General Terms Of Sale
1. Purchase of Products
(a) Except to the extent other¬wise agreed upon in
writing, the terms set forth herein shall govern the
sale and delivery of the products described on the
reverse side hereof (“Products”) by Duravit USA, Inc.
(“Seller”) and purchased by the purchaser named
on the reverse side hereof (“Purchaser”).
(b) All dealings between the parties shall be in writing
and no order of Purchaser shall be binding on
Seller until approved in writing by Seller.
(c) A purchase contract hereunder shall become
effective only by written acceptance of Purchaser’s
order by Seller via order confirmation.
(d) Prices of Products are subject to change without
notice, and all references in sales brochures,
technical data sheets and offers as details of the
Products are approximate only. No such term shall
be binding on Seller unless expressly incorporated
in a purchase order which is approved and accepted
by Seller in accordance with the terms hereof.
(e) Purchaser acknowledges that Seller’s acceptance
of any purchase order is dependent
on Seller’s prior approval of Purchaser’s credit.
Purchaser agrees that Seller may demand assurances
of Purchaser’s ability to pay by requesting
such trade or banking references or such other
information as deemed adequate by Seller.
(f) Specifications in offers and order confirmations
are approximate only. Purchaser does not have the
rights with respect to quality, color and design.
(g) Special orders of Products may not be cancelled.
Bold prices listed in this price list are stocked in our
Atlanta warehouse for immediate delivery. Special
order products, have an 8-12 week lead time. All
special orders are non cancelable and may or may
not comply with US standards.
(h) Seller reserves the right to change its manufacturing
specifications, as deemed necessary by
Seller in Seller’s sole discretion, without prior notice
(a) All prices quoted by Seller are based upon
Seller’s price list to be amended from time to time
in U.S. funds and shall be on a net basis F.O.B.
Seller’s loading dock.
(b) All prices quoted by Seller are subject to adjustment
due to Purchaser’s change orders, if any or
change of Sellers quotation basis.
(c) The price quoted excludes the cost of packaging,
applicable taxes and duties, shipping, insurance
or other incidental expenditures of Seller,
unless otherwise expressly agreed upon in writing.
Purchaser shall be liable for the cost of packaging,
applicable taxes and duties, shipping, insurance or
other incidental expenditures.
(a) Unless otherwise expressly agreed upon in writing,
payment shall be made in full within thirty (30)
days of receipt of Seller’s invoice.
(b) Purchaser shall not withhold or reduce payments
on account of complaints, claims, or counterclaims
not acknowledged and accepted by Seller.
(a) Unless expressly agreed upon in writing to the
contrary, the terms of delivery are F.O.B. Seller’s
loading dock. Seller will use commercially reasonable
efforts to make the Products available for pickup
and delivery by Purchaser within a reasonable
time after acceptance of an order from Purchaser.
Delivery time period starts to run upon acceptance
of any purchase order by Seller. All delivery dates
are approximately only and Seller shall not be liable
for damages caused by delays in delivery.
(b) Purchaser agrees that it will pick up or cause a
common carrier to pick up the Products at Seller’s
place of busi¬ness within two (2) days after written
notification from Seller that such Products are ready
for pick-up. If Purchaser or its common carrier
does not pick up or accept the Products within two
(2) days after written notification from Seller that
the Products are ready for pick-up or if Seller is required
to store the Products due to any delay caused
by Purchaser, Purchaser shall reimburse Seller for
reasonable storage charges. If not picked up within
given time frame, seller reserves the right to ship
product at purchaser’s expense
(c) Purchaser bears the risk of loss or destruction of
the Products upon and after the first to occur of (i)
pick-up or acceptance of the Products by Purchaser
or its common carrier at Seller’s place of business,
or (ii) the second day after written notification from
Seller that the Products are ready for pick-up at
Seller’s place of business. In case Purchaser requests
a delay in delivery, Purchaser assumes all
risk of loss, damage and/or destruction of the Products
from the date the Products are ready to be
delivered. Damages must be reported within three
(3) business days of delivery to the purchaser. Products
delivered to Purchaser by the common carrier
shall be inspected by Purchaser upon receipt.
