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TERMS & CONDITIONS OF USE

 

Terms and Conditions Governing Web Sales

THESE TERMS AND CONDITIONS (“AGREEMENT”) APPLY TO YOU AS A PURCHASER (“BUYER”) OF PRODUCTS SOLD THROUGH THE GRACO SUPPLY COMPANY (“GRACO SUPPLY”) WEBSITE (“WEBSITE”) IN THE UNITED STATES (“PRODUCT(S)”). BY PURCHASING PRODUCTS THROUGH THE WEBSITE, YOU AGREE TO THE TERMS BELOW. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MUST PROMPTLY NOTIFY GRACO SUPPLY AND RETURN YOUR PURCHASE PURSUANT TO GRACO SUPPLY’S RETURN POLICY AS SET FORTH BELOW.

1. NO MODIFICATIONS

This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both you and Graco Supply. Graco Supply hereby objects to and rejects any additional, different or varying terms proposed by Buyer, unless Graco Supply expressly assents to such terms in a separate writing. If you do not receive an invoice or acknowledgement in the mail, via e-mail, or with your Product, information about your purchase may be obtained by contacting Graco Supply customer service.

1. ACCEPTANCE

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. Graco Supply is deemed to have made an acceptance of an order upon shipment of Products.

3. CANCELLATION OR MODIFICATIONS

Buyer may not cancel or modify its order except upon terms accepted by Graco Supply in writing. In the event of any cancellation or modification that has already been accepted by Graco Supply, Buyer shall compensate Graco Supply for all resulting costs and damages, including, but not limited to, out-of-pocket expenses and restocking fees.

4. DELIVERY/ DELAYS

All sales and shipments must be within the United States – foreign sales will not be accepted. Graco Supply shall deliver the Products F.O.B. Graco Supply’s designated shipment location (the “Facility”). All risk of loss, damage or delay, and title to Products, shall pass from Graco to Buyer at the Facility. Partial shipments shall be permitted. All delivery dates are approximate. Delivery dates given by Graco Supply are based on prompt receipt of all necessary information regarding the order. Graco Supply will use reasonable efforts to meet such delivery dates, but does not guarantee to meet such dates. Failure by Graco Supply to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind. Time for delivery shall not be of the essence. 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. Minimum online order quantity is $75 per order.

5. PAYMENT TERMS: Orders, Quotes, Interest

Terms of payment are within Graco Supply's sole discretion, and unless otherwise agreed to by Graco Supply, payment must be received by Graco Supply prior to Graco Supply's acceptance of an 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 Graco Supply. Your order is subject to cancellation by Graco Supply, at Graco Supply's sole discretion. Graco Supply is not responsible for pricing, typographical, or other errors, in any offer by Graco Supply and reserves the right to cancel any orders resulting from such errors.

6. SHIPPING; Title, Risk of Loss, Taxes

Buyer shall pay for all costs of shipping, which are additional 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 Graco Supply to Customer on shipment from Graco Supply's Facility. Unless you provide Graco Supply with a valid and correct tax exemption certificate applicable to your purchase of Product and the Product ship-to location, you are responsible for sales and other taxes associated with the order. Shipping dates are estimates only.

7. LIMITED WARRANTIES & REMEDIES

(a) Products In Original Packaging and not Manufactured by Graco Supply: IF BUYER IS PURCHASING PRODUCTS IN THEIR ORIGINAL PACKAGING AND NOT MANUFACTURED BY GRACO SUPPLY, THE ONLY PRODUCT WARRANTY AVAILABLE TO BUYER AS TO THE PRODUCTS SHALL BE ANY MANUFACTURER’S WARRANTY WHICH MAY APPLY AND GRACO SUPPLY MAKES NO INDEPENDENT WARRANTIES. Graco Supply does not adopt, guarantee or represent that the manufacturer will comply with any of the terms of the warranty of such manufacturer. (b) Repackaged Products: If Buyer is purchasing Products repackaged by Graco Supply, causing the original manufacturer’s seal to be broken, Graco Supply 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, but no event longer than one (1) year from the date of Graco Supply’s delivery of such Product hereunder (the “Warranty Period”). (c) 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 Graco Supply’s instructions or improper installation, storage or maintenance. Graco Supply shall only repair or replace, at its option, any covered repackaged Products proved to Graco Supply’s satisfaction to have a Defect (as defined below) within the Warranty Period. Such warranty shall be available only if: (i) Graco Supply 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. GRACO SUPPLY’S 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 Graco Supply at the following address: Graco Supply Corporation, 1011 Miller Avenue, Fort Worth, Texas 76105, Attention: Customer Service. Any assistance Graco Supply 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. Graco Supply will not reimburse Buyer for any expenses incurred by Buyer in repairing, correcting or replacing any defective Products, except for those incurred with Graco Supply’s prior written permission. This warranty gives Buyer specific legal rights, and Buyer may also have other rights which vary from state to state.

