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These Terms and Conditions (“Agreement”) apply to the purchaser (“Buyer”) of products (“Product” or “Products”) sold through the GracoRoberts (“GracoRoberts”) in the United States. By purchasing Product from GracoRoberts by ways, including but not limited to, e-mail, mail, or website, the Buyer agrees to the terms below. If Buyer is accepting these terms on behalf of another person or company or other legal entity, Buyer represents and warrants that Buyer has full authority to bind that person, company, or legal entity to these terms. If Buyer does not wish to be bound by this agreement, Buyer must promptly notify GracoRoberts and return Buyer’s purchase pursuant to GracoRoberts’ return policy as set forth below.
1. NO MODIFICATIONS – This Agreement may not be altered, supplemented, or amended using any other document(s) unless otherwise agreed to in a written agreement signed by both Buyer and GracoRoberts. GracoRoberts hereby objects to and rejects any additional, different or varying terms proposed by Buyer, unless GracoRoberts expressly assents to such terms in a separate writing. If Buyer does not receive an invoice or acknowledgement in the mail, via e-mail, or with Product, information about the purchase may be obtained by contacting GracoRoberts customer service.
2. PRICING – Quoted pricing is valid until the expiration date stated on the quotation. GracoRoberts reserves the right to adjust the quote for criteria not known, disclosed or available at the time of original solicitation and quote. i.e. pricing, delivery dates, quantities, specifications, test reports, special shipping, temp recorders, etc.
A $250 minimum purchase order value applies per order. On-line orders placed on the GracoRoberts website have a $150 minimum purchase order value.
Hazardous material shipped Next Day Air is subject to an additional $35 charge per shipment in addition to $15 packaging fee per box and any applicable freight costs. Certifications and Test Reports may require additional fees.
3. PRODUCT SHELF LIFE – Total shelf life is determined by the manufacturer and specification, as required. Some manufacturers will not guarantee a shelf life minimum.
4. ACCEPTANCE – All orders and sales contracts are subject to acceptance or rejection by GracoRoberts and are not binding on GracoRoberts unless and until accepted. Acceptance is subject to availability for the delivery of goods and prices for such goods. Buyer’s order is not considered accepted until GracoRoberts confirms the purchase order with an Order Confirmation.
If purchasing on the GracoRoberts website, the Buyer shall be deemed to have made an unqualified acceptance of this Agreement by clicking the checkbox reading “I have read and agree to the Terms and Conditions” on the final checkout page of the shopping cart on the website. GracoRoberts is deemed to have made an acceptance of an order upon shipment of Products.
5. END USE – Determination of the suitability of the goods described for the use contemplated by Buyer is the sole responsibility of Buyer. GracoRoberts shall have no responsibility in connection therewith. Buyer assumes all risk and liability for loss, damage, or injury to property of Buyer or others, arising out of the use or possession of the goods furnished hereunder.
6. CANCELLATION OR MODIFICATIONS – Buyer may not cancel or modify its order except upon terms accepted by GracoRoberts in writing. Cancellation or modification may require approval from the manufacturer and Buyer may be responsible for any applicable cancellation fees or transit costs associated with the cancellation or modification of the order. In the event of any cancellation or modification that has already been accepted by GracoRoberts, Buyer shall compensate GracoRoberts for all resulting costs and damages, including, but not limited to, out-of-pocket expenses and restocking fees.
7. DELIVERY/ DELAYS – Certain foreign sales may be restricted and will be addressed at the time of quotation. All sales, domestic or foreign, shall ship the Products F.O.B. GracoRoberts’ designated shipment location (the “Facility”).
Stocked materials quoted are subject to prior sale. All delivery dates are approximate and are subject to change due to material availability from the manufacturer. Delivery dates given by GracoRoberts are based on prompt receipt of all necessary information regarding the order. GracoRoberts will use reasonable efforts to meet such delivery dates but does not guarantee to meet such dates. Failure by GracoRoberts to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind. GracoRoberts will use all reasonable efforts to ship Product by the promised ship date. Buyer’s orders or mutually agreed change orders shall be subject to all provisions of this Agreement, whether or not the order or change orders so states.
