1. Purchase of Products(a) Except to the extent otherwise 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
2. Prices(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.
3. Payment(a) Unless otherwise expressly agreed upon in writing, payment shall be made in full within thirty (30) days of receipt of Seller’s invoice.
4. Delivery(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 pick-up 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
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 options: (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 received
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.
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.
10. Miscellaneous(a) Purchaser may not assign this contract without the express prior written consent of Seller.
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.
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