Terms & Conditions

PORCELANOSA USA FAÇADE SYSTEM TERMS AND CONDITIONS

Applicability

These Por­ven, Ltd. d/​b/​a PORCE­LANOSA USA Façade Sys­tem Terms and Con­di­tions (“Terms”) apply to and are here­inafter deemed incor­po­rat­ed by ref­er­ence in (i) the PORCE­LANOSA USA Sales Agree­ment which shall include any PORCE­LANOSA USA quo­ta­tion (“Quo­ta­tion”) (ii) as well as any and all agree­ments that relate to the sale and/​or pro­vi­sion of goods and mate­ri­als to you (“Cus­tomer”) by PORCE­LANOSA USA or any of its affil­i­at­ed enti­ties (col­lec­tive­ly with the Terms, the Agree­ment”). Accord­ing­ly, for the avoid­ance of doubt, it is under­stood and agreed that Customer’s accep­tance of any Agree­ment (which includes and is not lim­it­ed to a Quo­ta­tion) shall also be an express acknowl­edge­ment of Cus­tomers’ accep­tance of and agree­ment to these Terms. The Agree­ment is sub­ject to avail­abil­i­ty of the mate­ri­als to be supplied. 

PORCE­LANOSA USA objects to any dif­fer­ent or addi­tion­al terms being includ­ed or incor­po­rat­ed in the Agree­ment. For the avoid­ance of doubt, the Terms pre­vail over any of Customer’s gen­er­al terms and con­di­tions of pur­chase regard­less whether or when Cus­tomer has sub­mit­ted its pur­chase order or such terms. Ful­fill­ment of Customer’s order does not con­sti­tute accep­tance of any of Customer’s terms and con­di­tions and does not serve to mod­i­fy or amend these Terms.

Price and Payment

Unless stat­ed oth­er­wise, the final price quot­ed includes any Fed­er­al, State and local sales, use and excise tax­es and charges of any kind imposed by any gov­ern­men­tal author­i­ty which shall be updat­ed (if applic­a­ble) at the time of the Invoice accord­ing to the pre­vail­ing rate and the State where the exchange of mer­chan­dise takes place. The Quo­ta­tion sets out the price and terms for pay­ment and the amounts of any deposits. Unless oth­er­wise stat­ed, a ten per­cent (10%) non-refund­able deposit is required to start with the shop draw­ings, forty per­cent (40%) is required to send the goods and mate­ri­als to fab­ri­ca­tion and pay­ment of the bal­ance in full must be received upon deliv­ery or pick up at PORCE­LANOSA USA’s ware­house. A pay­ment shall be con­sid­ered effect­ed when it is avail­able for PORCE­LANOSA USA. In the case of checks, pay­ment shall be deemed effec­tive when such checks have been cashed and clear the rel­e­vant finan­cial insti­tu­tion. Cus­tomer shall not with­hold pay­ment of any amounts due and payable by rea­son of any set-off of any claim or dis­pute with PORCE­LANOSA USA, whether relat­ed to a breach by PORCE­LANOSA USA or oth­er­wise. The pay­ment terms are fun­da­men­tal to the Agree­ment and any breach of the pay­ment terms by the Cus­tomer ter­mi­nates the Agree­ment. Porce­lanosa USA shall gen­er­ate the invoic­es once the deposit has been ful­ly paid and the pro­duc­tion is ready to be shipped. Each invoice shall con­tain the total val­ue of the shipped mate­r­i­al minus the applied per­cent­age of the pre­pay­ment until completed. 

Cus­tomer is respon­si­ble for all costs incurred by PORCE­LANOSA USA to col­lect any late pay­ments, includ­ing but not lim­it­ed to attor­neys’ fees.

New Productions

The mate­r­i­al spec­i­fied in a Quo­ta­tion will be part of a unique pro­duc­tion with unique char­ac­ter­is­tics. This means that once a pro­duc­tion is com­plet­ed fur­ther pro­duc­tions will most like­ly present dif­fer­ences in tone, shad­ing, size and fin­ish. Cus­tomer acknowl­edges that every addi­tion to a Quo­ta­tion either made by a Change Order or by a new Quo­ta­tion will imply a new pro­duc­tion with all the described differences. 

