Terms & Conditions
PORCELANOSA USA FAÇADE SYSTEM TERMS AND CONDITIONS
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.
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.
Any changes to the Quotation shall be made through a formal written change 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.
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.
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.
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.
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.
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 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 3⁄4″ in-and-out tolerance. For situations where the backup wall or surface is out of plumb by more than 3⁄4″, 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.
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.
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.
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.
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.
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
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.
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.
Customer shall reimburse PORCELANOSA USA for any and all attorneys’ fees arising from or related to enforcement of this Agreement.