Purchaser may not withhold or reduce payments
on account of such claims or any other complaints,
claims or counterclaims not acknowledged and accepted
(d) Seller reserves the right to make the Products
available for pick-up and delivery in install¬ments.
Delay in delivery of any installment shall not relieve
Purchaser of its obligation to accept remaining
(e) If Purchaser should request any modification of
the order after Seller’s acceptance, Seller shall have
the right to extend the delivery time period as reasonably
needed to complete Purchaser’s change.
(f) Claims for shortages must be made within five
days from receipt of goods. Any claims of shipment
not received must be reported to Duravit in writing
within thirty days from the invoice date.
5. Force Majeure
Notwithstanding anything to the contrary, Seller
shall not be liable for any delay or failure to perform
hereunder when such failure or delay is, directly or
indirectly, caused by, or in any manner arises from
fire, floods, accidents, civil unrest, acts of terrorism,
acts of God, war, governmental interference or embargoes,
strikes, labor difficulties, shortage of labor,
fuel, power, materials, or supplies, breakage of
machinery or apparatus, transportation delays, or
any other cause or causes (whether or not similar
in nature to any of those hereinbefore specified)
beyond its control.
(a) Purchaser shall be in default (hereinafter
“Default”) under this Agreement and Seller may
terminate this Agreement and exercise all other
remedies in law or in equity if Purchaser: (a) fails
to make payment hereunder to Seller when due; or
(b) breaches any other term, provision or condition
contained in this Agreement; or (c) is declared to
be in default under any other agreement between
Purchaser and Seller.
(b) Upon the occurrence of a Default, Seller may
elect to exercise any one or more of the following
(i)Seller may hold the Products until such time as
Purchaser has paid the respective purchase price
and any expenses (including finance charges, returned
check fees and interest) determined at a
rate equal to the lower of eighteen percent
(18 %) per annum or the maximum rate permitted
by applicable law incurred by Seller as a consequence
of such default.
(ii) Seller may require payment in cash prior to delivery
any Products hereunder.
(iii) Seller may withhold any Products not delivered
to Purchaser at the time of the default.
(iv) Seller may terminate this Agreement.
(v) Seller may sell the Products to a third party and
require Purchaser to reimburse Seller for any losses,
or expenses associated therewith.
(vi) Seller may exercise all other rights hereunder
and may seek all other remedies available to it in
law or in equity.
(vii) Seller may assign all claims against Purchaser
to any third party.
(viii) Upon the non-payment when due of any
amount due hereunder, any and all of the debts and
liabilities of Purchaser to the Seller arising may, at
the option of the Seller and without demand or notice
of any kind be declared and immediately shall
become due and payable in full. Seller may exercise
any rights available under any agreement relating
to any liability of Purchaser to Seller.
(c) Purchaser agrees that, in the event any legal
action should be deemed necessary by Seller to
recover any sums due hereunder or under any promissory
note, trade acceptance, or invoice, or, if
applicable, to recover possession of the Products,
as defined herein above, or any proceeds from the
sales thereof, there shall be added to the sums due
from Purchaser to Seller the costs of collection,
including reasonable attorney’s fees.
(d) When reasonable grounds for insecurity arise
with respect to Purchaser’s performance, Seller
may in writing demand assurance of due performance
and until it receives such assurance may
suspend any performance for which it has not already
Under no circumstances will Duravit accept the return
of merchandise without express written authorization.
Any discontinued or special order items are
not eligible for return including but not limited to
system tubs and special order furniture. Any merchandise
ordered in error or cancelled (excluding
special order items) will be assessed at 25% restock
fee within 60 days of the shipping or invoice date.
A 50% restock fee applies within 61 to 120 days of
invoice date. No merchandise will be authorized for
return after a period of 120 days from invoice date.
Product must be returned no later than sixty days
after the date of the return goods authorization. A
rebox fee may apply. All transportation for return
goods must be paid by customer. For further information,
please refer to our return goods policy.
