SOUTHEAST MACHINERY COMPANY INC STANDARD TERMS AND CONDITIONS
The terms and conditions set forth below shall constitute all of the terms and conditions of all purchase and sale transactions between Southeast Machinery Company Incorporated (“Southeast Machinery”) and the Customer unless Southeast Machinery expressly agrees otherwise in a written document manually signed by Southeast Machinery at the time of a particular transaction (the “Contract Terms”).
In this document the following words shall have the following meanings:
"Seller" means Southeast Machinery Company, Inc., 740 4th St N #156, St Petersburg, FL 33701;
"Customer" means the organization or person who buys Goods, sometimes referred to as the buyer;
"Goods" means the articles to be supplied to the Customer by the Seller;
"Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable.
I.Product Description: Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Customer hereby affirms that it does not in any way rely on any description when entering into the contract. Where a sample of the Goods is shown to and inspected by the Customer, the parties hereto accept that such a sample is representative in nature and the bulk of the order may differ slightly as a result of the manufacturing process. The Customer has the right to request, at the customer’s expense, an inspection of machinery products prior to final payment.
II. Acceptance of Orders: Customer agrees that all orders, including those arising from Southeast Machinery’s proposal, shall be subject to the Contract Terms only, notwithstanding any different or additional terms that may be embodied in Customer’s order. All orders are subject to acceptance by Southeast Machinery in writing. Southeast Machinery has the right to cancel its acceptance of any order within 10 business days of accepting the order.
III. Customer Commitment to Purchase: When the Customer provides Southeast Machinery, either via a Purchase Order, an email or any other written format, with a document expressing the intent to buy, that document is considered a commitment to purchase. Southeast Machinery is not obliged to verify that the person submitting the commitment for the Customer is authorized to make that commitment on behalf of the Customer. No cancellations or refunds are made for any orders once they are in the production process, as determined by Southeast Machinery. All down payments are non-refundable. For any cancellation of orders made prior to the commencement of production, the following terms apply: For orders submitted without a down payment, the Customer will be charged a cancellation fee of 25%. For orders accompanied by a down payment, the down payment will be the cancellation fee. Southeast Machinery may under certain circumstances, and at its sole discretion, take back items that were purchased by the Customer. In such case, a 25% restocking fee will be imposed, and other conditions imposed as per the terms in the Returns section of this document.
IV. Return of Goods: All goods are sold on a firm sale basis, i.e. the Seller will not take back any goods not required or sold to the Customer, unless otherwise agreed, in which case the following terms apply: Any returns must be authorized in writing by a representative of the Seller before any credit will be given. Where the Seller agrees to accept the return of goods that are not damaged, the Customer will be responsible for the cost of carriage and will ensure that they are carefully packaged to avoid any damage in transit and accepts responsibility for any losses that may happen in transit. The Seller will not be obliged to accept any goods that are damaged in any way nor goods that are not in saleable condition.
V. Customer Price and Credit: Price is defined by a written Southeast Machinery Quotation. All product item and service item quotation pricing must be in writing. Items on a Quotation indicated as an Estimate are considered to be reasonably accurate figures that are subject to change by the Seller based on factors unknown at the time of the estimate pricing. Pricing is based on current taxes, duties and tariffs in effect at the time of a quote. Pricing is subject to change based on changes to taxes, duties and/or tariffs that are current at the time of delivery. Any price increases due to changes in these taxes, duties and tariffs are the responsibility of the customer and will be forwarded to the customer. The Seller will provide the final pricing on all estimates as soon as those prices are known to the Seller. Future product prices, whether specified or otherwise, are subject to change without notice. Sales are subject to Southeast Machinery’s approval of Customer’s financial responsibility and credit on the actual delivery date, and Southeast Machinery reserves the right to restrict such sale to a cash sale or to specify all credit terms and security to be given for the extension of credit. Customer prices do not include shipping costs unless the quotation or estimate specifically states in writing that the shipping costs are included.
