General Terms and Conditions
Unless written provisions to the contrary are agreed by a director of Duravit, all our sales are exclusively carried out under the present General Terms of Sale which shall take priority over any different clauses appearing in orders or letters from our customers. Unless we otherwise agree in writing our customer’s general terms of purchase are ineffective and may in no case prevail over our own terms of sales.
Reference in these General Terms of Sale to a ‘working day’ shall exclude Saturdays and Sundays and any other day which is a public holiday in England.
The information appearing in our catalogues, leaflets, pricelists and advertising materials is given for general information only and may be subject to modification at any time. We reserve the right at any time to carry out any product modification deemed by us to be useful, or even to discontinue some of our products without prior notice notwithstanding that details of such products may still appear in our said catalogues, leaflets, pricelists and advertising materials.
Written or verbal orders received directly or through the medium of our representatives, agents and employees only become definite after we have issued an express and written order confirmation to the customer concerned. Such order confirmation will usually be sent via email. Our customers are required to notify us by 5pm on the second working days following receipt of such order confirmation if there is any error in the quantity or type of products specified in the order confirmation. After that time the order for the products specified in the order confirmation shall be deemed to have become binding on our customer and the customer shall then be no longer entitled to complain that the products ordered do not confirm to those specified in the order confirmation. Orders are subject to our approval and may be reduced or cancelled, namely in case of prior sale of products in stock. As the size and style of execution of our products are subjects to technically inevitable variations, the products are allowed the accepted tolerances in order to take the special conditions of preparation into account. The buyer is definitely bound from the moment he signs an order form or contract with one of our delegates, representatives, agents or employees. No order may be cancelled without our express written agreement. We reserve the right to refuse any order cancellation or to subject it to prior payment of compensation corresponding with the loss suffered.
Unless otherwise stated in our order confirmations, our prices are exclusive of VAT and any other applicable taxes and also exclude the cost of packaging and delivery. Whatever the date of order, our prices are invoiced in accordance with the price list in force on the day of our order confirmation. Additional or special executions shall be subject to extra charges. In case of increase in the price of raw materials or in the cost of labour for products ordered and in case such increase occurs between booking of the order and the date of delivery, our company shall be entitled to pass such increases either partly or fully on the rates in force on the day of orders confirmation. The agreed price may also be modified in presence of new fiscal clauses. Unless express, written and special commitment to the contrary, discounts and rebates granted to our customers are temporary and specific for each individual case.
Accordingly, our company reserves the right to modify or suppress such grants at any moment. Same applies to end of year discounts or rebates.
V. DELIVERIES – SHIPMENTS
In the event that we shall specify a delivery period in our order confirmation or elsewhere such delivery time shall be deemed to refer to the number of working days before we anticipate that delivery will take place. Any delivery period or delivery date given by us are given for information only and without engagement. If a down-payment is demanded with the order, the time of delivery runs from the day after receipt of this down-payment. Save as stated below delay in delivery shall neither entitle our customers to cancel the order concerned (or any other outstanding orders) nor shall it entitle our customers to receive any form of compensation payment or indemnity from us. In the event that we shall fail or shall be unable to deliver any products within 10 working days of the date specified in our order confirmation the customer shall be entitled to serve upon us a written notice requiring delivery to be made within 10 working dates of the date that such notice is received by us. In the event that we shall fail or shall be unable to deliver the products concerned within that period the customer shall be entitled to cancel that order (but not any other outstanding orders) and in such circumstances we shall refund any price already paid for those products. The customer shall be required to take delivery of the products ordered on the date, or any revised date, that we may specify as the delivery date (provided that such date is a working day and that delivery or the attempted delivery takes place between 9am and 5pm); in the event that the customer shall fail for whatever reason to accept delivery of any products on such date those products may then be stored by us at the customers risk. Warehouse charges for products which could not be delivered on the date specified shall be chargeable to the customer. Customers shall not be entitled to refuse delivery of any products for any reason including where the products delivered do not conform to the order confirmation or are defective in any way. Any products which do not conform to the order confirmation or are defective shall be dealt with in accordance with the provisions below. The same shall apply irrespective of whether delivery is made by a third party carrier or by our own employees. Where a third party carrier is appointed by us we shall be deemed to have done so as agent of the customer and to have transacted with that carrier on behalf and for account of the customer. Even when our customer is charged by us for the cost of carriage, our customers shall bear the risk of any loss of or damage to the products whilst being transported to the customer’s premises and shall also bear the risk of any delay in delivering those products to the customer’s premises where such delay occurs after the products have been collected from us by the carrier concerned. Our customers shall be required to check the quantity, quality and condition of products at the time of taking delivery, and shall notify the carrier of any apparent issues at the time of delivery and shall be require to pursue a direct remedy against the carrier in case of any delay, loss or damage caused by the carrier. Our customers shall also be required to thoroughly inspect the condition of all products and to notify us by registered letter within 5 working days of delivery or collection if there are any issues regarding the condition or quality of those products. In the event that products are stored by us in our premises or in premises belonging to third parties following a failed attempt to deliver in accordance with these General Terms of Sale or where the customer has failed to collect them on or by the date agreed with us, or where they are stored by us at the customer’s request, the customer shall bear all risk of loss or damage to those products save where such loss or damage occurs whilst those products are stored at our premises and such loss or damage is caused by our gross negligence. The cost of any packaging, frames, cases, loads or pallets (together referred to herein as ‘packaging’) which are necessary or desirable for the safe shipment of products shall be borne by the customer and we shall be entitled to invoice for the cost of the same in addition to the price payable for the products.
