These Terms and Conditions (the "Terms") are posted by Eastern Atlantic Sales Inc. dba Gulfstream Container, a Florida corporation, with offices at 355 East 10 Ave, Hialeah, FL 33010 ("Vendor"), for the sale of custom generator enclosures and related equipment to any customer that issues a Purchase Order (as defined herein) or otherwise purchases Goods (as defined herein) or related services from Vendor ("Customer"). These Terms, together with each Estimate (as defined herein) issued by Vendor that incorporates these Terms by link or reference, each Purchase Order issued by Customer for the applicable transaction, drawings, specifications, and other order documents accepted by Vendor, are collectively referred to as the "Contract Documents." Customer and Vendor may each be referred to herein individually as a "Party" and collectively as the "Parties."

Overview

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A. Vendor may manufacture and sell to Customer custom generator enclosures and related equipment (collectively, the "Goods"), which are specially manufactured for Customer and are not readily resalable by Vendor in the ordinary course of Vendor's business.

B. Each transaction shall be initiated by a written estimate issued by Vendor (each, an "Estimate"), which may incorporate these Terms by hyperlink, URL, or other reference and shall set forth Vendor's estimated price for the applicable project and the project-specific description of the Goods, including applicable materials, specifications, quantities, unit configurations, and other transaction-specific requirements. To effectuate the purchase of Goods described in an Estimate, Customer shall issue a purchase order referencing the applicable Estimate (each, a "Purchase Order").

C. By issuing a Purchase Order to Vendor, Customer accepts these Terms and agrees to be bound by them. Each Purchase Order shall be deemed accepted by Vendor unless Vendor provides written notice of rejection within three (3) business days after receipt. Upon Vendor's acceptance or deemed acceptance, the Purchase Order and the applicable Estimate shall constitute the order documents for the applicable transaction and shall be governed by these Terms.

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Terms and Conditions

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1. Scope of Work; Specifications.

Each respective Purchase Order shall include, or shall incorporate by reference to the applicable Estimate: (a) a detailed description of the Goods; (b) quantities; and (c) pricing. Vendor shall not be responsible for any defect, nonconformity, delay, rework, cost, or other liability to the extent arising out of or relating to inaccurate, incomplete, unsuitable, unlawful, delayed, or deficient Customer-provided information or Customer-Supplied Items. These Terms, together with the other Contract Documents, constitutes the entire agreement of the Parties and sets forth all legal and commercial terms governing the Parties' relationship and the purchase and sale of the Goods under all Purchase Orders. A Purchase Order is issued solely to authorize the applicable purchase of Goods and to set forth the commercial and project-specific details of the order (such as the description of the Goods, quantities, pricing, and delivery requirements); it shall not modify, supplement, or amend these Terms, which govern all legal, contractual, and risk-allocation terms applicable to the order. Any legal, liability, warranty, indemnification, limitation, or other contractual terms or conditions set forth in a Purchase Order (including any preprinted or standard terms and conditions), and any additional or different terms contained in any Purchase Order, acknowledgment, or other document, including any preprinted or standard terms and conditions or any legal, liability, warranty, indemnification, limitation, or other boilerplate terms, are rejected and shall be void and of no force or effect, notwithstanding any acknowledgment, signature, or acceptance, unless expressly agreed to in a writing that references these Terms and the applicable Contract Documents and is signed by Vendor. Any Change to an accepted Purchase Order shall be effected only through a Change Order executed in accordance with Section 4. No course of performance, course of dealing, or usage of trade shall modify these Terms. The Contract Documents are intended to be complementary; in the event of any conflict or inconsistency among the Contract Documents, the following order of precedence shall govern: (i) these Terms; (ii) any fully executed Change Order; (iii) the applicable Estimate; and (iv) the applicable Purchase Order. The Parties intend that these Terms are a contract for the sale of goods governed by Article 2 of the Uniform Commercial Code (the "UCC").

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2. Delivery; Inspection and Acceptance.

 

(a) Delivery schedules, lead times, milestone dates, and delivery requirements shall be agreed upon by the Parties in writing from time to time as needed in connection with each Purchase Order. Vendor's performance of any agreed delivery schedule shall be excused or extended to the extent Vendor's performance is delayed or impacted by (i) Customer's failure to timely deliver Customer-Supplied Items, approvals, information, or site access, (ii) Customer's failure to timely pay amounts due under these Terms or any Purchase Order, or (iii) any excusable delay or Force Majeure Event under these Terms.

