1. Acceptance and Complete Agreement. All products (the “Products”) furnished by Southern  CaseArts, Inc. (“Seller”) to the purchaser thereof (the “Buyer”) are subject to the terms and  conditions set forth herein (the “Terms”). Seller hereby objects to, and rejects, any additional or  different terms which may be contained in any of the Buyer’s Purchase Order, acceptance  letter, acknowledgement or other forms, or in any other communication received by Seller from  Buyer. Seller’s failure to further object to any of the provisions contained in Buyer’s  documentation shall not be deemed a waiver of these terms and conditions. SELLER’S  ACCEPTANCE OF ANY OR ALL OF THE BUYER’S ORDERS FOR PRODUCTS IS  CONDITIONAL UPON BUYER’S ASSENT TO THE TERMS AND CONDITIONS IN THIS  DOCUMENT, IN LIEU OF THE TERMS CONTAINED IN BUYER’S PURCHASE ORDER.  These terms and conditions shall constitute the entire agreement between Seller and Buyer,  superseding all prior oral or written communications and negotiations.
  2. Purchase Orders. Buyer shall initiate all orders in written form via facsimile, e-mail, or US mail,  through either of the following methods (each, a “Purchase Order”): (i) delivery to Seller of a  signed acceptance letter accepting the stated terms of Seller’s quoted proposal; or (ii) delivery  to Seller of an order confirmation containing the following terms: (a) a list of the Product(s) to  be purchased; (b) the quantity of each of the Product(s) ordered; (c) the requested delivery  date; (d) the price for the Product(s) to be purchased; and (e) the delivery location (collectively,  the “Basic Purchase Order Terms”). By placing a Purchase Order, Buyer makes an offer to  purchase Products pursuant to these Terms and the Basic Purchase Order Terms, and on no  other terms. Except with respect to the Basic Purchase Order Terms, any variations made to  the Terms of this agreement by Buyer in any Purchase Order are void and have no effect.
  3. Substitutions; Modifications. Seller shall have the right to make substitution of Product(s),  provided that such substitution does not materially detract from overall Product form, fit and  performance. Seller reserves the right at any time to make changes to Product(s), or otherwise  discontinue Products, without liability or obligation to implement such change to any Product  manufactured prior hereto.
  4. Cancellation; Rescheduling. No rescheduling or cancellation shall be permitted following  Buyer’s issuance of a Purchase Order for the Products. At Seller’s sole discretion, exceptions  may be made only with Seller’s prior written approval in each case. In the event of such an  approved cancellation, Seller shall be hereof entitled to payment of the full price, less the  amount of any expenses saved by Seller by reason of the cancellation. Seller reserves the  right to cancel any orders placed by Buyer, or to refuse or delay shipment thereof, if Buyer (i)  fails to make any such payment as provided in these terms and conditions or under the terms  of payment set forth in any invoice or otherwise agreed to by Seller and Buyer, (ii) fails to meet  reasonable credit or financial requirements established by Seller, including any limitations on  allowable credit, or (iii) otherwise fails to comply with these terms and conditions. Buyer may  not cancel any order due to Seller’s breach unless Buyer has provided Seller with thirty (30)  days written notice alleging such breach and such breach has not been remedied by Seller  within such time period.
  5. Returns. Any Product (Case or Parts) return shall be returned to Seller ONLY upon  assignment of a Return Merchandise Authorization (RMA) number by Seller. Such RMA  number must be displayed prominently on the outside of the box that contains the returned  Product. Any Product returned to Seller without an RMA number will be refused and returned  to Buyer at Buyer’s expense. Case Returns will not be accepted by Seller for any reason other than for: (i) verifiable Product defects or damage occurring within the warranty period, or (ii)  incorrect shipments directly caused by Seller. Return requests involving damaged or incorrect  shipments must be brought to Seller’s attention within two (2) weeks of the original ship date.  Seller reserves the right to reject any request regarding damaged or incorrect shipments  submitted more than two (2) weeks after the original ship date. If Seller authorizes a return,  Seller reserves the right to credit, replace, or repair material at its discretion. Parts Returns will  only be accepted within 90 days of order shipment date, provided the parts are new/unused,  and in the original packaging. Parts Returns will assess a 30% restocking fee.
