WHITMORE CONSORTIUM LLC dba McGRAY ENTERPRISES
TERMS AND CONDITIONS
Effective May 02, 2019
CONDITIONS OF SALE
Unless otherwise stated in writing by an authorized representative of Whitmore Consortium, LLC dba McGray Enterprises (hereafter “Seller”), all transactions between the Buyer and Seller are expressly subject to these terms and conditions. The Seller will not be bound by any terms proposed by Buyer, whether in purchase orders or otherwise, which are additional to or different from the terms and conditions set forth herein. Terms and conditions are subject to change without notice and become immediately effective.
Prices are subject to change without notice. In the event of a price increase, quoted material not covered by a firm purchase order entered on Seller’s computer system by the Seller may be subject to adjustment to those in effect at the time of shipment. Buyer may not apply price changes to unfulfilled purchase orders that have been entered into the Seller’s system without written authorization from the Seller. Possession of Seller’s published price sheets does not obligate Seller to sell to Buyer possessing the price sheets.
Valid quotations are those issued by the Seller and, unless otherwise specified, are subject to Buyer’s written acceptance within 30 days of issuance to be valid. The Seller can modify quotations prior to their expiration date if the Buyer has not yet accepted them. Seller’s quoted prices apply for the quantity stated on the Buyer’s RFQ. Seller reserves the right to make price adjustments on items where quantities exceed the original quoted quantity or which exhibit extreme volatility costs or to rescind prices on items with no order or activity within 60 days of the quote date. All clerical errors are subject to correction.
Published or quoted items do not include sales, excise, or similar taxes that are the responsibility of the Buyer. Where Seller is required to collect such taxes, they will be invoiced as a separate item to Buyer unless an appropriate tax exemption certificate is filed with Seller. Taxes not billed or quoted by the Seller are the responsibility of the Buyer.
Acceptance of orders shall be subject to the Buyer providing Seller with an acceptable Credit Application. If in the judgement of the Seller, the financial condition of the Buyer, at any time, does not prove worthy of extending credit, the Seller may require full or partial payment in advance of production or shipment.
Unless modified in writing by the Seller’s quotation, terms of payment are net 30 days from date of invoice payable in US funds. Accounts that become overdue will be subject to a 1.5% monthly service charge until paid and Buyer will be liable for reimbursing Seller’s expenses and legal fees in collecting such accounts. Seller may also suspend shipments of open orders to Buyer until Buyer’s account is current.
All orders are subject to final acceptance by Seller at its Woodlands, Texas headquarters. If a price discrepancy exists on an order, the order in question will not be entered into the Seller’s system until the price issue is resolved and the order is amended in writing. Emergency orders requiring expedited delivery may carry additional charges.
Items can be added to Buyer’s order at the original order terms within 5 calendar days of original entry as long as the original order has not shipped complete.
Seller’s prices are based on standard packing suitable for domestic shipments within the 48 contiguous United States. If special packaging is required additional charges will be invoiced to the Buyer.
Shipment dates as set forth on order acknowledgements are approximate. Although Seller will use all reasonable efforts to meet shipment dates, Seller will not be responsible for failure to meet said dates. In no event will Seller be liable for any loss or damage or for any special, incidental, consequential, or liquidated damages to Buyer resulting from failure to deliver within the times specified. Unless otherwise amended and approved in writing, Seller reserves the right to ship up to 60 days in advance of the acknowledged shipping date. Seller reserves the right to make shipment in installments which shall be separately invoiced and paid when due without regard to subsequent deliveries.
All shipments will be made F.O.B. Origin and will be Freight Collect with transportation by the most economical means available for any order allowing for shipment at one time to a single delivery point within the contiguous 48 United States. Seller will ship prepaid with freight cost added to the invoice (UPS cannot ship freight collect without the buyer providing their account number).
For shipments outside the 48 contiguous United States contact the Seller for freight terms.
Seller reserves the right to select shipping point, method, and route of shipment. No credit for any shipping or freight cost will be allowed to Buyer if Buyer accepts shipment or product at Seller’s factory warehouse or otherwise supplies its own transportation. Seller shall not be liable for any cartage or storage charges at destination. Title and risk of loss shall pass to the Buyer upon delivery of the products by the Seller to the carrier.
Seller’s responsibility for exception-free delivery ceases when the transportation company receives shipment in good condition. Claims for loss or damage must be reported to the carrier at the time of delivery. Buyer will have no more than 5 calendar days to report shortages to Seller to properly file a freight claim. Seller’s willingness to assist does not indicate liability for claim or replacement.
