BUYER’S ACCEPTANCE OF TERMS AND CONDITIONS OF SALE.
These Terms and Conditions of Sale and Limited Warranty (“Terms and Conditions”) shall apply to every sales, supplies, deliveries, as well measures and operations relating to or resulting from them taken or carried out by Oltre Design S.r.l. (“oltredesign” and "Oltre Design") and/or all/any of its overseas branch offices and/or all/any of the companies, whatever Italian or foregin, submitted and/or entered into with its distributors and/or dealers and/or in any event professional subjects purchasing Oltre Design products, under any of Oltre Design S.r.l.’s trademarks, including “oltredesign®” and “visioni”, “forme”, “flussi” (collectively, the “Products”), to any person or entity who places an order and/or purchases Products (“Buyer”) from Oltre Design.
Buyer’s signature below shall be deemed acceptance of these Terms and Conditions. Moreover, in each instance that Buyer or Buyer’s agent receives from Oltre Design an order confirmation for an order that Buyer or Buyer’s agent placed with Oltre Design, Buyer shall be deemed to have affirmed and ratified such previously signed Terms and Conditions.
At any time and at Oltre Design’s sole discretion, Oltre Design S.r.l. may issue new Terms and Conditions which, when signed by Buyer will replace any Terms and Conditions that Buyer may have previously accepted and will apply to every sale confirmed after the adoption of the new Terms and Conditions.
Any other additional or different terms or conditions of sale (whether oral or written) which may at any time be indicated in Buyer’s purchase order, forms, correspondence or otherwise shall be of no effect, even if not expressly objected to by Oltre Design. These Terms and Conditions may be amended or modified only by written agreement signed by Oltre Design’s president. 1. OFFER AND ACCEPTANCE.
1.1 No offer made by Oltre Design shall be trated as binding.
1.2 An order which is sent by the buyer to the seller in written form (also by fax, e-mail or other electronic means) shall become binding on Oltre Design solely and exclusively when the company sends the buyer its signed order confirmation.
1.3 The supply shall include the materials and quantities of merchandise specified in Oltre Design order confirmation, which shall constitute the only document of reference when checking prices and quantities ans shall have precedence over the offer and/or customer’s order. 2. PRICES.
2.1 The prices applying to Oltre Design products are those indicated in the order confirmation.
2.2 The prices of proformas have a validity of 30 days. 3. PURCHASE ORDERS.
3.1 Buyer shall submit purchase orders to Oltre Design in writing, stating, at a minimum:
(a) identification of the Products ordered in each case with the dimensions subject to estimates, as designated in Oltre Design’s published price list(s) and catalogues;
(b) complete drawings for Custom Designed Items;
(c) quantity of Products, subject to minimum orders and rounding as specified in Oltre Design’s published price list(s);
(d) preferred date of delivery of Products; and
(e) shipping instructions and shipping address.
3.2 Buyer acknowledges that the dimensions and technical specifications of each Product, as published or provided by Oltre Design, are estimates only.
3.3 Buyer further acknowledges that Oltre Design manufactures its products using metric units of measurement, any conversion to U.S. units or imperial units of measurement is only approximate and therefore Oltre Design is not responsible for any discrepancies in measurements. By submitting an order, Buyer confirms notice of such estimates and takes sole responsibility for providing and/or confirming to Oltre Design, for each Product in Buyer’s order, precise and correct measurements, dimensions, colors and/or quantities, including without limitation. In fullfilling Buyer’s order, Oltre Design will use commercially reasonable efforts to follow the measurements and/or dimensions, and choice of colors provided by Buyer, as confirmed in Oltre Design’s Order Confirmation (as defined below). OLTRE DESIGN ASSUMES NO LIABILITY FOR ANY INACCURATE MEASUREMENTS AND/OR DIMENSIONS, OR FOR ANY DISCREPANCIES BETWEEN THE COLORS SPECIFIED BY BUYER AND AS ACTUALLY DELIVERED, OR FOR ANY ADJUSTMENTS OF THE PRODUCTS REQUIRED DURING THE INSTALLATION (IF ANY 4. BINDING ORDERS; NO ASSIGNMENT.