Change Order

Any changes to the Quo­ta­tion shall be made through a for­mal writ­ten change order.

Sales Order

In due course, PORCE­LANOSA USA will issue its stan­dard Sales Order con­firm­ing the details of the Agree­ment sole­ly for inter­nal account­ing and track­ing pur­pos­es. The Sales Order will not be deemed to mod­i­fy the Agreement.

Order Review

Cus­tomer shall con­firm that the Quo­ta­tion con­tains full and accu­rate infor­ma­tion regard­ing the ordered mate­ri­als, includ­ing but not lim­it­ed to mate­r­i­al, price, quan­ti­ty, pay­ment and deliv­ery infor­ma­tion. Any PORCE­LANOSA USA assis­tance dur­ing the pur­chase process is based on the infor­ma­tion the Cus­tomer pro­vides. It is the Customer’s sole respon­si­bil­i­ty to pro­vide PORCE­LANOSA USA with accu­rate infor­ma­tion. PORCE­LANOSA USA shall not be liable for any mis­take aris­ing from inac­cu­rate or incom­plete infor­ma­tion pro­vid­ed by the Cus­tomer. Cus­tomer shall ver­i­fy quan­ti­ties, dimen­sions, site con­di­tions and oth­er require­ments with its installer before order­ing, where nec­es­sary, as deter­mined in the sole dis­cre­tion of Cus­tomer. Under no cir­cum­stances shall PORCE­LANOSA USA be respon­si­ble for Customer’s lack of ade­quate and suf­fi­cient due dili­gence regard­ing the require­ments for the goods and mate­ri­als pur­chased from PORCE­LANOSA USA.

Delivery

PORCE­LANOSA USA will pro­vide the Cus­tomer with an esti­mat­ed deliv­ery date for the goods and mate­ri­als in the Quo­ta­tion. Cus­tomer shall pro­vide PORCE­LANOSA USA with ade­quate and suf­fi­cient park­ing to facil­i­tate the deliv­ery. If PORCE­LANOSA USA makes a deliv­ery attempt and PORCE­LANOSA USA is unable to com­plete the deliv­ery because of inad­e­quate deliv­ery con­di­tions, Cus­tomer shall imme­di­ate­ly rem­e­dy the insuf­fi­cient deliv­ery con­di­tions and be sole­ly respon­si­ble for all deliv­ery costs incurred to affect a sub­se­quent deliv­ery. PORCE­LANOSA USA shall not be liable for any delay in per­for­mance or fail­ure to per­form which is attrib­ut­able to any cause beyond its rea­son­able con­trol, includ­ing, but not lim­it­ed to, acts of God, fire, or oth­er nat­ur­al cat­a­stro­phes, strikes, civ­il dis­obe­di­ence, gov­ern­men­tal issues, decrees or con­duct, mil­i­tary acts, fab­ri­ca­tion delays, inabil­i­ty to obtain mate­ri­als, or trans­porta­tion delays or mate­ri­al­ly changed circumstances.

PORCE­LANOSA USA’s fac­to­ry is closed dur­ing one (1) week for Christ­mas time in Decem­ber of each cal­en­dar year, two (2) weeks in August and one (1) week for East­er time in or about March/​April of each cal­en­dar year, hence Cus­tomer acknowl­edges that the afore­said clos­ing times shall affect deliv­er­ies which shall not in any way result in any charges or lia­bil­i­ty on the part of PORCE­LANOSA USA

Under no cir­cum­stances shall PORCE­LANOSA USA be respon­si­ble for any labor charges, instal­la­tion, lost prof­its, or oth­er con­se­quen­tial loss­es or spe­cial or inci­den­tal or indi­rect dam­ages aris­ing from such delays. Deliv­er­ies are to curb­side, dri­ve­way or a garage/​secured area only if acces­si­ble by pal­let jack and unless oth­er­wise agreed to in writ­ing. PORCE­LANOSA USA shall have no respon­si­bly to clean or remove trash or pack­ag­ing after delivery.