8. Warranties and Claims
(a) Seller warrants that
(i) the Products shall, when delivered, substantially
comply with the Product descriptions and
(ii) Seller shall convey good and marketable title to
Purchaser and that the Products will be delivered
free from any lawful lien, claim or encumbrance
other than any lien arising hereunder.
(b) Purchaser shall within five (5) working days after
the occurrence of the material defect give written
notice to Seller of any claim that the Products
do not conform with the terms of the order or have
material defects which a casual inspection would
disclose. If Purchaser fails to give such notice,
the Products shall be deemed to conform with the
terms of the order, and Purchaser shall be deemed
to have accepted and shall pay for the Products in
accordance with the terms of this order. Purchaser
expressly waives any right Purchaser may have to
revoke acceptance or claim a breach of warranty
with respect to such obvious or material defects, a
casual inspection should have disclosed after such
(c) Duravit grants a guarantee period of 5 years for
all sanitary ceramic, acrylicware and furniture and
1 year for SensoWash and 1 year for all parts to be
free of any manufacturing defect that would have
direct effect on the practical application of the item.
Duravit grants a guarantee period of 1 year for all
whirl systems and accessories, providing that the
installation is carried out by a certified plumber
and electrician. Certain variances and tolerances
are characteristic of vitreous china products that
are fired at high temperatures which are therefore
acceptable. Duravit assumes no obligation other
than the replacement of defective parts upon presentation
along with proof of purchase to selling
distributor. Duravit does not indemnify any related
labor charges, removal and reinstallation expense,
freight, postage or any incidental or consequential
damages resulting from a defective product. This
limited warranty is in lieu of our other warranties,
implied or expressed. Some states do not allow the
exclusion/limitation of incidental or consequential
damages, therefore the above limitation may not
apply to you. This limited warranty gives you specific
legal rights and you may also have other rights
which vary from state to state.
THIS WARRANTY SHALL APPLY ONLY IF THE PRODUCT
HAS BEEN IN ACCORDANCE WITH THE DURAVIT
OPERATING INSTRUCTIONS PROPERLY INSTALLED,
USED AND SERVICED. ANY UNAUTHORIZED
ALTERATION OR MODIFICATION OF THE PRODUCT
WILL VOID THIS WARRANTY. SELLER SHALL NOT BE
LIABLE FOR ANY CLAIMS RESULTING FROM MISUSE,
NEGLIGENCE, MODIFICATION, ABUSE, IMPROPER
OR FAULTY USE, IMPROPER PRODUCT APPLICATION
OR STORAGE, NORMAL WEAR AND TEAR, FAILURE
TO COMPLY WITH SELLER’S INSTRUCTIONS, IMPROPER
FUNCTION OF ANY PARTS OR MATERIALS
SUPPLIED BY PURCHASER, IMPROPER OR FAULTY
MANUFACTURING DUE TO DEFECTIVE OR IMPROPER
PARTS, MATERIALS OR DESIGNS AND BLUE PRINTS
PROVIDED BY PURCHASER. SELLER SHALL FURTHER
NOT BE LIABLE FOR ANY CLAIMS ARISING OUT
OF AND RESULTING FROM DEFECTIVE AND FAULTY
PARTS, COMPONENTS OR MATERIALS PROVIDED BY
ANY THIRD PARTY TO SELLER AND SHALL ASSIGN
ANY RELATED RIGHTS OR CLAIMS THAT SELLER HAS
AGAINST SUCH THIRD PARTY TO PURCHASER.
