Terms and Conditions
GENERAL: This agreement is constituted by
and between South East Switchgear, LLC (“Seller”) and the buyer (“Buyer”)
for the sale of goods supplied and services performed and are subject and
limited to these Terms and Conditions (“Terms”). By entering into a Sales Order, Buyer hereby
agrees to be by bound by and abide with the Terms. The Sales Order and these
Terms (collectively, this "Agreement") comprise the entire agreement
between the parties, and supersede all prior or contemporaneous understandings,
agreements, negotiations, representations and warranties, and communications,
both written and oral. These Terms
prevail over any of Buyer's general terms and conditions of purchase regardless
whether or when Buyer has submitted its purchase order or such terms.
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.
PRICES: Seller’s prices are based on pricing by the
Original Equipment Manufacturer (“O.E.M.”) adjusted to the condition of product
and current market trends and are subject to change without notice. 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. Buyer
shall be responsible for all such charges, costs and taxes.
CREDIT TERMS: Seller accepts payment by cash, check, wire-transfer
or credit card. Credit terms are
available with an approved credit application. If shipment is made on credit,
unless otherwise expressly agreed, payment is due in full, thirty (30) days
after the date of the invoice. Buyer
agrees (i) to pay a finance charge the lesser of an annual rate of 18% or the
highest permissible rate under applicable law on all past due amounts; (ii) the
invoice shall constitute an evidence of Buyer’s indebtedness to Seller for the
purchase price and any finance charges due thereon; and (iii) to pay Seller’s
cost and expenses, including reasonable attorney fees, in attempting to collect
such indebtedness. In addition to all
other remedies available at law or hereunder, Seller shall be entitled to
suspend the delivery of any goods if Buyer fails to pay any amounts when due
hereunder.
CUSTOMER INFORMATION: Seller collects and may store personal information
about Seller’s customers provided to Seller via phone, online account setup,
and email. Information gathered
includes: name, mailing address, e-mail address, phone number, credit card or
other payment information, and company information. This information is used to properly quote,
confirm, and process your order.
Periodically, Seller will mail, email or call you with information about
Seller’s product and service offerings.
If at any time, you would like to stop receiving this information from Seller
and its affiliate companies, please contact Seller directly at 877-343-6490.
SALES TAX: Seller is required to charge applicable Alabama
state and local tax on all items sold to customers in AL, unless a tax exempt
certification is provided prior to the sale. Taxes will not be refunded if
exemption status is not on file prior to the sale. Out of state customers are
exempt from sales tax if they do not have a place of business in Alabama;
however, they are subject to sales tax on orders shipped to locations within AL.
SHIPPING: All material is quoted FOB Seller’s plant in Birmingham,
AL (“Delivery Point”) and title, risk of loss or damage shall pass to Buyer
upon shipment. Shipping insurance must
be requested by Buyer at time of sale. Shipping,
handling and insurance charges will be billed to Buyer on the original
invoice. Buyer may arrange for shipment through
a carrier selected by them with the costs billed directly to their account. Packing and handling fees may still apply. The goods will be delivered within a
reasonable time after the receipt of a signed Sales Order, subject to
availability. Seller shall not be liable for any delays, loss or damage in
transit. Any liability of Seller for
non-delivery of the goods shall be limited to replacing the goods within a
reasonable time or adjusting the invoice respecting such goods to reflect the
actual quantity delivered.
LIMITED WARRANTY: All new and rebuilt equipment sold by Seller is
warranted for a period of twelve (12) months (unless otherwise stated) from the
date of shipment, to operate under normal load, usage conditions, and with
proper supervision. This warranty does
not apply to ‘as is’ products. Seller
will provide to Buyer the remedies set forth in “Remedies for Defective,
Nonconforming or Returned Goods”. This
limited warranty does not apply and Seller is not responsible in the event of (i)
alteration, repair, replacements of the goods without Seller’s written consent or
(ii) improper or faulty storage, use, maintenance or installation of the goods. The limited warranty provided herein will be
null and void if items are not paid for in accordance with the Agreement. EXCEPT
FOR THE EXPRESS WARRANTY SET FORTH IN THIS SECTION, SELLER MAKES NO WARRANTY
WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF
MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; 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. SELLER
MAKES NO WARRANTY CONCERNING COMPATIBILITY OF THE PRODUCTS WITH OTHER
EQUIPMENT.
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 AMOUNT PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
RETURN POLICY: Product
may not be returned unless authorized by Seller’s customer service department
with a Returned Goods Authorization (RGA) number. Returns must be made within 30 days of the
date of the delivery to the Delivery Point, are subject to a 20% restocking
charge, and are at Buyer’s expense and risk of loss until received by Seller, FOB
Delivery Point. Seller will have no
responsibility for products returned without an RGA number, or which are not
packaged to the carrier’s insurance specifications. For properly returned goods, Seller will
provide Buyer with the remedies set forth in “Remedies for Defective,
Nonconforming or Returned Goods”.
REPAIR POLICY: Any repairs requested by Buyer must be
authorized by Seller’s customer service department with a Repair Order (RO)
number. Seller shall have no responsibility for products returned for repair
without an RO number, or which are not packaged to the carrier’s insurance
specifications. Parts returned for
repair must be FOB Delivery Point.
