TERMS & CONDITIONS
The following Terms and Conditions govern all quotes, requests and orders for McNICHOLS CO. products and services whether transacted via telephone, in person, in writing, via email, on the internet, via Live Chat, by text, via social media or other digital mediums.
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 CO., unless made in writing, signed and approved by an officer of McNICHOLS CO., and expressly referencing the intent to modify or change such terms and conditions. No modification of any of these terms shall occur if a McNICHOLS CO. shipment of goods follows receipt of Buyer's purchase order, shipping request or similar forms which contain printed terms and conditions in addition to or in conflict with the terms herein. If any term, clause, or provision of these terms and conditions is declared to be 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 CO. 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. A signed order confirmation is required for purchase orders equal to or in excess of $10,000, or as deemed necessary for credit approval.
3. SUBSTITUTION OF PRODUCT
McNICHOLS CO. 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 McNICHOLS CO.
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 authorized personnel of McNICHOLS CO. A price designated as firm for a specific period may be revoked by McNICHOLS CO. if the revocation is communicated in writing by mail or email to the Buyer prior to the time a written acceptance of the price is received by McNICHOLS CO. All prices and deliveries are F.O.B. shipping point. McNICHOLS CO. reserves the right to cancel orders in the event selling prices, which are lower than prices quoted, are established by government regulations.
5. LOGISTICS & TRANSPORTATION
Unless otherwise provided, McNICHOLS CO. shall use its judgment in determining carrier and routing. In any case, McNICHOLS CO. shall not be liable for any delays or excessive transportation charges resulting from its selection. McNICHOLS CO. may, at its sole discretion, without liability or penalty, make partial shipments of all goods sold by McNICHOLS CO. to Buyer.
Unless otherwise provided, McNICHOLS CO. will comply with its packaging standards for the method of transportation selected. The cost of all non-standard packaging, loading, bracing equipment and/or transportation requested by Buyer will 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 CO. 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 CO. at its sole discretion. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with McNICHOLS CO., whether relating to a McNICHOLS CO. breach, bankruptcy or otherwise. 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 CO. may, at its option (and in addition to other remedies), cancel any unshipped portion of an order. Buyer is to remain liable for all unpaid balances related to their account(s). Buyer shall reimburse McNICHOLS CO. for all costs incurred in collecting any late payments, including, without limitation, reasonable attorney fees.
8. TAXES & IMPORT/EXPORT LICENSES
Quoted and contractual prices do not include taxes of any kind. Taxes are paid by Buyer upon invoice from McNICHOLS CO. unless Buyer provides a valid exemption certificate acceptable to the taxing authority or unless McNICHOLS CO. is forbidden by law from collection of said taxes from Buyer. Import or export licenses are to be secured by Buyer.
9. TITLE & 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 CO. 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 the original transportation bill signed by carrier noting that carrier received the goods from McNICHOLS CO. 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 CO. until all payments hereunder, including deferred payments evidenced by notes or otherwise, interest, carrying charges and attorney fees, shall have been made in cash, and Buyer agrees to do all acts necessary to perfect and maintain such right and title to McNICHOLS CO.
10. PRODUCT RETURNS
Goods cannot be returned, and orders once accepted by McNICHOLS CO. cannot be cancelled, except upon the written approval of McNICHOLS CO. Cut-to-size items and special (custom) orders may not be returned unless it has been determined to be provided in error by McNICHOLS CO. If a return is approved, the Credit Returns Department will issue a Return Merchandise Authorization (RMA). All RMAs must be requested within 30 days of the invoice date. RMAs are valid for 30 days from the date of issuance. Customers returning goods are responsible for freight charges, and may be assessed a restocking fee of $100 or 20% of the order, whichever is greater. If an immediate replacement order of equal or greater value is placed with McNICHOLS CO., restocking fees related to the initial order may be waived at the discretion of McNICHOLS CO. and will be valid only in writing. This optional clause only applies to the initial order by the Buyer or Buyer's company.
11. FORCE MAJEURE
McNICHOLS CO. 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; acts of a civil or military authority, including wage and price controls or restrictions on business operations or travel; fires; war; national emergencies; pandemics; terrorism; riots; delays in transportation; lack of or inability to obtain raw materials (including energy sources), components, labor, fuel or supplies; or other circumstances beyond the reasonable control of McNICHOLS CO., 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 CO. 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 CO. deems, in its sole discretion, fair and reasonable. In no event shall McNICHOLS CO. be liable for special or consequential damages for any delay for any cause.
12. REASONABLE ATTORNEY 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 attorney fees and costs incurred in connection with such suit or proceeding.
13. SHIPMENT ERRORS
McNICHOLS CO. 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 CO. in the condition claimed. If such timely claim is made by Buyer, and McNICHOLS CO. deems the claim to be valid, McNICHOLS CO. may fulfill its responsibility by either shipping the quantity necessary to make good on the deficiency, or at the option of McNICHOLS CO., credit Buyer with the invoice price of the deficiency.
All goods sold by McNICHOLS CO. are warranted to Buyer to be free from defects in material and workmanship, and manufactured in accordance with industry standards. The foregoing warranty is non-assignable. EXCEPT AS EXPRESSLY SET FORTH IN THE FIRST SENTENCE OF THIS SECTION 14, McNICHOLS CO. 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 CO. has any authority to bind McNICHOLS CO. 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 CO. in writing within five (5) days from the date the goods are received by Buyer. McNICHOLS CO. shall not be liable under the foregoing limited warranty if any loss or damage is caused by improper application, installation, maintenance or use of the goods.
15. REMEDIES & LIMITATION OF LIABILITY
McNICHOLS CO. 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 CO. shall not be responsible, obligated or liable for any injury or damage resulting from the Buyer's application, installation, maintenance 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. Liability of McNICHOLS CO., in any case, including for claims of breaches of warranty or negligence, is exclusively limited, at the option of McNICHOLS CO., 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 CO. requests the return of the goods, the goods will be redelivered to McNICHOLS CO. in accordance with McNICHOLS CO. RMA processes and procedures. The remedies contained in this paragraph constitute the sole recourse of Buyer against McNICHOLS CO. for breach of any of McNICHOLS CO. obligations, whether of warranty or otherwise. As long as McNICHOLS CO. makes a good faith effort to rectify any breach, the remedies provided for herein shall be deemed satisfied.
Buyer represents that the goods sold hereunder are fit for their actual or intended use, and that Buyer placed no reliance on the skill or judgment of McNICHOLS CO. 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 CO., its successors, assigns and subsidiaries from and against all costs (including attorney fees), damages and liabilities resulting from actual or alleged claims asserted or any penalties proposed or assessed to McNICHOLS CO. for any alleged violation of any federal, state 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.
McNICHOLS CO. specifically represents that any goods to be delivered hereunder will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended.