1. Definitions.
(a) “Agreement” means these Terms together with the Sales Invoice.
(b) “Credit Account Conditions” means the Credit Account Terms and Conditions and any Agreement to Guarantee and Indemnify.
(c) “Customer” means the party making this application for credit or the purchaser named on the Quotation or Sales Invoice.
(d) “Goods” means any goods, products, or supplies, including any accessories or replacement parts thereto, supplied by Supplier to Customer.
(e) “Insolvency Event” means any of the following:
(f) “Purchase Price” means the price of the Goods or Services set out in the relevant Quotation or Sales Invoice.
(g) “Quotation” means the written estimate or quotation submitted by Supplier to Customer for Goods or Services.
(h) “Sales Invoice” means an invoice, accepted purchase order, or confirmation issued by Supplier to Customer for Goods or Services.
(i) “Services” means any services provided by Supplier to Customer.
(j) “Special Goods” means Goods which are at Customer’s request embellished, embroidered, printed, machined, cut to size, made to specification, or specifically ordered for Customer.
(k) “Supplier” means Stallion Marine Inc., a Delaware corporation.
(l) “Terms” means these Terms of Sale.
2. Applicability.
(a) These Terms apply to and accompany the Quotation or Sales Invoice to which such Terms are attached, and, together with the Quotation or Sales Invoice, are the only terms which govern the provision of Goods or Services as identified on the Quotation or Sales Invoice at the property address, marine, dock, or vessel provided on the Quotation or Sales Invoice (“Premises”).
(b) If there is any conflict between the provisions of the Sales Invoice and these Terms, the provisions of the Sales Invoice shall prevail. The Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, regarding the Goods and Services. This Agreement prevails over any of Customer’s terms and conditions of purchase regardless whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend this Agreement. Supplier rejects any additional or inconsistent terms and conditions offered by Customer at any time. No course of dealing or usage of trade may modify, supplement, or explain any provisions of this Agreement.
3. Quotations.
(a) Unless withdrawn by Supplier, a Quotation is valid for thirty (30) days from the issuance date. Supplier may withdraw, revoke, or amend a Quotation at any time prior to acceptance of the Quotation by both Supplier and Customer.
(b) A Quotation does not create an obligation for Supplier to sell. A Quotation is to be construed as a non-binding estimate only and a contractual relationship only arises between Supplier and Customer when Customer’s order has been accepted by Supplier through an executed Quotation by both parties or performance thereof (upon execution or performance of the Quotation, such Quotation will be deemed a Sales Invoice) or by the issuance of a Sales Invoice by Supplier.
4. Sales Invoice; Cancellation.
(a) Supplier may, in its sole discretion, without liability or penalty, cancel any Quotation or Sales Invoice for any reason. If Supplier cancels any Quotation or Sales Invoice, then it shall refund to Customer any amounts that have already been paid by Customer in respect of the cancelled Quotation or Sales Invoice and Supplier will have no further liability to Customer with respect to the cancelled Quotation or Sales Invoice.
(b) Customer shall have no right to cancel or defer any Sales Invoice or cancel or reschedule any Services provided therein unless approved by Supplier in its sole discretion. If Supplier permits Customer to cancel any Sales Invoice then any deposit paid by Customer for the cancelled any Sales Invoice will be forfeited to Supplier.
5. Price; Payment.
(a) As consideration for the sale of the Goods and performance of the Services, Customer shall pay to Supplier the price set forth on the Sales Invoice.
(b) All prices are due to Supplier on or before delivery of the Goods or provision of the Services. Additional Goods or Services, and their related prices, may be added to the Sales Invoice from time to time upon terms mutually agreed upon by the parties. Customer shall make all payments hereunder by wire transfer, ACH, check, or cash, and in US dollars. Credit card payments, if accepted by Supplier, are subject to a convenience fee or surcharge.
(c) If Supplier has granted Customer credit, Customer shall ensure that payment for the Goods or Services is made in accordance with the Credit Account Conditions and within thirty (30) days of the last day of the month in which the Goods or Services were supplied to Customer.
(d) Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Supplier for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Supplier does not waive by the exercise of any rights hereunder), Supplier shall be entitled to suspend the delivery of any Goods or performance of any Services if Customer fails to pay any amounts when due hereunder and such failure continues for five (5) days following Notice thereof.
(e) Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Supplier, whether relating to Supplier’s breach, bankruptcy, or otherwise.