8. DISCLAIMER

DISCLAIMER OF IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. GRACO SUPPLY AND BUYER AGREE THAT THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS WARRANTIES. GRACO SUPPLY HEREBY DISCLAIMS ALL OTHER EXPRESS WARRANTIES. FOR COMMERCIAL PRODUCTS, ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. FOR CONSUMER PRODUCTS, WARRANTIES IMPLIED BY LAW, INCLUDING THOSE 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 Graco Supply has no post—sale duty to warn Buyer or any other party about any matter or, if such duty exists, Graco Supply satisfies that duty by providing any required warnings only to Buyer. Buyer assumes all post—sale duty to warn its customers and indemnifies Graco Supply 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.

9. RETURNS AND EXCHANGE POLICY

No Products may be returned to Graco Supply without its prior, written authorization, subject to the terms and conditions specified in such return material authorization (“RMA”). You must contact us directly before you attempt to return Product to obtain an RMA number for you to include with your return. You must return Product to us in their original or equivalent packaging. Returned Products must be of current manufacture, unused, in resalable condition, and securely packed to reach Graco Supply without damage. You are responsible for risk of loss, shipping and handling fees for returning or exchanging Product. Additional fees may apply. If you fail to follow the return or exchange instructions and policies provided by Graco Supply, Graco Supply 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 Buyers irrevocable acceptance of the Products and Buyer’s acknowledgement that the Products fully comply with the terms and conditions of this Agreement. At Graco Supply's discretion, credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing. All Product returned to Graco Supply shall be subject to a 25% restocking charge plus the costs of freight, packaging, insurance and any import or export costs.

9. CHANGED OR DISCONTINUED PRODUCT

Graco Supply's policy is one of ongoing update and revision. Graco Supply may revise and discontinue Product at any time without notice to you and this may affect information saved in your online “cart.”

10. LIMITATION OF LIABILITY

GRACO SUPPLY 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 REPACKAGED) OR GRACO SUPPLY’S UNDERTAKINGS, ACTS OR OMISSIONS. IN NO EVENT SHALL GRACO SUPPLY BE LIABLE FOR INCIDENTAL COMPENSATORY, PUNITIVE, CONSEQUENTIAL, INDIRECT, SPECIAL OR OTHER DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCT, GRACO SUPPLY’S AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT AND THIS AGREEMENT SHALL BE LIMITED TO THE MONIES PAID TO GRACO SUPPLY 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.

12. INDEMNIFICATION

Buyer hereby releases and agrees to indemnify, defend and hold harmless Graco Supply, its shareholders, officers, agents, employees, affiliates, successors, assigns and third-party suppliers (“Graco Supply’s 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 Graco Supply or any of Graco Supply’s 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 Graco Supply, or due to improper application or use of the Products or otherwise. Prior to settling any claim, Buyer will give Graco Supply 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 Graco Supply’s written consent. In the event of any recall affecting the Products, Graco Supply shall have the right to control the recall process and Buyer shall fully cooperate with Graco Supply in connection with the recall.

13. COMPLIANCE WITH LAWS; NOT FOR RESALE OR EXPORT

You agree to comply with all applicable laws and regulations of the various states and of the United States. You agree and represent that you are buying only for your own internal use only, and not for resale or export.

14. 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 preexisting, present or future, and including statutory, common law, and equitable claims) between Buyer and Graco Supply arising from or relating to this agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement, Graco Supply's 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.

15. THIS CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. ANY NEGOTIATIONS OR UNDERSTANDINGS BETWEEN GRACO SUPPLY 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 GRACO SUPPLY AND BUYER. SALES REPRESENTATIVES OF GRACO SUPPLYARE WITHOUT AUTHORITY TO CHANGE THE TERMS OF THIS AGREEMENT.