 

(b) "Delivery" means the tender of the applicable unit(s) of Goods by Vendor to the carrier designated by Customer at Vendor's facility, FCA Carrier (Incoterms 2020). Customer shall select and pay the carrier and shall be solely responsible for unloading, special handling, and all transportation activities after Delivery. Risk of loss or damage to the Goods shall transfer to Customer upon release to the carrier. Vendor may, in its sole discretion and without liability or penalty, make partial shipments of Goods, and each shipment shall constitute a separate sale for which Customer shall pay the price applicable to the units shipped, whether the shipment is in whole or partial fulfillment of the applicable Purchase Order. If Customer fails to accept delivery, fails to provide a carrier, delivery instructions, documents, approvals, licenses, authorizations, or other information required for Delivery, or otherwise prevents Vendor from tendering the Goods for Delivery when the Goods are ready, then (i) risk of loss shall pass to Customer, (ii) the Goods shall be deemed delivered, (iii) Vendor may invoice Customer for the Goods and all related charges, and (iv) Vendor may, at its option, store the Goods at Customer's sole cost and expense, including storage, handling, demurrage, insurance, and related costs. Following release to the carrier or deemed Delivery, Vendor shall not be responsible for any damage, flexing, or deformation occurring during transit, unloading, storage, or site handling.

 

(c) All Goods supplied by Vendor are subject to Customer's inspection. Customer shall have ten (10) business days after Delivery of the Goods (the "Inspection Period") to inspect the Goods and provide written notice to Vendor if Customer rejects any Goods due to nonconformity observable upon reasonable inspection or asserts any non-delivery, shortage, or short-shipment claim. Any such notice shall be reasonably specific and shall identify the alleged nonconformity, non-delivery, shortage, or short-shipment, the affected unit(s) of Goods, and the factual basis supporting such claim. The quantity of any shipment as recorded by Vendor upon dispatch from Vendor's facility shall be conclusive evidence of the quantity delivered unless Customer provides conclusive contrary evidence with its timely notice. Failure to provide timely notice of rejection within the Inspection Period will constitute acceptance of the Goods in that batch and waiver of any non-delivery, shortage, short-shipment, or observable nonconformity claim. Customer may reject only those individual unit(s) of Goods that fail to conform to the requirements set forth in Section 3. Acceptance of the Goods shall also occur upon Customer's use, installation, resale, or other beneficial use of the applicable Goods or batch thereof. Vendor's sole liability and Customer's exclusive remedy for any proven non-delivery, shortage, or short-shipment shall be, at Vendor's option, replacement of the affected Goods within a reasonable time or adjustment of the applicable invoice to reflect the actual quantity delivered.

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3. Conforming Goods.

All Goods must conform in all material respects to the approved drawings and specifications agreed to by the Parties in writing, as needed in connection with each Purchase Order. Minor deviations that do not materially affect the form, fit, or function of the Goods, or that fall within agreed tolerances, shall not constitute nonconformities and shall be deemed conforming. Goods that fail to conform in all material respects to the approved drawings are nonconforming and subject to rejection in accordance with Section 2(c). Nonconformities that do not materially affect form, fit, or function may be addressed through a mutually agreed written deviation or waiver, and Goods subject to an approved deviation or waiver shall be deemed conforming.

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4. Changes; Approvals.

Any change, addition, deletion, or deviation from any Purchase Order, approved drawings or specifications, quantities, materials, scope, or delivery schedule (each, a "Change") shall be valid only if set forth in a written change order executed by authorized representatives of both Parties (a "Change Order"). Each Change Order shall be treated as a standalone Purchase Order tied to the original project and shall be subject to independent pricing, schedule, and terms consistent with these Terms unless otherwise expressly agreed in writing by both Parties. No email, field directive, drawing markup, meeting note, course of performance, or other communication, and no constructive, implied, oral, or informal change, shall be binding or constitute a Change unless expressly incorporated into a fully executed Change Order. Vendor shall have no obligation to proceed with any Change, and Customer shall have no obligation to pay related charges, unless and until a Change Order is fully executed. Vendor's pricing is based on the assumptions stated in the Purchase Order. If, after Customer has approved any drawings, plans, or submittals, Customer requests a Change that requires rework or additional work to Goods already in process, Vendor will be entitled to an equitable adjustment to the price, delivery schedule, and other affected terms, to be reflected in the applicable Change Order, and Vendor shall not be liable for any delay or other impacts to the delivery schedule to the extent caused by Customer-requested Changes.

