GENERAL TERMS AND CONDITIONS

GENERAL TERMS AND CONDITIONS

PURCHASE OF EQUIPMENT

1. Controlling Terms. These General Terms and Conditions Purchase of Equipment govern this purchase; any additional or different terms of CUSTOMER in any request for proposal, purchase order, draft or form will be null and void. No modification of these terms shall be binding on Dolphin Pack USA, LLC and its parent company, DOLPHIN PACK S.R.L. (collectively “DOLPHIN”) without its written consent.
2. Purchase of Equipment. DOLPHIN shall sell and supply to CUSTOMER, and CUSTOMER purchases and accepts from DOLPHIN, the certain equipment as agreed (the “Equipment”).
3. Transfer of Risk. The risk of loss is determined by the clause of the Incoterms 2020 in effect on the Effective Date as indicated in these General Terms and Conditions. If delivery should be delayed for reasons attributable to CUSTOMER, the risk shall pass to CUSTOMER from the date the Equipment is ready for shipment. DOLPHIN shall not be liable for any risk of loss or damage to the Equipment to the extent such risk of loss or damage is caused by the negligent acts or omissions of CUSTOMER.
4. Delivery of the Equipment. If delivery is delayed upon CUSTOMER’s request, CUSTOMER shall be charged for costs incurred for storage, or, if the goods are stored at DOLPHIN’s premises, CUSTOMER shall pay at least 0.5% of the replacement value for each month. However, DOLPHIN shall be entitled to use the stored Equipment after the expiration of a reasonable deadline set by DOLPHIN, and to a reasonable extension to supply CUSTOMER. Compliance with the delivery period is conditional upon fulfillment of CUSTOMER’s obligations.
5. Force Majeure and Delivery of Equipment. The delivery period of the Equipment shall be extended and DOLPHIN shall not be liable in case of events of Force Majeure, as defined herein, that may interfere with the delivery schedule. DOLPHIN shall immediately advise CUSTOMER of the occurrence of a Force Majeure event at its inception and end.
6. Liquidated Damages for Delay in Delivery. If CUSTOMER incurs costs due to delay in delivery attributable to DOLPHIN, other than as a result of a Force Majeure Event, CUSTOMER shall only be entitled to damages caused by such delay. DOLPHIN agrees that it will be liable to CUSTOMER for payment of CUSTOMER’S delay liquidated damages if DOLPHIN fails to deliver the Equipment by the delivery date set forth in the commercial or other related documents for reasons exclusively attributable to DOLPHIN for beginning of industrial use of the Equipment (the “Saleable Production”). CUSTOMER’s delay damages will begin to accrue on the first day immediately following the period of 30 days (30) after the missed date of Saleable Production. The agreed amount of liquidated damages is 52 US Dollars for every day of delay till max 3%

of the Purchase Price of the Equipment. DOLPHIN further acknowledges the reasonableness of the stated amount and agrees that the imposition of liquidated damages will in no way be construed as a penalty provision. Liquidated damages for delay shall in no case altogether exceed three percent (3%) of the Purchase Price of the Equipment.

PAYMENT OF LIQUIDATED DAMAGES FOR DELAY SHALL BE FINAL AND IN FULL SATISFACTION OF DOLPHIN’S LIABILITY FOR SUCH DELAY AND ALL FURTHER CLAIMS OF CUSTOMER DUE TO SUCH DELAY. ANY CLAIMS FOR INDIRECT, CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST EARNINGS, OR PUNITIVE DAMAGES ARE HEREBY EXCLUDED, REGARDLESS OF THE REASON.

7. Delivery and Installation:

• Costs for transportation, shipping, handling, freight and duty are considered Additional Cost of the Equipment.
• CUSTOMER shall be responsible for preparing the installation site in accordance with DOLPHIN’s technical specifications or requirements (i.e., user manual). Staff trained by DOLPHIN shall be involved in the installation phase.  CUSTOMER shall adhere to regulations regarding care, maintenance, inspection, servicing, and all monitoring procedures. CUSTOMER shall notify DOLPHIN as soon as the Equipment and any Related Equipment, which have been shipped to CUSTOMER, have arrived at the Plant and are ready for installation. DOLPHIN shall furnish technicians to supervise the installation and shall perform installation according to the Installation, Training, and Commissioning Services Protocol. CUSTOMER shall pay for any reasonable costs and expenses, including costs of product and packaging materials, associated with any necessary trial runs of the Equipment performed as part of the installation. Costs of Installation, Training, and Commissioning have been included as an item of Additional Cost for the Equipment and are based upon an installation schedule to be agreed upon by DOLPHIN and CUSTOMER. If, due to interruptions of the work schedule, which are attributable to CUSTOMER, the actual Installation, Training, and Commissioning cost exceeds the planned amount, CUSTOMER will be responsible for the incremental cost.

