(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 the reverse side hereof
(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
(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
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) Made to order
products have extended lead time. All made to order products 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 to Purchaser.
(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
(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 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 damages caused by delays
(b) Purchaser agrees that
it will pick up or cause a common carrier to pick up
the Products at Seller’s place of business 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
(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 counter claims not acknowledged and accepted by Seller.
(d) Seller reserves the
right to make the Products available for pick-up and
delivery in installments. Delay in delivery of any
installment shall not relieve Purchaser of its
obligation to accept remaining deliveries.
(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
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
(iv) Seller may terminate
(v) Seller may sell the
Products to a third party and require Purchaser to
reimburse Seller for any losses, or expenses associated
(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 payment.
Under no circumstances
will Duravit accept the return of merchandise without
express written authorization. Any discontinued or made
to order products are not eligible for return. Any merchandise ordered in error
or cancelled (excluding special order items) will be assessed at 25% restock
fee within 90 days of the shipping or invoice date. No merchandise will be
authorized for return after a period of 90 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
8. Warranties and Claims
(a) Seller warrants that
(i) the Products shall,
when delivered, substantially comply with the Product
(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, acrylic
ware, solid surface and furniture and 3 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 accessories and
toilet seats, 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 HEREIN ABOVE 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 PARTICULAR PURPOSE. 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
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
(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 attorney’s 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
(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.
THIS PRICE LIST
SUPERSEDES ANY AND ALL PREVIOUS PRICE LISTS.