GENERAL CONDITIONS OF SALE
1) BUYER’S ACCEPTANCE OF SELLER’S GENERAL CONDITIONS OF SALE
These General Conditions of Sale shall apply to every Contract of Idea Ceramica USA (“Seller”) for the sale of goods or articles (“Merchandise”) to a person who has purchased or agreed to purchase Merchandise from Seller (the “Buyer”), unless Seller otherwise specifically agrees in writing. By placing any order for Merchandise, the Buyer agrees to these General Conditions of Sale. Any other terms or conditions which may at any time be indicated by the Buyer’s order from or otherwise (whether oral, typed, written or printed) shall be null and void and of no effect even if not expressly objected to by Seller.
2) ACCEPTANCE AND CONFIRMATION OF ORDER
All orders of the Buyer, whether taken by any agent of Seller at shows or otherwise, are subject to Seller’s approval and may be accepted or modified by Seller, in whole or in part. A partial acceptance by Seller of any such order shall not constitute an acceptance of any other part of the order. No order of the Buyer will be binding upon Seller unless accepted by Seller at Seller’s office in on seller’s form of Order Confirmation, and then only as and to the extent set forth in such Order Confirmation. Any term, condition or provision set forth in Seller’s Order Confirmation which is not objected to by the Buyer in writing within ten days after the date thereof will conclusively be deemed to have been accepted by the Buyer. Seller’s Order Confirmation shall be controlling regarding the Merchandise and quantities sold or required to be sold by Seller to the Buyer. Every order of the Buyer will be binding on the Buyer unless and until it is rejected in writing by Seller, and may not be cancelled withdrawn or modified by the Buyer; however, in the event of a partial acceptance by Seller, the Buyer will no longer be bound with respect to the parts of the order not accepted by Seller.
Unless otherwise specifically agreed by Seller in writing, the Buyer will pay the prices of Seller for the Merchandise in effect at the time of shipment and all prices quoted or invoiced by Seller are for delivery ex-factory, excluding transportation and shipping charges, taxes, fees and customs duties. Seller’s prices may, at Seller’s option, be increased, after Seller’s acceptance of the Buyer’s order, to reflect any increases in Seller’s materials, labor or other costs. Seller will notify the Buyer of any such price increase within thirty days from the date of such increase.
4) DISCOUNTS AND ALLOWANCES
Except as expressly provided in Seller’s Order Confirmation or otherwise agreed by Seller in writing, the Buyer will not be entitled to any discount, allowance, rebate, settlement or commission or any kind, directly or indirectly. No agent of Seller is authorized to issue or agree to any such discount, allowance, rebate, settlement or commission on behalf of Seller. Any discount granted by Seller for prepayment of any invoice will be allowed only if the full amount specified in the invoice is received by Seller on or before the due date of the invoice.
5) TIME OF DELIVERY
Any delivery dates specified by Seller will deemed to be estimates only. In no event is the time of delivery of the Merchandise of the essence. Seller reserves the right to cancel, in whole or in part, or to suspend or delay, in whole or in part, any orders due to (I) the unusually large size of an order (II) exigencies of Seller’s production or delivery schedule (III) shortages of, or failures of Seller’s suppliers to deliver, or delays of Seller’s suppliers in delivering materials, (IV) work stoppages or other labor troubles, (V) acts of God or (IV) any event in the nature of force majeure or beyond Seller’s control. Delivery dates will be extended by the amount of any additional time required by Seller to make delivery as a result of any such condition or event or any change in the Contract. Seller also reserves the right to discontinue particular Merchandise or lines of Merchandise, or to substitute other Merchandise or lines, in response to production and market requirements and demands. The Buyer waives any and all claims and rights which the Buyer might otherwise have arising out of or in connection with or relating to any delay in delivery of the Merchandise for any reason whatsoever or any failure of Seller to deliver by reason of the exercise by Seller of any of its rights pursuant to these General Conditions of Sale, including, without limitation, any and all claims for or rights to direct, indirect, incidental, consequential or other damages or compensation, and any and all rights to terminate or cancel the Contract, in whole or in part.
6) RISK OF LOSS
Irrespective of any C.I.F., F.O.B. or other terms of sale which may be specified, and irrespective of whether the transportation or shipping charges are paid by Seller: (I) all risk of loss or damage to the Merchandise shall pass to the Buyer upon delivery of the Merchandise by Seller to a carrier; (II) any shipping arrangements made by Seller with carriers or forwarding agents at the Buyers’ request shall be made solely on the Buyer’s behalf and at the Buyer’s sole cost and risk; (III) any agent appointed for such shipment shall be solely the Buyer’s agent for all purposes; (IV) the Buyer shall be responsible for all the unloading and receipt of the Merchandise at its destination; and (V) any claim for loss or damage shall be made by the Buyer solely against the carrier.