VI. Payment: Payment terms are included on the estimate given to the Customer. In the event that the terms are not specified, default terms are as follows: For machinery, default terms are as follows: down payment of 40% with order and the balance in full including shipping fees (if applicable) before shipment. Orders for standard-order parts, services, travel and other non-machinery items that total $3,000 or more have payment terms that are as follows: a 50% down payment, with balance due upon delivery of the order. Orders for standard-order parts, services, travel and other non-machinery items that total less than $3,000 have payment terms that are as follows: 100% upon delivery. No cash discount is provided. All indebtedness not paid within 30 days (or otherwise agreed terms in days stated on originating Southeast Machinery, Inc. quotation) from date of invoice shall bear interest at the rate of 1½% per month. Seller shall have the right, among other remedies, either to terminate this agreement or suspend further performance under this and/or other agreements with Customer in the event Customer fails to make any payment when due. Customer shall be liable for all expenses relating to the collection of outstanding receivables. Payment is accepted by Wire Transfer, Company Checks and Personal Checks. Credit Cards may be accepted at the discretion of the Seller. Credit card processing fees will be passed through to the Customer. The Seller will supply the necessary banking and mailing information. Customer agrees to pay a $50.00 surcharge for each returned check and all collection costs, including banking and legal fees, if applicable.
VII. Taxes: The Customer shall pay any tax imposed by federal, state or other governmental authority on the sale, in addition to the purchase price. Customer immediately shall reimburse Southeast Machinery for any such tax hereinafter imposed on Southeast Machinery with respect to the sale. The Customer has the sole responsibility for compliance of tax laws related to the sales and services provided by the Seller.
VIII. Delivery, Claims & Title: Delivery terms are specified in the quotation to the Customer. If terms are not specified, the default terms are that the Seller will be responsible for selection of freight method and the customer will be responsible for the charges. Risk of loss shall pass to Customer upon release of the product to a shipping contract or common carrier. Scheduled date of shipment is approximate, and is not a guarantee of a particular day of delivery. Any claims for shortages or damages suffered in transit are the responsibility of the Customer and settlement of said damages are to be reconciled in entirety by the Customer with common carrier or otherwise. If postponement of shipment is delayed by Customer for any reason, Customer agrees to compensate Southeast Machinery for any and all storage and restocking costs. Prepaid and/or added freight charges will be assessed a 10% surcharge. Deliveries are based on material availability and prior sales.
IX. Force Majeure: Southeast Machinery shall not be liable for any delay in performance or nonperformance due to any circumstance or action whatsoever that is beyond the control of Southeast Machinery. Such a circumstance or action will include, but not be limited to, the following: Acts of God, war and riot, acts of third parties, acts of governmental authorities or agencies or commission thereof, embargoes, vandalism, sabotage, strikes, differences with employees, lockouts, or other industrial disturbances, shortages or delay in supply of fuel, power, raw materials or component parts.
X. Warranties and Disclaimers: Unless Southeast Machinery expressly provides a warranty in writing signed by Southeast Machinery at the time of the sale (an “Express Warranty” and collectively the “Express Warranties”), Southeast Machinery provides no warranties or representations with respect to the products and hereby expressly disclaims the same. Each Express Warranty is subject to the following provisions, notwithstanding anything to the contrary contained in the writing pursuant to which Southeast Machinery granted such Express Warranty:
(a): Existence of a defect must be expressly brought to Southeast Machinery’s attention in writing during the warranty period, and verified with support documentation including but not limited to photographs and written descriptions. Determination of defect is subject to confirmation by Southeast Machinery after inspection at Southeast Machinery’s facility or, at Southeast Machinery’s option, at Customer’s place of business. Repairs shall be made at Southeast Machinery’s facilities or, at Southeast Machinery’s option, at one of its authorized repair centers, or at the Customer’s place of business. Customer shall pay all removal, installation, insurance and shipping charges. Items determined by Southeast Machinery to be defective shall be returned to Southeast Machinery.
(b): Wear items are warranted (1) to be free from defects in material and workmanship, (2) to be manufactured in accordance with Southeast Machinery’s specifications, or, if specifications are provided to Southeast Machinery by the Customer, then in accordance with such specifications, and (3) to conform with accepted industry standards. Southeast Machinery’s obligations under this warranty are limited to the repair or replacement (but excluding removal, installation, and any shipping charges) of the item for a period of 90 days from the date of Customer receipt. Wear items include, but are not limited to, the following: blades, belts, knives, heaters, screens, screws, elements and batteries.