(iii)DOLPHIN will notify the CUSTOMER in writing of the FAT test in good time to allow the CUSTOMER to be represented at the tests. 15 days prior to the day set for the FAT, the CUSTOMER must ship at its own expense the samples (raw material, product and plastic film) to enable the Seller to perform the FAT. The FAT will be performed according to the FAT document that will be agreed upon at the time of Layout confirmation and according to the machine capacity. At the end of the tests, a FAT Acceptance Report will be drawn up and signed by the Parties. If the CUSTOMER decides not to participate, the FAT Acceptance Report will be sent to the CUSTOMER for review and comments. If the CUSTOMER does not provide any comments within 7 days of receipt of the FAT Acceptance Report, the FAT Acceptance Report will be accepted as accurate.

If the tests show that the Machinery does not comply with the technical specifications agreed between the Parties, DOLPHIN will promptly remedy all deficiencies to ensure that the Machinery complies with the Contract and confirm the conformity already agreed with the CUSTOMER. Upon the CUSTOMER’S request, new tests will then be carried out, unless the deficiency was insignificant.

The SAT must be agreed between the Parties in good time to allow DOLPHIN to organize the personnel and activities necessary for the intervention. In any case, unless an event or circumstance of “Force Majeure” occurs, the SAT must be completed no later than 10 days after the conclusion of the installation of the Machinery at the location chosen by the CUSTOMER. If the Buyer does not make himself available for the SAT within the 10-day period, the SAT will be considered to have been carried out, producing all the contractual consequences provided for in the contract. The commissioning of the machine is strictly linked to the signature of the operator’s training certificate and the signature of the commissioning report, without which the machine cannot be put into production.

After the tests, the parties will sign a specific report, the SAT Acceptance Report. In the event that DOLPHIN is not represented, the SAT Acceptance Report will be sent to DOLPHIN for review and comments. If DOLPHIN does not provide any comments within 7 days of receiving the SAT Acceptance Report, it will be accepted as accurate.

It is agreed that, for safety and liability reasons, without the SAT Report duly signed by the Parties, the Machinery cannot be put into production and used by the CUTOMER.

DOLPHIN shall bear all costs of the FAT. However, the CUSTOMER shall bear the costs of the raw materials necessary for the tests and, if applicable, the related shipping costs, as well as all travel and accommodation expenses for its representatives in connection with such tests. The CUSTOMER shall bear all costs for the SAT; DOLPHIN will indicate in advance in the Offer the costs that the CUSTOMER shall bear based on the Dolphin Pack service fees.

Dolphin will be available to assist during the execution of the tests, both remotely and at the CUSTOMER’S premises, for as long as necessary. DOLPHIN will indicate, upon request, in the Offer or subsequently, the costs that the CUSTOMER shall bear based on the Dolphin Pack service fees.

In the event that the tests (FAT or SAT) cannot be performed due to “Force Majeure”, such tests will be performed remotely via means that facilitate real-time communication.

• Specific installation responsibilities of the parties are set forth in the Installation, Training, and Commissioning Services Protocol.

