Gulfstream Customs Inc.’s Terms and Conditions of Sale
1. Applicability. These terms and conditions of sale (“Terms and Conditions”) govern the sale of custom manufactured fishing rods and accessories (e.g. gaffs, fishing leads, dip nets, etc.), including third party parts and accessories associated with the same, and other goods (collectively “Goods”) by Gulfstream Customs Inc., a Florida corporation (“Company” or “Seller”) to the customer (the “Buyer”) named on the applicable quote, sales order, invoice or other sales documentation or agreement (collectively the “Order”).
The Order and these Terms and Conditions (collectively, this “Agreement”) comprise the entire agreement between the parties related to the sale of Goods, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms and Conditions prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms and conditions. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms and Conditions.
2. Order and Acceptance. Buyer may place an Order either: i) online through Seller’s website; ii) through communication with Company via email; and iii) through communication with Company via phone. An order shall be deemed accepted upon payment by the Buyer of a Deposit (defined below) or the Total Purchase Price (defined below), as applicable; notwithstanding, Seller shall have the ability to refuse or cancel any Order, so long as such refusal or cancellation occurs within five (5) business days from receipt of Buyer’s Payment. An order may only be cancelled by Buyer by providing written notice to Seller, within twenty-four (24) hours of payment by the Buyer (the “Cancellation Period”). In the event of an attempt by Buyer to cancel after the Cancellation Period has lapsed, Seller shall be entitled to retain the Deposit or the Total Purchase Price, to be determined in Seller’s sole discretion.
3. Pricing. Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in the Order and for Custom Additions (defined below), as set forth in Section 4(a) below. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer, as well as any special requirements for export shipments, all of which shall be the responsibility of Buyer. All Orders will include an eight percent (8%) for taxes owed by Buyer. Prices, colors and specification are subject to change without notice. Quotes for the purchase of Goods are only valid for a period of seven (7) days from which they are transmitted to Buyer. Payment for the Goods shall be subject to and made according to the following:
a. Orders over $1,200.00. For Orders in an amount greater than twelve hundred dollars ($1,200.00), Buyer shall make a payment in an amount equal to fifty percent (50%) of the total amount of the entire purchase price for such order (the “Total Purchase Price”) at the time of placing the applicable Order (a “Deposit”). Payment of the outstanding fifty percent (50%) of the Total Purchase Price shall be due and payable by Buyer to Seller, prior to shipment of the Goods, upon notification that the Goods have been completed from Seller to Buyer. For purposes of this Agreement, each payment made of either the Total Purchase Price or a Deposit, may individually be call a “Payment.”
b. Orders of $1,200.00 or Less. For Orders in an amount equal to or less than twelve hundred dollars ($1,200.00), Buyer shall make payment in full, in an amount of the Total Purchase Price, at the time of placing the applicable Order;
c. Late Payments; Interest; Rights of Company. If Buyer fails to make payment of the Total Purchase Price from the date upon which Seller provides notice to Buyer that the Goods have been completed, Seller shall have the right to charge a fee equal to three percent (3%) of any outstanding amount owed to Seller, each day that such payment is delinquent. After sixty (60) days from the date upon which Seller provides notice to Buyer that the Goods have been completed, if the Goods are not paid for and picked up by Buyer, Buyer shall be deemed to have forfeited its rights in the Goods and the applicable Deposit.
d. Third Party Products. Notwithstanding anything to the contrary contained herein, Buyer shall pay in full for any Third Party Products (defined below) prior to Seller placing an order for any such Third Party Product. Buyer acknowledges and agrees in the event Buyer does not pay for Third Party Products in full at the time of placing an order, Seller shall have no liability for not placing the order for the applicable Third Party Products.
4. Custom Configuration of Goods.
a. Pricing for Custom Additions. In the event that Buyer wants to include custom additions to the Goods, including, but not limited to custom paint, cork grips, and custom decals (“Custom Additions”), such Custom Additions shall be subject to the following prices; provided, however, such pricing remains subject to change:
i. Paint. The price for paint shall be: a) in an amount of one hundred dollars ($100.00) per each color; and/or b) in an amount of two hundred dollars ($200.00) per each custom fish paint (e.g. wahoo, swordfish, etc.);
ii. Cork Grips. The price for cork grips shall in an amount of one hundred dollars ($100.00); and
iii. Custom Decals. The price for custom decals shall be in an amount of twenty-five dollars ($25.00).