THE WARRANTIES SET FORTH HEREINABOVE ARE
IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR
IMPLIED. THE SALE IS MADE ON THE EXPRESS UNDERSTANDING
THAT THERE IS NO IMPLIED WARRANTY
THAT THE PRODUCTS SHALL BE FIT FOR ANY
THE PURCHASER ACKNOWLEDGES THAT
PURCHASER IS NOT RELYING ON SELLER’S SKILLS
OR JUDGMENT TO SELECT OR FURNISH PRODUCTS
SUITABLE FOR ANY PARTICULAR PURPOSE OR JOB
OR TO DETERMINE FEASIBILITY OF THE PRODUCTS
FOR ANY PARTICULAR PURPOSE. FURTHER THE
PURCHASER ACKNOWLEDGES THAT THERE ARE
NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION
HEREIN. SELLER SHALL IN NO EVENT
BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, OR
SPECIAL DAMAGES, AND DAMAGES ARISING OUT
OF THE PURCHASE, UNLOADING, HANDLING, AND
USE OF ANY PRODUCTS, ALL OF WHICH ARE WAIVED
BY PURCHASER AND IN ANY EVENT, DAMAGES
HEREUNDER SHALL BE LIMITED TO A MAXIMUM OF
THE PURCHASE PRICE. THIS WARRANTY GIVES THE
CONSUMER SPECIFIC LEGAL RIGHTS AND THE CONSUMER
MAY ALSO HAVE OTHER RIGHTS WHICH MAY
VARY FROM STATE TO STATE.
9. Intellectual Property Rights
No concepts, designs, blueprints, proposals or
other data developed by Seller for Purchaser shall
be deemed work for hire and all rights respective
thereto shall solely be with Seller and any further
development thereof shall ensue to Seller’s benefit,
except Seller agrees to the contrary in writing.
Purchaser may not use or register intellectual property
rights of Seller, including but not limited to
trademarks, designs and patents. Purchaser shall
notify Seller of any existing or threatened violations
of Seller’s intellectual property rights as soon as he
becomes aware of any such existing or threatened
violation. Purchaser agrees to sell Products in their
original packaging and design without modification.
(a) Purchaser may not assign this contract without
the express prior written consent of Seller.
(b) Except as otherwise expressly provided in Section
1(e) hereof or in a written document, signed by
Seller and Purchaser, this document and attachments
and exhibits thereto constitute the entire
agreement between Seller and Purchaser with respect
to the subject matter herein contained and
all prior agreements and communications between
Seller and Purchaser, whether oral or written, are
superseded by this Agreement.
(c) No modification, limitation, waiver or discharge
of this Agreement or of any of its terms shall bind
Seller unless in writing and signed by a duly authorized
employee of Seller. The failure of Seller to
insist, in one or more instances, on performance by
Purchaser in strict compliance with the terms and
conditions hereof shall not be deemed a waiver or
relinquishment of any right granted hereunder with
respect to any succeeding breach of the same or
other provision hereof.
(d) In connection with any litigation, including appellate
proceedings, arising out of or pertaining to
any of the contractual relationships between Seller
and Purchaser or the breach thereof, as contemplated
herein, all costs and expenses, including
reasonable attorneys fees, shall be borne by the
losing party or, as the case may be, shall be prorated
to properly reflect any partial losing or prevailing of
the parties to such litigation.
(e) This Agreement shall be governed by, and
construed, interpreted and enforced under the laws
of the State of Georgia without giving effect to the
conflict of laws principles.
(f) All notices required hereunder shall be in writing
and sent by first class mail or by telefax or
written confirmation to such addresses as stated
on the reverse side hereof.
(g) In case any conditions of this Agreement should
be or become unenforceable under applicable law,
the remaining provisions, stipulations and conditions
of this Agreement shall not be affected thereby.
Any controversy of claim arising out of or relating
to this Agreement, or the breach hereof, shall be
submitted to and be finally resolved by arbitration,
to be conducted by the American Arbitration Association
(“AAA”), with such arbitration to be held
in Atlanta, Georgia in accordance with the AAA’s
Commercial Arbitration Rules then in effect. Each
party hereby irrevocably agrees that service of process,
summons, notices, as other communications
related to the arbitration procedures shall be deemed
served and accepted by the other party five (5)
working days after having been mailed by first class
registered mail, return receipt requested, postage
prepaid, to the other party, or if actually received by
the other party. The arbitration shall be conducted
by one arbitrator, as selected by the AAA. Any award
or decision rendered in such arbitration shall be
final and binding on both parties, and judgment
may be entered thereon in any court of competent
jurisdiction if necessary. Except as may be provided
to the contrary herein, each party hereto shall
pay any and all expenses incurred by such party in
connection with such arbitration proceeding, unless
otherwise determined by the arbitrator.