8. Use; Inspection:

• CUSTOMER shall operate the Equipment in a careful and proper manner, shall comply with all Federal, State and Municipal laws, ordinances, and regulations, and shall remain in strict compliance with the rules, regulations and operating, servicing, and maintenance procedures supplied to CUSTOMER by DOLPHIN, including, without limitation, user manual and staff training.
• The separate maintenance requirements applicable to DOLPHIN and CUSTOMER are set forth in the commercial or other related documents, if applicable. CUSTOMER shall keep the Equipment in good working operating condition, order and repair, at its own expense unless otherwise agreed. 
• In the event of damage of any kind to the Equipment, including corrosion and rust, or abuse by CUSTOMER, CUSTOMER shall be responsible for all costs required to place the Equipment in good repair, condition, and working order, or for all costs to replace of the Equipment, depending on the degree of the damage. All such repairs shall be performed by or as directed by DOLPHIN.
• CUSTOMER shall not allow third parties to use the Equipment. Without DOLPHIN’s prior written consent, which shall not be unreasonably withheld, CUSTOMER shall not assign, transfer, sell, lease, part with the possession of, or move any Equipment or permit it to be used by anyone other than employees of CUSTOMER or DOLPHIN.CUSTOMER shall not make any alterations of any type to the Equipment without the prior written consent of DOLPHIN.
• DOLPHIN or anyone authorized by DOLPHIN shall at all times during business hours and upon reasonable notice, have the right to enter any Plant where the Equipment is located for the purpose of inspecting the Equipment or observing its use, and verifying CUSTOMER’s compliance with its obligations regarding the Equipment hereunder. DOLPHIN shall have no duty to make such inspection and shall not incur any liability or obligation by reason of making or not making any such inspection.

9. Title, Taxes, Insurance:

• DOLPHIN shall retain title to the Equipment, as the case may be, until the Purchase Price has been paid in full by CUSTOMER. CUSTOMER hereby grants to DOLPHIN a first priority security interest in the Equipment until the Purchase Price has been paid in full. DOLPHIN shall have the right to file a UCC-1 Financing Statement to perfect a security interest on all or any portion of the Equipment, at any time.
• At DOLPHIN’s request, CUSTOMER shall obtain from every owner, landlord, lessor, lessee, mortgagee, secured party, or any other party having any interest in the real estate where the Equipment is to be installed or in CUSTOMER’s operating assets, written waivers of any and all statutory or common law liens and of any property rights as they may otherwise claim in the Equipment, and shall deliver such waivers to DOLPHIN.
• CUSTOMER understands that it is its sole responsibility, and not DOLPHIN’s, to pay any ad valorem, use, sales or property taxes imposed by the state in which a Plant is located and, if applicable, any other state or political subdivision thereof on the basis of the Equipment.
• Until the Purchase Price has been paid in full, CUSTOMER shall carry “all risk” insurance, insuring against damage or destruction for its full replacement value, and “public liability and property damage” insurance in an amount equal to the replacement value of the Equipment subject of the commercial or other related documents, for each accident or occurrence covering the Equipment and its operation. The insurance shall be at CUSTOMER’s expense, shall be issued by insurers of recognized responsibility, qualified to issue such policies in the state of each plant, and shall name DOLPHIN as the loss payee. CUSTOMER, upon request, shall furnish DOLPHIN with certificates of insurance evidencing the coverage required hereunder.
• Until the Purchase Price has been paid in full, if at any time prior to or during the Term, DOLPHIN supplies CUSTOMER with labels, plates, or other markings reflecting the titled owner of the Equipment.

10. Late Payments; Set-off; Financial Statements:

• Any payment by CUSTOMER not made when due shall bear interest from the date due until paid at the rate of 18% per annum, or the highest rate permitted under applicable law. In addition, a 5% late payment administrative fee shall be charged on each late payment.
• DOLPHIN reserves the right to set-off any and all amounts due or that will become due to DOLPHIN under the commercial or other related documents against any amounts due and payable on account of costs or damages incurred by CUSTOMER due to DOLPHIN’s performance under any of the commercial or other related documents. The CUSTOMER may only set-off any sums due by DOLPHIN if such sums have not been disputed by DOLPHIN or have been awarded by a court. Since DOLPHIN is financing expensive Equipment to CUSTOMER, CUSTOMER agrees to provide audited financial statements annually and unaudited but certified financial information each time DOLPHIN requests it.

