Spieth-Anderson International Inc.
Operating as “SPIETH America”
These terms and conditions create a contract between you and SPIETH America (the “Agreement”). Please read the Agreement carefully.
INTRODUCTION - This Agreement governs your purchase of SPIETH AMERICA goods and is in consideration of your purchase. The goods that are the subject of a sale by SPIETH America to you are referred to as the “Products”. All sales of Products by SPIETH AMERICA are governed by and subject to (i) SPIETH AMERICA’s quotation, order acknowledgement, or a separate written agreement signed by an authorized representative of SPIETH AMERICA, as applicable, and (ii) these terms and conditions, whether or not they are specifically referenced in or incorporated by SPIETH AMERICA’s quotation, order acknowledgement, or the separate written and signed agreement. Any irreconcilable conflict between these terms and conditions and any terms in SPIETH AMERICA’s, order acknowledgement, or the separate written and signed agreement shall be resolved in favor of the quotation, order acknowledgement, or the separate written and signed agreement. SPIETH AMERICA’s acceptance of your purchase order or commencement of performance shall not constitute acceptance of any of your terms and conditions. TERMS ADDITIONAL TO OR DIFFERENT FROM THESE TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO TERMS CONTAINED IN YOUR PURCHASE ORDER OR YOUR STANDARD TERMS AND CONDITIONS OF PURCHASE, ARE DEEMED IMMATERIAL AND HEREBY REJECTED UNLESS OTHERWISE ACCEPTED BY SPIETH AMERICA IN WRITING.
PAYMENT - Unless otherwise agreed to in writing by SPIETH AMERICA (such as through a quotation, order acknowledgement, or the separate written and signed agreement), payment is due immediately upon submission of any order.
- Payment terms are prepaid before shipping. Payment terms for qualified dealers are net 30-days. Past due invoices will be subject to a 5% surcharge. SPIETH America will accept payment by check, VISA, MasterCard, and American Express.
INTELLECTUAL PROPERTY – The SPIETH AMERICA name, the SPIETH AMERICA logo, and any other SPIETH AMERICA trademarks, service marks, graphics, and/or logos used in connection with the Products are trademarks or registered trademarks of SPIETH AMERICA in the United States of America and/or other countries throughout the world. You are granted no right or license with respect to any of these trademarks or any of SPIETH America’s intellectual property.
PRICES - All prices quoted are subject to change, without notice, at any time prior to SPIETH AMERICA’s acceptance of your order.
CUSTOM ORDERS - There are no refunds or returns available for any “custom” ordered products. Custom orders include, but are not limited to, products of a non-standard size, color, and/or thickness, which are requested by the customer at the time of order. Custom orders also include products with customer-provided or customer-directed graphics, logos, slogans, names, etc.
SHIPMENT & RISK OF LOSS - All shipments are F.O.B. SPIETH AMERICA’s facilities prepaid, or freight collect to the destination. Unless otherwise agreed in writing, SPIETH AMERICA may, in its sole discretion, select the shipping method, the carrier and the applicable freight charges. If you desire to pick up the Products at SPIETH AMERICA facility, you must contact SPIETH AMERICA to arrange a mutually convenient time for pick up. You shall indemnify and hold harmless SPIETH AMERICA from and against any claims, damages or liabilities suffered by SPIETH AMERICA resulting from any acts or omissions of the carrier. Title to the Products and risk of loss to the Products shall pass to the you at the point of shipment from SPIETH AMERICA’s facility, whether freight prepaid or freight collect to destination, regardless of which party selects the carrier and arranges the freight charges or particulars of shipment. Risk of loss for damage or delay in transit shall be borne by you. You shall file and pursue any claims directly with the carrier related to loss, damage or delay in transit, and you shall not assert such claims against SPIETH AMERICA or deduct from any amounts owed to SPIETH AMERICA.
DELIVERY - Delivery dates, if provided, are approximate. The failure to meet an indicated delivery date will not constitute a breach of this Agreement. In no event shall SPIETH AMERICA be liable for any claims for labor or for any special, indirect, incidental, or consequential damages including, but not limited to, demurrage charges, cost of shipment, downtime, lost profits (whether direct or indirect), lost sales, or any other damages resulting from delay in delivery. If SPIETH AMERICA’s production or delivery is delayed, SPIETH AMERICA may allocate production and delivery among its customers in a manner it deems reasonable. ACCEPTANCE OF THE PRODUCTS OR SERVICE ITEMS BY YOU UPON DELIVERY SHALL CONSTITUTE A WAIVER BY YOU OF ANY CLAIM FOR DAMAGES ON ACCOUNT OF DELAY IN DELIVERY OR PERFORMANCE.
