General Terms and Conditions of Sale and Delivery for the United States, Canada and Mexico
1 General Points; Area of Application
1.1. These General Terms and Conditions of Sale and Delivery of shall apply exclusively to all sales by Walter K. Inc. and/or Walter Knoll AG & Co. KG (hereinafter referred to as “Seller”) and any sales by Seller are conditioned on Buyer’s acceptance thereof. Any other terms and conditions which contradict or differ from these Terms and Conditions of Sale and Delivery are hereby rejected and shall not be recognized unless Seller has given express consent in writing thereto.
1.2 These Terms and Conditions of Sale and Delivery shall also apply to all future transactions with Buyer.
2 Offer - Acceptance
2.1 Any and all orders for Goods placed by Buyer shall be subject to and contingent upon written acceptance by Seller and shall not take effect or be final and binding as a contract unless and until Seller issues a written order acknowledgment to Buyer, signed by a duly authorized officer or agent of Seller expressly confirming the order.
2.2 No oral agreements between Buyer and Seller or written requests or communication, electronic or otherwise, made by Buyer to Seller shall be binding on Seller unless and until Seller issues an order acknowledgement or modification thereof to Buyer, signed by a duly authorized officer or agent of Seller expressly confirming the terms thereof.
3 Prices and Payment
3.1 Prices shall be in the currency as set forth in Seller’s order acknowledgment to Buyer. Seller reserves the right to make price adjustments to reflect increases of costs of production and delivery, such as increases in labor, raw materials, energy, etc., provided that delivery of the finished Product Ex-Works does not take place within two (2) months of the date of order acknowledgment by Seller.
3.2 In the absence of a separate agreement, prices shall always be Ex-Works, including loading at the works but excluding packaging which shall be charged separately.
3.3 The specified prices shall be net; any applicable value added tax, shipping, customs clearance, insurance, etc. shall be added at the rate applicable on the date of issuing the invoice and separately identified.
3.4 In the absence of a separate agreement, accounts receivables arising from this contract shall be payable as follows: Payment must be made within 30 days of the invoice date without deduction.
3.5 Seller shall be entitled to initially allocate payment made by Buyer to the oldest unpaid debt even in the event of conflicting appropriation. Where costs or interest have already accrued, Seller shall be entitled to allocate payments against the costs first, then the interest and finally the main debt.
3.6 Any past-due balances shall accrue a service charge of 1.5% per month until paid. Seller shall have the right to suspend performance or withhold deliveries in the event of default in any payment and to require payment in cash, the giving of security, or other adequate assurance from Buyer satisfactory to Seller, in the event Seller reasonably deems itself insecure on account of Buyer’s financial condition or otherwise. In the event of default in payment, Buyer shall pay all costs incurred by Seller, including its reasonable attorneys’ fees in order to enforce payment or collection of past-due sums from Buyer.
4 Handling and Processing of Buyer-Supplied Fabrics
4.1 Buyer may furnish fabrics sourced by Buyer to Seller for incorporation into the Goods (“Buyer Supplied Fabrics”). Buyer Supplied Fabrics are to be sent free of charge to Seller’s factory, supplied rolled up and in clean packaging including a delivery note referencing the details of the order.
4.2 The required amount of Buyer Supplier Fabric required for filling the order from single-colored flat weaves shall be calculated in good faith by Seller and communicated to the Buyer in writing based on use of single colored flat-weaves. In the event additional fabric material is needed, Seller will so inform Buyer upon determining the shortfall. The time for completion of the Buyer’s order will be extended accordingly until all Buyer Supplied Fabric for completing the order is delivered to Seller.
4.3 Seller shall have no responsibility or liability for the suitability, wrinkling, discoloring or other defects resulting from Buyer Supplied Fabric. Seller shall have no responsibility or liability for any warranty claim arising from Buyer Supplied Fabric.