11. Warranty; Limitation of Liability:

• DOLPHIN warrants (a) that DOLPHIN has title to the Equipment and any Related Equipment being sold by DOLPHIN hereunder and the right to sell the Equipment and Related Equipment to CUSTOMER as contemplated herein, (b) that DOLPHIN owns and has the right to license to CUSTOMER all intellectual property necessary for CUSTOMER to use the Equipment and Packaging Material in accordance with the commercial or other related documents, the DOLPHIN trademarks, and the CUSTOMER’s use of such intellectual property will not infringe the rights of any third party, (c) that the Equipment conforms to DOLPHIN’s published specifications within the limits of customary commercial tolerances and will be free from defects in material and workmanship for a period of twelve (12) months for new Equipment, and six (6) months for used Equipment, unless otherwise specified in the commercial or other related documents, after the Commissioning Date, and (d) that all parts that are defective within the first twelve (12) months of operation for new Equipment, unless otherwise specified in the commercial or other related documents, due to a condition present before the risk of loss has passed to the CUSTOMER, shall be replaced or repaired by DOLPHIN at its own discretion. This warranty shall apply in case of construction, manufacturing or design defects that severely impair the use of the Equipment. CUSTOMER shall immediately notify DOLPHIN in writing of the existence of such defects within the warranty period. All parts that are replaced shall become property of DOLPHIN. The warranty period for spare parts shall be twelve (12) months from delivery.  Parts normally subject to operational wear and tear, consumable items and rubber parts are excluded from this warranty.  If DOLPHIN’s remedial action should fail, CUSTOMER shall, as its sole remedy, undertake the necessary repairs at DOLPHIN’s risk and expenses, including the direct cost incurred for repair and replacement of the defective part(s), the cost of the replacement part(s), including shipping, and reasonable costs for dismantling and reassembling the Equipment. Any other costs shall be borne by the CUSTOMER. If applicable, CUSTOMER shall allow DOLPHIN the necessary time and opportunity to carry out all necessary repair and replacement work or DOLPHIN shall be relieved from all the above warranty obligations. Specifically, CUSTOMER shall allow DOLPHIN access to CUSTOMER’s Plant, during regular business hours, to inspect the defective Equipment or part(s). If the repair cannot be carried out at the Plant, CUSTOMER shall then send the defective part(s) to DOLPHIN at the CUSTOMER’s sole expense, freight prepaid.  CUSTOMER shall be allowed to carry out the above works itself or by hiring a third party only in case of emergency to avoid a safety risk or serious damage and shall be entitled to reimbursement from DOLPHIN. If the claim is justified, DOLPHIN shall bear the reasonable costs of replacement, including shipping, dismantling, and installation as well as deployment of installation technicians or mechanics and assisting personnel. DOLPHIN will not be liable hereunder: (i) for any repairs or replacements, including spare and replacement parts, necessitated by ordinary wear and tear or neglect or failure to observe the instructions for operating the Equipment from time to time provided by DOLPHIN, or other improper or unauthorized use, (iii) for unsuitable operating materials, replacement materials, construction work, unsuitable ground, chemical, electrochemical or electrical influences for which DOLPHIN is not responsible, (iv) if, without DOLPHIN’s written consent, alterations, modifications, repairs, or reconditioning work have been performed by third parties or if spares or replacement parts not supplied by DOLPHIN have been used, (v) for any alleged defect involving Related Equipment which is not manufactured by DOLPHIN or any affiliate of  DOLPHIN; (vi) for any damage arising from failure to use DOLPHIN’s approved operating materials; (vii) for any claim, if CUSTOMER has failed to notify DOLPHIN in writing of the alleged defect underlying the claim within the expiration of the warranty. At DOLPHIN’s request, CUSTOMER will return to DOLPHIN any defective parts for repair or replacement. No returns will be accepted by DOLPHIN without prior written authorization from DOLPHIN.
• DOLPHIN warrants that the Service of the Machine(s) by DOLPHIN Technicians shall be performed in a good and workmanlike manner and will be free from defects in workmanship for a period of thirty (30) days from the date of such service. DOLPHIN warrants that the spare parts that it provides will be free from defects in workmanship for a period of twelve (12) months from the date of service. If a defect in workmanship appears during the warranty period, upon prompt notice to DOLPHIN of such defect by CUSTOMER, DOLPHIN shall repair the Machine(s) or replace any part necessary to return the Machine(s) to good working condition. Repairs or replacements pursuant to this warranty shall not renew or extend the applicable original warranty period, provided, however, that any such repairs shall be warranted for the remaining period of the original warranty or fifteen (15) days, whichever is longer.
• THE EXPRESS WARRANTIES EMBODIED IN THE FIRST PARAGRAPH OF THIS SECTION ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, GUARANTEES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WHETHER ARISING BY OPERATION OF THE LAW OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN NO CASE SHALL DOLPHIN BE LIABLE FOR DAMAGE TO UNITS OR PRODUCTS PACKED OR TO BE PACKED OR WORKING LOSS OR CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES RESULTING FROM THE USE OF THE EQUIPMENT . FURTHERMORE, DOLPHIN MAKES NO WARRANTY UNDER THE COMMERCIAL OR OTHER RELATED DOCUMENTS WITH RESPECT TO PACKAGING MATERIALS, DOLPHIN’S WARRANTIES WITH RESPECT TO ITS PACKAGING MATERIALS ARE CONTAINED IN THE PACKAGING MATERIALS TERMS AND CONDITIONS, AND ARE SUBJECT TO THE CONDITIONS AND LIMITATIONS SET FORTH THEREIN.
• IN NO EVENT SHALL DOLPHIN BE LIABLE TO CUSTOMER OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS COMMERCIAL OR OTHER RELATED DOCUMENTS, OR FOR ANY CLAIM BY ANY THIRD PARTY. DOLPHIN SHALL NOT BE LIABLE FOR DAMAGES OF CUSTOMER ARISING OUT OF DEFECTS CAUSED BY IMPROPER USE OF THE CUSTOMER’S EQUIPMENT BY CUSTOMER OR REPAIRS INCORRECTLY CARRIED OUT BY CUSTOMER OR OTHER THIRD PARTY, FOR DAMAGES NOT CAUSED BY GOODS SUPPLIED BY DOLPHIN, OR DERIVING FROM THIRD PARTIES’ EQUIPMENT OR PARTS, INCLUDING BUT NOT LIMITED TO, PALLETIZERS OR HEATERS, AND SHALL NOT BE RESPONSIBLE FOR PROVIDING ANY TYPE OF SERVICES ON SUCH EQUIPMENT OR PARTS. EXCEPT IN CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE TOTAL LIABILITY OF DOLPHIN TO THE CUSTOMER, IF ANY, SHALL IN NO CASE EXCEED THE AGGREGATE AMOUNT OF ONE MILLION DOLLARS (US$ 1,000,000.00) PER INCIDENT. In any event, THIS IS CONDITIONAL UPON the Equipment BEING OPERATED by CUSTOMER IN COMPLIANCE WITH the operating instructions.

