HAMBERGER NORTH AMERICA LLC TERMS AND CONDITIONS OF SALE
1. GENERAL AGREEMENT. All sales are expressly conditioned on the terms and conditions set forth herein. No additional or different terms shall apply (whether a part of Buyer’s purchase order or other communication from Buyer) unless expressly agreed to in writing by a duly authorized representative of HAMBERGER NORTH AMERICA LLC and/or its subsidiaries (Seller). Notice is hereby given that Seller objects to any different or additional terms and that such different or additional terms shall not be binding upon it. Acceptance of or payment for any of the goods constitutes Buyer’s agreement to the Seller’s terms and conditions. All the details that are part of the offer define the goods or services on the basis of a fair average grade, quality and value and are subject to deviations customary in the trade, unless they are specifically indicated as binding. The details, drawings, figures, and delivery and service descriptions contained in our brochures, catalogues, price lists or the documents in and belonging to the offer are approximations that are customary in the trade, unless they are specifically indicated as binding in the order confirmation. Seller reserves the right to make changes to design and form, provided the object to be supplied is not changed significantly and the purchaser can reasonably be expected to accept the changes. Orders are not binding on Seller until Seller confirms as much in writing.
Seller shall not assume any responsibility for the product selection made by the Buyer. In particular, the Buyer itself shall be responsible for ensuring that the product it selects meets its requirements. Preservation of the products’ function, surface and appearance depends crucially on their use, treatment, care and stressing. Seller refers in this regard to the care and usage instructions enclosed with every product; the Buyer is responsible for complying with them and also ensuring compliance with them if or when the product is resold by the Buyer.
2. LIMITED WARRANTIES. Unless otherwise expressly provided in a separate written warranty provided by Seller, the following Warranty applies: Seller warrants the goods to be free from defects in material and workmanship under normal use and service for 12 months after delivery. Unless otherwise described to the contrary, the sole remedy under this warranty shall be the manufacturer replacing defective parts which are, within 30 days of delivery to the original Buyer, reasonably demonstrated to be defective. THIS WARRANTY IS PROVIDED EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER STATUTORY, AT COMMON LAW, OR BY CONTRACT, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS. No person, firm or corporation is authorized to assume for Seller any other liability in connection with the sale of these goods. No oral representations made before or after the purchase of these goods by employees of Seller or any other person should be relied upon by Buyer. Buyer should rely solely upon these Limited Warranties, and any manufacturer’s warranty or representations available on the manufacturer’s website or provided by the manufacturer in writing to the Buyer.
Claims alleging a failure of any material(s) to comply with the Limited Warranty must be made in writing to Seller, detailing the claim, identifying the material(s), and providing a reasonable time for Seller to inspect the materials(s). If Seller determines, in the exercise of its reasonable discretion, that the material(s) fail to meet the standards in the Limited Warranty, and that such failure has not occurred as the result of improper use, treatment, care or installation of the material(s), then, at Seller’s option, the sole remedy for Buyer shall be the replacement or repair of the material(s) at issue, with Seller bearing any transportation or shipping costs involved.
3. DELIVERY. All sales are Ex Works (Incoterms® 2020) at either Seller’s warehouse or the manufacturer’s facility, as specified by Seller in writing (the “Delivery Point”), unless expressly otherwise agreed by Seller in writing. Shipping dates given in advance of actual shipment by Seller are estimates. Seller shall not be liable for failure to perform or delay in performance resulting from fire or other casualty loss, labor difficulties, transportation problems, interruptions or delays in the usual source of supply, unexpected or extreme weather or conditions, acts of war or embargo, changes in laws or regulations, governmental seizures or expropriations, or any other cause beyond its reasonable control. Each shipment or delivery shall be considered a separate and independent transaction. Responsibility for filing claims with the manufacturer or carrier, as the case may be, rest with the Buyer.
