TERMS AND CONDITIONS
1. Applicability
(a) These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the goods ("Goods") by ITA DESIGN LLC. (the "Seller") to the customer named on the Sales Confirmation (as defined below) (the "Buyer").
(b) The accompanying customer quotation (the "Sales Confirmation"), the Purchase Order (as defined below) and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
2. Acknowledgement
Buyer acknowledges and agrees that, (a) each Sales Confirmation shall be only valid for a period of thirty (30) calendar days from the date of issuance and shall not be binding (and therefore shall not be deemed to be accepted) unless the Buyer delivers to the Seller a written confirmation (email being sufficient) of the Buyer´s acceptance of the Sales Confirmation approving the samples and confirming the final dimensions (the “Purchase Order”), (b) unless otherwise set forth in the Sales Confirmation, the production of the Goods takes an estimated time of twenty (20) to twenty-four (24) weeks from the later of, (i) the Buyers’ written approval of the sample provided by Seller, or (ii) the Initial Deposit (as defined below). Time estimations are intended to be an estimation and are not binding on the Seller, (c) Buyer shall be fully responsible for confirming and correlating the final dimensions and quantities required for their respective order in the corresponding Purchase Order, (d) the Goods are handwoven using natural fibers or leather which is subject to variations in color, texture, pattern and alignment; as well as variations in calf hair length and hair direction. These variations or slight imperfections are an intrinsic part of the Goods. (e) Subtle variations in metal finish and / or color may occur between batches due to the nature of the PVD or powder coating process, (f) inherent variations in the metal mesh weaving process may cause slight inconsistencies in tension and alignment. While efforts are made to ensure dimensional consistency and precise pattern alignment, minor tolerances may exist in the final product. In addtion, final dimensions of the Goods may vary based on the cut placement relative to the woven cable and rod pattern. It is recommended to use trim and/or profiles to cover exposed panel edges to accommodate the potential tolerances +/- 1/8 inch on each side of the panels resulting from the weaving process and hand-cutting. (g) Tiles or panels are to be only installed in dry area indoor applications only and should be keep away from open flames and direct heat sources.
3. Delivery
(a) The goods will be delivered within a reasonable time after the receipt of Buyer's Purchase Order. Seller shall not be liable for any delays, loss or damage in transit and it is agreed that any late delivery shall not give rise to any damages, deductions or cancellations in respect to the orders.
(b) Seller shall deliver the Goods to the delivery address specified by the Buyer on the Sales Confirmation or Purchase Order (the "Delivery Point") using Seller's standard methods for packaging and shipping such Goods.
(c) Title and risk of loss passes to Buyer upon delivery of the Goods by Seller to the carrier and any claims for losses or damage shall be made by Buyer directly to carrier.
(d) The Seller must be notified in writing of any changes made to an order by the Buyer prior to commencement of production on such order, otherwise such changes shall not be taken into account. Any additional requests, modifications or corrections to an order once approved shall require a new Sales Confirmation or a revision of the original one.
4. Non-Delivery.
(a) The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller's negligence) unless Buyer gives written notice to Seller of the non-delivery within five (5) days of the date when the Goods would in the ordinary course of events have been received.
(c) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
5. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within five (5) days of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. "Nonconforming Goods" means that the product shipped is substantially different from the product identified in Buyer's Sales Confirmation and does not significantly and materially conform to the description of the identified products in the Buyer's Sales Confirmation.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller's address (as set forth in the Sales Confirmation). If Seller exercises its option to replace Nonconforming Goods, Seller shall, at its own cost, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in this Section 5 are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided otherwise, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller. For the avoidance of doubt, all Goods are non-refundable.
6. Price.
(a) Buyer shall purchase the Goods from Seller at the price (the "Price") set forth in the applicable Sales Confirmation.
(b) Upon placement of an Purchase Order by Buyer, Buyer shall pay 75% of the Price (“Initial Deposit”). The remaining 25% shall be paid by the Buyer prior to the shipping of the Goods by the Seller.