12. Protection of Intellectual Property:

• CUSTOMER acknowledges that DOLPHIN owns valuable intellectual property rights in connection with DOLPHIN Equipment and its Related Equipment, including copyrights, patents, designs, know-how, and trade secrets. CUSTOMER shall keep strictly confidential the specifications and other technical information and know-how it obtains from DOLPHIN in connection with these General Terms and Conditions and commercial or other related documents and the delivery, installation, and operation of any Equipment and its Related Equipment. CUSTOMER shall neither directly nor indirectly (a) manufacture, or have manufactured by third parties, the Equipment or any components thereof, or (b) acquire or use copies or imitations of the Equipment or any parts thereof.
• CUSTOMER shall not make any improvements or modifications to the Equipment or its Related Equipment. CUSTOMER shall obtain DOLPHIN’s prior written consent for any improvements, modifications or other inventions, whether patentable or not, that CUSTOMER or its employees may develop and make with respect to the Equipment or its Related Equipment, or the process of the filling. CUSTOMER hereby agrees to assign and transfer all rights, title an interest in any improvements, modifications or other inventions to DOLPHIN. CUSTOMER further agrees to execute any and all necessary documents and take all actions, which DOLPHIN deems reasonably necessary to secure DOLPHIN’s intellectual property rights in the above; provided, however, that DOLPHIN shall grant a non-exclusive, non-transferable license to CUSTOMER in such improvements, modifications or other inventions.
• DOLPHIN acknowledges that CUSTOMER may from time to time make available to DOLPHIN personnel information, which CUSTOMER wishes to maintain confidential.
• DOLPHIN will require that any DOLPHIN personnel sent to CUSTOMER’s Plant have executed a confidentiality agreement with DOLPHIN, which requires that that person maintain the confidentiality of any information or specifications identified by CUSTOMER as confidential.