(f) If Supplier determines in its sole discretion that Customer’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Supplier’s other rights, Supplier may without liability or penalty: (1) decline to provide any Goods or Services; (2) cancel any previously accepted Sales Invoice; (3) require prorated payments for any partial Goods or Services provided; or (4) terminate this Agreement.
6. Solvency Representations and Warranties.
(a) Customer agrees that each order it places is a representation to Supplier that it is solvent and able to pay its debts as and when they become due and payable. If Customer:
the balance of Customer’s account to Supplier will become immediately due and payable.
(b) Customer shall Notify Supplier as soon as practicable but no later than two (2) days of:
(c) Customer acknowledges that despite any of the occurrences in Section 6(b), it will remain liable to pay the price for the Goods and Services supplied.
7. Title; Risk of Loss.
(a) All Goods are provided Ex Works (EXW) Incoterms® 2020.
(b) Supplier retains legal and equitable title to any Goods supplied to Customer until payment in full. The retention of title and ownership of the Goods is effective whether or not the Goods have been altered from their supplied form or mixed with other goods.
(c) Notwithstanding that title in the Goods remains with the Supplier until payment has been received in full, Customer may sell such Goods or use the Goods in the ordinary course of Customer’s business. In these circumstances if the Customer sells any of the Goods to a purchaser:
(d) So long as title remains with Supplier: (1) Customer must clearly designate the Goods as the property of Supplier and keep full and complete records of the physical location of the Goods and the ownership of the Goods by Supplier; and (2) Supplier may inspect, recover, or retake possession of such Goods.
(e) Supplier bears all risk of loss or damage to the Goods until delivery of the Goods to Customer at its Premises or other delivery location or collection of the Goods by Customer, whichever is sooner.
8. Security Interest.
(a) As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Supplier a lien on and security interest in and to all of the right, title, and interest of Customer in, to and under the Goods, 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, until such time as the purchase price is for the Goods is paid in full by Customer. The security interest granted under this provision constitutes a purchase money security interest under the Delaware Uniform Commercial Code and the Uniform Commercial Code of the jurisdiction applicable to the Goods.
(b) Customer authorizes Supplier to file any financing statements, liens, and the like to secure Supplier’s security interested in the Goods, at Customer’s expense. Customer shall sign any documents, agreements, and authorizations and provide all necessary information and do anything else that may be required by Supplier to perfect the Supplier’s security interest.
(c) Customer shall not to enter into any other security agreement that permits another person or entity to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods prior to the Supplier perfecting its security interest.
9. Inspection.
After taking delivery of the Goods, Customer shall inspect the Goods within forty eight (48) hours of receipt to determine whether the Goods have been damaged or are defective and all of the Goods have been delivered. Customer shall immediately notify Supplier of any issue resulting from Customer’s inspection of the Goods and if no notice has been received within forty eight (48) hours of the Goods being delivered they shall be deemed to have been accepted and delivered to Customer. Customer acknowledges that Supplier, to the fullest extent permitted by law, does not provide any warranties with the Goods other than the manufacturers warranties (if any).
10. Returns.
(a) Returns of Goods must be approved by Supplier. Supplier will only accept a return if:
(b) Returns are not permitted on Special Goods.
(c) Return shipping, handling, and insurance costs are the responsibility of Customer.
(d) If Supplier grants a return, it may at its sole discretion charge Customer: (1) a ten percent (10%) restocking fee on Goods returned within twenty one (21) days of the Sales Invoice; or (2) a thirty percent (30%) restocking fee on Goods returned after twenty one (21) days of the Sales Invoice. No returns are permitted after sixty (60) days of the Sales Invoice.
11. Customer’s Acts or Omissions.
If Supplier’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Supplier shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
12. Services; Premises.
(a) Supplier shall provide the Services set forth in the Sales Invoice. Except as provided in the Sales Invoice, Supplier shall furnish all labor, tools, equipment, and competent supervision necessary to complete the Services.
(b) Supplier shall use commercially reasonable efforts to meet any performance dates to render the Services specified in the Sales Invoice, if any, and any such dates shall be estimates only.
(c) With respect to the Services, Customer shall (1) cooperate with Supplier in all matters relating to the Services and provide such access to the Premises, and such other facilities as may reasonably be requested by Supplier, for the purposes of performing the Services; (2) respond promptly to any Supplier request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Supplier to perform Services in accordance with the requirements of this Agreement; (3) provide such materials or information as Supplier may reasonably request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and (4) obtain and maintain all necessary licenses, permits, and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start. Customer represents and warrants that Customer has full authority and the legal right to authorize and grant access, and does hereby authorize and grant access, to Supplier to enter the Premises, including all streets, sidewalks, and all surrounding property or areas necessary to gain access to the Premises. Customer understands and agrees that Supplier has relied upon such representation and warranty to perform its services under this Agreement.