  1. Warranty. SELLER’S PRODUCT IS WARRANTED TO BE FREE FROM DEFECTS IN  MATERIAL AND WORKMANSHIP UNDER NORMAL USE AND MAINTENANCE FOR A  PERIOD OF TWELVE MONTHS FROM THE DATE OF STARTUP, AND NOT TO EXCEED  15 MONTHS FROM ORIGINAL SHIPMENT DATE. A NEW OR REBUILT PART TO  REPLACE ANY DEFECTIVE PART WILL BE PROVIDED WITHOUT CHARGE, PROVIDED  THE DEFECTIVE PART IS FOUND TO BE DEFECTIVE BY THE SERVICE DEPARTMENT  OF THE SELLER AND SELLER RESERVES THE RIGHT TO REQUIRE THE DEFECTIVE  PART BE RETURNED TO SELLER WITHIN TEN (10) DAYS OF CLAIM RECEIPT BY  SELLER. THE REPLACEMENT PART ASSUMES THE UNUSED PORTION OF THE  WARRANTY.FOR A PERIOD OF 60 DAYS STARTING FROM THE DATE OF ORIGINAL SHIPMENT, THE  SELLER WILL COVER THE COST OF LABOR FOR REPAIRS AND REPLACEMENT OF  PARTS THAT IT HAS DETERMINED TO BE DEFECTIVE. THE COST OF LABOR WILL BE  BASED ON STRAIGHT-TIME RATE AND REASONABLE TIME FOR THE REPAIR OF THE  DEFECT. ALL LABOR CHARGES ARE SUBJECT TO APPROVAL BY THE SERVICE  DEPARTMENT OF THE SELLER.This warranty shall not apply:
  1. To any Product or any part thereof which has been subject to accident, alteration,  negligence, misuse or abuse, operation on improper voltage, or which has not been  operated in accordance with the Seller’s recommendation, or if the serial number of the  Product has been altered, defaced, or removed.
  2. When the Product, or any part thereof, is damaged by fire, flood, or other act of God.  3. Outside the continental United States.
  3. To travel time to and from repair site for labor associated with repairs or replacement of  parts.
  4. When the operation of Product is impaired due to improper installation.  6. For freight or shipping expenses.
  5. To labor for replacement of parts which require no special tools or extensive mechanical  expertise.THIS PLAN DOES NOT COVER CONSEQUENTIAL DAMAGES. Seller shall not be liable  under any circumstances for any consequential damages, including loss of profit, additional  labor cost, loss of refrigerant or food products, or injury to personnel or property caused by  defective material or parts or for any delay in its performance hereunder due to causes beyond  its control.All claims must include the following information:
  • The model and serial number of the Product.
  • The date of the equipment failure and location of installation.
  • The name and address of the agency which performed the service work.
  • A complete description of the equipment failure, circumstances relating to that failure,  parts replaced and an itemized list of all labor charges incurred.
  • The Warranties are expressly in lieu of all other warranties, expressed or implied, and all other  obligations or liabilities on Seller’s part. The obligation to repair or to replace parts or  components judged to be defective in either material or workmanship states Seller’s entire  liability whether based on tort, contract or warranty. Seller neither assumes nor authorizes any  other party to assume for Seller any other liability in connection with Seller’s Product. The  foregoing shall constitute the sole and exclusive liability of Seller in Connection with Product.
  1. Patents, Trademarks and Copyrights. The sale of any Products to Buyer in no way conveys to  Buyer, either expressly or by implication, any intellectual property license whatsoever, except  as may be granted by the Seller in the materials which accompany the Products upon delivery.  Seller expressly reserves its ownership rights in and to its Products, and asserts that additional  restrictions may apply to the use of the Products, as set forth in the applicable Product  documentation and other materials which accompany the Products.
  2. Confidential Information. Any documentation or data supplied by Seller to Buyer and marked  “confidential” are proprietary and confidential to Seller. Seller retains for itself all proprietary  rights to all designs, engineering details, and other data pertaining to any Products sold. Buyer  agrees to use its best efforts to maintain the confidentiality of any proprietary documentation,  data, or price quotes (whether marked “confidential” or not) supplied to it and not to disclose or  use such documentation, data, or price quotes in any manner inconsistent with the purpose for  which it was disclosed.
