Terms And Conditions
- General Agreement.
The Agreement between you (‘Customer”) and Porven, Ltd. d/b/a Porcelanosa USA (“Porcelanosa”) sets forth the terms and conditions under which Porcelanosa provides products and services (“Products”) to Customer. This Agreement is subject to the availability of the Products to be supplied. No terms other than this Agreement apply to the sale of products or services unless either expressly agreed to in writing or agreed orally and expressly confirmed by a replacement Sales Order delivered from Porcelanosa to Customer by hand or by electronic mail. For custom made or custom fit Products such as kitchen or closet cabinetry, facades projects, Krion custom made products, or other custom made or custom fit products («Custom Orders»), a separate agreement may be provided, and if so, that separate agreement will supplement and modify these Terms and Agreements.
- Price And Payment.
Unless stated otherwise, all prices quoted are exclusive of sales and use taxes which shall be added, if applicable, based upon the supplied billing address, at the prevailing rate. All prices quoted do not include freight and delivery fees, unless otherwise expressly stated. Unless the Sales Order sets out different price and terms for payment and the amounts of any deposits, a fifty percent (50%) deposit is required to reserve the items on an order and payment in full must be received prior to scheduling delivery. In cases of Special Orders or Custom Orders, unless otherwise expressly agreed in writing, one hundred percent (100%) payment shall be required to place an order.
During Annual Sales or other promotional sales, payment in FULL is required for ALL Products at the time of ordering to qualify for sale pricing.
Discounts are subject to limitations and exclusions. Discounts may not be applied retroactively to purchases already made and discounts are not transferable from other locations, physical stores, or other retailers, Porcelanosa will not price match discounts from other locations.
A payment shall be considered effective when the funds become available to Porcelanosa. In the case of checks, payment shall be deemed effective when such checks have been cashed and the funds have been provided to Porcelanosa. These payment terms are fundamental to the Agreement and any breach of those terms by the Customer terminates the Agreement.
- Review Your Order.
It is the Customer’s obligation to confirm that the Sales Order contains full and accurate information of the ordered Products, especially in terms of Product, price, quantity, payment, and delivery information. Porcelanosa’s assistance during the purchase process is based on the information the Customer provides. The Customer is responsibility to provide Porcelanosa with accurate information. Porcelanosa shall not be liable for any mistake, issue, or delay arising from inaccurate or incomplete information provided by the Customer. Customer must verify quantities, dimensions, site conditions, and other requirements with its installer before ordering, where necessary.
Porcelanosa will provide the Customer with an ESTIMATED DATE of arrival of the Product. Once the Product is ready for delivery, Porcelanosa or the delivery company will inform the Customer and provide the Customer with the available delivery dates. While Porcelanosa will make its best efforts to meet the ESTIMATED DATE of arrival, any dates quoted for delivery of the Product are approximate only and Porcelanosa shall not be liable for any delay in delivery of the Product, howsoever caused. Time for delivery shall not be of the essence.
Notwithstanding the above, Customer may contact Porcelanosa for timely re-schedules and questions about the status of the order.
Customer is responsible to provide Porcelanosa with a valid and accurate shipping address. Once delivery is confirmed, any failure by Customer to abide by the delivery schedule will result in re-scheduling fees to Customer. In the event Porcelanosa makes a delivery attempt that Customer fails to receive, Customer shall assume the extra cost associated with the failed delivery in addition to any and all costs associated with any rescheduled deliveries.
Delivery fees change depending upon location. Inside delivery service may be purchased at an additional cost and will be quoted on a per job basis.
Porcelanosa is not responsible for damages to items that were not properly removed prior to the delivery arrival. The delivery crew is not authorized or insured to move items other than the Product being delivered. The delivery crew is not authorized or insured either to mount or drill any items on your wall, nor to connect or disconnect any media or other equipment.
Customer is responsible to make sure that the access to the site into which the items are to be fitted is sufficient for the size of the Products purchased and to take any necessary steps to ensure this requirement. If, upon delivery, the Product does not fit, the customer remains responsible for the delivery fee. Customer must also provide the delivery vehicle with reasonable access to park and deliver or give Porcelanosa sufficient notice for reasonable arrangements for making deliveries. Failure to do so will result in a failed delivery attempt and subject Customer to the extra cost associated with the failed delivery in addition to any and all costs associated with any rescheduled deliveries.
- Delivery Note signature.
Customer agrees that, following delivery, Customer, or Customer’s designee, will sign a Delivery Note as provided by Porcelanosa indicating that delivery has successfully occurred, and will note on that Delivery Note any concerns with the delivery as known at the time of receipt. Customer agrees that this Delivery Note is proof of delivery.
- Failure To Take Delivery.
If Customer fails to take delivery of any Product by the later of: (i) 180 days from the scheduled delivery date Customer provides to Porcelanosa or (ii) 30 days after Porcelanosa notifies Customer that the Product is available to take delivery, Porcelanosa may (a) cancel the subject Sales Order and refund Customer any partial payment thereunder; or (b) place the subject Product into storage either at its facility or third-party storage facility. If Product is placed into storage, Customer shall be required to pay a storage fee of $200 per pallet per Sales Order on the first day of each calendar month following the scheduled delivery date. Porcelanosa shall not be required to release any stored Product to Customer until all accrued storage fees and any outstanding balance under the subject Sales Order are paid. The risk of loss or damage shall transfer to Customer upon placement of Product into storage.