TAXES - Prices do not include any taxes or other assessments. All taxes, duties, fees, assessments or other charges of any kind imposed by any federal, state, municipal or other governmental authority which SPIETH AMERICA is required to collect or pay with respect to the provision, production, sale or shipment of the Products shall be your responsibility. You agree to pay all such taxes and further agrees to reimburse SPIETH AMERICA for any such payments made by SPIETH America.
YOUR SAFETY - Any activity involving motion, height, speed, rotation, and/or physical contact creates the possibility of serious injury, including temporary or permanent paralysis and even death from landing or falling on the neck, head, back, or other parts of the body. SPIETH AMERICA’s Products do not eliminate these hazards. You and/or your invitees, if any, assume a risk of serious injury by using the Products. Use of the Products without proper supervision, proper training, proper equipment can be dangerous. Inspect the Products prior to and after any use. Inspect the Products for damages before use. Damaged Products should be repaired or replaced immediately. If in doubt, do not use the Products.
NON-CONFORMING GOODS - No claim for damages for non-conforming Products will be allowed unless you provide SPIETH AMERICA with written notice of the claim within thirty (30) days of the date the Products were delivered to you. To assert such a claim, you must (a) at SPIETH AMERICA request, return to SPIETH AMERICA 100% or, if agreed by SPIETH AMERICA, a lesser but still statistically relevant percentage of the Products claimed to be non-conforming, and (b) provide reasonable evidence to support the claim, including, if requested by SPIETH AMERICA, results of investigations performed by you. Products for which damages are claimed shall not be returned, repaired, or discarded without SPIETH AMERICA’s prior written consent. If requested by SPIETH AMERICA, the non-conforming Products must be returned to SPIETH AMERICA at your expense within ten (10) days of SPIETH America’s requests. No claims, rejections or returns for non-conforming Products will be permitted unless you cooperate in full of SPIETH AMERICA to determine the cause of the non-conformance.
Returns-All return goods must be approved in advance by SPIETH America. If an order is approved for return, SPIETH America will provide the customer with a “return authorization” and will assist the customer with freight arrangements. Credits on returned goods will be issued only after the product has been returned to SPIETH America in acceptable resale condition. All orders over $2,000 are subject to a 25% restocking fee in addition to all applicable shipping charges. SPIETH America will not accept returned goods freight collect. Return packaging materials can be supplied for a fee if requested.
LIMITED WARRANTIES – SPIETH AMERICA’s offers the following limited guarantees on the Products as follows:
- 1 Year on all SPIETH America products.
SPIETH AMERICA warrants the Products to be free from defects in materials or workmanship during normal use and installation. The guarantees stated above are valid only if the Products have been subjected to normal use for the purpose for which the equipment were designed, have not been subject to vandalism, misuse, neglect, or accident, have not been subjected to addition or subtraction of pieces, and have not been modified or altered by persons other than SPIETH AMERICA or its designees in any respect which, in the judgment of SPIETH AMERICA, affects the condition or operation of the Products. This warranty does not cover cosmetic items (scratches, scuff marks, denting or compression from incorrect storage, marring, fading, discoloring, weathering), normal wear and tear, or damage due to neglect. The above warranties commence on the date of SPIETH AMERICA’s shipment. Should any failure to conform to any of the expressed guarantees occur within the applicable guarantee period, SPIETH AMERICA shall, upon notification as outlined below of the defect, correct such nonconformity, either by repairing the defective Products or by making available a replacement at the discretion of SPIETH AMERICA. SPIETH AMERICA shall deliver the repaired or replacement Products to you free of charge, including all freight charges, if such a warranty claim is accepted.
EXCEPT AS EXPRESSLY SET FORTH ABOVE OR AS STATED WITHIN SPIETH AMERICA’s QUOTATION, ORDER ACKNOWLEDGEMENT, OR A SEPARATE WRITTEN AND SIGNED AGREEMENT, SPIETH AMERICA NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED.
To submit a claim under the limited warranty applicable to the Products you have purchased, follow these instructions:
- Notify SPIETH AMERICA within thirty (30) days of the date when you first identified a possible issue with your Products.
- You must notify SPIETH AMERICA by sending a notice of your claim to firstname.lastname@example.org. DO NOT PHYSICALLY MAIL ANYTHING TO SPIETH AMERICA. Any notification other than an email to the address above will not constitute a valid claim under this warranty.
- You must include the following information/materials with your warranty claim:
- Original date of purchase (referencing an order number is ideal).
- A brief description of the nature and basis of your claim in plain English.
- Photograph(s) of the damage. The clearer, the better. We need to see what you're talking about!
Upon receipt of a properly submitted claim, SPIETH AMERICA will notify you of its position and decision regarding your claim within thirty (30) days. You will not receive a notification that SPIETH AMERICA has received your claim.