4.1 Any order by Buyer may be accepted by Oltre Design in whole or in part, in each case at Oltre Design’s discretion. An order from Buyer becomes irrevocably binding and cannot be cancelled by Buyer when Oltre Design receives Oltre Design’s Order Confirmation (“OC”) signed by Buyer. Oltre Design must receive the OC signed by Buyer within 24 hours from its transmission to Buyer, otherwise Oltre Design may deem the OC revoked. The Buyer acknowledges and agrees that Oltre Design’s acceptance of an order does not create any obligation by Oltre Design to accept future orders from Buyer, nor does it create a supply, requirements or distribution relationship between Oltre Design and Buyer. Buyer may not assign these Terms and Conditions, in whole or in part, or assign any of Buyer’s rights or delegate any of Buyer’s obligations under these Terms and Conditions or an OC, without: (i) Oltre Design’s prior written consent; and (ii) the assignee or delegatee’s signature of the then current Terms and Conditions. 5. DEPOSIT PAYMENT AND CANCELLATIONS.
5.1 To accept an order, Oltre Design, in its sole discretion, may require Buyer to pay a Deposit contemporaneously with or immediately following the delivery of each signed OC, in an amount to be established by Oltre Design based on the price of the Products, as such price shall be quoted by Oltre Design at the time of the transmission of the OC to Buyer (the “Deposit”). An OC, even if received signed within 24 hours from its transmission to Buyer, may be deemed revoked if Oltre Design does not receive payment of the required Deposit.
5.2 Production of Goods starts when the deposit payment is received.
5.3 Usual leadtime of production is 60 working days, excluding weekends, company and public holidays
5.4 The Deposit will be applied to the balance due when the payment of the Products is due.
5.5 The Deposit on Visioni, Forme and Flussi and on Special Products shall be non-refundable and shall be forfeited by Buyer if Buyer cancels the order at any time after receipt by Oltre Design of the signed OC and of the required Deposit. In such event, depending on the progress in the production of the order, Oltre Design may require Buyer to pay the full balance of the price agreed to in the OC upon issuance of an invoice by Oltre Design. Moreover and irrespective of payment by Buyer, Oltre Design will not be required to continue production of Visioni, Forme, Flussi or Special Products ordered by Buyer. Special Products means any Products sold by Oltre Design under these Terms and Conditions, manufactured by Oltre Design when ordered by Buyer (not readily available in stock). 6. PAYMENT TERMS.
6.1 The balance of the invoice price must be paid in full after receiving notice that goods are ready for collection or delivery.
6.2 All Products shall be invoiced on the pickup date communicated by Oltre Design to Buyer. Payment shall be due immediately upon issuance of the invoice prior to Buyer taking delivery of the purchased Products (unless credit terms are extended by Oltre Design in writing in the OC). Oltre Design reserves the right to withhold delivery until Buyer makes payment in full and such payment clears Oltre Design’s bank account.
6.3 Oltre Design reserves the right to demand, in advance of manufacturing the ordered Products, full payment or the issuance of an irrevocable Letter of Credit on terms to be provided by Oltre Design.
6.4 The production deadlines is usually 60 working days, shorter production period may be agreed in writing upon the payment of a prioritize fee that will be added in the invoice. Except as otherwise agreed, the supply of the goods will be Ex Works, even if it is agreed that the Supplier will take care, in whole or in part, of the shipment. If the Supplier expects that he will be unable to deliver the Products at the date agreed for delivery, he will inform the Customer within the shortest delay, of such occurrence.
7. BINDING ORDERS; NO ASSIGNMENT.
6.5 Oltre Design shall not be deemed to be in delay or be responsable if its suppliers, for reasons not in Oltre Design’s control, perform an incorrect or untimely delivery of the goods necessary for the produciton of the order.
7.1 Any order by Buyer may be accepted by Oltre Design in whole or in part, in each case at Oltre Design’s discretion. An order from the Buyer becomes irrevocably binding on Buyer when Oltre Design receives Oltre Design’s Order Confirmation (“OC”) signed by Buyer. Oltre Design mustreceive the OC signed by Buyer within 24 hours from its transmission to Buyer, otherwise Oltre Design may deem the OC revoked.
7.2 The Buyer acknowledges and agrees that Oltre Design’s acceptance of an order does not create any obligation by Oltre Design is to accept future orders from the Buyer, nor does it create a supply, requirements or distribution relationship between Oltre Design and the Buyer.