 

5. Price; Payment.

The total price and unit pricing for the Goods for each project are set forth in the relevant Purchase Order. Unless otherwise expressly agreed in writing by Vendor, the following milestone payment schedule applies to the total contract price for the Goods in each Purchase Order: (a) twenty percent (20%) nonrefundable deposit, invoiced upon Customer's issuance of the applicable Purchase Order and due within thirty (30) days after the invoice date, to reserve production slots, initiate engineering, and release materials; (b) thirty percent (30%) nonrefundable progress payment, invoiced upon commencement of overall fabrication for the project and due within thirty (30) days after the invoice date; and (c) the remaining fifty percent (50%) invoiced on a per-unit basis as each unit (or batch of units) reaches completion and is ready for shipment or pickup, and due within thirty (30) days after the invoice date. Customer shall not withhold, retain, escrow, set off, or otherwise deduct any retainage, holdback, reserve, back charge, or similar amount from any invoice. Customer shall have no right of setoff. Vendor may invoice, and Customer shall pay, for work performed and materials committed or procured to date if delivery or completion is delayed due to (i) late delivery, nondelivery, or nonconforming delivery of equipment, components, or materials to be provided by Customer or its subcontractors or suppliers, or (ii) other causes beyond Vendor's reasonable control as described in Section 9. The applicable Purchase Order number must appear on all invoices, correspondence, and packages relating to the Goods. Whether or not separately stated on the invoice or Purchase Order, Customer shall be responsible for and shall pay all applicable sales, use, excise, value-added, and similar transactional taxes imposed on the sale, purchase, delivery, or use of the Goods (excluding taxes based on Vendor's net income), and Vendor may separately state and invoice such taxes. Invoices not paid when due are subject to a late fee of one and one-half percent (1.5%) per month, eighteen percent (18%) annually, or the maximum rate permitted by law, whichever is less, on the overdue balance. Vendor may suspend work and/or withhold shipment of Goods if undisputed amounts remain unpaid more than thirty (30) days after written notice of nonpayment. Customer shall reimburse Vendor for all costs and expenses incurred in collecting overdue amounts, including reasonable attorneys' fees, court costs, collection agency fees, and related expenses.

If Vendor has reasonable grounds for insecurity regarding Customer's creditworthiness, payment performance, or ability to perform its obligations, Vendor may require adequate assurance of performance, including additional deposits, payment in advance, cash-on-delivery terms, a guaranty, letter of credit, or other security acceptable to Vendor. Vendor may suspend performance until such assurance is received.

 

6. Title; Risk of Loss; Shipping; Customer-Supplied Items.

Title to each unit of the Goods shall pass to Customer upon Customer's payment in full of the invoiced amount for such unit. Until Vendor has received payment in full for the applicable Goods pursuant to a Purchase Order, Customer hereby grants Vendor a purchase money security interest in such Goods and all proceeds thereof. Customer authorizes Vendor to file any financing statements or other documents reasonably necessary to perfect or protect such security interest. Risk of loss to the Goods shall pass to Customer upon the earlier of (i) Delivery of the unit of Goods to the carrier at Vendor's facility for shipment to Customer (FCA Carrier, Incoterms 2020) or (ii) pickup of the unit of Goods by or on behalf of Customer at Vendor's facility. As between Vendor and Customer, Customer shall be responsible for pursuing any claims with the carrier for loss of or damage to the Goods occurring after risk of loss has passed, and in the event Customer pursues such claim, Customer shall (i) promptly notify Vendor in writing of any loss of or damage to the Goods in transit, and (ii) preserve the Goods and all packaging and related evidence (including photographs and shipping documents) reasonably necessary to support any carrier claim. Any equipment, components, generators, or other property supplied by or on behalf of Customer delivered to or located at Vendor's premises ("Customer-Supplied Items") shall remain at Customer's risk of loss or damage while on Vendor's premises, except to the extent such loss or damage is caused by Vendor's negligence or willful misconduct; provided, however, that Vendor's liability for any such loss, damage, or destruction shall be limited to, and payable solely from, the insurance proceeds actually paid to and received by Vendor from its insurer with respect thereto. Customer shall, at its sole cost and expense, maintain insurance covering all Customer-Supplied Items against loss or damage arising from theft, vandalism, fire, natural disasters, or any other environmental or casualty event. Any corrective work required due to damage, flexing, or deformation occurring after risk of loss has passed shall be separately billable by Vendor at agreed rates. Customer shall pay any invoice issued by Vendor for such corrective work in full immediately upon receipt, and such payment obligation shall not be subject to offset, delay, or withholding pending Customer's receipt of insurance proceeds or resolution of any related insurance claim.

