING AFTER THE SATISFACTION OF ANY PERFECTED LIENS. IF YOU DO NOT TIMELY PAY ANY AMOUNTS OWING UNDER THIS AGREEMENT, YOU MAY LOSE YOUR PROPERTY. WE POSSESS THE RIGHT TO SELL ANY OR ALL OF YOUR PROPERTY STORED IN THE AREA OR THE PREMISES TO COLLECT ALL DUE BUT UNPAID AMOUNTS UNDER THIS AGREEMENT.
  13. Security Agreement. This Agreement shall constitute a security agreement covering the Property and a security interest shall attach thereto for the benefit of, and is hereby granted to us by you to secure the payment and performance of any default by you hereunder.
  14. Your Liability. In the event of a foreclosure of your right to use the Area, it is understood and agreed by you that your liability for all amounts owing as provided for in this Agreement shall be deemed automatically accelerated, and shall not be relinquished, diminished or extinguished prior to payment in full. We may use a collection agency thereafter to secure any remaining balance owed by you after the application of sale proceeds, if any. If any property remains unsold after foreclosure and sale, we may dispose of said property in any manner considered appropriate by us.
  15. Assignment and Subletting. You shall not assign this Agreement or sublet the Area.
  16. Rules. You agree to be bound by any rules and regulations for the Premises as may be posted by us from time to time. All such rules and regulations shall be deemed to be part of this Agreement.
  17. Personal Injury. We and our agents and employees shall not be liable whatsoever to any extent to you or your invitees, employees, agents or representatives for any personal injury or death arising from your use of the Area or Premises from any cause whatsoever including, but not limited to, the active or passive acts or omission or negligence of us, our agents, or employees.
  18. Climate Control. We do not warrant or guarantee temperature or humidity ranges in the Area or on the Premises due to changes in temperature and humidity.
  19. DISCLAIMER OF WARRANTIES. YOU HEREBY ACKNOWLEDGE THAT WE MAKE NO WARRANTY, AND SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY WHATSOEVER, WITH RESPECT TO THE AREA AND THE PREMISES REGARDING TITLE, CONDITION, DESIGN, OPERATION, OR ABSENCE OF DISCOVERABLE OR NON-DISCOVERABLE DEFECTS. YOU SHALL EXAMINE AND INSPECT THE AREA TO DETERMINE THAT YOU ARE SATISFIED WITH ITS CONDITION. SUCH EXAMINATION AND INSPECTION SHALL OCCUR PRIOR TO YOU STORING YOUR PROPERTY AT THE AREA. YOUR STORAGE OF PROPERTY UNDER THIS AGREEMENT SHALL CONSTITUTE AN ACKNOWLEDGEMENT BY YOU THAT THE AREA AND PREMISES ARE IN SATISFACTORY CONDITION.
  20. Limitation of Liability.
    • IN NO EVENT WILL WE OR OUR AFFILIATES, OR ANY OF OUR OR THEIR RESPECTIVE EQUITY OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES OR AGENTS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, OR COST OF COVER. THE LIMITATIONS OF LIABILITY IN THIS SECTION APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR ESSENTIAL PURPOSE.
    • OUR LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE LESSER OF: (i) AN AMOUNT EQUAL TO THE AGGREGATE TOTAL AMOUNT OF ALL FEES PAID UNDER THE AGREEMENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM; OR (ii) $5,000.
  21. Default. We may, by written notice to you, declare you in default on the occurrence of any of the following (each, a “Default”): (a) failure by you to make payments or perform as required hereunder, or breach of, any of your obligations under this Agreement; (b) institution by or against you of any proceedings in bankruptcy or insolvency, or reorganization under any law, or the appointment of a receiver or trustee for your assets or any assignment by you for the benefit of creditors; or (c) transfer of your interest in this Agreement by operation of law. Upon notice from us to you that you are in default, we have the following options: (i) to terminate the Agreement and your rights under the Agreement; or (ii) to declare the balance of all unpaid fees or charges of any kind required of you under the Agreement to be payable immediately, in which event we will be entitled to the balance due together with interest at the rate of ten percent (10%) per annum, from the date of notification of default to the date of payment. After Default, you will reimburse us for all reasonable expenses of enforcement of our rights and remedies, including, but not limited to, reasonable attorneys’ fees, together with interest at the rate of ten percent (10%) per annum from the date of Default. You further agree that the continuation of our performance hereunder after a Default shall not constitute a waiver or operate as any form of estoppel with respect to our later assertion of our right to cease such performance at any time so long as such Default has not been cured. Our remedies will be cumulative to the extent permitted by law, and may be exercised partially, concurrently, or separately. The exercise of one remedy will not be deemed to preclude the exercise of any other remedy.