Shop Drawings

If PORCE­LANOSA USA fur­nish­es Shop Draw­ings to the Cus­tomer, said Shop Draw­ings shall be pre­pared using infor­ma­tion pro­vid­ed by Cus­tomer. Cus­tomer is respon­si­ble to pro­vide PORCE­LANOSA USA with cor­rect and accu­rate mea­sure­ments and instruc­tions. Customer’s archi­tect must val­i­date and sign the Shop Draw­ings. Under no cir­cum­stances shall PORCE­LANOSA USA be deemed to have ver­i­fied Customer’s Shop Draw­ings. PORCE­LANOSA USA is not a design pro­fes­sion­al and shall not be con­sid­ered such for the pur­pos­es of the Agreement.

Pre-Installation Verification

Upon deliv­ery, Cus­tomer shall ensure all mate­ri­als and goods ordered are in sat­is­fac­to­ry and work­ing con­di­tion before installing them. Any dam­aged, incor­rect (includ­ing short­ages, billing errors) or miss­ing goods (“Non­con­form­ing Goods”) must be report­ed in writ­ing to PORCE­LANOSA USA with­in ten (10) days of receipt (“Dam­age Report”). PORCE­LANOSA USA shall have no lia­bil­i­ty for loss­es incurred by Cus­tomer if Cus­tomer does not adhere to the Dam­age Report require­ment. If an agent or rep­re­sen­ta­tive receives the goods on the Customer’s behalf, Cus­tomer shall remain respon­si­ble to ensure all goods are in sat­is­fac­to­ry and work­ing con­di­tion and adhere to the Dam­age Report require­ment. Any claims made after the Dam­age Report peri­od shall be deemed waived and with­out merit.

(a) If a claim of Non­con­form­ing Goods is made by Cus­tomer, Cus­tomer agrees to allow PORCE­LANOSA USA the right and access to inspect the Non­con­form­ing Goods at all rea­son­able times request­ed by PORCE­LANOSA USA. Until a claim is ful­ly resolved, Cus­tomer agrees to hold the mate­ri­als in good con­di­tion and take due care of them, pro­tect­ing them from any loss or destruc­tion. Please refer to War­ran­ty of the mate­r­i­al for fur­ther details.

(b) If Cus­tomer time­ly noti­fies PORCE­LANOSA USA of Non­con­form­ing Goods, PORCE­LANOSA USA shall, in its sole dis­cre­tion (i) replace such Non­con­form­ing Goods with con­form­ing goods, or (ii) cred­it or refund the pur­chase price for such Non­con­form­ing Goods. If PORCE­LANOSA USA exer­cis­es its option to replace Non­con­form­ing Goods, PORCE­LANOSA USA shall, after receiv­ing the Non­con­form­ing Goods, ship to Cus­tomer, at Customer’s expense and risk of Loss, the replaced goods to Cus­tomer. Cus­tomer acknowl­edges and agrees that the reme­dies set forth in this Para­graph are Customer’s exclu­sive reme­dies for the deliv­ery of Non­con­form­ing Goods. Except as pro­vid­ed for in this Para­graph, all sales of goods and mate­ri­als are on a one-way basis and Cus­tomer has no right to return goods or mate­ri­als to PORCE­LANOSA USA.

Risk of Loss

Upon deliv­ery of the goods by PORCE­LANOSA USA to the Cus­tomer (or its rep­re­sen­ta­tive), either at the Customer’s place of busi­ness or upon pick up by Cus­tomer from PORCE­LANOSA USA’s ware­house, all risk of loss and dam­age to the mate­ri­als and goods shall imme­di­ate­ly trans­fer to the Cus­tomer from PORCE­LANOSA USA.

Accepted Variations

It is under­stood that some of the goods and mate­ri­als may have vari­a­tions of shad­ing, size and fin­ish (“Vari­a­tions”). Said Vari­a­tions shall not be con­sid­ered defects as long as they com­ply with approved indus­try stan­dards for like qual­i­ty goods and materials.

Installation

Instal­la­tion ser­vices are not includ­ed in the Agree­ment. All mate­ri­als should be installed accord­ing to the approved indus­try stan­dards and PORCE­LANOSA USA’s spec­i­fi­ca­tion sheets, PORCE­LANOSA USA’s manufacturer’s rec­om­men­da­tions and Shop Draw­ings, which will be pro­vid­ed upon writ­ten request. 