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7. Limited Warranty.

Vendor warrants to Customer that: (a) the Goods, as manufactured by Vendor, will materially conform to the approved drawings and specifications at the time of Delivery; (b) the enclosure structures and other components manufactured by Vendor will be free from defects in materials and workmanship for a period of one (1) year from the date of Delivery of each unit (the "Warranty Period") which, for the avoidance of doubt, such Warranty Period begins on the date of Delivery and is not extended by installation, commissioning, use, or any other event; (c) good and marketable title to the Goods will pass to Customer free and clear of all liens and encumbrances upon payment in full of the invoiced amount for such unit; and (d) the manufacture of the Goods by Vendor will comply, as of the date of manufacture, with the specific codes, standards, and requirements of the applicable laws and regulations in effect in the jurisdiction where the Goods are manufactured as of the date of manufacture. This limited warranty applies only to the enclosure and other components of the Goods manufactured by Vendor and does not apply to, and Vendor shall have no responsibility for: (i) any engines, generators, radiators, controls, breakers, batteries, or other internal equipment or components supplied by Customer or by third parties; (ii) any work performed by Customer's or third parties' contractors; or (iii) any defect, failure, or damage arising from misuse, improper installation or commissioning by persons other than Vendor, abnormal operating conditions, failure to perform required maintenance, unauthorized modifications or repairs, or loss of or damage to the Goods occurring after risk of loss has passed, including during transit, handling, unloading, or storage. Any claim for any defect (including any latent defect) must be asserted in writing within the Warranty Period and within a reasonable time after discovery, but in no event after expiration of the Warranty Period. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, VENDOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

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8. Indemnity; Limitation of Liability.

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(a) Customer shall defend, indemnify, and hold harmless Vendor, its affiliates, and their respective owners, officers, directors, and employees ("Indemnitees") from and against any third party claims, liabilities, losses, demands, penalties, forfeitures, suits, damages, judgments, fines, and reasonable costs and expenses (including reasonable attorneys' fees) (collectively, "Claims"), to the extent arising out of (i) bodily injury (including death) or damage to tangible property caused by the negligent acts or omissions or willful misconduct of Customer or its employees, agents, or contractors (other than Vendor), (ii) any allegation that the Goods, to the extent manufactured in accordance with Customer's designs, specifications, or instructions, or combined with equipment, components, or materials supplied by or on behalf of Customer or its contractors, infringe any United States patent, copyright, or trade secret of a third party, or (iii) any work performed, services rendered, or components, materials, or equipment supplied by subcontractors, suppliers, or other third parties engaged, designated, or approved by or on behalf of Customer, regardless of whether such Claims sound in contract, tort, product liability, or otherwise; provided, however, that Customer shall have no obligation to indemnify any Indemnitee to the extent such Claims arise out of or result from Vendor's fraud or willful misconduct.

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(b) An Indemnitee seeking indemnification under this Section 8 shall promptly notify Customer in writing of any Claim for which indemnification is sought and shall provide Customer with reasonable assistance in the defense of such Claim at Customer's expense. Customer shall have the right to control the defense and settlement of any such Claim with counsel of its choice, provided that Customer shall not settle any Claim without the Indemnitee's prior written consent (not to be unreasonably withheld, conditioned, or delayed) if such settlement (i) does not include a full and unconditional release of the Indemnitee, (ii) imposes any obligation on the Indemnitee other than the payment of money for which the Indemnitee will be fully indemnified, or (iii) includes any admission of liability or wrongdoing by the Indemnitee. The Indemnitee's failure to promptly notify Customer shall not relieve Customer of its obligations hereunder except to the extent Customer is materially prejudiced by such delay.

