(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 (“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 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 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 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 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 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 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 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
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 payment.
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 five-day period.
(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 all whirl systems, 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 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.