The parties wish to trade goods and/or services with each other under the terms and conditions set forth in this Barter Agreement (the “Agreement”), and therefore agree as follows:
1. EXCHANGE. Each party agrees to provide to the other party the goods and/or services set forth on the attached Exhibit A (the “Bartered Goods”), which is incorporated into this Agreement by this reference.
2. DELIVERY / CONDITION. The parties agree that time is of the essence in the performance of this Agreement, that they shall abide by the timeline and delivery terms as outlined in Exhibit A, and shall deliver the Bartered Goods in the condition stated. Any risk of loss shall pass upon satisfaction of the delivery terms as set forth in Exhibit A.
3. REPRESENTATIONS OF THE PARTIES. The parties each make the following representations to the other:
(a) They will adhere to the price stated on Exhibit A for the Bartered Goods. The price assigned to the Bartered Goods is accurate and to the best of their knowledge, represents the fair market value for same.
(b) All other information provided on Exhibit A regarding the Bartered Goods is correct to the best of their knowledge.
(c) They have the power, authority and legal capacity to enter into this Agreement and agree to comply with its obligations.
(d) The Bartered Goods do not infringe upon any intellectual property, proprietary, or other right of any third party.
(e) The Bartered Goods are free and clear of liens and encumbrances and can be legally exchanged by them.
(f) They will comply with all applicable laws and regulations. They each understand that they may have tax reporting and/or payment obligations as a result of the barter under this Agreement.
The parties make no other representations to each other except as expressly set forth in this Section.
4. INDEMNIFICATION. Each party agrees to indemnify and hold the other party, and their respective members, managers, shareholders, directors, officers, agents, employees and assigns, harmless from and against any and all claims, demands, suits, damages, liabilities, costs, and fees (including reasonable attorney’s fees) arising out of any breach or alleged breach of either party’s representations set forth in Section 3 above.
5. DEFAULT / TERMINATION. In the event that a party cannot provide the Bartered Goods in accordance with the terms of this Agreement, such party shall provide written notice to the other party (email sufficient), and the parties will attempt in good faith to re-negotiate and amend the terms of this Agreement. If the parties are unable to come to an amended agreement regarding the Bartered Goods, this Agreement shall terminate. The defaulting party shall then promptly reimburse the non-defaulting party for any out of pocket expenses incurred in connection with providing the Bartered Goods, and shall additionally compensate the non-defaulting party for any Bartered Goods provided as of the date of termination of this Agreement. Such amount of compensation shall equal the fair market value of the Bartered Goods (as set forth on Exhibit A) plus five percent (5%).
A party shall additionally be in default of this Agreement if such party has not provided the Bartered Goods within 15 days of the delivery date or the fair market value of the Bartered Goods as set forth on Exhibit A. In such event, the non-defaulting party shall be entitled to payment of damages by the defaulting party of the fair market value of the Bartered Goods plus twenty five percent (25%), plus reimbursement of their attorney’s fees and costs incurred as a result of the default.
6. DISCLAIMER OF WARRANTY. Except as otherwise provided in this Agreement, the Bartered Goods are provided “as is.” To the maximum extent permitted by applicable law, the parties make no further warranties to the other of any kind, whether express or implied, concerning the Bartered Goods, including but not limited to any implied warranties of title, non-infringement, merchantability, or fitness for a particular purpose.
7. LIMITATION OF LIABILITY. To the maximum extent permitted by law, in no event shall the parties, or their respective members, managers, shareholders, directors, officers, employees, agents, or assigns, be liable to each other or any third party for lost profits, business interruption, substitute goods, reputational harm, or any special, indirect, consequential, punitive, exemplary, reliance, or incidental damages, however caused, whether based on contract, negligence, strict liability in tort, warranty, or any other legal theory, for any reason or cause. In no event shall any liability under this Agreement exceed the amounts set forth in Section 5 above.
8. MISCELLANEOUS PROVISIONS.
(a) AMENDMENTS. Any amendment or modification to this Agreement shall be in writing and signed by the parties.
(b) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties regarding the Bartered Goods and it supersedes all prior and contemporaneous agreements, representations, and understandings of the parties.
(c) WAIVERS. Any waiver must be in writing. Waiver by either party of a breach of any provision of this Agreement shall not operate as a waiver of any subsequent breach.
(d) ATTORNEY’S FEES. If any dispute, default, suit or action arises from or in connection with this Agreement, then the prevailing party shall be entitled to recover all reasonable attorney fees, costs and expenses incurred, including without limitation any in preparation or in arbitration, trial, or on any appeal.
(e) GOVERNING LAW AND VENUE. This Agreement shall be governed by and construed in accordance with the laws of the YOUR STATE, without regard to conflict of laws principles. The parties agree that any claim asserted in any legal proceeding by one party against the other shall be commenced and maintained exclusively in state or federal court located in YOUR COUNTY, YOUR STATE. Both parties agree to submit to the jurisdiction of such courts over each of them personally in connection with such proceeding, and waive any objection to venue in such courts and any claim that such forum is an inconvenient forum.
(f) BINDING EFFECT. Unless otherwise agreed in writing by the parties, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties.
(g) COUNTERPARTS. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
(h) NO ASSIGNMENT. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party.
(i) FURTHER ASSURANCES. The parties agree to cooperate with one another and to execute and deliver any additional documents or instruments necessary to fulfill the parties’ obligations under this Agreement.
(j) SURVIVAL. The provisions of Sections 4, 6, 7, and 8 shall survive termination of this Agreement.