7.3 Buyer may not assign this contract of sale (the “Agreement”), in whole or in part, or assign any of Buyer’s rights or delegate any of Buyer’s obligations under this Agreement or an OC, without: (i) Oltre Design’s prior written consent; and (ii) the assignee or delegatee’s signature of the then current Terms and Conditions. 8. PACKING AND DELIVERY MATERIAL.
8.1 Standard packaging is inclueded in the sale price displayed in the invoice.
8.2 The Products are delivered in wooden or cartoon boxes.
8.3 For non-standard size items, Oltre Design reserves the right, at its sole discretion, to arrange for alternative packing suitable to the order, including the use of pallets and wood crates.
8.4 Oltre Design packaging is not guaranteed in any way to provide the merchandise and products with waterproof protection.
8.5 Additional cost of such special packing or handling fee will be charged on the invoice to Buyer as indicated on the OC. 9. PARTIAL DELIVERIES.
9.1 Partial deliveries will be invoiced as delivered. Buyer cannot reject any partial shipments unless the Products subject to such partial shipments are shown to be defective under the Oltre Design Limited Warranty. 10. SHIPPING INSTRUCTIONS AND DELIVERY DATE.
10.1 Dates of delivery are not peremptory, unless otherwise agreed in writing.
10.2 Delayes do not therefore entitle the parties to make demands for damages or termination of the contract, even partially.
10.3 The delivery date shall be taken to be that on which the delivery note is issued, or that on which the customer is notified that the goods are ready for delivery.
10.4 Buyer shall be responsible for all shipping/freight forwarding and related arrangements directly with the shipper (including providing the shipper with shipping instructions and shipping address). Delivery by Oltre Design is always ex works (EXW) Oltre Design’s factory in Italy (the “Factory”) (as Oltre Design shall specify or as otherwise agreed to in writing in the OC or invoice).
10.5 Buyer shall also be responsible for all customs brokers, and exporter/importer of record requirements, and payment of all costs, including any duties, penalties and/or official fees relating to the delivery and shipment of the Products EXW the Factory (unless otherwise agreed to in writing in the OC or invoice). Buyer shall be responsible for and cooperate with any requests directly or indirectly made by any Customs authorities irrespective of whether Buyer is the exporter/importer of record.
10.6 The Products shall be ready for pickup by Buyer or Buyer’s authorized agent at the Factory, as of the date of the estimated delivery indicated in the OC or as otherwise indicated in writing by Oltre Design. The delivery date is only an estimated date by which the product will be ready for Buyer’s pickup; Oltre Design does not guaranty delivery on the estimated date and will not deliver until payment in full has cleared Oltre Design’s bank account.
10.7 In the event that Buyer takes delivery of the Products at the Warehouse, twenty-four (24) hours prior to such pickup, Buyer must confirm its shipping instructions by calling Tel.(0039) 0245395625. The pickup address is Oltre Design, Via Clusone 6, Milan, Italy 20135, unless otherwise specified in writing by Oltre Design. Buyer shall be responsible for all warehousing costs related to the ordered Products as of the date of delivery specified in the Order Confirmation or as subsequently indicated in writing by Oltre Design. 11. DISPLAY AND SAMPLES.
11.1 Any display product or sample inspected by the Customer is solely for the Customer’s convenience but as the Goods are totally handmade they might be slightly different from the chosen design.12. NON-CONFORMING GOODS.
12.1 Complaints mean any protests made by the buyer that refer to the quality of the goods or items supplied. When the goods are received, the buyer must check them or have them checked to ensure that they conform to contractual specifications.
12.2 The Goods must have not been used or installed in any way.
12.3 The buyer may not claim that the goods supplied do not conform to the specifications contained in the order if it has failed to notify the seller of the defect within the point 13.
12.4 The Buyer or Subsequent Purchaser must notify Oltre Design if the Products delivered do not conform to the Products ordered in writing by registered or certified mail, return receipt requested, within seven (7) days after the discovery thereof, TIME BEING OF THE ESSENCE.
12.5 The notice must include proof of purchase, sent to the following address: Oltre Design, Via Clusone 6, Milan, Italy 20135 (a copy of the notice may also be sent by e-mail to firstname.lastname@example.org).
12.6 The Buyer have to provide photos of the non-conforming goods.
12.7 Oltre Design may, at its discretion, require that Buyer return any and all non-conforming goods. However, no Products shall be returned to Oltre Design without its prior written authorization.