8. PAYMENT TERMS: Orders, Quotes, Interest – Terms of payment are within GracoRoberts’ sole discretion, and unless otherwise agreed to by GracoRoberts. If payment terms are not extended, payment must be received by GracoRoberts prior to acceptance of Buyer’s order. Payment for the Products will be made by credit card, wire transfer, or some other prearranged payment method unless credit terms have been agreed to by GracoRoberts. Buyer’s order is subject to cancellation by GracoRoberts, at GracoRoberts’ sole discretion. GracoRoberts is not responsible for pricing, typographical, or other errors, in any offer by GracoRoberts and reserves the right to cancel any orders resulting from such errors. Payments must be received in U.S. Dollars.
9. SHIPPING: Title, Risk of Loss, Taxes, Will-Call, Storage Fees – Buyer shall pay for all costs of shipping, which are additional to Product cost unless otherwise expressly indicated at the time of sale. Buyer is responsible for insuring all materials delivered to Buyer from F.O.B. /EX WORKS shipping point. Title to products passes from GracoRoberts to Buyer upon shipment from GracoRoberts’ facility. GracoRoberts is not responsible for incidental freight damage that does not affect Product function. Buyer shall report any shortages or suspected damages to GracoRoberts in writing within 10 business days of receipt of Product.
Buyer shall pay all taxes (including sales tax) unless buyer provides GracoRoberts with a valid and correct tax exemption certificate applicable to the purchase of Product and the Product ship-to location.
GracoRoberts will alert Buyer in writing that order(s) is/are ready for pickup for all Will-Call orders. If order(s) is/are not picked up after three (3) business days of GracoRoberts’ outreach or Customer Promise Date, whichever comes first, GracoRoberts reserves the right to ship the order(s) to Buyer at Buyers’ expense.
In select cases, GracoRoberts’ Buyers who request to push out their delivery date after an Order ship date has been confirmed may do so, provided Buyer signs a written agreement to accept any shelf-life deterioration that has occurred during customer-requested additional storage time. In those cases, GracoRoberts will waive a storage fee within the calendar month the order was originally confirmed to ship. After that month has passed, Buyer will incur a storage fee equivalent to 20% of the price of goods/services purchased, with a minimum fee of $250 and a maximum fee of $2,500 per month, and for a maximum time period of two calendar months additional storage and $5,000 in storage fees.
10. LIMITED WARRANTIES & REMEDIES –
(a) Products in Original Packaging and not Manufactured by GracoRoberts: If Buyer is purchasing Products in their original packaging which were not manufactured by GracoRoberts, the only product warranty available to Buyer as to the Products shall be the manufacturer’s warranty which may apply. GracoRoberts makes no independent warranties. No additional warranty is valid, either expressed or implied by GracoRoberts or any representative thereof, beyond that which is set forth by the manufacturer. GracoRoberts warrants that the Product supplied is within manufacturer shelf-life and is in usable condition when shipped from the GracoRoberts location. GracoRoberts does not adopt, guarantee or represent that the manufacturer will comply with any of the terms of the warranty of such manufacturer.
(b) Products Repackaged: If Buyer is purchasing Products repackaged by GracoRoberts, causing the original manufacturer’s seal to be broken, GracoRoberts warrants to original user only that the Products will be free from material defects in materials and workmanship attributable to the repackaging process under normal use and service for the shelf life of the Product as described in the technical data sheet.
(c) Products Manufactured, Blended or Reformulated by GracoRoberts: GracoRoberts warrants that the product meets the defined attributes of the technical data sheet and passed testing requirements identified by the product specifications. Customized products are designed with intended purposes, but the Buyer takes full responsibility for product warranty once the product has been installed or applied. The time period for warranty (“Warranty Period”) may vary depending on the product configuration and storage conditions, but in no event longer than one (1) year from the date of GracoRoberts’ delivery of such Product.
(d) As a manufacturer and repackager of specialty chemicals, GracoRoberts reserves the right to adjust the order quantity in order to match the yield quantity of its finished goods within a tolerance of +/-5%.
(e) Limitations and Remedies. There is no warranty in cases of damage in transit, negligence, abuse, abnormal usage, misuse, accidents, normal wear and tear, damage due to environmental or natural elements, failure to follow GracoRoberts’ instructions or improper installation, storage or maintenance. GracoRoberts shall only repair or replace, at its option, any covered repackaged Products proved to GracoRoberts’ satisfaction to have a Defect (as defined below) within the Warranty Period. Such warranty shall be available only if: (i) GracoRoberts is notified in writing within ten (10) days after discovery of an alleged Defect (but in no event later than ten (10) days from the shipping date); (ii) the Defect has not been caused by Buyer’s misuse, neglect or alteration or by physical environment; and (iii) the manufacturer’s shelf life of the Product (as indicated on the Product’s packaging) has not expired when the alleged Defect is discovered.