(d) CUSTOMER RELEASES SUPPLIER FROM ANY AND ALL CLAIMS OF ANY KIND, INCLUDING CLAIMS FOR PERSONAL INJURY, DEATH, AND PROPERTY DAMAGES, ARISING FROM OR RELATING TO ANY CONDITION OF THE PREMISES OR ANY HAZARD ON THE PREMISES THAT EXISTED PRIOR TO THE EXECUTION OF THIS AGREEMENT OR WAS CAUSED BY A PARTY NOT CONTROLLED BY SUPPLIER, WHETHER KNOWN OR UNKNOWN.
(e) Customer will furnish to Supplier all source materials, system diagrams, diagrams, databases, and maps related to Customer’s Premises that are necessary for Supplier’s performance of the Services (“Customer Source Materials”). Supplier disclaims any liability for errors, omissions, or inaccuracies contained in or resulting from Customer Source Materials or information obtained from any third party or publicly available source.
13. Special Goods.
If Customer has requested the supply of Special Goods, it must ensure that it has provided Supplier with accurate and detailed information and specifications for the Special Goods at the time of the order.
(a) Any changes or alterations to the Special Goods requested by Customer after the order date will result in the Customer incurring additional costs.
(b) Supplier accepts no liability for Special Goods which are not fit for purpose because of an error made by Customer when ordering.
(c) Special Goods orders cannot be cancelled and the Supplier will not accept returns of Special Goods.
14. Installation.
Unless otherwise specified in the Sales Invoice, the sale of Goods is for supply only and does not include installation which will be at Customer’s sole expense.
15. Operation and Maintenance of Goods.
Customer acknowledges and agrees that the Goods must be maintained and operated by Customer in accordance with any guidelines, operating manual, or instructions provided by Supplier, and that failure to properly maintain or operate the Goods may lead to decreased performance and damage, defect, or nonperformance resulting therefrom is not covered by the manufacturer’s warranty (if any).
16. Product Descriptions.
(a) All descriptions, specifications, photographs, drawings, illustrations, weights, dimensions, performance data, and all other particulars relating to Goods or Services that are provided in any Quotation, catalog, price list, website, or other advertising material is only an approximation for information purposes and are subject to alteration without notice.
(b) Goods will be within the tolerances in regard to weight and dimensions consistent with industry practices.
(c) Unless otherwise agreed, Supplier may at its discretion supply an alternative brand or substitute product or component when necessary.
17. Limited Warranty.
(a) For a period of twelve (12) months from the date Goods were delivered to Customer or Services are completed (the “Warranty Period”), Supplier warrants to Customer that the applicable Goods will be free from any defects in workmanship, material, and design and the Services will be performed in a timely, professional, and workmanlike manner by qualified personnel (the “Limited Warranty”). If it is determined that Supplier has breached the Limited Warranty, Supplier will, in its reasonable discretion, either: (1) replace or repair the defective Goods or re-perform the defective portion of the Services; (2) pay Customer the cost of procuring alternative Goods or Services equivalent to the defective Goods or Services; or (3) credit or refund the fees paid for the defective portion of the Goods or Services. This remedy will be Customer’s sole and exclusive remedy and Supplier’s entire liability for any breach of the Limited Warranty. The Limited Warranty shall not apply to any defects arising from installation by Customer, misuse, failure to follow instructions, or failure to maintain or operate any Goods.
(b) EXCEPT FOR THE LIMITED WARRANTY, SUPPLIER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS AND SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(c) THE REMEDIES SET FORTH IN SECTION 18(a) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SUPPLIER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 18(a).
18. Limitation of Liability.
(a) IN NO EVENT SHALL SUPPLIER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR THEFT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) WITHOUT LIMITING THE FOREGOING, SUPPLIER SHALL NOT BE RESPONSIBLE FOR STARTING OR STOPPING A FIRE, OR ANY DAMAGE, LOSS, INJURY, OR DEATH ARISING FROM ANY FIRE. CUSTOMER ACKNOWLEDGES AND AGREES THAT GOODS AND SERVICES DO NOT GUARANTEE STOPPING A FIRE OR THAT A FIRE WILL NOT START. THE CAUSE OF A FIRE IS A FLAMMABLE MATERIAL THAT IS UNDER THE CONTROL OF CUSTOMER AND THE QUALITY OF MAINTENANCE WHICH SUPPLIER DOES NOT CONTROL. MAINTENANCE OF EQUIPMENT, PROTECTION FROM FLAMMABLE MATERIALS, AND SUFFICIENT FIRE SUPPRESSION EQUIPMENT THAT IS OPERATING CORRECTLY IS CUSTOMER’S SOLE RESPONSIBLY.