13. Indemnification:

• By CUSTOMER: CUSTOMER shall indemnify, defend and save harmless DOLPHIN, and its officers, directors, employees and agents from and against any losses, liabilities, damages, demands, obligations, fines or civil penalties, expenses, costs, and fees (including, but not limited to, court costs and reasonable attorney’s fees) of whatsoever kind and nature (collectively, “Losses”), imposed on, incurred by or asserted against DOLPHIN, its officers, directors, employees and agents, in any way relating to or arising out of (a) insufficient sterility of Products, (b) the use, operation, possession or disposition of the Equipment by CUSTOMER, (c) the willful misconduct or gross negligence of CUSTOMER or any of its officers, directors, employees or agents, or (d) the negligence of CUSTOMER or any of its officers, directors, employees or agents, to the extent that Losses are caused by such negligence.
• By DOLPHIN: DOLPHIN shall not be liable for indirect, consequential, or special damages caused by DOLPHIN’s design, manufacture, or delivery of the Equipment. DOLPHIN shall indemnify, defend and hold harmless CUSTOMER and its officers, directors, employees and agents from and against any and all Losses imposed on, incurred by or asserted by a third party against CUSTOMER, its officers, directors, employees and agents, or any of them, in any way relating to or arising out of (a) the design, manufacture, or delivery of the Equipment by DOLPHIN (b) any claim that CUSTOMER’s use of the Equipment or Spare Parts in accordance with the commercial or other related documents infringes a third party’s intellectual property rights; (c) the willful misconduct or gross negligence of DOLPHIN or any of its officers, directors, employees or agents, or (d) the negligence of DOLPHIN or any of its officers, directors, employees or agents, to the extent that Losses are caused by such negligence. The provisions of this Section are subject to the limitation of liability provided in Section 11(iv) of these General Terms and Conditions.
• Notice of Claim. If a claim by a third party is made against an indemnified party, the indemnified party promptly shall notify the indemnifying party of such claim. Failure to notify the indemnifying party will not relieve the indemnifying party of any liability which the indemnifying party might have, except to the extent that such failure materially prejudices the indemnifying party’s legal rights. The indemnifying party shall have thirty (30) days after receipt of such notice to determine whether to conduct and control, through its own counsel (subject to the consent of the indemnified party, which consent shall not be unreasonably withheld) and at its expense, the settlement or defense of such claim, and the indemnified party shall cooperate with the indemnifying party in connection therewith. The indemnifying party shall not enter into any settlement without the consent of the indemnified party, such consent not to be unreasonably withheld.
• The Parties agree that (a) the indemnifying party will permit the indemnified party, at the indemnified party’s sole expense, to participate in such settlement or defense through counsel chosen by the indemnified party, and (b) the indemnifying party shall reimburse the indemnified party for the full amount of any Losses resulting from such claim and all related expenses incurred by the indemnified party within the limits of this Section 13 as are incurred. So long as the indemnifying party is reasonably contesting any such claim in good faith, the indemnified party shall not pay or settle any such claim. The indemnified party shall have the right to pay or settle any such contested claim (provided that such settlement does not adversely affect any rights of the indemnifying party), but in such event it automatically shall waive any right to indemnity therefor by the indemnifying party. If the indemnifying party does not notify the indemnified party within thirty (30) days after receipt of the indemnified party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, or so notifies the indemnified party but fails thereafter to undertake or maintain such defense promptly and in good faith, the indemnified party shall have the right to contest, settle or compromise the claim in the exercise of its reasonable judgment and without prejudice to the rights of the indemnified party to indemnification hereunder, subject to the limitation of liability provisions hereunder.
• Survival of Indemnity. The obligations of indemnity hereunder shall survive any termination of the commercial or other related documents.

14. Events of Default:

(i) The occurrence of the following events shall constitute an Event of Default by either Party:

(a)  Any judgment against such Party, which results in the issuance of any writ or order of attachment or execution of other legal process against the Equipment which is not discharged or satisfied within sixty (60) days or unless within such time said Party posts bond to secure the amount in dispute;

(b) Either Party’s default in the performance of any other obligation or material term or condition contained in these General Terms and Conditions or the commercial or other related documents, unless the breaching Party cures its breach within ten (10) days following written notice thereof by the other Party;

(c)  the commencement of any bankruptcy, insolvency, receivership, liquidation or other similar proceedings by or against one Party, or the appointment of a trustee, receiver, liquidator, or custodian for CUSTOMER, which proceeding is not dismissed or stayed within sixty (60) days following its commencement, or if such Party suffers the entry of an order for relief under Title 11 of the United States Code;

(d) the making by one Party of a general assignment for the benefit of creditors.