(c): Electrical components and motors are warranted (1) to be free from defects in material and workmanship, (2) to be manufactured in accordance with Southeast Machinery’s specifications, or, if specifications are provided to Southeast Machinery by the Customer, then in accordance with such specifications, and (3) to conform with accepted industry standards. Southeast Machinery’s obligations under this warranty are limited to the repair or replacement (but excluding removal, installation, and any shipping charges) of the item for a period of 90 days from the date of Customer receipt. Electrical items include, but are not limited to the following: PLCs, control panels, sensors.
(d) Southeast Machinery Equipment is warranted to the original purchaser to conform to specifications and to be free from defects in material and workmanship for a period of one year after shipment, provided that notice of any such defect, including a reasonably detailed description of the problem or difficulty experienced along with photographs and other required documentation, is made in writing to Southeast Machinery within ten (10) calendar days following discovery thereof and prior to the expiration of such warranty. Southeast Machinery’s obligations under this warranty are limited to the repair or replacement (but excluding removal, installation, and any shipping charges) of the item for a period of 1 year from the date of Customer delivery receipt.
(e): Third party products sold to the Customer by Southeast Machinery are subject to the warranty terms granted to the Customer by the original manufacturer and are not included under the warranty terms listed herein. The Customer should consult the third party supplier directly for recourse under that warranty.
(f): Each Express Warranty is contingent on the following conditions: that Customer establishes that the product has been properly installed, maintained, and operated within the limits of related and normal usage as specified by Southeast Machinery; that upon Southeast Machinery’s request, Customer will return to Southeast Machinery the defective product or part thereof; that Southeast Machinery promptly receives from Customer notice of the defect, including a reasonably detailed description of the problem or difficulty that Customer has experienced along with photographs or video as requested to support the claim; and that Customer establishes that the correction does not involve new software materials to serve a function not intended to be served by the original software materials.
(g): The conditions of actual production in each end user’s plant vary considerably. Therefore, descriptions of the performance capabilities of any product or software materials are estimates only and are not warranted. Any service or parts that are provided by Southeast Machinery that are outside the scope of the Express Warranties shall be charged to the Customer at Southeast Machinery’s applicable time and material rates, and under the terms and conditions in effect at the time such service or parts are provided.
(h): Materials and services provided under an Express Warranty are warranted only for the remainder of the original warranty period.
(i): The Express Warranties do not apply to product wear items as described in this document or extend to any damage to a product that is a result of Customer’s continued operation after a defect has been recognized by Customer. This warranty does not apply to any item that has been subjected to misuse, neglect, accident, improper installation, or use in violation of instructions, if any, furnished by Southeast Machinery. This warranty does not apply to any item that has been repaired or altered by anyone other than an authorized Southeast Machinery repair technician.
(j): The Express Warranties shall be voided if the products sold pursuant hereto are damaged, altered or installed in other assemblies before correction of any nonconformity.
(k): The Express Warranties apply only to the original purchaser of the products and are not transferable.
(l): The sole and exclusive remedy against Southeast Machinery or its affiliates pursuant to any kind of claim, including, but not limit to, a claim in contract, negligence or strict liability shall be for repair or replacement of the product sold. Southeast Machinery shall not be liable in tort – whether based on negligence, strict liability or other theory – for any act or omission in connection with the design, manufacture, sale, repair or replacement of Southeast Machinery products or repairs performed by Southeast Machinery. THE EXPRESS WARRANTIES, IF ANY, SHALL BE IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED. ALL OTHER WARRANTIES WITH RESPECT TO SOUTHEAST MACHINERY PRODUCTS SOLD HEREUNDER OR THE DESIGN, CONSTRUCTION, PERFORMANCE OR REPAIRS THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED FROM THIS TRANSACTION. UNDER NO CIRCUMSTANCES WILL SOUTHEAST MACHINERY OR ITS AFFILIATES HAVE ANY LIABILITY WHATSOEVER FOR DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS, PUNITIVE DAMAGE OR OTHER ECONOMIC LOSS, COST OR DAMAGE TO CUSTOMER OR ANY OTHER PERSON (INCLUDING, BUT NOT LIMITED TO, LOSSES, EXPENSES OR DAMAGES DUE TO CUSTOMER OR CUSTOMER’S REQUIREMENTS, LOST PROFITS, INSTALLATION CHARGE, DISMANTLING CHARGE, COST OF CAPITAL, INJURY TO OR DEATH OF ANY INDIVIDUAL, DAMAGE TO OR LOSS OF ANY PROPERTY OR CLAIMS RESULTING FROM CONTRACTS BETWEEN CUSTOMER AND ITS CUSTOMERS OR SUPPLIERS), WHETHER BASED ON WARRANTY, CONTRACT, NEGLIGENCE STRICT LIABILITY OR OTHERWISE.
