General terms and conditions of Hamberger Flooring GmbH & Co. KG, 83003 Rosenheim, Germany, for resellers/dealers
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 does object 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.
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. Unless otherwise described to the contrary, the obligations under this warranty shall be limited to replacing at the manufacturer any parts thereof which shall, within 30 days of delivery to the original Buyer, be demonstrated to be defective. THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES; EXPRESS OR IMPLIED; INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS: No person, firm or corporation is authorized to assume for us 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 manufacturer’s warranty and representations available on the manufacturer’s website or provided by the manufacturer in writing to the Buyer.
Shipping dates given in advance of actual shipment are estimated. 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, or any other cause beyond its reasonable control. All direct shipments are F.O.B. Seller's warehouse (unless Seller delivers shipment to Buyer, which will result in F.O.B. Buyer’s warehouse), and 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.
All prices, terms, and conditions are subject to change without notice. All sales are accepted on the condition that the product is available from the manufacturer and/or distributor. Representation statements or other assertions can only be made by the Seller through its officers and only in writing, signed by an officer in order to be binding upon the Seller.
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 that are 30 days past due.
7. EXTRA EXPENSE.
No labor expense or other charges will be accepted by Seller as a result of the 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.
Credit for returned goods will be allowed only to the extent agreed to in writing by a duly authorized representative of Seller 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 to the extent the products are in full cartons only. 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 except by express written consent of Seller.
9. CLAIMS OF BUYER:
As a condition precedent to recovery of any claim of any kind, Buyer must comply with the following. All claims of any kind, except nonreceipt, must be made to Seller within three days after receipt of shipment. Claims for nonreceipt must be made in writing delivered to Seller within thirty days after receipt of an 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 Buyers ability to collect damages from the shipper and releases Seller from their obligations.
Seller shall not be liable for special, indirect, incidental or consequential damages. 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.
12. CREDIT APPLICATION.
By accepting this Agreement, applicant states that the information provided in the Credit Application is true and correct and authorizes Seller to investigate his/her credit history. This Agreement is subject to the 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..
13. PAYMENT TERMS.
For commercial customers with credit accounts payments are due in full 15 days from the date of invoice.
14. SELLER’S CANCELLATION.
Should Seller become aware of circumstances allowing the conclusion that Buyer is in reduced circumstances or should Seller have doubts about Buyer’s creditworthiness, Seller may suspend any outstanding deliveries resulting from any existing agreement with Buyer or to make said deliveries only upon cash with order or by security. If Buyer fails to meet such a request within a reasonable period of time, Seller may cancel the agreement and demand damages.
15. TRANSFER OF RISK, ACCEPTANCE.
The risk shall pass to Buyer as soon as the delivery item leaves Seller’s warehouse or manufacturer’s warehouse, unless Seller delivers the shipment to Buyer which will result in risk upon delivery; this provision shall apply for part deliveries as well. 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.
16. 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 product to Buyer and invoice Buyer, or (ii) charge a Restocking Fee of 25% of the invoiced price and sell the product(s) to third parties, or, (iii) any extension beyond the 14 day period specified herein shall require the express written consent of seller.
17. 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.
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.
19. RETENTION OF TITLE.
Deliveries are always made under retention of title. We retain a right of possession in the goods until Buyer makes full payment of all claims arising from the business relation with Buyer.
Buyer shall not be entitled to assign to third parties its rights resulting from this Agreement.
21. ENTIRE AGREEMENT.
This Order, comprising the express terms on the cover pages of this Order and these Terms and Conditions constitute 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.
22.CHOICE OF LAW AND VENUE.
This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois, without reference to conflict of laws principles. All payments must be made at the Seller's place of business. In the event of any legal or equitable action arising out of or to enforce this Agreement, the venue of such suit shall be the City of Chicago, Cook County, Illinois. The undersigned hereby waives whatever rights they otherwise have in the selection of venue, and consents to personal jurisdiction in Chicago, Cook County, Illinois.
23. 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.
24. 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.
25. 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.haro.com.
Our sample service is currently only available in the countries Austria und Germany .
Shipping costs to Austria : 8,33 € all-inclusive rate Shipping costs to Germany : 4,76 € all-inclusive rate
Right to withdraw/Withdrawal instructions
When you place an order in our shop as a consumer, you may withdraw from the agreement as follows:
You have the right to revoke this agreement within fourteen days without providing a reason. The withdrawal deadline is fourteen days, beginning on the day on which you or your representative, who is not the carrier, receives the last goods into your possession. In order to exercise your right to withdraw, you must inform us of your decision to revoke this agreement at
by means of a clear, unambiguous statement (e.g. a letter sent by mail, fax or email). You may used the enclosed sample withdrawal form, but it is not mandatory. If you exercise this option, we will send you confirmation of receipt of such withdrawal without delay (e.g. by email). To ensure compliance with the withdrawal deadline, it is sufficient that you send us notification that you will exercise your right to withdraw before the withdrawal deadline.
Consequences of withdrawal If you withdraw from this agreement, we agree to return all of your payments received by us, including shipping costs (with the exception of additional costs arising should you have selected a delivery method than our default, cost-efficient standard delivery) without delay and at the latest within fourteen days, beginning with the day on which we received notification of your withdrawal from the agreement. We will use the same payment method for the refund which you used for the original transaction, unless a different agreement is reached with you; under no circumstance will we charge a fee for this refund. We can refuse the refund until we have received the returned merchandise or until you have provided proof that you have returned the merchandise, whichever happens sooner. You agree to return or hand over the merchandise without delay and at the latest within fourteen days in any case, beginning with the day on which you notify us of your withdrawal from the agreement. The deadline is maintained if you send us the merchandise before expiry of the fourteen day deadline. You shall accept the costs associated with the return shipping of the merchandise.
You are only responsible for any diminished value of the merchandise if this diminished value can be traced back to handling other than what is necessary to ascertain the nature and functioning of the goods.
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