12.8 If a complain is made, the buyer must ensure that the contested goods are made available to technicians and experts sent by the seller. 13. CONDITIONS APPLYING TO RETURN OF GOODS.
13.1 The goods supplied may not be returned, even partially, unless prior written authorisation has been given by Oltre Design.
13.2 In order to return goods, the company Oltre Design must receive a written request from the buyer within (7) seven days from the receipt of the material. Requests received beyond that period will not be taken into consideration.
13.3 A request to return goods must reach the company Oltre Design before the goods installed, otherwise it will not be accepted.
13.4 Goods returned due to errors on the part of the customer (color and/or quantity) or late variations to the order will not be accepted.
13.5 The retun of goods without Oltre Design’s prior authorisation using the goods return authorisation form will not be accepted.
13.6 The goods must be returned in their original packging, completely intact, loaded on pallets if necessary, and protected from damp.
13.7 If the returned goods reach Oltre Design warehouse in a damaged state, they will not be accepted.
13.8 The packaging must enclose a copy of the authorisation form with the final date for the goods to be returned clearly marked, as well as the buyer’s transportation documents which indicates, clearly and legibly, the quantity and description of the goods returned.
13.9 Oltre Design reserves the right to charge any cost whenever, after the materials have been checked at its factory premises, the request for their return proves to be unfounded. 14. LIABILITY STEMMING FROM SUPPLIES
14.1 The seller shall never be held liable for consequential damages, including loss of profits, actual damage, loss of income and down time.
14.2 The limitations to liability described above do not apply in the event of fraud or serious fault on the part of the seller.
14.3 The buyer holds the seller harmless against any claims that may be put forward by third parties, including the seller’s or buyer’s employees, relating to the goods supplied. 15. RESPONSABILITIES CONCERNING THE LAYING OF MATERIALS.
15.1 Oltre Design does not in any way supply the service of laying the artistic panels along with the supply of the installation.
15.2 Oltre Design therefore declines all responsability for defects and/or flaws that may be attribuited to laying operations. The company does not therefore accepts complains or demands for compensation of demage stemming from defects and/or difficulties caused during laying operations that prejudice the use of the material supplied, if the physical, chemical, mechanical and dimensional characteristics of the said material conform to the standards established when it was ordered and supplied. 16. PRICE AND RISK OF LOSS.
16.1 Prices are Ex Works (EXW) Warehouse or Ex Works (EXW) Factory unless otherwise indicated by Oltre Design in the OC. Oltre Design will charge sales tax on all sales unless, at the time the order is placed, Buyer provides Oltre Design with a valid and original resale certificate, or other sales tax exemption certificate.
16.2 Risk of loss or damage to the Products shall pass to Buyer upon Oltre Design or Oltre Design’s agent placing the Products at Buyer’s disposal for pickup. In the event of any shipping arrangements made by Oltre Design with carriers or forwarding agents, and with customs brokers, for the delivery of the Products, such arrangements are made solely on Buyer’s behalf and at Buyer’s sole risk of loss and damage, and at Buyer’s sole cost unless otherwise indicated by Oltre Design in the OC. Claims for breakage, damage, loss in transit and delay in delivery must be made to the carrier by Buyer.
16.3 Should force majeure prevent the seller from performing the contract, it may, as its discretion, without seeking the itervation of judical authorities, either suspend execution until such time that the circustances giving rise to the force majeure have ceased, or terminate the contract either in whole or in part, without seeking the intervation of judical authorities and without being liable of damages.
16.4 Force majeure is taken to cover any circustances beyond the seller’s control which permanently or temporarly prevent the execution of the contract, such as war or threat of war, uprising, partial or general mobilisation, industrial strike, lack of raw materials, interruption in supply goods by subcontractors, meteorological circustances, unforeseen events that affect the business, transportation difficulties, import or export restrictions, frost, fire, epidemic, natural or other disaster and other unforeseen restrictions that render the manifacturing or transportation of the goods either partially or totally impossible.
16.5 Oltre Design company shall not be held liable any longer once the goods are handed over to the carrier (against whom the buyer must direct any complaints it may have). Shipment, either by sea air or road, of suppliers abroad must satisfy the conditions established as each casa arises, set out in Incoterms approved by the International Chamber of Commerce in 2000 and subsequent versions thereof.17. PAYMENT TERMS.