  3. Indemnification. (a) Seller will defend Buyer from any suits that may be instituted by a third party against Buyer for alleged infringement of any U.S. patent, trademark or copyright relating  to Buyer’s lawful use of the Products in Buyer’s business. Seller’s indemnification obligation  hereunder is contingent upon Buyer: (i) having made all payments to Seller then due at the  time the claim arises and not otherwise being in breach of any provision of these terms and  conditions, (ii) providing Seller with immediate written notice of such claim and, upon Buyer’s  receipt, with all processes and papers served upon Buyer, (iii) permitting Seller through  counsel of Seller’s choice, either in the name of Buyer or in the name of Seller, the sole right to  defend, and settle, the claim against Buyer, and (iv) providing Seller with all information,  assistance and authority necessary for Seller to defend and settle such claim. The foregoing states the entire liability of Seller for claims of intellectual property infringement relating the  Products. Notwithstanding the foregoing, Seller shall not be responsible for: (i) any  compromise or settlement made by Buyer without Seller’s written consent, (ii) for infringements  arising out of the combination of the Products with any other product, material or process not  provided by Seller; and (iii) Seller’s compliance with Buyer’s designs or specifications.(b) Buyer shall indemnify, defend and hold harmless Seller and its affiliates, and each of their  respective officers, directors, employees, agents and shareholders from any claim made  against Seller or its suppliers, and any liabilities, losses, costs, expenses (including attorneys’  fees and other costs of litigation) arising therefrom, that the manufacture or sale of Products  supplied constitutes infringement of any patent, trademark, copyright or other intellectual  property right, if such Products were manufactured pursuant to Buyer’s designs, specifications,  processes and/or formulas, provided Seller promptly notifies Buyer in writing of the claim and  gives Buyer full authority, information and assistance (at Buyer’s expense) for the defense of  same.
  1. Delivery and Delay. All quoted delivery dates are estimates only. Seller reserves the right to  make delivery in installments; and all such installments, when separately invoiced, shall be  paid for when due per Seller’s invoice, without regard to subsequent deliveries. Delay in  delivery of any installment shall not relieve Buyer of its obligation to accept remaining  deliveries. Claims for shortages or other errors occurring before delivery of the Products to the  carrier may be made in writing to Seller within two (2) weeks after receipt of shipment; and  failure to give such notice shall constitute unqualified acceptance and a waiver of all such  claims by Buyer, provided that such claims are subject to Buyer’s compliance with Seller’s  RMA policy described in Section 4.
  2. Shipment. All shipments are EXW (Incoterms 2010), i.e., Ex Works – origin. Seller will arrange  for transportation to Buyer at Buyer’s address as stated in Buyer’s Purchase Order and Buyer  shall be responsible for all shipping charges, including but not limited to shipping,  transportation, duties and insurance costs. The Products will be shipped under a straight bill of  lading, naming Buyer as consignee. Forthwith after the Products have been delivered to a  shipper for transportation to Buyer, Seller shall transmit the bill of lading to Buyer at Buyer’s  address as stated in Buyer’s Order. Seller’s responsibility for damaged goods ceases upon  acceptance by carrier and all claims for loss or damage during shipment must be filed by  Buyer with the carrier. Before leaving Seller’s factory, each item is individually inspected and  carefully packed for safe arrival at destination. In the event that visible damage, concealed  damage or loss should occur, a claim must be made in writing by the Buyer against the  delivering carrier within two (2) weeks after receipt of Product. The shipping container must be  held for carrier’s inspection in the case of visible or concealed damage.
  3. Storage. Any Product(s) whose manufacture or shipment is delayed by causes which affect  Buyer’s ability to receive the Product(s) or at Buyer’s request, may be placed in storage by  Seller (at Seller’s sole option) at Buyer’s risk and Buyer shall pay storage charges at the  prevailing commercial rates upon submission of invoices therefor.
  4. Price. Buyer will be billed at Seller’s prices stated at the time of Purchase Order acceptance by  Seller. All prices and special terms offered by Seller will expire sixty (60) days from the date  such pricing or terms were originally proposed by Seller. All prices are subject to adjustment  on account of specifications, quantities, shipment arrangements or other terms and conditions, which are not part of the original price quotation. If the prices are based on the purchase of a  particular quantity of goods and Buyer fails to purchase that quantity which would justify the  pricing granted, Seller shall have the right, in addition to any other remedies at law or equity, to  recover from Buyer the difference between the stated price and Seller’s standard prices for  such goods in the quantity actually purchased by Buyer.
  1. Taxes and Other Charges. Unless otherwise specified or required by law, all prices will be  quoted and billed exclusive of customs, duties or taxes, and Buyer shall be responsible for all  such applicable duties and taxes (exclusive of taxes on Seller’s income). If exemption from  such taxes is claimed, Buyer must provide a certificate of exemption at the time its order is  submitted to Seller, and Buyer agrees to indemnify Seller for any unpaid taxes in the event  such exemption is not applicable.