REMEDIES FOR DEFECTIVE, NONCONFORMING OR RETURNED
GOODS: Seller may, in its sole
discretion, (i) replace defective, nonconforming or returned goods with
repaired or conforming goods, or (ii) credit or refund the price for such
goods. Buyer acknowledges and agrees that
the remedies set forth in this section are
Buyer's exclusive remedies for the delivery by Seller of defective or
nonconforming goods or the return of goods by Buyer.
INDEMNIFICATION: Buyer shall indemnify and hold Seller
and its affiliates, subsidiaries, directors, officers, employees, independent
contractors, shareholders, successors, assigns and third party-vendors harmless
from and against any and all claims, demands, damages, loss of profits or
revenue, downtime costs, and expenses (including attorney fees) filed or
brought by any third party with regard to the goods purchased by Buyer.
Statute
of Limitations: No claim may be asserted by either party against
the other party with respect to any event, act, or omission for which a claim
accrued more than two (2) years prior to such claim being asserted.
CANCELLATIONS: Buyer may terminate an order (i)
upon written notice to Seller prior to shipment by Seller and (ii) subject to a
reasonable order termination charge.
Such reasonable order termination charge may include, but are not
limited to, all costs associated with the order which have occurred up to the
date of receipt of the written termination.
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 Sales 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
Agreement.
GOVERNING LAW; JURISDICTION:
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 Alabama
without giving effect to any choice or conflict of law provision or rule
(whether of the State of Alabama or any other jurisdiction). Any legal suit, action or proceeding arising
out of or relating to this Agreement shall be instituted in the state courts in
Birmingham, Alabama or the federal courts in Northern District of Alabama and
each party irrevocably submits to the exclusive jurisdiction of such courts in
any such suit, action or proceeding.
FORCE MAJEURE:
Seller shall
not be liable to Buyer, nor be deemed to have breached this Agreement for any
failure to deliver or for delay in delivery or performance due to fire, labor
troubles, accidents, acts of civil or military authorities, or from any other
cause beyond Seller’s control.
MISCELLANEOUS: Any changes, supplements or amendments to these Terms must be agreed to
in a written document signed by both Seller and the Buyer. 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 rights,
remedy, power or privilege arising from this Agreement operates or may be
construed as a waiver thereof. 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
Agreement is null and void. No assignment or delegation relieves Buyer of any
of its obligations under this Agreement.
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. 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.
Provisions of these Terms which by their nature should apply beyond
their terms will remain in force after any termination or expiration of this
Agreement, including but not limited to Limited Warranty, Limitation of
Liability, Indemnification, Remedies for Defective, Nonconforming or Returned
Goods and Statute of Limitations.
PRODUCT DEFINITIONS: Seller sells products under the
classifications of; New, New Surplus, Unused Surplus, Reconditioned and As-Is.
New - The
product was purchased through the manufacturer's normal distribution network.
The product is in its original factory packaging and is subject to the
manufacturer's warranty.
New Surplus - The product has not been put into service and is
in the original factory packaging. The product has been purchased through
sources other than the manufacturer's normal distribution network. The product
is not covered by the original manufacturer's warranty.
Unused Surplus - The
product has been inspected and determined to be "unused". The product
may or may not be in the original manufacturer's packaging materials. The
product is not covered by the original manufacturer's warranty.
Reconditioned - The
product was used previously and has undergone reconditioning. Products are
cleaned, lubricated, and reassembled to operate under normal usage conditions. A product that has been installed as a
component of an electrical or mechanical system that has been energized but not
put into service will be considered "Reconditioned".
As-Is - The product has been used
previously or is in otherwise unknown condition. The product is not covered by
any manufacturer’s warranty or by Seller.
QUALITY STANDARD: Seller
does not knowingly buy or distribute “Counterfeit Products” or products which
have been modified other than to conform to the O.E.M. quality standards. Seller takes strong measures to insure the
authenticity of the materials Seller sells through a rigorous quality control
inspection process. Seller makes every
effort not to accept from or sell through other vendors; counterfeit, relabeled
or misrepresented product and to ensure that O.E. M. quality standards are met.
DISCLAIMER: Seller is
affiliated with PEARL (Professional Electrical Apparatus Recyclers League),
EASA (Electrical Apparatus Service Association), UL (Underwriters
Laboratories), NFPA (National Fire Protection Association), NDA (National
Demolition Association), NETA (National Electrical Testing Association), and
BBB (Better Business Bureau).
Seller is an authorized
distributor of Boltswitch, Cummins, Dongan, Martek, Motortronics, Sola
Hevi-Duty and Weg products.
Seller is not an authorized distributor for Allen Bradley, Asea Brown
Boveri, Bryant, Bussmann, Cutler Hammer, Federal Pacific American, Fuji,
Furnas, General Electric, Gould, ITE, Klockner-Moeller, Mitsubishi, Siemens,
Sorgel, Square D, Stromberg, Sylvania, Thomas & Betts, Westinghouse, Zinsco
or any other manufacturer not listed above.
South East Switchgear, LLC (October 2013)