Buyer may select Buyer’s own shipping method (including flatbed trailers or expedited shipping) and/or route or timing of shipment and Buyer will be directly responsible for any and all charges, delays, losses or damages with the carrier the Buyer so engages.
Any missing pallet, or any missing boxes within a pallet, must be declared at the time of shipping receipt. Buyer has 15 calendar days after the delivery to notify the Seller of other errors and defects. Failure to provide Seller with written notice within the prescribed time frame obligates the Buyer to have waived such errors, defects or shortages and to have accepted Buyer’s items as delivered.
Unauthorized deductions by the Buyer from its remittance to Seller will not be permitted unless Seller issues written authorization and credit memoranda. Buyer must notify Seller of any suspected discrepancies within 10 days of receipt of invoice. Requests for Proof of Delivery documents must also be received within 10 days of invoice receipt. Deductions exceeding those authorized by Seller will be invoiced by Seller and will become payable upon receipt. Failure to settle Buyer’s account may lead to suspension of future shipments to buyer.
Unless otherwise provided, Seller reserves the right to modify the specifications, materials or manufacturing methods of products ordered by the Buyer if the modification will not materially affect the quality or performance of the product. Products may be discontinued, modified, or changed without occurring any obligation to the Seller.
Returns are authorized at the discretion of Seller. No material can be returned without first obtaining written Return Merchandise Authorization (RMA) from Seller. A copy of this authorization must be included with the material being returned.
Products accepted for the return must be in their original, unopened cartons, in standard package quantities, of current design and manufacture, and in resalable condition. All returns are subject to restocking and handling charge of 25%of the original net value of the products at the time of purchase. Any non-authorized product, product returned in non-standard pack, or any product deemed to be non-resalable will be scrapped and no credit given.
Materials authorized for return must be shipped prepaid to Seller’s destination within 15 days of authorization. No products will be accepted for return in the month of December.
Cancellation of part or all of an order is subject to acceptance by Seller. Requests for cancellation must be received a minimum of 5 calendar days before the scheduled ship date. Products shipped after the cancellation is received but before the expiration date of the five-day cancellation requirements are subject to above RMA terms.
Seller warrants that the products it sells shall be free from defect in material and workmanship for a period set forth by manufacturer. The warranty covers normal use and does not apply to any products that were misused (used for a purpose other than originally intended), modified, repaired or otherwise abused by buyers and others. Seller’s sole obligation for breach of manufacturer’s warranty shall be to repair or replace (F.O.B. original delivery point) any goods within 10 days of Buyer reporting defect to Seller. All transportation expenses, and all other incidental expenses and damages shall be borne by Buyer.
THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANT-ABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY TYPE OF SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PENAL DAMAGES, WHETHER SUCH DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF CONTACT, WARRANTY, MANUFACTURERS WARRANTY, TORT (INCLUDING NEGLIGENCE) STRICT LIABLITY OR OTHERWISE.
Such damages shall include, but not limited to, liquidated damages, loss of profit or revenues, loss of the use of equipment or associated equipment, costs of substitute equipment, facilities, down time costs, increased construction costs, change out costs, or claims for damages. Seller shall not be liable for any loss, claim, expense, or damage caused by, contributed to or arising out of the acts of omissions of the Buyer, whether negligent or otherwise.
Buyer agrees that by accepting Seller’s products, it agrees to use each product solely as Seller/Manufacturer intended such product to be used in accordance with the Seller/Manufacturer’s warning instructions. Buyer further agrees that improper operation, storage, or maintenance of Seller’s products could result in injury or death to a person, or damage to other property or equipment and it will hold Seller and its affiliates harmless for any such injury or damage. BUYER AGREES TO INDEMNIFY AND HOLD SELLER, ITS AFFILIATES AND THEIR OFFICERS AND DIRECTORS HARMLESS AGAINST ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND (INCLUDING ATTORNEY’S FEES) ARISING OUT OF OR RELATED TO THE USE OF ANY OF SELLER’S REPRESENTED PRODUCTS.
The laws of the State of Texas shall govern all matters relating to the interpretation and effect of these terms and authorized changes.
WAIVER OF JURY TRIAL
Both the Buyer and Seller, to the extent permitted by law, knowingly, voluntarily, and intentionally waives it’s right to a trial by jury in any action, legal proceeding or counterclaim arising out of or in connection with any purchase order or transaction between Buyer and Seller. This waiver applies to any and all actions and legal proceedings, whether sounding in contract, tort or otherwise.