GracoRoberts’ sole obligation and Buyer’s exclusive remedy hereunder shall be limited to replacement or repair of defective repackaged products. Notice of any warranty claim or request for warranty service should be sent to GracoRoberts at the following address: GracoRoberts, 3200 Avenue E East, Arlington, TX 76011, Attention: Customer Service. Any assistance GracoRoberts provides to or procures for Buyer outside the terms, limitations or exclusions of this warranty will not constitute a waiver of the terms, limitations or exclusions of this limited warranty, nor will such assistance extend or revive the warranty. GracoRoberts will not reimburse Buyer for any expenses incurred by Buyer in repairing, correcting or replacing any defective Products, except for those incurred with GracoRoberts’ prior written permission. This warranty gives Buyer specific legal rights, and Buyer may also have other rights which vary from state to state.
11. DISCLAIMER – Disclaimer of implied warranties of merchantability and fitness for particular purpose. GracoRoberts and Buyer agree that the foregoing warranties are exclusive and in lieu of all other express warranties. GracoRoberts hereby disclaims all other express warranties. For commercial products, all implied warranties of merchantability and fitness for a particular purpose, are expressly limited to the period of the warranty stated above for the relevant Product.
Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as an express warranty. Prior to using or permitting use of the Products, Buyer shall determine the suitability of the Products for the intended use and Buyer shall assume all risk and liability whatsoever in connection therewith. Buyer agrees that GracoRoberts has no post-sale duty to warn Buyer or any other party about any matter or, if such duty exists, GracoRoberts satisfies that duty by providing any required warnings only to Buyer. Buyer assumes all post-sale duty to warn its customers and indemnifies GracoRoberts against any Damages in connection with such duty or failure to warn. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Buyer.
12. RETURNS AND EXCHANGE POLICY – Potential product concerns must be reported in writing to GracoRoberts within 10 business days of receipt of product(s) in order to be considered for a return, exchange, or credit. No products may be returned to GracoRoberts without its prior, written authorization with a Return Material Authorization (“RMA”) form. GracoRoberts must be contacted directly before a product is returned to obtain an RMA number to be included with the return. Product must be returned to GracoRoberts in the original packaging with no additional labeling or markings on the packaging. Returned products must be of current manufacture, unused, in resalable condition, and securely packed to reach GracoRoberts without damage. Buyer is responsible for risk of loss, shipping and handling fees for returning or exchanging Product. Product must be received at GracoRoberts within 30 calendar days of original delivery. Sales of made-to-order items are non-returnable. Returns may be subject to a restock fee. If Product required refrigerated or frozen storage temperatures, Product may not be accepted for return.
If the Buyer fails to follow the return or exchange instructions and policies provided by GracoRoberts, GracoRoberts is not responsible whatsoever for Product that is lost, damaged, modified or otherwise processed for disposal or resale. For the purposes of this Agreement, “Defect” means a material defect in the Product that otherwise renders the Product unusable for normal use and service per its technical data sheet, and specifically excludes damage to the Product container or other damage that does not affect such normal use of the Product. Buyer’s failure to make such claim as set forth in Section 7 above shall constitute Buyer’s irrevocable acceptance of the Products and Buyer’s acknowledgement that the Products fully comply with the terms and conditions of this agreement. At GracoRoberts’ discretion, credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing. Product returned to GracoRoberts may be subject to a restocking charge up to 50% plus the costs of freight, packaging, insurance and any import or export costs.
13. RETENTION OF RECORDS – GracoRoberts shall retain quality records for a period of ten (10) years. Records shall be identified, legible, retrievable, and retained in a suitable environment to prevent damage, deterioration or loss.
14. CHANGED OR DISCONTINUED PRODUCT – GracoRoberts’ policy is one of ongoing update and revision. GracoRoberts may revise and discontinue Product at any time without notice to Buyer. For the online purchasing platform, product discontinuation may affect information saved in the online “cart.”
15. LIMITATION OF LIABILITY – GracoRoberts shall not be liable to Buyer, or to anyone claiming under Buyer, for any other obligations or liabilities, including, but not limited to obligations or liabilities arising out of breach of contract or warranty, negligence or other tort or any theory of strict liability, with respect to the Products (whether the Products are in original packaging or have been repacked) or GracoRoberts’ undertakings, acts or omissions. In no event shall GracoRoberts be liable for incidental compensatory, punitive, consequential, indirect, special or other damages, or for any other claim by any third party. Buyer agrees that, for any liability related to the purchase of Products, GracoRoberts’ aggregate liability with respect to a defective product and this agreement shall be limited to the monies paid to GracoRoberts for that defective product. Notwithstanding anything in this agreement to the contrary, the remedies set forth in this agreement shall apply even if such remedies fail their essential purpose. Some states do not allow the exclusion or limitation of incidental and consequential damages, so the above limitation or exclusion may not apply to Buyer.
