Terms and Conditions

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Product, Services, and Materials Terms and Conditions

The following terms and conditions govern all quotes, requests and orders for McNichols Company products, services and materials, whether made pursuant to Internet, via telephone, in person or in writing.

1. TERMS AND CONDITIONS TO GOVERN - These terms and conditions represent the final and complete agreement of the parties and no terms or conditions in any way modifying or changing the provisions stated herein shall be binding upon McNichols Company, unless made in writing and signed and approved by an officer or other authorized person at McNichols Company and expressly referencing the intent to modify or change such terms and conditions. No modification of any of these terms shall occur if McNichols Company’s shipment of goods follows receipt of Buyer’s purchase order, shipping request or similar forms which contains printed terms and conditions additional to or in conflict with the terms herein. If any term, clause or provision of these terms and conditions is declared to held invalid by a court of competent jurisdiction, such declaration or holding shall not affect the validity of any other term, clause or provision herein contained.

2. ACCEPTANCE OF ORDERS - All orders are subject to written price verification by authorized McNichols Company personnel unless designated in writing to be firm for a specified period of time. Shipment of goods without written price verification does not constitute acceptance of the price contained in the order.

3. SUBSTITUTION - McNichols Company reserves the right, without prior notification, to substitute an alternative product of like kind, quality and function. If the Buyer will not accept a substitute, the Buyer must specifically declare that no substitution is allowed when the buyer requests a quote, if such request for quote is made, or, if no request for quote was made, when placing an order with the McNichols Company.

4. PRICE - Prices quoted, including any transportation charges, are valid for 10 days after the quote unless designated as firm for a specific period pursuant to a written quote or written sales acceptance issued or verified by an officer or other authorized personnel of McNichols Company. A price designated as firm for a specific period may be revoked by McNichols Company if the revocation is in writing and is mailed to the Buyer prior to the time a written acceptance of the price is received by McNichols Company. All prices and deliveries are F.O.B. shipping point. McNichols Company reserves the right to cancel orders in the event selling prices which are lower than prices quoted are established by government regulations.

5. TRANSPORTATION - Unless otherwise provided, McNichols Company shall use its judgment in determining carrier and routing. In either case, McNichols Company shall not be liable for any delays or excessive transportation charges resulting from its selection.

6. PACKING - Unless otherwise provided, McNichols Company will comply only with its minimum packing standards for the method of transportation selected. The cost of all special packing, loading or bracing requested by Buyer will be paid for by Buyer. All cost of packing and shipment for Buyer’s special equipment shall be paid for by Buyer.

7. PAYMENT TERMS - Payment terms are 1/2% 10, Net 30, with a carrying charge of 1-1/2% per month for payments received after 30 days. The discount applies only to the invoiced value of the material (not to taxes or freight charges). McNichols Company reserves the right to require advance payment or satisfactory security for the goods if the financial condition of Buyer so warrants as determined by McNichols Company. If Buyer fails to make payment in accordance with terms of this agreement or any collateral agreement, or fails to comply with any provisions hereof, McNichols Company may, at its option (and in addition to other remedies), cancel any unshipped portion of this order. Buyer is to remain liable for all unpaid accounts.

8. TAXES AND IMPORT/EXPORT LICENSES - Prices do not include taxes. Taxes are paid by Buyer upon invoice from McNichols Company unless Buyer provides a valid exemption certificate acceptable to the taxing authority or unless McNichols Company is forbidden by law from collection of said taxes from Buyer. Import or export licenses are to be secured by Buyer.

9. TITLE AND RISK OF LOSS - Delivery to carrier shall constitute delivery to Buyer, and thereafter risk of loss or damage shall pass to Buyer. Any claim of Buyer relative to damage during shipping or delivery should be made directly to the carrier. Any claims by Buyer against McNichols Company for shortage or damage occurring prior to such delivery to carrier must be made within five (5) days after receipt of the goods and accompanied by original transportation bill signed by carrier noting that carrier received the goods from McNichols Company in the condition claimed. Notwithstanding passage of the risk of loss to Buyer, title and right of possession to the goods sold hereunder shall remain with McNichols Company until all payments hereunder, including deterred payments evidenced by notes or otherwise, Interest, carrying charges, and attorneys’ fees, shall have been made in cash, and Buyer agrees to do all acts necessary to perfect and maintain such right and title in McNichols Company.

10. RETURN OF PRODUCTS - Goods cannot be returned, and orders once accepted by McNichols Company cannot be canceled, except upon the written approval of McNichols Company. Cut to size items and special orders may not be returned unless it has been determined to be provided in error by McNichols Company. If a return is approved, customers returning goods are responsible for freight charges, and shall be assessed a restocking fee of $100 or 20% of the order, whichever is greater.

11. FORCE MAJEURE< - McNichols Company shall not be liable for failure to perform its obligations resulting directly or indirectly from or contributed to by acts of God; acts of Buyer, civil or military authority, including wage and price controls; fires; war; terrorism; riot; delays in transportation; lack of or inability to obtain raw materials (including energy sources), components, labor, fuel or supplies; or other circumstances beyond McNichols Company’s reasonable control, whether similar or dissimilar to the foregoing. If certain quantities are affected and other quantities are not, the quantities affected shall be eliminated without liability, but the agreement shall remain unaffected. McNichols Company may, during any period of shortage due to any of said causes, allocate its supply of such raw materials among its various users thereof in any manner which McNichols Company deems fair and reasonable. In no event shall McNichols Company be liable for special or consequential damages for any delay for any cause.

12. REASONABLE ATTORNEY’S FEES - In the event suit or other proceedings shall be brought by a party with respect to a breach hereunder, the prevailing party in any such suit or proceeding shall be paid its reasonable attorneys’ fees and costs incurred in connection with such suit or proceeding.

13. SHIPMENT ERRORS –McNichols Company shall have no liability for errors in weight or quantity delivered unless claim is made by Buyer within five (5) days after receipt of shipment and accompanied by original transportation bill signed by carrier noting that carrier received the goods from McNichols Company in the condition claimed. If such timely claim is made by Buyer, and the claim is deemed valid by McNichols Company, McNichols Company may fulfill its responsibility by either shipping the quantity necessary to make good on the deficiency, or at McNichols Company’s option, crediting Buyer with the invoice price of the deficiency.

14. WARRANTY - All goods sold by McNichols Company are warranted to Buyer to be free from defects in material and workmanship, and manufactured in accordance with industry standards. The foregoing warranty is nonassignable. EXCEPT AS EXPRESSLY SET FORTH IN THE FIRST SENTENCE OF THIS SECTION 14, MCNICHOLS COMPANY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT OF ANY OF THE GOODS SOLD, INCLUDING WITH RESPECT TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR USE OR PURPOSE, OR DESIGN. ALL OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY DISCLAIMED.

No agent, employee, or representative of McNichols Company has any authority to bind McNichols Company to any representation, affirmation, or warranty concerning the goods and any such representation, affirmation, or warranty shall not become a part of the basis of this agreement and shall be unenforceable. Any claimed defect in material or workmanship shall be deemed waived by Buyer unless submitted to McNichols Company in writing within five (5) days from the date the goods are received by Buyer. McNichols Company shall not be liable under the foregoing limited warranty if any loss or damage is caused by improper application or use of the goods.

15. REMEDIES AND LIMITATION OF LIABILITY - McNichols Company shall not be liable for incidental, speculative, punitive or consequential losses, damages, or expenses arising directly or indirectly from the sale, handling or use of the goods, or from any other cause relating thereto. Further, McNichols Company shall not be responsible, obligated, or liable for any injury or damage resulting from the customer’s application or use of its products, either singularly or in combination with other products, arising out of acceptance of this order which is not directly related to and arises from a breach of the limited warranty set forth above. McNichols Company’s liability, in any case, including for claims of breaches of warranty or negligence is exclusively limited, at McNichols Company’s option, to the replacement of goods not complying with this agreement, the repayment of, or crediting Buyer with, an amount equal to the purchase price of such goods, or repairing or arranging for repair of the goods. If McNichols Company requests the return of the goods, the goods will be redelivered to McNichols Company in accordance with McNichols Company’s instructions. The remedies contained in this paragraph constitute the sole recourse of Buyer against McNichols Company for breach of any of McNichols Company’s obligations, whether of warranty or otherwise. As long as McNichols Company makes a good faith effort to rectify any breach, the remedies provided for herein shall be deemed satisfied.

16. SELECTION - Buyer represents that the goods sold hereunder are fit for their actual or intended use and that Buyer placed no reliance on McNichols Company’s skill or judgment in selecting suitable goods or materials or in the design of suitable goods and materials. Buyer represents that the use and installation of the goods shall be made in compliance with all applicable government requirements. Buyer will defend, indemnify and hold harmless McNichols Company, its successors, assigns and subsidiaries from and against all costs (including attorney’s fees), damages and liabilities resulting from actual or alleged claims asserted or any penalties proposed or assessed McNichols Company for any alleged violation of any federal, slate or local law, rule, regulation or standard, by reason of or in connection with any use of the goods delivered hereunder.

17. CHOICE OF LAW; VENUE - The laws of the State of Florida, excluding the laws of those jurisdictions pertaining to resolution of conflicts with laws of other jurisdictions, govern the validity, enforcement, construction, and interpretation of this Agreement. The parties (a) consent to the personal jurisdiction of the state and federal courts having jurisdiction in Hillsborough County, Florida, (b) stipulate that a proper and convenient venue for any legal proceeding arising out of this Agreement is Hillsborough County, Florida, for a state court proceeding, or the Middle District of Florida, for a federal court proceeding, and (c) waive any defense, whether asserted by motion or pleading, that Hillsborough County, Florida, or the Middle District of Florida is an improper or inconvenient venue.