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(c) LIMITATION OF LIABILITY. EXCEPT FOR CUSTOMER'S PAYMENT OBLIGATIONS AND ITS INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS UNDER THESE TERMS, AND TO THE FULLEST EXTENT PERMITTED BY LAW: (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OR REVENUE, LOSS OF USE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, DOWNTIME, COST OF CAPITAL, OR COST OF SUBSTITUTE GOODS, ARISING OUT OF OR RELATING TO THESE TERMS OR ANY PURCHASE ORDER, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE) AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) VENDOR'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS AND ANY PURCHASE ORDER SHALL NOT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO VENDOR BY CUSTOMER UNDER THE PARTICULAR PURCHASE ORDER GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

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9. Force Majeure; Third Party and Customer-Supplied Equipment Delays.

Vendor will not be liable to the other for any failure or delay in performance to the extent caused by events beyond Vendor's reasonable control that could not reasonably have been anticipated or avoided by the exercise of reasonable diligence, including acts of God, fire, flood, earthquake, severe weather, war, pandemics, terrorism, civil unrest, labor disputes or strikes, shortages or unavailability of materials or transportation (including specialized or custom components), supply chain disruptions, delays in custom tooling, molds, or prototypes, governmental orders or actions (including import/export restrictions), failures of utilities or common carriers (including carrier unavailability and any port/rail/trucking disruptions), or delays caused by third party subcontractors, suppliers of materials, dealers, battery vendors, or breaker cabinet vendors, etc., provided that notice of such delay or failure is provided to the Customer ("Force Majeure Events"). Vendor shall promptly notify Customer in writing upon becoming aware of any Force Majeure Event or Customer-Supplied Item delay that is likely to affect the delivery schedule for a Purchase Order, and the Parties shall in good faith agree on an equitable extension of time and, if applicable, an equitable adjustment to price, including the reasonable costs incurred as a result of such delay. Vendor may invoice, and Customer shall pay, for work performed and materials committed or procured to date during any such delay in accordance with Section 5.

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10. Remedies for Nonconforming Goods.

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(a) Remedies for Nonconforming Goods. If any Goods are nonconforming as determined under Sections 2(c) and 3, and Customer timely provides written notice of rejection within the applicable Inspection Period, such notice shall provide reasonable detail identifying the affected unit(s) of Goods, the specific nonconformity, and supporting evidence. Customer shall preserve the applicable Goods and related packaging and evidence and shall provide Vendor a reasonable opportunity to inspect the Goods. No Goods may be returned without Vendor's prior written return merchandise authorization and Vendor's shipping instructions. As to such nonconforming Goods, Vendor shall have the exclusive right to cure first, and Vendor shall, at Vendor's option and as Customer's sole and exclusive remedies with respect to any initial nonconformity, (i) repair the nonconforming Goods; or (ii) replace the nonconforming Goods with conforming Goods within a commercially reasonable time. Customer shall not exercise any right of cover unless Vendor fails to cure after written notice and a reasonable opportunity to cure. Any cover shall be limited to commercially reasonable substitute goods and commercially reasonable incremental costs, and Customer shall mitigate damages. Customer shall not procure premium, expedited, or otherwise non-standard substitute goods or shipping (including expediting costs) without Vendor's prior written consent, and all costs of cover shall in all events be subject to the limitations of liability and exclusions set forth in Section 8. Only if Vendor fails to cure as provided above, Customer may receive a refund or credit solely for the price paid for the affected nonconforming Goods, subject to the limitations set forth in Section 8.

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(b) Remedies for Warranty Claims. If any Goods are defective due to a breach of the warranties set forth in Section 7, and Customer timely provides written notice of such defect within the Warranty Period, such notice shall provide reasonable detail identifying the affected unit(s) of Goods, the specific defect, and supporting evidence. Customer shall preserve the applicable Goods and related evidence and shall provide Vendor a reasonable opportunity to inspect the Goods. Vendor's sole obligation and Customer's exclusive remedy for breach of Section 7 shall be, at Vendor's sole discretion as to the method of cure, to (i) repair the defective portion of the Vendor-manufactured Goods; (ii) replace the defective portion of the Vendor-manufactured Goods; or (iii) if Vendor elects to provide a credit in lieu of repair or replacement, credit Customer an amount not exceeding Vendor's reasonable cost to repair or replace such defective portion (or such other agreed not-to-exceed amount expressly set forth in a writing signed by both Parties). Any third party repair or replacement work shall require Vendor's prior written approval as a condition to any credit or reimbursement.