5 Delivery; Delivery Date; Force Majeure; Default
5.1 Delivery period and delivery dates are approximations only, and shall not be binding, unless they have been committed to in writing by Seller as a specifically agreed delivery period or delivery date. All deliveries shall be Ex- Works from Seller’s warehouse. Seller takes no responsibility, and shall not be held responsible or liable whatsoever, for any delay in delivery to Buyer or mishandling or damage to the Goods once the Goods leave Seller’s warehouse. Seller shall not be bound by the delivery date or delivery period where Buyer fails to comply with its obligations (payment of installments, production of the necessary documentation, etc.) within the agreed time schedule.
5.2 Delivery periods shall commence no earlier than the day on which the contract is concluded in writing. Commencement of work by Seller shall begin only after clarification of all technical questions to Seller’s reasonable satisfaction.
5.3 In the case of subsequent change requests by Buyer, the delivery date or delivery period shall be extended to a later date determined by Seller.
5.4 Fire, flood, strikes, lockout, epidemic, accident, shortage of customarily used transportation equipment (or suitable substitute), or other causes beyond the reasonable control of the parties which prevent Seller from delivering, or Buyer from receiving and/or using the Goods, shall operate to suspend deliveries during the period required to remove such cause, and shall be considered an excused “force majeure” event.
5.5 Seller reserves the right to make partial deliveries as reasonably determined by Seller. If the Buyer does not authorize shipment of the Goods within ten (10) days of notification by Seller to Buyer of availability of the Goods for shipment, Seller will store the Goods at Buyer’s risk and expense and invoice the Buyer accordingly. Seller reserves the right to invoice Buyer EUR 1.00 per cubic meter of Goods for each day of storage.
6 Warranty; Damages Limitation
6.1 SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS SOLD EXCEPT THE WARRANTIES EXPRESSLY INCLUDED HEREIN. SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR WARRANTY OF USE OR FITNESS OF THE GOODS. THE FOLLOWING WARRANTIES ARE IN LIEU OF THE WARRANTY OF USE OR FITNESS FOR A PARTICULAR PURPOSE.
6.2 Seller warrants that the Goods will conform to the description and specifications in the confirmed purchase order under which they are shipped and will be free from material defects in materials and workmanship for a period of two (2) year(s), commencing on the date the Goods are received by Buyer. The following are expressly excluded from warranty coverage: defects resulting from (a) improper storage, installation or maintenance of the Goods by Buyer in accordance with Seller’s instructions or guidelines; (b) normal wear and tear; (c) misuse, abuse, improper or careless handling, or accidental damage; (d) use of the Goods in unsuitable environments or conditions; (e) fading, discoloration or natural variations in leather or fabric; (f) modification or repair of the Goods by Buyer or a third party not authorized by Seller; or (g) consumables such as lamps, Buyer’s own materials or non-standard textiles or materials. 6.3 If the Goods fail under ordinary use as a result in a material defect in materials or workmanship, Seller will (a) repair or, at Seller’s option, replace the affected Goods at no charge, with a comparable new or refurbished product or (b) refund or credit the purchase price for the affected Goods, in Seller’s reasonable discretion.
6.4 SELLER SHALL NOT BE LIABLE FOR ANY OTHER DAMAGES, INCLUDING INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, USE, PRODUCTION, RAW MATERIALS, OR END PRODUCTS), OR FOR ANY OTHER CLAIMS OR DAMAGES ARISING OUT OF THE PURCHASE, DELIVERY, INSTALLATION, OR USE OF THE GOODS WHETHER CLAIMED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. Buyer shall have no cause of action for breach of warranty unless Buyer has given prompt notice in writing to Seller of any claims under this warranty and has given Seller a reasonable opportunity to correct the claimed defect. Any suit or cause of action for breach of warranty must be brought prior to the lapse of twelve (12) months following expiration of the warranty period, or be forever barred.
7 General Provisions
7.1 Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules for New York, New York, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
7.2 New York law shall apply exclusively with the exception of the United Nations Convention on the International Sale of Goods (CISG).
7.3 If any provisions of the contract are invalid or unlawful, the remaining provisions shall not be affected thereby. The parties shall be deemed to replace the invalid or unlawful provision with a valid one which corresponds most closely to the economic purpose of the contract.