17.1 All Products shall be invoiced when ready for delivery and payment shall be due as set forth in the OC or, in the absence, immediately on dispatch of invoice, whether or not the Buyer has taken delivery of the purchased Products, including in the event that Oltre Design withholds delivery until payment in full has been received and has cleared Oltre Design’s a ccount, or because of a past due balance.
17.2 All payments must be made in immediately available funds, unless credit terms are extended by Oltre Design in writing. Oltre Design will not ship Products until Buyer makes payment in full and such payment clears Oltre Design’s account. Oltre Design als o reserves the right to stop shipments to Buyers that have a past due balance. 18. OWNERSHIP.
18.1 Ownership of and title to the Products will only pass to the Buyer when Oltre Design receives payment in full of all sums due for the Products, including any shipping, customs, packing, handling fee and other charges we may have specified.
18.2 Intellectual property and all rights shall remain the exclusive property of Oltre Design and will remain at Oltre Design full ownership.
18.3 The buyer expressly recognise that the Oltre Design name and logo, its graphic composition and know how relating to the products supplied constitute intellectual and industrial property owned by Oltre Design Srl and/or companies in the group protected by laws relating to copyright and industrial property.
Any improper use thereof shall be sanctionated in accordance with the law.
18.4 The buyer may not, under any circumstances, use, cancel or remove any indication relating to patents, trademarks, business names or origin affixed by Oltre Design to the products supplied without its prior written authorisation. 19. SECURITY INTEREST.
19.1 Notwithstanding anything to the contrary, Buyer agrees that as security for the performance of Buyer’s payment obligations hereunder, title and right of possession of the Products shall remain with Oltre Design until such Products have been paid for in full.
In connection with Buyer’s purchase of the Products from Oltre Design, Buyer hereby grants to Oltre Design a security interest in: all Products delivered but not paid for in full, all other inventory, merchandise, goods or equipment of every kind and description sold or supplied by Oltre Design to Buyer together with all attachments and additions thereto, and any and all proceeds and products thereof (including without limitation proceeds of insurance) (collectively, the “Collateral”). Such security interest shall continue until Buyer has made payment in full in accordance with the terms of these Terms and Conditions and including all deferred payments whether evidenced by promissory notes or otherwise.
19.2 Buyer agrees to execute any financing statements, and any amendments thereto, required by Oltre Design to create and preserve such purchase money security interest, and Buyer hereby authorizes and grants power of attorney to Oltre Design to file any financing statements in any jurisdiction at any time Oltre Design deems it necessary to protect and maintain its interest, with or without the signature of Buyer, and specifically authorizes Oltre Design to file such statements without Buyer’s signature. Buyer hereby represents and warrants that no entity or individual holds any security interest in any of its assets which might include the Collateral; and for as long as any amounts remain outstanding between Buyer and Oltre Design, Buyer shall, at its own cost and expense, maintain the Collateral free and clear of all liens, encumbrances, levies, attachments or other judicial process from every cause whatsoever. 20. LATE FEES AND COST OF COLLECTION.
20.1 Once the payment date has fallen due, the buyer, if in breach of settlement, shall be considered automatically in default.
20.2 Oltre Design shall have the right to charge and collect the greater of either 5% (five percent) or simple interest, at the maximum allowed annual rate then in effect, on all balances over 30 (thirty) days past due. In the event Buyer shall default in its obligations hereunder, Buyer shall be liable for Oltre Design’s costs of collection, including legal fees on a full indemnity basis, disbursements and court costs.
20.3 In the event of a delay on the part of the buyer or in the event that the seller has reason to fear that the buyer will breach its payment obligations, the seller may, without prejudice to any further rights or actions:
(a) demand payment in advance or a guarantee;
(b) refuse to process any other orders currently underway with the buyer;
(c) suspend or revoke, either in whole or in part, the execution of all supply contracts currently underway the the buyer or those connected with it, proceeding or following it;
(d) revoke any favourable payments terms agreed updon, extending this to other contracts, thereby being entitled to demand immediately all sums curreclt owned by the buyer;
(e) suspend all obligations imposed upon it by any other contracts entered into with the buyer. 21. CANCELLATION BY OLTRE DESIGN.
21.1 Oltre Design may cancel an order without such cancellation constituting a breach of these Terms and Conditions and without any liability for Oltre Design, if Buyer becomes insolvent or suspends any of its operations or if any petition is filed or proceeding commenced by or against Buyer under any state or federal law relating to bankruptcy, reorganization, receivership, or assignment for the benefit of creditors, or if Oltre Design believes in good faith that Buyer’s ability to make payment required by these Terms and Conditions is or may become impaired. Buyer remains liable to pay for any Products already shipped. 22. PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION.
22.1 All rights in or to any patterns, designs, trade names, trademarks or copyrights of Oltre Design used on or in connection with the Products are the exclusive property of Oltre Design and shall remain the exclusive property of Oltre Design, and Buyer shall have no right or interest there in or with respect thereto.
22.2 The Buyer shall not reproduce or simulate, or cause or allow anyone else to reproduce or simulate, either directly or indirectly any such product, pattern, design, trade name, trademark or copyright. 23. ARBITRATION; APPLICABLE LAW; JURISDICTION; STATUTE OF LIMITATION.
23.1 Any adversarial dispute, controversy or claim arising out of, relating to or in connection with these Terms and Conditions of Sale, or the breach, interpretation, or enforcement thereof, including the determination of the scope or applicability of this agreement to arbitrate, or any other adversarial dispute between the parties to these Terms and Conditions of Sale, shall be settled by binding arbitration in Milan, Italy, under its Commercial Rules, Expedited Procedures then obtaining.
The enforcement of any emergency measures of protection under the Commercial Rules may be granted in any court having jurisdiction thereof. The arbitrator(s) may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the arbitration agreement will remain in force.
Notwithstanding the above , Oltre Design shall have the exclusive right, at its option, to apply to the Italy courts, who shall have non-exclusive jurisdiction to settle any disputes including without limitation any action or lawsuit regarding payments to Oltre Design by Buyer.
23.2 Any claim for breach of contract or warranty, except for claims actions or lawsuits by Oltre Design to collect sums due from Buyer, must be commenced within twelve (12) months following purchase of the Products. 24. WAIVER.
24.1 No failure or delay by Oltre Design in exercising its rights under these Terms and Conditions or in exercising its rights accruing from any default of Buyer shall constitute a waiver of any such rights, or shall impair Oltre Design’s rights in case Buyer’s default continues or in case of any subsequent default by Buyer. 25. NO RETURNS/EXCHANGES.
25.1 Oltre Design accepts no returns or exchanges of any Products, except in the event of defective Products. Any claims for defective Products shall be governed solely by the Oltre Design Limited Warranty. 26. WARRANTIES AND SPECIAL CHARACTERISTICS OF MATERIAL.
26.1 Oltre Design warrants that its material conforms to the physical, chemical, mechanical and dimensional standards indicated in this catalogue/order.
26.2 The customer declares that it is aware of and expressly accepts the characteristics of Oltre Design product described, waiving the right to contest them in any way. 27. INDEMNIFICATION.
27.1 Oltre Design’s distributors and resellers shall always include the Oltre Design Limited Warranty in writing or provide such warranty with the Products sold or delivered by them. Failure to comply with these Sections for any sale and/or delivery to any person will constitute a breach of these Terms and Conditions and any breaching party shall be liable to Oltre Design for any damage, loss, liability or expense, including wit hout limita tion at torney’s fees aris ing out of any warranty claim by such person relating to the Products.
Indemnification by Buyers who distribute and/or resell the Products. In the event that Buyer is a distributor and/or a reseller of the Products, Buyer shall defend, indemnify and hold harmless Oltre Design against and in respect of any and all claim, loss, damage, liability, cost and expense, including reasonable legal fees, suffered or incurred by Oltre Design by reason of or arising out of Buyer’s failure to provide the Oltre Design Limited Warranty in writing to any party in connection with the sale or other delivery of Products to such party. 28. SEVERABILITY.
28.1 If any provision of these Terms and Conditions of Sale shall, to any extent, be invalid or unenforceable, the remainder of these Terms and Conditions of Sale shall not be affected. 29. FACSIMILE SIGNATURES.
29.1 Oltre Design is authorized to rely upon and accept as an original executed copy of these Terms and Conditions of Sale and Limited Warranty copies of these Terms and Conditions of Sale and Limited Warranty executed and transmitted via facsimile, email or PDF. An executed copy of these Terms and Conditions of Sale and Limited Warranty transmitted via facsimile, email or PDF shall be binding as though it were an original executed copy of the Terms and Conditions of Sale and Limited Warranty. 30. GENERAL.