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(c) Exclusive Remedies. The remedies expressly set forth in this Section 10 are Customer's sole and exclusive remedies with respect to nonconforming, defective Goods, and any breach of warranty, and no other remedies (whether under the UCC or otherwise) shall be available except to the extent expressly provided in these Terms and subject to the limitations of liability set forth in Section 8.

 

(d) Final Sale; No Returns or Cancellations. In recognition of the custom and specially manufactured nature of the Goods, and except as expressly provided in these Terms, all sales are final. Customer shall have no right to cancel, return, reject, revoke acceptance of, or refuse delivery of any Goods, except solely to the extent expressly permitted under these Terms.

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11. Term; Termination; Cancellation and Liquidated Damages.

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(a) Term. These Terms shall apply upon Customer's issuance of a Purchase Order, subject to Vendor's right to reject such Purchase Order, and shall remain in effect with respect to each Purchase Order issued and accepted until such Purchase Order has been completed or otherwise terminated in accordance with these Terms. Customer shall have no obligation to issue, and Vendor shall have no obligation to accept, any future Purchase Orders; provided that the foregoing shall not affect any Purchase Orders previously accepted or deemed accepted by Vendor.

 

(b) Suspension of Work; Termination for Non-Payment. Without limiting Vendor's other rights or remedies, if Customer fails to pay any amount when due in accordance with the payment schedule set forth in these Terms, Vendor may, upon written notice to Customer, suspend engineering, fabrication, and delivery of the Goods under any affected Purchase Order. Any such suspension shall extend applicable delivery schedules on a day-for-day basis, and Vendor shall not be liable for any delays, costs, or damages arising from such suspension. If such non-payment continues for ten (10) days after written notice, Vendor may terminate the affected Purchase Order immediately upon written notice to Customer. Upon any suspension or termination pursuant to this subsection, Vendor shall be entitled to retain all amounts previously paid by Customer, without offset, and such amounts shall be deemed fully earned and non-refundable.

 

(c) Termination for Insolvency. Vendor may suspend performance or terminate any affected Purchase Order immediately upon written notice to Customer if Customer becomes insolvent, makes an assignment for the benefit of creditors, becomes subject to bankruptcy, receivership, reorganization, liquidation, or similar proceedings, ceases doing business in the ordinary course, or fails to provide adequate assurance when requested by Vendor.

 

(d) Termination for Material Breach. Either Party may terminate an affected Purchase Order for the other Party's material breach; provided, however, that Customer shall have no right to terminate any Purchase Order for Vendor's alleged material breach unless such breach (i) materially and adversely affects Vendor's ability to complete manufacture of the Goods in accordance with these Terms and the applicable Purchase Order, (ii) cannot be cured within a reasonable time frame, and (iii) is not caused by or attributable to Customer's acts or omissions, including but not limited to failure to make timely payments, provide approvals, or supply required information. The terminating Party must provide written notice specifying the nature of the alleged material breach in reasonable detail and give the breaching Party thirty (30) days to cure, or such other reasonable cure period as the Parties may agree to in writing; provided, however, that for non-payment of any undisputed amount, the cure period shall be ten (10) days.

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(e) Cancellation or Termination by Customer; Deposit Retention. If Customer cancels or terminates any Purchase Order (including, without limitation, upon a material breach), or purports to cancel or terminate any portion of the relevant Purchase Order for any reason whatsoever, Vendor shall be entitled to retain all amounts paid by Customer prior to the effective date of such cancellation or termination, which amounts shall be deemed fully earned and non-refundable; provided, however, that if Customer provides notice of cancellation or termination within ten (10) days after the start of fabrication, Vendor shall retain the full initial twenty percent (20%) deposit in connection with the applicable Purchase Order and (i) if the second thirty percent (30%) deposit due at the start of fabrication in connection with the applicable Purchase Order has been paid, Vendor shall retain fifty percent (50%) of such second deposit and return the remaining fifty percent (50%) to Customer, and (ii) if the second thirty percent (30%) deposit in connection with the applicable Purchase Order has not been paid, Customer shall remain obligated to pay fifty percent (50%) of the amount of such second deposit. The Parties acknowledge and agree that the foregoing amounts constitute liquidated damages and not a penalty, and represent a reasonable allocation of risk in light of the specially manufactured nature of the Goods, Vendor's upfront engineering and fabrication costs, and the difficulty of resale.