7) TERMS OF PAYMENT
a) The Buyer shall make payment at Seller’s office in accordance with the provisions of the Contract. Payment shall be made by the Buyer notwithstanding any claim, including, without limitation, any claim for any alleged defect, fault or irregularity in the Merchandise. Unless otherwise specifically agreed by Seller in writing, payment by the Buyer is due upon receipt of Seller’s invoice in the currency stated in the invoice. Acceptance by Seller of any check, draft, promissory note or other instrument will not constitute payment until Seller has collected the full amount in cash. In the event of any delay in payment, Seller shall have the right to suspend deliveries and may, at its option (I) require immediate payment of all or any part of any and all sums owed by the Buyer, or guarantees or security for such payment satisfactory to Seller, irrespective of any credit terms previously agreed to, and (II) terminate the Contract (as well as any and all other contracts with the Buyer), in whole or in part, and hold the Buyer liable for damages. In the event Seller does not reserve any payment by the due date the Buyer shall pay to Seller interest on the unpaid amount, from the due date to the date payment is actually received by Seller, at a rate equal to five percent above the official rate during such period or the highest rate permitted by law, whichever is less. Seller’s right to such interest shall be in addition to, and not in lieu of, all other rights and remedies arising by reason of such nonpayment. Any payment received by Seller may be applied to any outstanding balance owed by the Buyer, and the Seller, at its sole discretion may determine, any instructions of the Buyer to the contrary notwithstanding.
b) Irrespective of any payment or credit terms specified or agreed to by Seller. Seller may, at its sole discretion, at any time and from time to time, require payment in cash before shipment of any or all of the Merchandise, or require payment in advance of any or all amounts due or to become due under the Contract. If Seller believes in good faith that the Buyer’s ability to make the payments required by the Contract is or may become impaired, Seller may, at its sole discretion, cancel or terminate the Contract, in whole or in part, the Buyer remaining liable to pay for any Merchandise already shipped.
8) WARRANTIES; COLOR, TONE AND SHADE VARIATIONS
A) EXCEPT FOR SUCH EXPRESS WRITTEN WARRANTIES AS MAY BE MADE BY SELLER TO THE BUYER, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANDISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Moreover, any written warranty made by Seller to the Buyer with respect to any Merchandise applies only to export grade Merchandise and does not apply to any other Merchandise, including, without limitation, second or third quality Merchandise, bulk Merchandise or occasional stock.
B) The Buyer takes full and complete responsibility for ascertaining whether the Merchandise meets the requirements of or is suitable for the Buyer’s intended use, regardless of any suggestion or direction given by Seller with respect to the Merchandise or the use thereof. Under no circumstances does Seller make, or shall Seller be deemed to have made, any warranty or representation, express or implied, with respect to match or with respect to the uniformity or any other aspect of the color, tone or shade of the Merchandise, or with respect to the conformity of the Merchandise to the color, tone or shade of any sample. The Buyer acknowledges that variations in color, tone and shade are characteristics of the Merchandise and are inherent and unavoidable, and that Seller’s samples are only approximations of the Merchandise and are only intended to give the Buyer a general idea of the Merchandise.
C) In particular, and without limitation, under no circumstances does Seller make, or shall Seller be deemed to have made, any warranty or representation, express or implied, by reason of any statement, description or illustration in any brochure or other literature or by reason of having furnished a sample of any Merchandise.
(a) Any breach of warranty or other claim by the Buyer of any and every kind, including, without limitation, claims for defects known or unknown, must be specific and must be made in writing dispatched to seller, by registered air mail, to Seller’s office in return receipt requested, prior to the installation, use or application of the Merchandise and, in any event, not later than eight days from the date of receipt of the Merchandise with respect to which the claim is made. Failure to make any claim in such manner or within such time shall constitute an irrevocable acceptance of the Merchandise and an admission by the Buyer that the Merchandise fully complies with all the terms, conditions and specifications of the Contract. In no event may any claim be made by the Buyer for Merchandise which has already been installed, used or applied.
(b) In the event of any breach of any warranty or any other obligation of Seller, Seller may, at its election, either (i) replace the Merchandise affected or (ii) cancel or terminate the Contract, in whole or in part, without any obligation to replace any Merchandise. The Buyer waives any and all other claims and rights which the Buyer might otherwise have arising out of or in connection with or relating to any and all such breaches, including, without limitation, any and all claims for or rights to direct, indirect, incidental, consequential, punitive or other compensation or damages, and any and all rights to terminate or cancel the Contract, in whole or in part.