b. Custom Order Acknowledgement. Seller strives to complete custom orders in a timely manner and to meet customer deadlines whenever possible. DUE TO CUSTOMIZATIONS AND SPECIALIZATION OF SELLER’S GOODS, INCLUDING PARTS AND/OR ACCESSORIES MANUFACTURED BY THIRD-PARTIES, COMPLETION IN A TIMELY MANNER AND THE BAILITY TO MEET CUSTOMER DEADLINES ARE SOMETIME OUT OF THE CONTROL OF SELLER. As such, when placing an Order, Buyer hereby acknowledges and agrees to the following:
i. All custom specifications are deemed accepted at the time of Payment by Buyer, regardless of whether such Payment is the Total Purchase Price or a Deposit;
ii. It is Buyer’s sole responsibility to ensure that accurate specifications have been provided to Seller at the time of placing and Order and making a Payment;
iii. Changes to an Order after the Cancellation Period has expired (a “Change Order”) are subject in all respects to approval by the Seller and may be accepted or denied in the Seller’s sole discretion. In the event Seller accepts a Change Order, such Change Order may result in additional charges and delays in production time and ultimately the delivery date of the Goods; and
iv. As mentioned above, the Goods are custom and include parts/accessories manufactured by third parties that are not under the control of Seller. As such, SELLER SHALL NOT BE LIABILE FOR ANY DELAYS IN COMPLETION OR DELIVERY OF THE GOODS, OR ANY ASSOCIATED DAMAGES SUCH AS LOSS OF PROFITS OR OTHER SPECIAL OR PUNITIVE DAMAGES; and
v. Buyer acknowledges and agrees that Seller will only begin manufacturing the Goods once all materials have been received for an entire Order. Company shall not be responsible for delays due to manufacturers or other providers of parts. Seller will not manufacture or ship partial Orders.
5. Delivery Terms.
a. Shipping Methods; Standard Shipping. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the location specified by Buyer in the applicable Order (the "Delivery Point"), via standard shipping methods (e.g. FedEx or other nationally recognized carrier, selected by Seller in its sole discretion) (“Standard Shipping”). Orders placed online include the cost of shipping shown online (the “Standard Shipping Fee”), however, Company reserves the right in its sole discretion to charge any additional shipping costs that are not covered by the Standard Shipping Fee. If an Order is not placed online, Seller will send a quote for shipping costs prior to sending a final invoice and once the final invoice is paid, the goods will be sent via Standard Shipping.
In the event the Goods are shipped via Standard Shipping, all Goods will be carefully packaged pursuant to Seller’s standard methods. Seller will include any third-party packaging for any Third Party Product (defined below), if any. The Goods shall be deemed accepted by Buyer on the date upon which the Goods have been delivered to the Delivery Point. In the event that Buyer does not desire to utilize Standard Shipping, the following alternative methods of delivery are available, as set forth below in Section 5.b and 5.c, subject to Seller’s sole and absolute discretion.
b. Uber Delivery. In the event that Buyer desires to have delivery made via Uber, and Seller agrees in its sole discretion, Seller will confirm availability of Buyer at Buyer’s desired location, provide an estimate of the cost for the delivery, and upon confirmation of Buyer’s acceptance to the cost and availability arrange for Uber to pick up the Goods. Buyer acknowledges and agrees that Seller shall not be liable for any delays, loss or damage to the Goods while in transit via Uber.
c. Hand Delivery. For Orders over $15,000.00 and a Delivery Point less than a One Hundred (100) mile radius from 2933 Gulfstream Road, Palm Springs, Florida 33461, an Agent of Seller can hand deliver the Goods to the Delivery Location at not additional cost to Buyer.
d. Risk of Loss. Risk of loss shall pass to Buyer upon delivery of the Goods to the nationally recognized carrier or pickup of the Goods by Uber, as applicable. Buyer acknowledges that the Goods are not insured while in transit, and Buyer shall pay all insurance costs for shipping if Buyer desires to have such insurance.
e. International Shipments. For international shipments, please allow additional delivery time. Due to third parties and governmental agencies, Seller cannot make any guarantees as to delivery times for international shipments. Buyer acknowledges and agrees that Seller shall not be liable for any delays, loss or damage in transit to any international Delivery Points.
6. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
7. Inspection and Rejection of Nonconforming Goods.
a. Buyer shall inspect the Goods within three (3) days of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. "Nonconforming Goods" means only the following: (i) product shipped is different than identified in Buyer's purchase order; or (ii) product's label or packaging incorrectly identifies its contents.
b. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller's facility located at 2933 Gulfstream Road, Palm Springs, Florida 33461. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point.
c. Buyer acknowledges and agrees that the remedies set forth in Section 7.b are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 7.b, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
8. DISLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS AND EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
a. Third Party Products. Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ANY CLAIM AGAINST THE THIRD PARTY SHALL BE SUBJECT SOLELY TO THE TERMS AND CONDITIONS OF THE THIRD PARTY’S WARRANTY, IF ANY, APPLICABLE TO SUCH THIRD PARTY PRODUCT(S). BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER DOES NOT REPRESENT OR WARRANT THAT THE THIRD PARTY PRODUCT(S) WILL MEET BUYER’S REQUIREMENTS. BUYER ACKNOLWEDGES THAT BUYER ASSUMES ALL RISK FOR LOSS OR DAMAGES RELATING TO THE SELECTION AND USE, COMPATABILITY, FIT AND SUITABILITY OF THE THIRD PARTY PRODUCT(S), AND THAT SELLER HAS MADE NO REPRESENTATIONS OR WARRANTIES, NOR HAS BUYER RELIED ON ANY REPRESENATION OR WARRANTIES, EXPRESS OR IMPLIED WITH REGARD TO COMPATIBILITY, SUITABILITY, FIT OR APPLICATION OF THE THIRD PARTY PRODUCT(S).
9. EXCLUSIVE REMEDY. BUYER’S SOLE AND EXCLUSIVE REMEDY, AND SELLERS ENTIRE OBLIGATION, FOR ANY BREACH OF THIS AGREEMENT (INCLUDING A DEFICIENCY OR BREACH OF ANY REPRESENTATION OR WARRANTY) SHALL BE, AT SELLER’S OPTION, FOR SELLER TO (a) REPLACE THE GOODS IN QUESTION OR (b) REFUND TO BUYER AN AMOUNT EQUAL TO AMOUNT THE BUYER PAID FOR THE GOODS IN QUESTION.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
11. Intellectual Property.
a. Seller’s Intellectual Property Rights. Seller owns all right, title, and interest in and to, its custom designs, trademarks, and other intellectual property, including but not limited to “Gulfstream Custom Rods” trademarks, logos, and variations of the same (the “Gulfstream Intellectual Property”). Buyer acknowledges that the Gulfstream Intellectual Property is the sole and exclusive property of Seller and Seller shall not claim, any right, title or interest in any of the Gulfstream Intellectual Property.
b. Third Party Intellectual Property; Indemnification. In the event that Buyer desires to include custom decals into the Goods, Buyer hereby represents and warrants that it has not provided any third-party intellectual property or images that infringe on a third-party’s intellectual property rights, to be used in creation of any such decals or has secured proper licenses to do so. In any claim of damages against Seller by a third party with respect intellectual property infringement, for intellectual property wrongfully provided from Buyer for use in the Goods, Buyer hereby agrees to indemnify and hold harmless, Seller and its affiliates from any such losses or damages.
12. Prop 65 Warning. Pursuant to California’s Proposition 65, Seller hereby provides warning to Buyer that some Goods may contain Lead and or Lead Compounds, which are known to the State of California to cause cancer and birth defects or other reproductive harm. For more information Buyer may go to www.p65warnings.ca.gov.
13. Refunds; No Returns. Refunds shall only be available within twenty-four (24) hours from Buyer placing an order (the “Cancellation Period”), conditioned upon Buyer providing written notice to Seller of its intention to cancel the order prior to expiration of the Cancellation Period. In the event Buyer desires to cancel an order after expiration of the Cancellation Period, Buyer acknowledges and agrees that it shall have forfeited the entirety of any Deposit paid to Seller and any right to the Goods. All sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
14. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer, as applicable. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance, if any. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
15. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or 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 Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
17. Force Majeure. The Seller shall not be liable or responsible to Buyer, 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 Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, 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 of adequate or suitable materials, materials or telecommunication breakdown or power outage.
18. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
19. 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.
20. No Third-Party Beneficiaries. 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 these Terms.
21. Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida.
22. Submission to Jurisdiction; WAIVER OF JURY TRIAL. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the state courts of the State of Florida located in Palm Beach County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. THE PARTIES HERETO ACKNOWELDGE AND AGREE THAT ANY RIGHT TO TRIAL BY JURY IS WAIVED BY THIS AGREEMENT.
23. Notices. All notices, request, 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 applicable Order 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), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). 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.
24. Severability. 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.
25. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, Waiver of Jury Trial. Disclaimer of Warranties, Limitation of Liability.