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(f) Effect of Termination; Wind-Down; Survival. Upon the termination of any Purchase Order, Vendor shall cease work under the affected Purchase Order except as necessary to protect work in process or mitigate losses, and the Parties shall cooperate in good faith to achieve an orderly wind-down, including delivery to Customer of any conforming completed Goods for which Customer has paid in full. Sections 1, 5, 6, 7, 8, 10, 11, 12, 14, 15, 18 and 19 shall survive expiration of these Terms as applied to any Purchase Order or termination of any Purchase Order.

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12. Confidentiality; Use Restrictions.

Customer shall keep confidential and shall not disclose to any third party Vendor's nonpublic information disclosed in connection with these Terms or any Purchase Order, including without limitation, any drawings, specifications, bills of materials, pricing, and manufacturing methods (collectively, "Vendor Confidential Information"), and shall use Vendor Confidential Information solely to perform its obligations and exercise its rights under these Terms. Vendor retains all right, title, and interest in and to all Vendor Confidential Information. Customer may use Vendor Confidential Information solely in connection with the applicable Purchase Order and shall not copy, disclose, modify, reverse engineer, or use such Vendor Confidential Information for any other purpose without Vendor's prior written consent. Customer may disclose Vendor Confidential Information only to its employees, contractors, and professional advisors who have a need to know and are bound by confidentiality obligations at least as protective as this Section 12. Vendor Confidential Information does not include information that is (i) publicly available through no breach of these Terms, (ii) lawfully received from a third party without duty of confidentiality, or (iii) independently developed without use of Vendor Confidential Information. Upon Vendor's request or upon termination of the applicable Purchase Order, Customer shall return or destroy Vendor Confidential Information, except that one archival copy may be retained solely for legal compliance.

 

13. Insurance; Compliance with Laws.

Customer shall, at its own expense, maintain commercially reasonable insurance coverages in full force and effect, including commercial general liability and product liability insurance with financially sound insurers in amounts appropriate for Customer's business, the Goods, and Customer's installation, handling, transportation, storage, resale, or use of the Goods. Upon Vendor's request, Customer shall provide certificates of insurance evidencing such coverage, shall name Vendor as an additional insured where commercially available, shall provide advance written notice of cancellation or material change to the extent available under the applicable policy, and shall cause its insurers to waive rights of subrogation against Vendor to the extent permitted by law. Customer shall comply with all applicable laws, regulations, ordinances, codes, permits, licenses, approvals, and authorizations relating to Customer's purchase, transportation, installation, resale, export, import, use, and disposal of the Goods, and Customer assumes responsibility for any governmental import, export, site, installation, or use requirements applicable to Customer or its customers. Without limiting the foregoing, Customer is solely responsible for determining whether the Goods are suitable for Customer's intended use and for complying with all laws, codes, standards, permits, licenses, utility requirements, interconnection requirements, site conditions, installation requirements, commissioning requirements, and end-use requirements applicable to the transportation, installation, integration, commissioning, resale, export, import, use, operation, maintenance, or disposal of the Goods at Customer's or any end user's site. Vendor shall have no responsibility for site-specific, destination-jurisdiction, installation, utility, interconnection, permitting, or end-use requirements unless expressly agreed in a writing signed by Vendor.

 

14. Choice of Law.

These Terms and each Purchase Order shall be construed in accordance with Florida law, without giving effect to its conflict-of-law provisions. For purposes of these Terms, each Party irrevocably consents to the exclusive jurisdiction of Florida courts and to venue in Miami-Dade County, Florida. EACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR ANY PURCHASE ORDER.

 

15. Attorney's Fees.

If either Party is required to retain an attorney to enforce any aspect of these Terms or any Purchase Order against the other Party, the prevailing Party will be entitled to recover from the non-prevailing Party reasonable attorneys' fees, expert witness fees, costs and expenses.