In the event PORCE­LANOSA USA pre­pared the Shop Draw­ings, Cus­tomer shall pro­vide its installer with said Shop Draw­ings. Instal­la­tion of the mate­r­i­al con­sti­tutes its accep­tance. For the avoid­ance of doubt, noth­ing in these Terms and/​or in the Agree­ment shall be con­strued as con­fer­ring any respon­si­bil­i­ty or oblig­a­tion on the part of PORCE­LANOSA USA to super­vise, be in charge of, pro­vide guid­ance on or direct the instal­la­tion of the goods or mate­ri­als, includ­ing but not lim­it­ed to the mon­i­tor­ing and/​or super­vis­ing same. All design issues and con­cerns and all instal­la­tion deci­sions are the sole and com­plete respon­si­bil­i­ty of the Cus­tomer and/​or its design pro­fes­sion­als. PORCE­LANOSA USA shall have no instal­la­tion or design author­i­ty notwith­stand­ing the fact that at times it may gen­er­ate shop draw­ings. Accord­ing­ly, PORCE­LANOSA USA express­ly dis­claims any respon­si­bly for any design, instal­la­tion or ser­vic­ing of the goods and/​or mate­ri­als. In the event that a PORCE­LANOSA USA agent or rep­re­sen­ta­tive is onsite dur­ing any deliv­ery or instal­la­tion of the goods and/​or mate­ri­als said PORCE­LANOSA USA rep­re­sen­ta­tive shall have no bind­ing author­i­ty on any issues rel­a­tive to instal­la­tion or delivery. 

Extra safety Material and Waste

Based on its expe­ri­ence with the mate­r­i­al, PORCE­LANOSA USA rec­om­mends that Cus­tomer pur­chase an extra quan­ti­ty to account for waste in cut­ting the mate­r­i­al for instal­la­tion. This is only a rec­om­men­da­tion; ulti­mate­ly Cus­tomer and/​or its installer will decide and be sole­ly respon­si­ble for order­ing the cor­rect quan­ti­ty. PORCE­LANOSA façade sys­tem is pro­vid­ed by default with plus/​minus 34″ in-and-out tol­er­ance. For sit­u­a­tions where the back­up wall or sur­face is out of plumb by more than 34″, we strong­ly encour­age the Cus­tomer to antic­i­pate and request longer brack­ets pri­or to com­ple­tion of shop draw­ings and ship­ping, so to avoid addi­tion­al cost.

P 404 Chemical Adhesive

Cus­tomer acknowl­edges that P 404 Chem­i­cal Adhe­sive (“Adhe­sive”) expires. Accord­ing­ly, it will be sup­plied in par­tial ship­ments. Cus­tomer will be respon­si­ble to use the Adhe­sive pri­or to its expi­ra­tion and for every extra order of Adhe­sive it may require.

Retention of Title

PORCE­LANOSA USA remains the legal own­er of the mate­r­i­al until pay­ment has been received in full. If Cus­tomer obtains pos­ses­sion of Mate­ri­als before then, Cus­tomer agrees to hold them on PORCE­LANOSA USA’s behalf until full pay­ment has been received. Cus­tomer will then become the legal owner.

Cancelation of an order

Can­cel­la­tions after pay­ment of the deposit required to start with the shop draw­ings shall be per­mit­ted although the amount paid is not refund­able. Once the items have been sent to fab­ri­ca­tion, no can­ce­la­tions will be per­mit­ted and the entire of the amount of the order shall be due and owing.

Returns and Exchanges Policy

Façade projects are con­sid­ered spe­cial orders and there­fore mate­r­i­al can­not be returned or exchanged.