LIMITATION OF LIABILITY – SPIETH AMERICA’s LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS, AND UNDER NO CIRCUMSTANCES SHALL SPIETH AMERICA BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DEMURRAGE CHARGES, COSTS OF SHIPMENT, DOWNTIME, LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST SALES, DAMAGE TO EQUIPMENT, OR CLAIMS OF YOUR CUSTOMERS, IF ANY, OR OTHER THIRD PARTIES FOR DAMAGES OR PENALTIES, WHETHER OR NOT YOU ARE LEGALLY OBLIGATED TO PAY THEM. SPIETH AMERICA’s LIABILITY HEREUNDER SHALL BE LIMITED TO EITHER: (1) THE OBLIGATION TO REPAIR OR REPLACE, AT SPIETH AMERICA SOLE DISCRETION, ONLY THOSE PORTIONS OF THE PRODUCTS PROVEN TO HAVE FAILED TO MEET IN MATERIAL RESPECT THE SPECIFICATIONS ON SPIETH AMERICA’s QUOTATION, ORDER ACKNOWLEDGEMENT, OR SEPARATE WRITTEN AND SIGNED AGREEMENT AT THE TIME OF SHIPMENT FROM SPIETH AMERICA’S FACILITY, OR (2) REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE OF THE PRODUCTS. YOU AND SPIETH AMERICA’S EXPRESSLY AGREE TO THIS ALLOCATION OF RISK AND THE PRICE STATED FOR THE PRODUCTS IS CONSIDERATION FOR THE LIMITATION ON SPIETH AMERICA’s LIABILITY. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXCLUSIVE REMEDY DESCRIBED IN THIS SECTION FAILS ITS ESSENTIAL PURPOSE.
ASSIGNABILITY - You have no right to assign this Agreement to any third party without SPIETH AMERICA’s prior written consent. SPIETH AMERICA may assign this Agreement to a third party at its sole discretion.
SETOFF – SPIETH AMERICA shall have the right to credit toward the payment of any monies that may become due to you hereunder any amounts which may now or hereafter be owed to SPIETH AMERICA. You shall pay SPIETH AMERICAS invoices without discount, setoff, or reduction for any reason, including asserted warranty claims or other claims of non-performance by SPIETH AMERICA.
WAIVER - No waiver of any claim or right arising under this Agreement will be effective unless the waiver is in writing and signed by the waiving party.
GOVERNING LAW & FORUM SELECTION - This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Michigan without regard to conflict of law principles.
DISPUTE RESOLUTION - Any dispute, controversy or claim arising out of or relating in any way to this Agreement or the Products, including, without limitation, any dispute concerning the construction, validity, interpretation, enforceability or breach of this Agreement, shall be exclusively resolved by binding arbitration administered by the American Arbitration Association (“AAA”). The arbitration shall be conducted by one arbitrator. If the Parties are not able to agree upon the selection of an arbitrator within twenty (20) days of commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator shall be selected by the AAA. The arbitration shall be conducted in accordance with the then-existing Commercial Arbitration Rules of the AAA if the amount in controversy exceeds $5,000.00. In the event the amount in controversy, excluding any claimed interest, arbitration fees, expenses, and/or attorneys’ fees is $5,000.00 or less, the arbitration shall be conducted in accordance with the then-existing Consumer Arbitration Rules of the AAA. The arbitration shall be conducted in Lansing, Michigan. The laws of the State of Michigan shall be applied in any arbitration proceedings, without regard to principles of conflict of laws. The arbitration shall be conducted in the English language. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties. The arbitrator shall have no authority to award punitive/consequential/special/indirect damages. The arbitrator shall be entitled to issue injunctive and other equitable relief. The cost of the arbitration proceeding and any proceeding in court to confirm, or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrator, and shall be awarded as part of the arbitrator’s award. The unsuccessful party shall also pay for reasonable attorneys’ fees and costs for collection of any arbitrator’s award or collection of any judgment based on such an award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to the arbitration provisions of this Agreement by bringing suit in any court of competent jurisdiction.
FORCE MAJEURE – SPIETH AMERICA shall not be responsible for cancellation or delay in delivery or performance resulting, in whole or in part, from causes beyond its reasonable control, including, but not limited to, acts of God; acts of you; strikes or other labor disturbances regardless of whether or not SPIETH AMERICA is capable of settling such strike or disturbance; facility conditions; temporary or permanent facility closures; equipment failure; inability to obtain fuel, material, or parts; pandemics or other health emergencies; war; acts of terrorism; sabotage; riot; delays in transportation; repairs to equipment; natural disasters; epidemics; floods; fires; action of governmental authorities (valid or invalid); severe weather conditions; accidents; explosions; failure of or inability to obtain power, raw materials, suppliers, labor, equipment or transportation; a court or administrative injunction or order; or any other contingency the non-occurrence of which was a basic assumption on which this Agreement was made.