(c) Shipping costs provided are estimates. In the event that actual shipping costs exceed the amount specified on the invoice, adjustments will be made accordingly.
(d) All payments shall be done in a manner satisfactory to the Seller in its own discretion.
(e) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel or real or personal property or other assets.
7. Payment Terms.
(a) Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller's invoice. Payments not made within 30 days after the invoice date shall bear an interest equal to the lesser of the rate of 5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.
(b) In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder (including without limitation any accrued interests).
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy or otherwise.
8. Limited Warranty.
(a) Seller warrants to Buyer that for a period of twelve (12) months from the date of shipment of the Goods ("Warranty Period"), that such Goods will materially conform to the specifications set forth in the Seller's published specifications and will be free from material defects in material and workmanship.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION, THE GOODS ARE PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS AND SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(d) The Seller shall not be liable for a breach of the warranty set forth in this Section 8 unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within fifteen (15) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods; and (iii) Seller reasonably verifies Buyer's claim that the Goods are defective.
(e) The Seller shall not be liable for a breach of the warranty set forth in this Section 8 if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises as a consequence of the installation of the Goods; (iii) Buyer failed to follow Seller's oral or written recommendations as to the storage, use, installation or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
(f) Subject to this Section 9, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) and cover the cost of installation or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller.
(g) THE REMEDIES SET FORTH IN THIS SECTION 8 SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION TBD.
9. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, GOODS INSTALLATION, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED AGGREGATE PAYMENTS ACTUALLY RECEIVED BY THE SELLER FOR THE GOODS SOLD HEREUNDER.
10. Termination.
(a) In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) 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.
11. Intellectual Property
All intellectual property rights associated with the Goods are and shall remain the sole property of the Seller. All operating rights are vested exclusively with the Seller. Accordingly, the intellectual property rights may not be reproduced, licensed, distributed or used on whatever grounds, even in part, without the prior written approval of the Seller. All trademarks and logos of the Seller are registered trademarks. Any reproductions of same shall constitute an infringement.
12. Miscellaneous
(a) 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 the State of Delaware without giving effect to any choice or conflict of law provision or rule.
(b) Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the state and federal courts of the State of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
DISCLAIMER
Tiles and panels (“Products”) are beautiful and unique hand-crafted products, which are characterized by distinctive variations in color, texture, pattern and alignment, as well as variations in calf hair length and hair direction. These natural variations are not flaws but are a part of the natural beauty and uniqueness of the Products and an intrinsic part of them. These inherent variations should be expected and serve to enhance the natural beauty and enduring charm. The buyer assumes all responsibility for final inspection of product quality. This inspection of the products should be done before installation. Please carefully examine the products for color, finish and quality before installing them.
These guidelines are provided in good faith to help prevent any problems caused by errors in installation. The installation techniques, handling and use of the Products are beyond the control of ITA Design LLC (and its affiliates) (collectively referred to as “ITA Design”). Therefore, ITA Design does not assume responsibility for loss, damage or expense resulting from improper installation, handling or misuse of the Products and ITA Design shall not be held responsible for installation actions taken or not taken (whether in accordance with these guidelines or not).
There are many details of installation that are assumed to be general construction knowledge to experienced installers, which are not included in these recommendations. These installation guidelines are intended to be strictly recommendations and are not to serve as a step-by-step, fail-safe installation checklist. Selection of an experienced installer is the sole responsibility of the buyer. These recommendations do not purport to cover all details or variations in the Products and do not claim to provide for every possible contingency met in connection with the installation or maintenance. These recommendations are subject to constant update by ITA Design and it is your sole responsibility to request for the most updated version of this document.
Installation of the Products must be performed by a licensed professional. Should the failure of the product be the result of damage occurring as a result of improper installation, alteration of the product or an act or omission on the part of the buyer or the person doing the installation, any Product warranty is void. ITA Design LLC shall not be responsible for any special, punitive, incidental and / or consequential damages which arise from the use and/or installation of the product.
ITA DESIGN LLC