 

16. Assignment and Subcontracting.

Neither Party may assign its rights or obligations under these Terms or any Purchase Order, in whole or in part, without the prior written consent of the other Party, which shall not be unreasonably withheld, conditioned, or delayed; provided, however, that either Party may assign its rights and obligations under these Terms or any Purchase Order without such consent to an affiliate or to a successor by merger, reorganization, or sale of substantially all of its assets, upon written notice to the other Party. Any attempted assignment in violation of this Section 16 will be void and of no effect. Vendor may subcontract portions of the manufacture or fabrication of the Goods to qualified subcontractors in the ordinary course of its business, provided that Vendor remains responsible for the acts and omissions of its subcontractors in performing work related to these Terms to the same extent as if such acts and omissions were those of Vendor.

 

17. Notices.

All communications under these Terms or any Purchase Order shall be in writing, and shall be deemed to have been duly made: (i) upon receipt if personally delivered; (ii) upon the next business day if sent by nationally recognized overnight courier service; (iii) on the third business day after posting if mailed by registered or certified mail, postage prepaid; or (iv) upon receipt of confirmation from the receiving Party if sent by email (which shall request confirmation of receipt). Notices to Customer shall be addressed to Customer at the address, email address, or other contact information stated in the applicable Purchase Order or otherwise provided by Customer to Vendor. Notices to Vendor shall be addressed as follows:

 

Eastern Atlantic Sales Inc. dba Gulfstream Container

355 East 10 Ave

Hialeah, FL 33010

Attention: Angel Dones

Telephone: (305) 563-7256

Email: adones@gulfstreamcontainer.com

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Each Party may by notice to the other specify a different address for subsequent notice purposes.

 

18. Third Party Work; Customer's Subcontractors.

Vendor shall have no responsibility for, and shall not be liable for, the acts or omissions, means, methods, quality, or performance of any work performed by Customer or by any third party engaged, designated, or retained by or on behalf of Customer or its customers, including Customer's subcontractors, dealers, installers, carriers, or other contractors, or for any equipment, components, or materials supplied by Customer or any such third party. Any installation, integration, commissioning, modification, repair, handling, transportation, storage, testing, or use of the Goods by or on behalf of Customer or any such third party is performed at Customer's sole risk and expense and voids any applicable warranties to the extent such work contributes to or causes a defect, nonconformity, or failure of the Goods.

 

19. Changes to Terms.

Vendor may revise, amend, supplement, or otherwise modify these Terms from time to time by posting updated Terms on Vendor's website or otherwise making such updated Terms available to Customer. Any such revised Terms shall become effective upon posting or on such later effective date as may be specified in the revised Terms. Customer is responsible for reviewing the then-current version of the Terms prior to issuing any Purchase Order or otherwise proceeding with any transaction with Vendor. Customer's issuance of a Purchase Order, acceptance of Goods, or continuation of a transaction with Vendor after revised Terms have been posted or otherwise made available shall constitute Customer's acceptance of and agreement to such revised Terms. Notwithstanding the foregoing, any Purchase Order that has been accepted or deemed accepted by Vendor before the effective date of any revised Terms shall continue to be governed by the version of the Terms in effect as of the date such Purchase Order was accepted or deemed accepted, unless the Parties expressly agree otherwise in a writing signed by Vendor.

 

20. Miscellaneous.

These Terms and each Purchase Order are solely for the benefit of Vendor and Customer and their permitted successors and assigns. No third party, including any owner, end user, contractor, subcontractor, installer, dealer, carrier, supplier, lender, or insurer, shall have any rights or remedies under them. Vendor is an independent contractor with respect to Customer, and Customer retains no control over Vendor's employees or their safety. These Terms must be construed without regard to any presumption or rule requiring construction against the Party that drafted them. If a court with jurisdiction determines that any portion of these Terms is invalid, illegal, or unenforceable, the determination will not invalidate the remaining provisions of these Terms. If either Party fails to insist on performance of any of these Terms, or fails to exercise any right or privilege under these Terms, neither failure will waive the term, condition, right, or privilege. These Terms are non-exclusive, Customer reserves the right to obtain the same or similar Goods from other sources, and Vendor reserves the right to manufacture and sell the same or similar goods to other third parties. Any individual issuing or submitting a Purchase Order on behalf of Customer represents and warrants that he or she is authorized to bind Customer to these Terms and the applicable Purchase Order. Any Estimate, Purchase Order, Change Order, approval, notice, signature, or other communication may be delivered or evidenced electronically, including by email, PDF, scanned copy, or electronic signature, and shall be valid and binding to the same extent as an original manual signature or paper record.