30.1 You may not transfer any of your rights or obligations under these Terms to another person without our prior written consent, which we will not withhold unreasonably. We can transfer all or any of our rights and obligations under these Terms to another organization, but this will not affect your rights under these Terms and Conditions.
LIMITED WARRANTY. Oltre Design warrants that the Products, shall be free from defects in material and workmanship, under normal use and conditions, in accordance with the following terms:
Who is covered by this warranty. This warranty extends to Buyer and to a purchaser of Products from Oltre Design or Oltre Design’s authorized distributor or retailer, and to those persons who, under applicable state law, are entitled to rely hereon as third party beneficiaries (each a “Subsequent Purchaser”).
HOW LONG THE WARRANTY LASTS. COVERAGE UNDER THIS WARRANTY LASTS FOR TWELVE (12) MONTHS FROM THE DATE OF DELIVERY.
What Oltre Design will do. Oltre Design will, at its option, either (i) replace defective Products free of charge, provided that the Buyer pays the shipping, insurance and customs duties, if applicable, for the returned Products and the replacement Products or (ii) pay to the Buyer the replacement value of the defective Products. In no case shall Oltre Design have to pay an amount greater than the price paid to Oltre Design for the Products which are found to be defective. In either case, the Buyer must comply with the Claims Procedure described below. Oltre Design will not be responsible for payment of any labor or material expenses to diagnose, adjust, service, remove, install or replace the Products. In the event that Oltre Design replaces any defective Products with substitute Products, Buyer acknowledges and agrees that such substitute Products may not be identical to the defective Products. In replacing any defective Products, Oltre Design will use reasonable efforts to ensure that the substitute Products are as similar as possible to such defective Products.
Claims Procedure. The Buyer must notify Oltre Design of defective Products in writing by registered or certified mail, return receipt requested, within thirty (30) days after the discovery there of, but no later than the warranty period, TIME BEING OF THE ESSENCE. The notice must include proof of purchase sent to the following address: Oltre Design®, Via Clusone 6, Milan, Italy. A copy of the notice may also be sent by e-mail to email@example.com . Oltre Design may, at its discretion, require that that Buyer or the Subsequent Purchaser return all or some of the defective Products. However, no Products shall be returned to Oltre Design without its prior written authorization. CONDITIONS APPLYING TO RETURN OF GOODS:
- In order to return goods, the company Oltre Design must receive a written request from the buyer within (7) seven days from the receipt of the material. Requests received beyond that period will not be taken into consideration.
- A request to return goods must reach the company Oltre Design before the goods installed, otherwise it will not be accepted.
- Goods returned due to errors on the part of the customer (color and/or quantity) or late variations to the order will not be accepted.
- The retun of goods without Oltre Design’s prior authorisation using the goods return authorisation form will not be accepted.
- The goods must be returned in their original packging, completely intact, loaded on pallets if necessary, and protected from damp.
- If the returned goods reach Oltre Design warehouse in a damaged state, they will not be accepted.
- The packaging must enclose a copy of the authorisation form with the final date for the goods to be returned clearly marked, as well as the buyer’s transportation documents which indicates, clearly and legibly, the quantity and description of the goods returned.
- Oltre Design reserves the right to charge any cost whenever, after the materials have been checked at its factory premises, the request for their return proves to be unfounded.
LIMITATIONS. THIS WARRANTY SHALL NOT APPLY TO DEFECTS OR DAMAGE (LATENT OR OTHERWISE) OF THE PRODUCTS CAUSED BY MISUSE, ABUSE, NEGLECT OR IMPROPER HANDLING OR STORAGE; BY WEATHER OR TEMPERATURE, WATER, CHEMICALS OR ACID RAIN; BY HAIL, IMPACT OF FOREIGN OBJECTS, EARTHQUAKE, HURRICANE, TORNADO, LIGHTNING, FLOOD, OTHER VIOLENT STORM OR CASUALTY, OR ACTS OF GOD; BY SETTLEMENT, MOVEMENT, DISTORTION, FAILURE OR CRACKING OF THE SUPPORT STRUCTURE OR BASE; BY EXPOSURE TO HARMFUL CHEMICALS; OR BY DAMAGE OCCURRING DURING SHIPPING OR HANDLING BY THE INSTALLER OR SUPPLIER; OR BY IMPROPER INSTALLATION.