(c) IN NO EVENT SHALL SUPPLIER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SALE OF ANY GOODS OR SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNTS PAID TO SUPPLIER BY CUSTOMER FOR THE DEFECTIVE GOODS OR SERVICES, AS APPLICABLE, HEREUNDER.
19. Indemnification.
Customer agrees to indemnify and hold Supplier and its officers and agents harmless from and against any and all loss, liability, cost, damage, or expenses whatsoever, including reasonable attorneys’ fees, incident to any actual or threatened claim, action, or proceeding (collectively, “Claims”) against Supplier arising out of the purchase or use by Customer of Goods or Services, excluding any Claims arising from or related to any Limited Warranty provided by Supplier.
20. Confidential Information.
All non-public, confidential, or proprietary information of Supplier, including but not limited to, specifications, samples, designs, plans, drawings, documents, data, code, software, technical data, business operations, customer lists, and pricing, disclosed by Supplier to Customer, whether disclosed orally or disclosedPage 4or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Supplier in writing. Upon Supplier’s request, Customer shall promptly return all documents and other materials received from Supplier. Supplier shall be entitled to injunctive relief for any violation of this Section 21. This Section 21 does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
21. Term; Termination of Services.
With respect to Services only, the term of the Services shall commence upon execution or acceptance of the Sales Invoice and continue thereafter until completion of the Services, unless earlier terminated. In addition to any remedies that may be provided under this Agreement, Supplier may terminate the Services with immediate effect upon Notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
22. Effect of Termination or Expiration.
Upon the termination or expiration of any Services for any reason, Customer shall pay Supplier for all work performed, and reimburse Supplier for all non-cancellable costs properly incurred by Supplier in connection with the Services, up to the date of termination or expiration, as applicable. Termination or expiration of any Services does not terminate this Agreement, and provisions of this Agreement which by their nature are intended to apply beyond the termination or expiration of the Services, shall survive such termination or expiration of the Services.
23. Compliance with Law.
Each party shall comply with all applicable laws, regulations, and ordinances in connection with the Services and this Agreement. Each party shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
24. Force Majeure.
Supplier shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Supplier including, without limitation, acts of God, flood, fire, earthquake, tornado, hurricane, or other weather-related events, materials or telecommunication breakdown or power outage, explosion, governmental actions or inaction, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, insurrection, epidemic, lockouts, strikes, or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies or equipment.
25. Assignment.
Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Supplier. Any purported assignment or delegation in violation of this Section 26 is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement. Supplier may assign, delegate, or subcontract this Agreement or the provision of any Services without notice to or the consent of Customer. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
26. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
27. No Third-Party Beneficiaries.
This Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
28. Notices.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Invoice or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid), facsimile (with confirmation of transmission), or electronic mail. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 28.
29. Governing Law; Venue and Jurisdiction.
This Agreement and the application or interpretation of it shall be governed exclusively by its terms and by the laws of the State of Delaware, without regard to its conflict of laws or provisions. The parties submit to the sole and exclusive jurisdiction of the state and federal courts in New Castle County, Delaware, in any action, claim, or other proceeding arising out of any dispute in connection with this Agreement, and each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in such courts.
30. Further Assurances.
Each party shall use commercially reasonable efforts to, from time to time at the request of the other party, furnish the other party the further information or assurances, execute and deliver such additional documents, instruments, and conveyances, and take other actions and do other things, as may be reasonably necessary or appropriate to carry out the provisions of this Agreement and give effect to the transactions contemplated by this Agreement.
31. Waiver.
No waiver by Supplier of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Supplier. No failure to exercise, or delay in exercising, any right, remedy, or power arising from this Agreement operates, or may be construed, as a waiver thereof.
32. Severability; Amendment.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement may only be amended or modified in a writing stating specifically that it amends this Agreement and is signed by an authorized representative of each party.
33. Execution.
This Agreement may be executed in counterparts, including by electronic signature, transmission, process or confirmation, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
4884-4060-4402, v. 2