(ii) The occurrence of the following events shall constitute an Event of Default by CUSTOMER:

(a)  CUSTOMER’s failure to pay when due any payments or any other charge or expense imposed on CUSTOMER pursuant to the commercial or other related documents with DOLPHIN, unless CUSTOMER cures its breach by paying the entire amount due within ten (10) days following CUSTOMER’s receipt of written notice of such failure; provided, that DOLPHIN has the right to stop during the 10-day cure period (i) shipment and delivery of the packing material and spare parts, and (ii) the provision of maintenance services according to the commercial or other related documents, if applicable. DOLPHIN’s grant of an extension of time to make payment shall not be construed as a waiver of DOLPHIN’s right to send a notice of default to CUSTOMER and exercise any remedies provided hereunder;

(b) the use of the Equipment in an improper or abusive manner or the abandonment of the Equipment by CUSTOMER;

(c)  the use by CUSTOMER of packaging materials other than those provided or manufactured by DOLPHIN or by third parties approved by CUSTOMER; or

(d) the occurrence during the Term of any Event of Default by CUSTOMER or affiliate of CUSTOMER under any real estate lease or mortgage affecting or covering the premises where any Equipment is to be located, which default is not cured within sixty (60) days of the default, or the giving of any notice by the owner, landlord or mortgagee of such premises demanding that the premises be vacated.

(iii) Upon the occurrence of any Event of Default by CUSTOMER under Section 14, and at any time thereafter, DOLPHIN may without further notice exercise one or more of the following remedies as DOLPHIN in its sole discretion shall elect; provided, however, that the remedy for an Event of Default by CUSTOMER described in Section 14(ii)(d) shall be limited to the remedies set forth in Sections 14(iii)(b) and (c) below:

(a)  terminate the commercial or other related documents;

(b) take possession of and remove any Equipment, unless title has passed to CUSTOMER, wherever located without liability to CUSTOMER or to any third party in possession of the Equipment;

(c)  cause CUSTOMER, at its own expense, promptly to disassemble and return any Equipment to DOLPHIN;

(d) use, withhold, sell, lease or otherwise dispose of any Equipment without releasing CUSTOMER from its obligations hereunder or under any of the commercial or other related documents;

(e) DOLPHIN’s obligations to make payments (discounts, rebates, refunds, marketing incentives, etc.) will be suspended for so long as CUSTOMER is in default;

(f)  continue withholding any service pursuant to the commercial or other related documents and/or any sale of parts pursuant to the commercial or other related documents, if applicable;

(g) seek appropriate relief in law or equity to enforce performance of these General Terms and Conditions and commercial or other related documents by CUSTOMER and to recover damages for the breach thereof;

(h) exercise any and all rights accruing to DOLPHIN under applicable law;

(i)  declare all payments and any and all other charges provided for in the commercial or other related documents to be immediately due and payable.

(iv) CUSTOMER shall reimburse DOLPHIN on demand for any and all costs and expenses incurred by DOLPHIN in enforcing its rights hereunder following the occurrence of an Event of Default by CUSTOMER including, without limitation, reasonable attorneys’ fees and the cost of repossession, storage, insuring, selling, and disposing of the Equipment.

(v) Upon the occurrence of any Event of Default by DOLPHIN under Section 14(i), and at any time thereafter, CUSTOMER may without further notice exercise one or more of the following remedies as DOLPHIN in its sole discretion shall elect:

(a)  terminate the commercial or other related documents, in which case the license granted to CUSTOMER under Section 14(i) shall terminate in accordance with that Section and CUSTOMER shall make the Equipment available for removal from CUSTOMER’s Plant by DOLPHIN, at DOLPHIN’s expense;

(b) seek appropriate relief in law or equity to enforce performance of the commercial or other related documents by DOLPHIN and to recover damages for the breach thereof;

(c)  exercise any and all rights accruing to CUSTOMER under applicable law.