(c) Acceptance of any part of the Merchandise shall constitute acceptance of all of the Merchandise, whether or not the Merchandise is all tendered in one shipment.
(d) No Merchandise may be returned by the Buyer without the prior written authorization of Seller. All returns shall be subject to verification on arrival at the location specified, in such written authorization, for the return of the Merchandise. All returns are subject to a 25% restocking fee charge. Only merchandise in full unopened and original cartons will be accepted. All returns shall be delivered to the location indicated by Seller in writing at Buyer’s expense. A store credit will be issued for all accepted returns.
10) TITLE TO AND SECURITY INTEREST IN MERCHANDISE
Until Seller collect in full all amounts required to be paid by the Buyer for the Merchandise, as well as any and all other amounts owed by the Buyer to Seller, Seller retains title to the Merchandise, and Seller shall have a security interest in the Merchandise, under the Uniform Commercial Code as in effect in the United States, to secure the payment of all such amounts. By placing an order with Seller, the Buyer appoints Seller as its attorney-in-fact to sign and file any and all financing statements with respect to such security interest which Seller may deem necessary or desirable, or to file such financing statements without signature of the Buyer to the extent permitted by law. The Buyer shall, at the request of Seller, execute any and all financing statements and other documents which the Seller may request to perfect or evidence such title and such security interest.
11) COSTS OF COLLECTION
In the event Seller institutes proceedings to collect any amount owed by the Buyer, or to enforce any right under the Contract, including enforcement of any security interest granted to Seller, the Buyer shall reimburse Seller for all costs incurred in such legal proceedings, including reasonable attorneys’ fees. The competent authority in any and all dispute id the Miami-Dade Court.
12) PROPRIETARY RIGHTS
All rights in designs, trade names, trademarks and copyrights of Seller used on or in connection with the Merchandise are proprietary and shall remain the exclusive property of Seller, and the Buyer shall have no right or interest therein or with respect there to. The Buyer shall not reproduce or simulate, or cause or allow anyone to reproduce or simulate, either directly or indirectly, any such design, trade name, trademark or copyright.
13) TERMINATION OF THE CONTRACT
Seller shall have the right to cancel or terminate the Contract, in whole or in part, (I) within one hundred twenty days from the date of Seller’s Order Confirmation, in Seller’s sole discretion, or (II) at any time, in the event Seller experiences difficulties in obtaining regular or sufficient supplies of for or rights to direct, indirect, incidental, consequential, punitive or other damages or compensation, arising out of or in connection with or relating to any cancellation or termination, in whole or in part, pursuant to this or any other paragraph of these General Conditions of Sale, of the Contract or any other contract between Seller and the Buyer.
14) APPLICABLE LAW
The contract shall be governed by and construed in accordance with the law of Florida, without giving effect to conflict of laws principles, except that the rights of Seller pursuant to its security interest in the Merchandise shall be governed by and construed in accordance with the Uniform Commercial Code as in effect in United States.
15) JURISDICTION AND VENUE. SUBJECT TO THE TERMS OF THIS AGREEMENT, THE PARTIES AGREE THAT ANY AND ALL ACTIONS ARISING UNDER OR IN RESPECT OF THIS AGREEMENT SHALL BE LITIGATED IN THE FEDERAL OR STATE COURTS IN MIAMI DADE COUNTY, FLORIDA. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS FOR ITSELF, HIMSELF, OR HERSELF AND IN RESPECT OF ITS, HIS OR HER PROPERTY WITH RESPECT TO SUCH ACTION. EACH PARTY AGREES THAT VENUE WOULD BE PROPER IN ANY OF SUCH COURTS, AND HEREBY WAIVES ANY OBJECTION THAT ANY SUCH COURT IS AN IMPROPER OR INCONVENIENT FORUM FOR THE RESOLUTION OF ANY SUCH ACTION. THE PARTIES FURTHER AGREE THAT THE MAILING BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, OF ANY PROCESS REQUIRED BY ANY SUCH COURT SHALL CONSTITUTE VALID AND LAWFUL SERVICE OF PROCESS AGAINST THEM, WITHOUT THE NECESSITY FOR SERVICE BY ANY OTHER MEANS PROVIDED BY STATUTE OR RULE OF COURT.
The Contract cannot be orally changed, modified, amended or discharged, in whole or in part. Any change, modification, amendment or discharge, to effective, must be in writing, signed by an officer of Seller.