  22. Force Majeure. We are not liable for any loss, damage or expense of any nature incurred by you as a result the occurrence of any contingency beyond our reasonable control or that of our suppliers. Such events may include, but are not limited to, floods, storms or other acts of God, your acts, acts of any governmental authority or agent, fire, accident, strike, slowdown, war, act of terrorism, riot, epidemic, pandemic, quarantine, outbreaks of infectious disease or other public health crises, inability to obtain raw materials at a reasonable cost, failure or delay in transportation, shortage of labor, fuel, materials or manufacturing facilities or any other cause or circumstance that is beyond our reasonable control. In the event of any such delay, the time for performance will extend for such time as reasonably necessary to enable us to perform. Alternatively, under such circumstances we may terminate this Agreement upon notice to you, with such termination to take effect immediately.
  23. Applicable Law; Venue. The Agreement and any disputes arising out of or relating to the Agreement will be governed by the laws of the state of New Jersey, excluding conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.  Any action or other judicial proceeding arising out of or relating to the Agreement or the transactions or other activities contemplated by the Agreement shall be instituted only in state court located in Bergen County, New Jersey. Each of the parties irrevocably and unconditionally submits to the jurisdiction of such courts in any such action and agrees that all claims in respect of such action may be heard and determined in such courts. Each of the parties irrevocably and unconditionally waives any objection it may now or later have as to the venue of any such action brought in such a court or that such court is an inconvenient forum.
  24. WAIVER OF JURY TRIAL. EACH PARTY HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY DISPUTE RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER THEREOF, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY EACH PARTY AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
  25. Severability. If any provision of this Agreement or the application of any of its provisions to any party or circumstance is held invalid or unenforceable, the remainder of this Agreement, and the application of those provisions to the other parties or circumstances, will remain valid and in full force and effect.
  26. Counterparts. This Agreement may be executed in counterparts and by facsimile signature, electronic signature (such as, without limitation, using the electronic signature software known as “DocuSign”) or signature that is scanned and transmitted by e-mail; such forms of signature shall be deemed to be original and fully binding.
  27. Notices. All notices under this Agreement shall be sent by express delivery service to each party to the respective address set forth in the Purchase Order (or such other address as one party shall inform the other by like written notice). Notices shall be deemed delivered upon proof of delivery of such notice to the party intended to receive the same.
  28. Rights, Power and Authority. Each party hereto represents and warrants that it has the exclusive right, power and authority to enter into this Agreement and to grant the rights granted herein, and that no other consents, permissions or approvals are required for it to perform its obligations as contemplated under this Agreement. Each party hereto represents and warrants that the person(s) executing this Agreement on such party’s behalf is/are authorized to do so, and that the execution of this Agreement by such person(s) shall bind such party to the terms and conditions of this Agreement.
  29. Relationship of the Parties. The relationship between the parties is that of independent contractors. This Agreement does not create any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever.
  30. No Third-Party Beneficiaries. Other than with respect to indemnification rights and obligations under this Agreement, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, confers upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms.
  31. Assignment; Binding Effect. You may not assign any rights or interest or delegate any obligations under the Agreement or any purchase order without our prior written consent. Any attempted assignment will be void and of no force of effect. We may assign the Agreement or otherwise transfer our rights and/or obligations under this Agreement. This Agreement will inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns.
  32. Rights and Remedies. We have all rights and remedies that applicable law gives to vendors. Our rights and remedies are cumulative and we may exercise them from time to time. No waiver is effective unless it is in writing. Any failure by us to require performance under any provision of this Agreement in no way affects our right to require full performance at any subsequent time, nor does our waiver of a breach of anything required by this Agreement Terms on one occasion constitute a waiver of any other breach of the same or any term.
  33. Time for Bringing Action. Unless prohibited by applicable law, and except with respect to indemnity claims by us, any action arising out of or relating to this Agreement, whether alleging breach of warranty or other breach or default, must be brought by you within one (1) year after the cause of action accrues. You shall pay costs and expenses incurred by us in enforcing any provision of this Agreement, including our reasonable attorneys’ fees.
  34. Headings. The captions and section headings in this Agreement are for convenience of reference only and are not to be considered a part of this Agreement, or limit, or otherwise affect in any way, the meaning or interpretation of this Agreement.
  35. Entire Agreement. This Agreement and any attached invoices and schedules, which are incorporated by reference and made an integral part of the Agreement, constitute the entire agreement between the parties. No agreements, representations, or warranties other than those specifically set forth in this Agreement or in the attached schedules will be binding on any of the parties unless set forth in writing and signed by both parties.
  36. Advice of Counsel. IN EXECUTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT WILL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION OF THIS AGREEMENT.