4. PRICES. Prices are ex works, free on truck or on rail, and do not include statutory value-added tax at the applicable rate; Seller shall be bound by prices in a Seller offer for 30 calendar days only. If there is a significant change in certain cost factors – wages, packaging material or freight – between conclusion of the transaction and delivery, the agreed price may be adjusted to reflect the impact of the relevant cost factors to a reasonable extent, but by no more than 5%. The purchaser shall have to right to cancel the contract in the event of price increases. All prices, terms, and conditions are subject to change without notice. All acceptance of sales are expressly conditioned on the product being available from the manufacturer and/or distributor. Representation statements or other assertions are only binding on Seller if made in writing through an authorized Seller officer.
5. TAXES. The prices for goods do not include any sales, use or other taxes or charges payable to state or local authorities. To the extent that such taxes do not appear as an additional separately itemized charge, Buyer certifies that the sale of the goods is exempt from such taxes and Buyer assumes the liability for any such tax which may be found to be due, hereby agreeing to indemnify and hold Seller harmless with respect thereto.
6. SERVICE CHARGES. A service charge in the amount of the lesser of 1 ½% per month (18% per annum), or the maximum allowed by law, will be added to all invoices or portions of invoices that are 30 days or more past due.
7. EXTRA EXPENSE. Seller will not accept any labor expense or other charges which result from the Buyer’s use or modification of any of the goods sold hereunder, unless approved in writing by a duly authorized representative of Seller prior to the incurring of such expense.
8. RETURNS. Seller shall only grant credit for returned goods if an authorized representative of Seller expressly agrees in writing to such grant, and no returns will be processed unless Buyer provides the original invoice number and date. Only standard goods regularly maintained in stock by the Seller will be considered for return, and such standard goods must be returned in full cartons. A Restocking Charge of 25% of the invoice price will be made on goods accepted for return. All returns are subject to the Seller’s return policy which is available in writing from Seller upon request. None of the goods purchased will be considered for return beyond 30 days from purchase.
9. CLAIMS OF BUYER: Compliance with the provisions of this section is an express condition precedent to Buyer’s recovery for any claim of any kind. All claims of any kind, except for claims of nonreceipt and claims related to the Limited Warranty, must be made to Seller within three days of delivery of shipment. At the expiration of that three day period, the Buyer shall be deemed to have accepted the delivery and, in the absence of timely written notice to the contrary, that the delivery is not patently defective or non-conforming. Claims for nonreceipt must be made in writing and delivered to Seller within thirty days after receipt of Seller’s invoice. Claims of damage must be noted at time of delivery on the shipping documents and countersigned by a representative of the shipping company; failure to do so may result in total loss of Buyer’s ability to collect damages from the shipper and shall release Seller from its obligations.
10. LIMITATION OF LIABILITY. Seller shall not be liable to Buyer for special, indirect, punitive, incidental or consequential damages, including, but not limited to, lost revenue, lost profits, or loss of use or service. The remedies of Buyer as set forth herein are exclusive, and the liability of Seller with respect to any contract of sale or anything done in connection therein, whether in contract, tort, negligence or under any warranty or otherwise, shall not exceed the price of the goods on which such liability is based.
11. CREDIT APPLICATION. By accepting this Agreement, applicant affirms that the information provided in the Credit Application is true and correct and authorizes Seller to investigate its credit history. This Agreement is subject to the Seller’s approval of the Credit Application. In the event Seller finds Buyer's credit or Credit Application, in its sole and absolute discretion, to be deficient in any manner, then Buyer shall make payment in full prior to Seller's obligation to deliver any goods under any agreement.
12. PAYMENT TERMS. For commercial customers with credit accounts, payments are due in full 15 days from the date of Seller’s invoice. All invoices shall be issued with the date of shipment. Unless otherwise agreed, they shall be due for payment without any deduction or offset within 30 days.
13. SELLER’S CANCELLATION. If Seller, in the exercise of its sole and absolute discretion, become aware of or have reason to doubt Buyer’s creditworthiness, then Seller may, upon providing written notice, suspend any outstanding deliveries resulting from any existing agreement with Buyer, or require that Buyer pay in cash or provide additional security for outstanding orders or deliveries. If Buyer fails to meet such a request within a reasonable period of time, Seller may cancel the agreement and demand damages.