  2. Payment. Seller’s standard terms of payment are fifty percent (50%) of the total sales price  due with Buyer’s Purchase Order as a non-refundable deposit and the remaining balance of  the total sales price due prior to product shipment (payment must be received ten (10)  business days prior to shipment, if paid by check; two (2) business days if paid via Wire  Transfer). All payments shall be made in U.S. dollars. Buyer is responsible for the Seller  receiving the total amount for each invoice, and Buyer is responsible for any fees charged by  third parties chosen by Buyer. Buyer may complete a credit application to be considered for  open credit terms, however, such terms are contingent upon Buyer’s creditworthiness and  Seller reserves the right to revoke or modify its credit and/or payment terms at any time, in its  sole discretion. If open credit terms are established, Payment of Seller’s invoice is due within  thirty (30) days of the invoice date. If delivery is delayed by Buyer, date of notice of readiness  for delivery shall be deemed to be date of delivery for invoice purposes. Any late payments are  subject to a finance charge of the lesser of 1.5% per month (18% per annum) or the maximum  amount allowed by law. If Seller accepts partial payment in an amount less than the full  amount of any invoice, such acceptance shall neither constitute a waiver of Seller’s right to  collect the balance nor an accord and satisfaction, notwithstanding Seller’s endorsement of a  check or other instrument. In the event of Buyer’s bankruptcy or insolvency, Seller shall be  entitled to cancel any order then outstanding without waiving any claims in law or equity. If  Buyer fails to comply with these payment terms, Seller reserves the right to withdraw credit,  suspend or cancel performance under any or all of Buyer’s outstanding orders and all of  Buyer’s obligations to Seller shall become immediately due and payable. Buyer shall have no  right to withhold any amount due Seller under these terms and conditions because of a claim  Buyer may have against Seller. If Seller engages counsel in respect of any late payment or  default, Buyer agrees to pay, in addition to the balance then due and owing, reasonable  attorneys’ fees and all costs of collection.
  3. Security Agreement. Buyer hereby grants to Seller, its successors and assigns, a purchase  money security interest in the Products to secure payment of the purchase price of the  Products. Default in payment of such price or any part of the price when due shall permit  Seller, in its sole discretion, to declare all obligations of Buyer immediately due and payable,  and in such event, Seller shall have all the rights and remedies of secured party under  applicable law. In connection with the security interest granted herein, Seller is expressly  authorized, at its discretion, to file one or more financing statements or other notices under  applicable law naming Buyer as debtor and Seller as secured party. Buyer agrees to execute  such documents requested by Seller to record and otherwise perfect this security interest.
  4. Limitation of Liability. (a) SELLER’S LIABILITY WITH RESPECT TO THE PRODUCTS SOLD  HEREUNDER SHALL BE LIMITED TO THE WARRANTY PROVIDED IN PARAGRAPH 2 HEREOF AND, WITH RESPECT TO OTHER PERFORMANCE OF THESE TERMS AND  CONDITIONS, SHALL BE LIMITED TO AMOUNT RECEIVED BY SELLER FOR ITS SALE OF  THE PRODUCT GIVING RISE TO ANY CLAIM HEREUNDER. SELLER SHALL NOT BE  SUBJECT TO AND EXPRESSLY DISCLAIMS: (I) ANY OTHER OBLIGATIONS OR  LIABILITY, ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, (II) ANY  OBLIGATIONS WHATSOEVER ARISING FROM TORT (INCLUDING NEGLIGENCE AND  STRICT LIABILITY) OR ARISING UNDER OTHER THEORIES OF LAW, WITH RESPECT TO  PRODUCTS SOLD OR SERVICES RENDERED (INCLUDING BUT NOT LIMITED TO  WARRANTY SERVICES) BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS  RELATING THERETO, (III) ECONOMIC LOSS, EVEN IF SELLER HAS BEEN ADVISED OF  THE POSSIBILITY OF SUCH DAMAGE, AND (IV) ALL INDIRECT, SPECIAL, EXEMPLARY,  PUNITIVE, CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES  WHATSOEVER RESULTING FROM SELLER’S PERFORMANCE OR FAILURE TO  PERFORM UNDER THESE TERMS AND CONDITIONS OR THE FURNISHING,  PERFORMANCE OR USE OF ANY PRODUCTS SOLD PURSUANT HERETO, WHETHER  DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY,  PRODUCT LIABILITY, THE NEGLIGENCE OF SELLER OR OTHERWISE. (b) WITHOUT  LIMITING THE GENERALITY OF THE FOREGOING, SELLER SPECIFICALLY DISCLAIMS  ANY LIABILITY FOR PROPERTY OR PERSONAL INJURY DAMAGES, PENALTIES,  DAMAGES FOR LOST PROFITS OR REVENUES, LOSS OF USE OF PRODUCTS OR ANY  ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS,  FACILITIES OR SERVICES, DOWN TIME, SHUT DOWN OR SLOW DOWN COSTS, OR  FOR ANY OTHER TYPES OF ECONOMIC LOSS, AND FOR CLAIMS OF BUYER’S  CUSTOMERS OR ANY THIRD PARTY FOR ANY SUCH DAMAGES.(c) THE DAMAGE LIMITATIONS PROVIDED IN THESE TERMS AND CONDITIONS AND  THE REMEDIES STATED HEREIN SHALL BE EXCLUSIVE AND SHALL BE BUYER’S SOLE  REMEDY. THIS LIMITATION ON LIABILITY SHALL SURVIVE FAILURE OF ANY  ESSENTIAL PURPOSE.