16. INDEMNIFICATION – Buyer hereby releases and agrees to indemnify, defend and hold harmless GracoRoberts, its shareholders, officers, agents, employees, affiliates, successors, assigns and third-party suppliers (“GracoRoberts’ Indemnified Parties”) from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, loss, suits, demands, fines, penalties, judgments, omissions, damages or expenses whatsoever, including, without limitation, attorneys’ fees and costs (“Damages”) incurred by or against GracoRoberts or any of GracoRoberts’ Indemnified Parties due to or arising out of, in connection with, resulting from or relating to (i) misrepresentations, breach of the warranties, representations, covenants or agreement contained in this Agreement or any law by Buyer or any of Buyer’s shareholders, directors, officers, employees, affiliates, representatives, agents, successors or assigns (“Buyer’s Parties”), or (ii) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Buyer or any of Buyer’s Parties, or (iii) losses, damages or injuries caused by Buyer’s Products, Buyer’s specifications, designs, approvals or instructions provided to GracoRoberts, or due to improper application or use of the Products or otherwise. Prior to settling any claim, Buyer will give GracoRoberts an opportunity to participate in the defense and/or settlement of such claim with counsel of its choosing at its own expense. Buyer shall not settle any claim without GracoRoberts’ written consent. In the event of any recall affecting the Products, GracoRoberts shall have the right to control the recall process and Buyer shall fully cooperate with GracoRoberts in connection with the recall.
17. COMPLIANCE WITH LAWS; NOT FOR RESALE OR EXPORT – Buyer agrees to comply with all applicable laws and regulations of the various states and of the United States.
18. GOVERNING LAW; VENUE – The parties agree that this Agreement, any sales there under, or any claim, dispute or controversy (whether in contract, tort, or otherwise, whether pre-existing, present or future, and including statutory, common law, and equitable claims) between Buyer and GracoRoberts arising from or relating to this agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement, GracoRoberts’ advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. Any cause of action, claim, suit or demand by Buyer allegedly arising from or related to the terms of this Agreement or the relationship of the parties shall be brought in a court situated in Tarrant County in the State of Texas. Both parties hereby irrevocably admit themselves to and consent to the jurisdiction of said Court, and expressly waive any objection to such personal jurisdiction, including but not limited to forum non conveniens. Upon termination of this Agreement for any reason, Graco shall have all of the rights and remedies provided by law, including, without limitation, Texas Statutes or any successor statute or similar statute in the jurisdiction where Buyer is located or stores the Products.
19. PRIVACY POLICY –
(a) Security – GracoRoberts has taken steps to safeguard the integrity of its data and prevent unauthorized access. These measures are designed to prevent corruption of data, block unknown or unauthorized access to GracoRoberts’ systems and information, and provide reasonable protection of private information in GracoRoberts’ possession.
(b) Encryption – GracoRoberts collects personal information required for orders and quotes using Secure Socket Layers (SSL), an industry standard for secure website transactions. When Buyer visits Web resources protected by SSL, Buyer’s browser address (URL) changes from HTTP to HTTPS, and the browser may display a lock or key symbol on the task bar. If Buyer does not see one or more of these security indicators, any information Buyer submits could be intercepted. GracoRoberts’ SSL-protected applications use 128-bit encryption any time private or sensitive information is collected. The 128-bit encryption keys further secure GracoRoberts’ website and network against brute force attacks that might be directed at Buyer’s online transactions, including any private information Buyer may send to GracoRoberts.
If Buyer’s browser does not support 128-bit encryption, Buyer will not be able to connect to encrypted pages.
20. AGREEMENT – This constitutes the entire agreement of the parties with respect to the subject matter hereof. Any negotiations or understandings between GracoRoberts and Buyer which are not contained in this agreement and any and all purchase orders, correspondence or statements that conflict with, differ from or modify this agreement shall have no force of effect, unless in writing and signed by authorized officers of GracoRoberts and Buyer. Sales representatives of GracoRoberts are without authority to change the terms of this agreement.