Limitation of Liability

FOR THE AVOID­ANCE OF DOUBT, IN NO EVENT SHALL PORCE­LANOSA USA BE LIABLE FOR ANY CON­SE­QUEN­TIAL, INDI­RECT, INCI­DEN­TAL, SPE­CIAL, EXEM­PLARY, OR PUNI­TIVE DAM­AGES, LOST PROF­ITS OR REV­ENUES OR DIMINU­TION IN VAL­UE, ARIS­ING OUT OF OR RELAT­ING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POS­SI­BIL­I­TY OF SUCH DAM­AGES HAVE BEEN DIS­CLOSED IN ADVANCE BY CUS­TOMER OR COULD HAVE BEEN REA­SON­ABLY FORE­SEEN BY CUS­TOMER, REGARD­LESS OF THE LEGAL OR EQUI­TABLE THE­O­RY (CON­TRACT, TORT OR OTH­ER­WISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITH­STAND­ING THE FAIL­URE OF ANY AGREED OR OTH­ER REM­E­DY OF ITS ESSEN­TIAL PURPOSE.

IN NO EVENT SHALL PORCE­LANOSA USA’S AGGRE­GATE LIA­BIL­I­TY ARIS­ING OUT OF OR RELAT­ED TO THE AGREE­MENT, INCLUD­ING BUT NOT LIM­IT­ED TO THE TERMS, WHETHER ARIS­ING OUT OF OR RELAT­ED TO BREACH OF CON­TRACT, TORT (INCLUD­ING NEG­LI­GENCE) OR OTH­ER­WISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO PORCE­LANOSA USA FOR THE GOODS AND MATE­RI­ALS SOLD HERE­UN­DER IN THE SIX (6) MONTHS PRI­OR TO THE SUB­JECT DIS­PUTE ARISING.

Compliance with Law

Cus­tomer shall com­ply with all applic­a­ble laws, reg­u­la­tions and ordi­nances. Cus­tomer shall main­tain in effect all the licens­es, per­mis­sions, autho­riza­tions, con­sents and per­mits that it needs to car­ry out its oblig­a­tions under the Agreement.

Termination

In addi­tion to any reme­dies that may be pro­vid­ed under these Terms, PORCE­LANOSA USA may ter­mi­nate the Agree­ment with imme­di­ate effect upon writ­ten notice to Cus­tomer , if Cus­tomer (i) fails to pay any amount when due under the Agree­ment and such fail­ure con­tin­ues for ten (10) days after Customer’s receipt of writ­ten notice on non­pay­ment; (b) has not oth­er­wise per­formed or com­plied with any of these Terms, in whole or in part; or © becomes insol­vent, files a peti­tion for bank­rupt­cy or com­mences or has com­menced against it pro­ceed­ings relat­ing to bank­rupt­cy, receiver­ship, reor­ga­ni­za­tion or assign­ment for the ben­e­fit of creditors.

Waiver

No waiv­er by PORCE­LANOSA USA of any of the pro­vi­sions of the Agree­ment is effec­tive unless explic­it­ly set forth in writ­ing and signed by PORCE­LANOSA USA. No fail­ure to exer­cise or delay in exer­cis­ing, any right, rem­e­dy, pow­er or priv­i­lege aris­ing from this Agree­ment oper­ates or may be con­strued as a waiv­er there­of. No sin­gle or par­tial exer­cise of any right, rem­e­dy, pow­er or priv­i­lege here­un­der pre­cludes any oth­er or fur­ther exer­cise there­of or the exer­cise of any oth­er right, rem­e­dy, pow­er or privilege.

Confidential Information

All non-pub­lic, con­fi­den­tial or pro­pri­etary infor­ma­tion of PORCE­LANOSA USA, includ­ing, but not lim­it­ed to, the terms of the Agree­ment, spec­i­fi­ca­tions, sam­ples, pat­terns, designs, plans, draw­ings, doc­u­ments, data, busi­ness oper­a­tions, cus­tomer lists, pric­ing, dis­counts or rebates, dis­closed by PORCE­LANOSA USA to Cus­tomer, whether dis­closed oral­ly or dis­closed or accessed in writ­ten, elec­tron­ic or oth­er form or media, and whether or not marked, des­ig­nat­ed or oth­er­wise iden­ti­fied as con­fi­den­tial,” in con­nec­tion with the Agree­ment is con­fi­den­tial, sole­ly for the use of per­form­ing the Agree­ment and may not be dis­closed or copied unless autho­rized in advance by PORCE­LANOSA USA in writ­ing. Upon PORCE­LANOSA USA’s request, Cus­tomer shall prompt­ly return all doc­u­ments and oth­er mate­ri­als received from PORCE­LANOSA USA. PORCE­LANOSA USA shall be enti­tled to injunc­tive relief for any vio­la­tion of this Sec­tion. This Sec­tion does not apply to infor­ma­tion that is: (a) in the pub­lic domain; (b) known to Cus­tomer at the time of dis­clo­sure; or © right­ful­ly obtained by Cus­tomer on a non-con­fi­den­tial basis from a third party.