(vi) The rights and remedies of the Parties as provided in this Section 14 shall be cumulative and not exclusive and shall be in addition to all other rights and remedies available to the Party under applicable law. A waiver on one occasion of such rights and remedies shall not be construed as a waiver on any other occasion.

The commercial or other related documents are each cross-defaulted. A default by either Party under any one of the commercial or other related documents shall constitute a default by that Party under all of the commercial or other related documents and may give rise to additional remedies under one or more of those documents as well.

15. Conflict of Terms and Conditions: In the case of a conflict with the commercial or other related documents, these General Terms and Conditions shall govern.
16. Applicable Law; Arbitration: The commercial or other related documents and the obligations of the Parties hereunder shall be governed by and construed in accordance with the laws of the State of New York, without regard to its laws governing conflict of laws. Any dispute arising between the parties hereunder shall be submitted to final and binding arbitration. The arbitration shall be conducted by one (1) arbitrators, in the English language, in the City of New York, New York, under the Commercial Arbitration Rules of the American Arbitration Association then in effect, upon written notice and demand of any party therefor.  Any arbitration award rendered shall be binding, final and conclusive upon all Parties, and judgment thereon may be entered in any Court having jurisdiction thereof.  The prevailing Party shall be entitled to recover reasonable attorney’s fees and costs from the other Party.
17. No Assignment: The General Terms and Conditions and commercial or other related documents shall not be assignable by CUSTOMER without the express written consent of DOLPHIN, which shall not be unreasonably withheld.
18. Force Majeure: Except with respect to the payment of money, neither Party shall be liable to the other Party for any delay or omission in the performance of any obligation under the commercial and other related documents , where the delay or omission is due to any cause or condition beyond the reasonable control of the Party obligated to perform, including, but not limited to, strikes or other labor difficulties, acts of God, acts of government (in particular with respect to the refusal to issue necessary import or export licenses), war, riots, embargoes, inability to obtain supplies, pandemic or health emergency(“Force Majeure”). If Force Majeure prevents or delays the performance by a Party of any obligation under the commercial and other related documents, then the Party claiming Force Majeure shall promptly notify the other Party thereof in writing.
19. Suspension of Agreement. DOLPHIN shall have the right to suspend these General Terms and Conditions in extraordinary events beyond the reasonable control of DOLPHIN, including, without limitations, epidemic, pandemic, outbreaks of infectious or viral disease or any other public health crisis without liability and upon written notice to Customer as DOLPHIN determines to be necessary or appropriate: (A) for the health and safety of the DOLPHIN’s employees or contractors, including without limitation: (i) to comply with any shelter-in-place, quarantine requirements, social distancing, travel restrictions, or any other order, instruction, or request of any government, public health, or emergency service organization, or other competent authority; or (ii) due to shortages or unavailability of personnel or personal protective equipment; (B) as a consequence of economic downturn, business interruption, or cash-flow difficulties, including without limitation, adjustments in payments from lenders or investors; or (C) as a consequence of supply chain disruptions, including without limitation, shipment delays, labor and material shortages. DOLPHIN shall have the right to suspend these General Terms and Conditions and commercial and other related documents pursuant to this Section 19 whether or not the events listed herein qualify as a Force Majeure Event under Section 18.
20. Successors and Assigns: The commercial and other related documents shall inure to the benefit of and be binding upon the successors and assigns of the respective parties hereto, provided that nothing contained in this Section shall impair any of the provisions hereinbefore set forth prohibiting assignment of the commercial and other related documents without prior written consent.
21. Severability: If any provision of the commercial and other related documents or of these General Terms and Conditions Purchase of Equipment is declared void or unenforceable, such provision will be severed from the commercial or other related documents or these General Terms and Conditions Purchase of Equipment, as the case may be, which will otherwise remain in full force and effect. The waiver by either Party hereunder of a breach of any provision of the commercial or other related documents and these General Terms and Conditions Purchase of Equipment by the other Party shall not operate or be construed as a waiver of any other or subsequent breach by the non-waiving Party.
22. Amendments: The commercial or other related documents shall not be amended or changed except by a written agreement signed by the Parties. No condition of the commercial or other related documents may be waived except by the written consent of the Parties.