XI. Patents & Proprietary Rights: Customer shall, in respect of items manufactured or repaired by Southeast Machinery in accordance with designs, processes, or formulae supplied, determined or requested by Customer, defend Southeast Machinery at Customer’s expense and pay any costs and damages awarded in any suit brought against Southeast Machinery for infringement of any patent or proprietary rights of others by reason of use of such designs, processes or formulae.
XII. Software License: If a System Operation Control Program (“Program”) is supplied with Southeast Machinery’s control products, whether provided in transportable media or embedded within the equipment, all such programs are Southeast Machinery’s copyrighted property. Customer is granted a non-exclusive right to use Programs only in the equipment Southeast Machinery designates. Unless being supplied with its associated products hereunder, no Program, regardless of the form in which it is embedded when received by Customer, shall be made available to others without Southeast Machinery’s prior written consent. The ownership of Programs shall at all times remain with Southeast Machinery. In the event Customer uses, duplicates or transfers any Program and Southeast Machinery did not consent to such use, duplication or transfer, Southeast Machinery may terminate the right granted; and Customer shall upon and in accordance with Southeast Machinery’s request, return or destroy all copies of Programs then in Customer’s possession. Southeast Machinery’s right to terminate the right granted shall be in addition to any other rights and remedies available to Southeast Machinery in connection with such use, duplication or transfer, including Southeast Machinery’s right to seek damages for same.
XIII. Installation: Installation services by Southeast Machinery are not included in the purchase price of any item unless explicitly stated in the description of the sale. If installation services are included in the purchase price, the Customer will be responsible for the travel expenses (including transportation, lodging and food) of the Southeast Machinery installation technicians and any Southeast Machinery representatives who are required to be present. If installation services are provided by the Seller, the Customer is responsible for ensuring that the Customer’s physical area is ready for the installation, and that the necessary tools and utilities are available. Ready for installation includes but is not limited to the following: the facility in which the equipment will be erected is finished; necessary power supply is installed; the water supply installed and a compressed air supply is provided; the ground floor is finished according to our specification; the plant is sufficiently illuminated and if necessary heated; the technicians will have an office space with communication means such as a telephone and email connection; proper sanitary facilities are available, etc. If the customer’s site is not ready for installation, the expenses of the technicians such as daily rate and food and travel costs will be the responsibility of the customer. Installation, when included by written statement, does not include piping and electrical service from plant utilities to extruder and peripheral equipment. The need for and supply of isolation transformers is the responsibility of the customer. It is the customer’s responsibility to know, and provide provisions for compliance with all applicable local, state or federal codes. Any statement by the Seller of the timing of an installation is an estimate made with the information known at the time and is not a commitment or contract.
XIV. Continuation of Availability: Seller makes no claims as to the continued availability of specific parts. Part brands or availability may be changed without notice at the Seller’s discretion.
XV. Merger Clause: The Contract Terms entirely supersede any prior oral representations, correspondence, proposal, quotation or agreement between Southeast Machinery and Customer and are a complete and exclusive statement of the agreement between Southeast Machinery and Customer.
XVI. Governing Law; Jurisdiction: The principal executive office of Southeast Machinery is in St Petersburg, Florida. The construction and interpretation of the foregoing warranties, limitations and disclaimers shall be governed by the laws of the Florida, USA and not by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Any cause of action arising in connection with the foregoing warranties, limitations and disclaimers shall be deemed to have arisen in the State of Florida and Customer agrees that any and all judicial actions instituted in connection with the foregoing warranties, limitations and disclaimers or otherwise in connection with the products covered thereby shall be brought only in the federal and/or state courts located in the State of Florida. As used herein, the term “Southeast Machinery” shall refer to Southeast Machinery Company Incorporated or its wholly owned subsidiaries, depending upon which entity was the Seller of the item with respect to which a defect is asserted.
XVII. Relationship of Parties: Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
XVIII. Waiver: The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
XIX. Severability: If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.