Assignment/Amendment

Cus­tomer shall not assign or amend any of its rights or del­e­gate any of its oblig­a­tions under this Agree­ment with­out the pri­or writ­ten con­sent of PORCE­LANOSA USA. Any pur­port­ed assign­ment or del­e­ga­tion or amend­ment in vio­la­tion of this Sec­tion is null and void. No assign­ment or del­e­ga­tion relieves Cus­tomer of any of its oblig­a­tions under this Agreement.

Relationship of the Parties

The rela­tion­ship between the par­ties is that of inde­pen­dent con­trac­tors. Noth­ing con­tained in this Agree­ment shall be con­strued as cre­at­ing any agency, part­ner­ship, joint ven­ture or oth­er form of joint enter­prise, employ­ment or fidu­cia­ry rela­tion­ship between the par­ties and nei­ther par­ty shall have author­i­ty to con­tract for or bind the oth­er par­ty in any man­ner whatsoever.

No Third-Party Beneficiaries

This Agree­ment is for the sole ben­e­fit of the par­ties here­to and their respec­tive suc­ces­sors and per­mit­ted assigns and noth­ing here­in, express or implied, is intend­ed to or shall con­fer upon any oth­er per­son or enti­ty any legal or equi­table right, ben­e­fit or rem­e­dy of any nature what­so­ev­er under or by rea­son of these Terms.

Governing Law

All mat­ters aris­ing out of or relat­ing to this Agree­ment is gov­erned by and con­strued in accor­dance with the inter­nal laws of the State of New York with­out giv­ing effect to any choice or con­flict of law pro­vi­sion or rule (whether of the State of New York or any oth­er juris­dic­tion) that would cause the appli­ca­tion of the laws of any juris­dic­tion oth­er than those of the State of New York. Any legal suit, action or pro­ceed­ing aris­ing out of or relat­ing to this Agree­ment shall be insti­tut­ed in the fed­er­al courts of the Unit­ed States of Amer­i­ca or the courts of the State of New York

Notices

All notices, requests, con­sents, claims, demands, waivers and oth­er com­mu­ni­ca­tions here­un­der (each, a Notice”) shall be in writ­ing and addressed to the par­ties at the address­es set forth in the Agree­ment or to such oth­er address that may be des­ig­nat­ed by the receiv­ing par­ty in writ­ing. All Notices shall be deliv­ered by per­son­al deliv­ery, nation­al­ly rec­og­nized overnight couri­er (with all fees pre-paid), fac­sim­i­le (with con­fir­ma­tion of trans­mis­sion) or cer­ti­fied or reg­is­tered mail (in each case, return receipt request­ed, postage pre­paid). Except as oth­er­wise pro­vid­ed in this Agree­ment, a Notice is effec­tive only (a) upon receipt of the receiv­ing par­ty, and (b) if the par­ty giv­ing the Notice has com­plied with the require­ments of this Section.

Severability

If any term or pro­vi­sion of this Agree­ment is invalid, ille­gal or unen­force­able in any juris­dic­tion, such inva­lid­i­ty, ille­gal­i­ty or unen­force­abil­i­ty shall not affect any oth­er term or pro­vi­sion of this Agree­ment or inval­i­date or ren­der unen­force­able such term or pro­vi­sion in any oth­er jurisdiction.

Attorneys’ Fees

Cus­tomer shall reim­burse PORCE­LANOSA USA for any and all attor­neys’ fees aris­ing from or relat­ed to enforce­ment of this Agreement.