14. TRANSFER OF RISK, ACCEPTANCE. The risk shall pass to Buyer as soon at the Delivery Point. Such acceptance shall be made without delay on the acceptance date, or alternatively after the Seller has indicated that the goods are ready for acceptance. Buyer may not refuse to accept goods in case of a non-substantial defect.
15. UNSHIPPED ORDERS. In the event that an order remains in Seller’s warehouse for more than 14 days, Seller has the right at its sole discretion to either: (i) deliver the order to Buyer, at Buer’s cost, and invoice Buyer, (ii) charge a Restocking Fee of 25% of the invoiced price and sell the product(s) to third parties, or, (iii) expressly permit an extension beyond the 14 day period specified herein, which shall require the express written consent of Seller.
16. OTHER TERMS AND CONDITIONS. No terms and conditions other than those herein stated, and no agreement or understanding, in any way purporting to modify these terms or conditions shall be binding upon Seller unless consented to in writing by a duly authorized representative of Seller. OUR ACCEPTANCE OF YOUR PURCHASE ORDER IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THESE TERMS AND CONDITIONS.
17. COLLECTIONS. Should the need arise to employ professional collection agents and/or attorneys to effect payment of any monies due under any portion of this Agreement, all such costs incident to collection, including court costs, reasonable attorney fees, through any appeal necessary, will be borne by the Buyer/Guarantor.
18. RETENTION OF TITLE. Deliveries are always made under retention of title. Seller retains a right of possession in the goods until Buyer makes full payment of all claims arising from the business relation with Buyer. The materials that are subject to reservation of ownership shall not be pledged to third parties or assigned by way of security before the Seller has been paid in full. The Buyer shall notify Seller in writing as soon as an application to instigate insolvency proceedings has been filed or there are any acts by third parties aimed at seizing materials in which Seller retains rights (such as attachment of them).
19. ASSIGNMENT. Buyer shall not be entitled to assign to third parties its rights resulting from this Agreement.
20. ENTIRE AGREEMENT. This Order, comprising the express terms on the cover pages of the Order and these Terms and Conditions, constitutes the entire agreement between Buyer and Seller and supersedes all prior negotiations, representations, or agreements, either oral or written, related to the subject matter of this Order.
21. CHOICE OF LAW AND VENUE. All disputes related to or arising out this Agreement, including any question regarding its existence, validity or termination, shall be settled by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. The laws of the State of Illinois shall control any arbitration or dispute arising out of this Agreement. Venue of any arbitration shall lie exclusively in the City of Chicago, Cook County, Illinois. Attorneys’ fees, consultant’s and expert witness fees, arbitration fees, arbitrators' compensation and expenses, court costs and all other reasonable and necessary costs of any arbitration or suit shall be recovered by the prevailing party, in addition to other relief granted. Any arbitration award issued shall be final and binding, shall be a reasoned award, and shall be enforceable in any court of competent jurisdiction.
22. LUMBER GRADES: Hamberger flooring products are carefully graded for specific timber features to provide consistency in appearance. These grading categories are set by the manufacturer, Hamberger Flooring GmbH & Co KG, and are not governed by or directly related to any specific industry grading. Hamberger withhold the right to make changes to any grade category at any time. For details of grading categories and general guide to grade appearance please refer to the HARO Hardwood Grading Book.
23. SITE CONDITIONS AND SUBFLOOR: Flooring purchased from Hamberger North America LLC shall be installed according to certain appropriate indoor environmental conditions (relative humidity between 40 – 60% at a temperature of 60°F – 70°F) and upon certain appropriate dry, flat, solid subfloor. The ideal environment is a relative humidity of 50% at a temperature of 68°F which is controlled and not subject to change of more than fifteen percent (15%). Subfloors must be clean and free from dust, debris and contamination, dry to below 2% moisture content / 3 lbs hydrostatic pressure, flat and level to within 3/16” over 10 feet, and structurally solid. Full details of these industry standards which are to be followed can be obtained from the National Wood Floor Association at www.nwfa.org.
24. Installation and Maintenance: Flooring purchased from Hamberger North America LLC shall be installed and maintained according to the manufacturers instructions. Installation and maintenance guides for all products can be viewed and downloaded from www.hamberger-sanitary.com.