Moreover, the said packing shall not be taken back by us and the customer shall be responsible for disposing of or recycling the same in accordance with all applicable laws and shall indemnify us against any costs or expenses associated with disposing of or recycling such packaging.
VI. FORTUITOUS EVENT – FORCE MAJEURE
Accidents in works, lack of labour, strikes, war, political events irregular deliveries of raw materials etc, are cases of absolute necessity allowing us to suspend or annual our commitments and extend the agreed time limits without entitling the buyer to any indemnifications. The contract of sale may be expressly suspended on our own initiative by sending a registered letter with return receipt to the buyer in following cases: difficulties or refuse of exportation, difficulties to obtain administration’s acceptance of the authority to transfer capital and each time unexpected difficulties inherent in export transactions arise without preventing the sales definitively.
VII. LIABILITY – GUARANTEE
Subject as set out below in this section VII, Duravit warrants that all products shall:
(i) be free from any defects in workmanship or material;
(ii) shall conform with the technical specifications provided by Duravit for the specific model of product supplied.
For the purposes of this section technical specifications shall mean specifications contained in a technical data sheet and shall exclude any details otherwise provided in any advertising or marketing materials or on any website.
The warranty above shall not apply to damage caused in transit except where caused by Duravit’s direct employees.
Save as set out above all warranties, conditions and guarantees of any nature which are implied by law relating to the quality or fitness for purpose of the products (including but not limited to the implied conditions contained in section 14 Sale of Goods Act 1979 (as amended) are hereby excluded to the fullest extent permitted.
The customer shall be deemed to have taken due note of the technical characteristics of the products supplied by Duravit As a consequence it is expressly agreed that the customer accepts full responsibility for the choice of products ordered and Duravit accept no liability if the products are not fit for the specific purpose for which the customer intended.
Any complaint relating to possible apparent defects of the products sold by us shall only be considered if that complaint is notified to us by registered letter sent within five working days following the day on which the customer or its agent (including any third party carrier that we instructed to deliver the products to the customer) collected the products from our stores or warehouse or, should the goods be delivered by our direct employees, within five working days following the day on which the products were delivered by our employees. In the same way, any complaint relating to possible hidden defect of the products shall only be considered if such complaint is notified to us by registered letter within five working days following the date on which the customer first became aware of that hidden defect or, if earlier, within five working days following the date on which the customer should reasonably have been expected to become aware of that hidden defect.
In any case, complaints relating to hidden defects shall only be accepted if made within one month following the date on which the customer collected those products or they were delivered to the customer. Duravit shall not be required to considered any such complaint, and no such complaint shall be treated as having been properly notified to Duravit in accordance with this clause unless such complaint shall be detailed and precise, namely as to the defects noticed or non-conformity of the goods. Duravit reserves the right to examine any products which are alleged to be defective in any way.
In any event, Duravit shall not be required to consider any complaint for hidden or apparent defects if the products in question have been altered or adapted in any way or if anyone with the exception of Duravit has failed to take proper care of the same pending inspection by Duravit.
Duravit’s liability under the express warranty set out above and also under any warranty or condition implied by law (to the extent that any such implied warranty or condition cannot be lawfully excluded), is limited, according to our preference, either to replacing (at no cost to the customer) the defective or non-conforming products within a reasonable time of those products being acknowledged by us to be faulty or non-conforming, or to reimbursement of the invoice price paid in respect of those products (inclusive of any delivery or packaging charges paid. Disputes relating to the alleged defect of any products shall in no case entitle the customer to suspend or refuse payment of our invoices. The above express warranty shall not apply to, nor shall we have any liability in respect of, any products that are sold at a special prices due to being sub-standard or defective in any way and all such products shall be accepted as are. No products which are alleged to be defective shall be returned to us without our prior agreement. In no event shall any such agreement be construed as an admission that the products in question are defective or non-conforming.
In no event shall we liable for any indirect or consequential losses suffered by our customers or for any claims made against them for any indirect or consequential losses. In these General Terms of Sale the expression ‘indirect or consequential losses’ shall be deemed to include, but shall not limited to, loss of profit and/or income, loss of existing contracts or future anticipated contracts, and/or damage to reputation or goodwill.