It is Buyer and/or Subsequent Purchaser’s responsibility to use qualified (mosaic,tile,marble) professional(s) who specialize in the specific type of installation(s) for which Buyer and/or the Subsequent Purchaser wants to use the Products, and for instructions and recommendations on procedures, tools and materials to be used in the specific installation(s) of the Products (including, but not limited to, selection and application of adhesives and grouting). Oltre Design assumes no responsibility for (i) the installation of the Products, (ii) any adjustments to the Products during the installation (if any), (iii) recommending any installer, (iv) any reference to installation methods, tools or products by Oltre Design’s employees or representatives, or in Oltre Design’s printed materials, including Oltre Design’s catalogues and website, which are illustrative only and do not, and should not, replace consultation with and use of qualified (mosaic, tile, marble) professional(s).
It is the Buyer and/or the Subsequent Purchaser’s responsibility to consult a specialist in the Buyer’s region for any special installation and maintenance instructions or recommendations which may be applicable due to weather conditions, temperatures, and water or chemical conditions present in the Buyer’s area. Oltre Design shall have no liability for changes in color, shade or hue of the Products caused by stains or contamination or resulting from outside sources such as, but not limited to, water salinity or acidity, or contaminants, moss, lichens, algae, mildew, fungus or other vegetation.
Buyer and Subsequent Purchasers acknowledges and agrees that the Products are unique works of art some of which are handcrafted by artists and hand-craftes. The sale is not a sale by sample and samples and images of the Products must be considered merely illustrative of the final Products and Oltre Design does not represent or warrant that the Products will be identical to such samples or images. Each design and product is handmade created, thus no two panels or products are exactly alike. Shades and tones will characterize every piece. Furthermore, resin may present ondulations during the manufacturing process and natural materials as well as colored stone, or glass or enamel or ot her composite materials may vary in color, hue or shade; therefore, Oltre Design does not warrant nor shall Oltre Design be liable for or be required to replace or otherwise indemnify Buyer (i) because a sample or image or a design was not reproduced exactly or (ii) because of variations in color, hue or shade, which become elements of Oltre Design’s craftsmanship.
SOLE AND EXCLUSIVE WARRANTY. THE ABOVE WARRANTY IS IN LIEU OF ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW, WHICH ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED. NOTHING IN THESE TERMS EXCLUDES OR LIMITS OLTRE DESIGN’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR FRAUDULENT MISREPRESENTATION OR FOR ANY MATTER WHICH IT WOULD BE ILLEGAL FOR OLTRE DESIGN TO EXCLUDE OR ATTEMPT TO EXCLUDE. SUBJECT TO THE OTHER PROVISIONS IN THESE CONDITIONS OLTRE DESIGN SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT OR CONSEQUENTIAL LOSS (ALL THREE OF WHICH TERMS INCLUDE, WITHOUT LIMITATION, PURE ECONOMIC LOSS, LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND SIMILAR LOSS), COSTS, DAMAGES, CHARGES OR EXPENSES WHICH ARISE DIRECTLY OR INDIRECTLY IN CONNECTION WITH THE SUPPLY OF THE PRODUCTS TO THE BUYER OR THE BUYER’S USE OR RESALE OF THE PRODUCTS. OLTRE DESIGN’S TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE SUPPLY OF THE PRODUCTS SHALL BE LIMITED TO THE PRICE PAID FOR THE PRODUCTS. OLTRE DESIGN NEITHER ASSUMES NOR AUTHORIZES ANY OLTRE DESIGN’S EMPLOYEE, DISTRIBUTOR OR RETAILER OR ANY OTHER PERSON OR ENTITY TO ASSUME FOR OLTRE DESIGN ANY OTHER OBLIGATION OR LIABILITY BEYOND THAT WHICH IS EXPRESSLY PROVIDED FOR IN THIS LIMITED WARRANTY. ANY STATEMENTS REGARDING THE PRODUCTS THAT MAY HAVE BEEN MADE BY OLTRE DESIGN’S EMPLOYEES OR REPRESENTATIVES SHALL NOT BE RELIED ON BY BUYER, AND ARE NOT PART OF ANY AGREEMENT.
Change in the Products. Oltre Design reserves the right to discontinue or modify its Products, including the color thereof, without notice to the Buyer, and Oltre Design shall not be liable to the Buyer as a consequence of such discontinuance or modification.