  1. Statute of Limitations. Any action that Buyer may have against Seller alleging Seller’s breach  of any provision of these terms and conditions must be commenced in one (1) year following  Buyer’s discovery of any alleged breach or such claim shall be forever barred.
  2. Modification; Waiver. No modifications to these terms and conditions herein shall be  enforceable except when in writing and signed by both parties, unless otherwise expressly  stated herein. Seller shall not be deemed to have waived any of its rights, powers, or remedies  under these terms and conditions, or at law or in equity unless such waiver is in writing and is  signed. No delay or omission by Seller in exercising any right, power, or remedy shall operate  as a waiver thereof or of any other right, power, or remedy. No waiver by Seller of any default  shall operate as a waiver of any other default, or of the same default on another occasion.
  3. Separability. If any provisions of these terms and conditions shall be deemed illegal or  unenforceable, such illegality or unenforceability shall not affect the validity and enforceability  of any legal and enforceable provisions hereof which shall be construed as if such illegal and  unenforceable provision or provisions had not been inserted herein, unless such illegality or unenforceability shall destroy the underlying business purpose of these Terms and Conditions  of Sale.
  1. Assignability. Buyer may not assign these terms and conditions without Seller’s prior written  consent. Seller may assign these terms and conditions, and any order of Products, to an  affiliate of Seller or to an acquirer of Seller’s equity or its assets.
  2. Force Majeure. Seller shall not be liable for any loss, delay or failure to perform resulting from  any circumstance, direct or indirect, reasonably beyond its control including, without limitation,  fire, flood, accident, explosion, mechanical breakdown, strike or other labor trouble, plant  shutdown, unavailability of or interference with the usual means of transporting the Product or  compliance with any law, regulation, order, recommendation or request of any government  authority. In addition, Seller shall be so excused in the event it is unable to acquire from its  usual sources and on terms it deems to be reasonable, any material necessary for  manufacturing the Product. In the event that there should be a shortage of any Product, Seller  may apportion its available Product among itself, its affiliates and all its customers in such  equitable manner as it deems fair and reasonable. Any delivery date may be extended, at  Seller’s option, to the extent of any delay resulting from any force majeure event.
  3. Governing Law; Exclusive Jurisdiction and Venue. These terms and conditions shall be  governed and construed according to the laws of the State of Alabama, without reference to  principles or conflicts of laws. Any action brought by either party wherein the subject matter  thereof is these terms and conditions must be brought in any U.S. District Court or state court  in the State of Alabama. Buyer waives any objection to jurisdiction or venue in respect of said  Courts and to any service of process issued under their authority. Buyer agrees that it may be  served by any method of process described in and authorized by the Federal Rules of Civil  Procedure, or the Alabama Rules of Civil Procedure, as the case may be. Buyer further agrees  that said Courts are the exclusive venues for any such action.
  4. Export Controls. Buyer acknowledges that all shipments by Seller are or may be subject to  restrictions and limitations imposed by United States export controls, trade regulations and  trade sanctions. Buyer at all times will comply with such sanctions, controls and regulations  and will cause compliance with such sanctions, controls and regulations in its use and  disposition of the Products. With respect to each Product shipment pursuant to these terms  and conditions, Buyer will obtain and supply to Seller in writing all information required by  Seller to obtain any U.S. export license, permit, approval or documentation applicable to such  shipment. Notwithstanding any contrary provision in these terms and conditions, Seller will  have no obligation to make any shipment to Buyer until it has received all such information and  has obtained the applicable licenses, permits, approvals or documentation for shipment, if any.  If Seller learns, or has reasonable cause to believe, or if any branch or agency of the  government of the United States claims, that a violation of any applicable trade sanctions,  export controls or trade regulations has occurred or is likely to occur because of any shipment,  Seller may, in addition to any other remedy it may have, suspend all shipments to Buyer.  Buyer will indemnify and will hold Seller harmless from and against any claim, loss or liability  arising out of any breach of the foregoing covenants contained in this section.