VIII TERMS OF PAYMENT
Save where we have expressly agree in writing to grant credit terms to a customer invoices issued to customers shall be paid by bank transfer to our stated bank account upon receipt and prior to us allowing the products in question to be collected or arranging to deliver the same. Where credit terms afforded by us to customers (including where the customer is allowed to pay within a stated period after receipt of our invoice) those credit terms may be withdrawn by us at any time in our sole discretion and without us being required to give any reason for doing so. If we withdraw our credit terms then all invoices which are then outstanding shall become immediately due and payable and we shall also be entitled to require the customer to pay for all uncollected or undelivered products prior to collection or delivery of the same. If we shall withdraw our credit terms then we shall also be entitled, at our discretion, to cancel any orders which have not been fulfilled by us at the time they are withdrawn. If any time we shall have any concerns regarding a customer’s credit worthiness or whether it may be unable to continue trading , we shall also be entitled to require the customer to provide guarantees deemed by us to be appropriate for the fair fulfilment of commitments, even after partial shipment of an order. Refusal to give such guarantees shall also give us the right to cancel or suspend all or part of the transaction.
Where a customer has been expressly permitted by us to make payment within a stated period of time then the date on which the products in question are collected from us (including where they have been collected by a carrier appointed by us on the customer’s behalf) shall be the starting point of the agreed times of payment. The customer shall in no circumstances be authorised to set off or deduct any amount from the amount due to us under an invoice save where we have issued a credit advice showing the amount which the customer is entitled to deduct or set off. Without prejudice to any other rights that Duravit may have, where the customer shall fail to pay an invoice in the due date Duravit shall be entitled to charge interest at the rate specified in and in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrued daily both before and after any judgement. Additionally, Duravit shall be entitled to claim all or any other losses or expenses that it may suffer or incur as a consequence of failing to make payment by the due date or in enforcing or attempting to enforce payment. Notwithstanding any of the above or any action that Duravit may take to enforce payment of any outstanding payment, Duravit shall be entitled to rely upon the provisions set out in article IX below.
IX. TRANSFER OF PROPERTY
Notwithstanding that any products may have been collected by or delivered to the customer, ownership of those products (and all other products previously supplied by Duravit to the customer which are still in the customer’s possession, including any such products that may have been paid for) shall remain with Duravit until payment in full of the price for those products. Notwithstanding the above the risk of loss of, or damage to, such products shall transfer to the customer at the time of collection or delivery of the same or in accordance with the provisions of section V above. The customer shall be required at its own expense to maintain and preserve all products which are subject to retention of title in accordance with this section. Until ownership of any products shall transfer to the customer the customer shall ensure that all identifying codes affixed by Duravit to those products shall remain in place. The customer shall at its own expense oppose by all legal means available any claims that third parties may assert over or in respect of any products that are subject to retention of title in accordance with this section. As soon as the customer becomes aware of any such claim the customer shall inform Duravit to enable it to take steps to protect its interests. If the customer is not the proprietor of the premises in which the products subject to retention of title are stored, the customer shall inform the landlord that such products are subject to retention of title and shall obtain a written waiver from the landlord waiving any right that the landlord may other have to distrain or otherwise claim against those product.. Unless expressly authorised by Duravit, the customer shall not be entitled to remove any products that are subject to retention of title in accordance with this section from the premises to which they were first delivered. We shall be entitled at any time prior to ownership of any products transferring to the customer to demand the return of those products and/or to collect the same. The customer hereby irrevocably authorises Duravit to enter upon any premises owned or under the control of the customer in order to exercise such right. The return or collection of any products to or by us following the exercise of such right shall not relieve the customer from any obligation to compensate us for any other ;loss or prejudice that we may have suffered including any loss or prejudice suffered as a consequence of the depreciation, deterioration and /or the unavailability of the products concerned.
X. CONFIDENTIALITY AND DATA PROTECTION
The customer shall to maintain all information that it may obtain regarding Duravit and its customers, business and finances which is not publicly available, strictly private and confidential and shall not use or otherwise exploit the same to its own advantage.
XI INTELLECTUAL PROPERTY RIGHTS
As between Duravit and the customer all rights relating to the design or construction of the products (including any registered or unregistered design rights and any patents), and all copyright and design rights in any advertising materials or technical documents produced by or on behalf of Duravit, shall belong to Duravit and no such rights shall transfer at any time to the customer.
XII PLACE OF PERFORMANCE, JURISDICTION AND OTHER AGREEMENT
All our sales are deemed to have been transacted at our registered office address for the time being in the United Kingdom. These General Terms of Sale shall be interpreted in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the English courts in order to resolve any disputes arising out of these General Terms of Sale or otherwise relating to any products supplied by us to the customer provided always that nothing herein shall prevent Duravit from taking any action or bringing any proceedings before a court or other governmental authority based in any other jurisdiction where it is necessary to do so to enforce a judgment of an English court .
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