NO THIRD-PARTY RIGHTS - This Agreement is for the sole and exclusive benefit of SPIETH AMERICA, you, and their permitted successors and assigns. Nothing expressed or referred to in this Agreement will be construed to give any other person any legal or equitable right, remedy or claim under or with respect this Agreement.
ENTIRE AGREEMENT - Except as otherwise agreed to by SPIETH AMERICA in writing, the terms and conditions set forth herein, together with SPIETH AMERICA quotation, order acknowledgement, or a separate written and signed agreement, as applicable, shall constitute the complete and final agreement between SPIETH AMERICA and you, completely superseding any prior oral or written communications.
PERSONAL INFORMATION WE COLLECT
When you visit the Site, we automatically collect certain information about your device, including information about your web browser, IP address, time zone, and some of the cookies that are installed on your device. Additionally, as you browse the Site, we collect information about the individual web pages or products that you view, what websites or search terms referred you to the Site, and information about how you interact with the Site. We refer to this automatically collected information as “Device Information.”
We collect Device Information using the following technologies:
- “Cookies” are data files that are placed on your device or computer and often include an anonymous unique identifier. For more information about cookies, and how to disable cookies, visit http://www.allaboutcookies.org.
- “Log files” track actions occurring on the Site, and collect data including your IP address, browser type, Internet service provider, referring/exit pages, and date/time stamps.
- “Web beacons,” “tags,” and “pixels” are electronic files used to record information about how you browse the Site.
Additionally, when you make a purchase or attempt to make a purchase through the Site, we collect certain information from you, including your name, billing address, shipping address, payment information (including credit card numbers), email address, and phone number. We refer to this information as “Order Information.
HOW DO WE USE YOUR PERSONAL INFORMATION?
We use the Order Information that we collect generally to fulfill any orders placed through the Site (including processing your payment information, arranging for shipping, and providing you with invoices and/or order confirmations). Additionally, we use this Order Information to:
Communicate with you;
Screen our orders for potential risk or fraud; and
When in line with the preferences you have shared with us, provide you with information or advertising relating to our products or services.
We use the Device Information that we collect to help us screen for potential risk and fraud (in particular, your IP address), and more generally to improve and optimize our Site (for example, by generating analytics about how our customers browse and interact with the Site, and to assess the success of our marketing and advertising campaigns -Google platform).
SHARING YOUR PERSONAL INFORMATION
We share your Personal Information with third parties to help us use your Personal Information, as described above. For example, we use Shopify to power our online store--you can read more about how Shopify uses your Personal Information here: https://www.shopify.com/legal/privacy. We also use Google Analytics to help us understand how our customers use the Site--you can read more about how Google uses your Personal Information here: https://www.google.com/intl/en/policies/privacy/. You can also opt-out of Google Analytics here: https://tools.google.com/dlpage/gaoptout.
Finally, we may also share your Personal Information to comply with applicable laws and regulations, to respond to a subpoena, search warrant or other lawful request for information we receive, or to otherwise protect our rights.
As described above, we use your Personal Information to provide you with targeted advertisements or marketing communications we believe may be of interest to you. For more information about how targeted advertising works, you can visit the Network Advertising Initiative’s (“NAI”) educational page at https://www.networkadvertising.org/understanding-online-advertising/how-does-it-work.
You can opt out of targeted advertising by:
FACEBOOK - https://www.facebook.com/settings/?tab=ads
GOOGLE - https://www.google.com/settings/ads/anonymous
BING - https://advertise.bingads.microsoft.com/en-us/resources/policies/personalized-ads
Additionally, you can opt out of some of these services by visiting the Digital Advertising Alliance’s opt-out portal at: https://optout.aboutads.info/.
DO NOT TRACK
Please note that we do not alter our Site’s data collection and use practices when we see a Do Not Track signal from your browser.
If you are a European resident, you have the right to access personal information we hold about you and to ask that your personal information be corrected, updated, or deleted. If you would like to exercise this right, please contact us through the contact information below.
Additionally, if you are a European resident, we note that we are processing your information in order to fulfill contracts we might have with you (for example if you make an order through the Site), or otherwise to pursue our legitimate business interests listed above. Additionally, please note that your information will be transferred outside of Europe, including to Canada and the United States.
When you place an order through the Site, we will maintain your Order Information for our records unless and until you ask us to delete this information.
For more information about our privacy practices, if you have questions, or if you would like to make a complaint, please contact us by e-mail at email@example.com or by mail using the details provided below:
SPIETH AMERICA 135 Forestview Rd, Oro-Medonte, ON, L3V 0R4, Canada Attention: Customer Service