If Customer fails to take delivery of (i) any Product stored as above, within 180 days of its having been placed into storage, or (ii) any special order Product or Product fabricated specifically for Customer within 180 days after it is made available for delivery to Customer, Porcelanosa may cancel the subject Sales Order for Customer’s breach of contract and liquidate, sell, or otherwise dispose of the subject Product in its sole discretion without having to account to Customer. Porcelanosa may apply any partial payment by Customer under the subject Sales Order: (i) to accrued storage fees; (ii) to any other costs or expenses incurred in attempting to enforce the Sales Order; and (iii) as liquidated damages, and not as a penalty, for Customer’s breach of contract.
Customer may pick up Product at Porcelanosa’s warehouse but must provide no less than 48 hours prior notification to request and schedule the pick-up.
Customer is responsibility to inspect the Product upon delivery or when picking up to ensure that Product is in a satisfactory condition without any obvious damage and delivered in the quantities noted on the order. Damages shall be reported on the Delivery Note and as noted below. To the extent permitted by law, Porcelanosa will not be responsible for any losses incurred if Customer does not adhere to this obligation.
If a Customer’s Designee receives the merchandise on the Customer’s behalf, Customer is still responsible to make sure all items are in satisfactory condition.
- Risk Passes On Delivery.
Once the Products have been delivered by Porcelanosa to the Customer or its representative, the responsibility for the Products passes from Porcelanosa to the Customer including, without limitation, the risk of them becoming lost or damaged.
- Accepted Variations.
By their very nature, some Products have variations of shading, size and finish which shall not be considered defects. Natural Products (made from materials such as marble, wood or stone) have a greater degree of variation than any of Porcelanosa’s other Products. This applies not only to shading but also to the pattern that is produced with a Natural Product. The fact that the material is natural means that it may present imperfections inherent in its nature such as knots in wood, different shading, color or different intensity and orientation of veining in marble. It is impossible to get two Natural Products that are the same as each other in shading and/or design. Customer agrees that any Natural Product supplied will not be identical to the ones in the catalogue or showroom, but will be similar. Natural Products require special care, in order to maintain its quality and beauty; Customer must follow all the instructions provided in the Warranty, Maintenance Guideline and Installation Instructions of the Product. Product dimensions as exhibited on quotation, sales order, invoice and other forms are nominal. Please consult the Product data sheet or contact your sales representative for actual dimensions.
All Products should be installed according to the approved industry standards and Porcelanosa’s installation instructions and Customer shall provide its installer with the Installation Instructions from Porcelanosa. Installation of the Product constitutes its acceptance.
Installation services are not included in this Agreement. In the event Porcelanosa provides installation services, a separate written agreement must apply.
- Retention Of Title.
Porcelanosa remains the legal owner of the Product until payment has been received in full. If Customer obtains possession of the Products before then, Customer agrees to hold them on Porcelanosa’s behalf until full payment has been received, at which time Customer will then become the legal owner.
- Cancelation Of An Order.
Special Orders, Final Sale items orders and Custom Orders may not be cancelled after 24 hours from the Sales Order date. For all other orders, Customer may cancel the order within 15 days of the Sales Order, but in no case less than 72 hours before delivery. Unless otherwise agreed, the amount already paid will be refunded in full.
In the event Porcelanosa cancels, to the extent permitted by law, its liability will be limited to refunding within 10 business days any deposit paid to Porcelanosa for the Products . Such repayment shall be to the entity that paid Porcelanosa.
- Returns, Exchanges, And Re-Stocking Policy.
Returns or exchanges will not be accepted without prior authorization. Returns or exchanges are not accepted after 45 days from the delivery date. A 20% restocking fee will be assessed on approved returns within 45 days from the delivery date.
Product must be returned or exchanged via prepaid freight, in full original cartons, intact and in salable condition. In case of tile, only complete full cartons will be accepted. In case of items sold by piece, they must be returned by the piece. A packing or original invoice and Porcelanosa’s return authorization number must accompany all returns.
Special Orders, Final Sale items orders, and Custom Orders may not be returned or exchanged.
Purchases above $25.00 made by cash or check will be refunded by check and mailed within 10 business days to the individual or company who appears in the original invoice. Refunds of credit card purchases are refunded to the card used on the original purchase.
- Claims Policy.
All Claims for shortages, damages, or billing errors must be reported upon acceptance of goods and confirmed in writing within 30 days from the invoice date. Claims made after 30 days will be waived and the original billing will be assumed correct and valid. Such claims shall be made to:
ATTN: UNIT NAME
600 Route 17th North
Ramsey, New Jersey, 07446
Porcelanosa is not responsible for product performance beyond the manufacturer’s warranty. Customer misuse, including negligence, physical, or other abuse is not covered by any warranty. Installation defects are not covered by any warranty.
If Customer claims that defective Products have been provided by Porcelanosa, Customer agrees to allow Porcelanosa the right and access to inspect them at all reasonable times requested by Porcelanosa. Until a claim is fully resolved, Customer agrees to hold the Products in good condition and take all care of them.
Please refer to Warranty of the Product for further details.
- Required Information.
For any cancellation, returns, or claimed defects, Customer shall provide the following information to its Porcelanosa Store: Authorization Number, Invoice Number, Item Number, picture of the product, and description of the problem.
- Independent Contractors.
Porcelanosa is an independent contractor. No Customer can be considered the legal representative or agent of, or has the power to obligate, Porcelanosa for any purpose whatsoever. Porcelanosa and the Customer expressly acknowledge that the relationship intended by them is a business relationship based entirely on and circumscribed by the express provisions of this Agreement and that no exclusivity, partnership, joint venture, franchise, agency, fiduciary or employment relationship is intended or created by any reason.
- Non-Exclusive Sales.
The Customer acknowledges and understands that Porcelanosa has the right to sell its products in any area or territory of the United States and in the rest of the world and that Porcelanosa may sell directly to other Customers, architects, dealers, homeowners, and others at Porcelanosa’s own discretion, at any time and territory.
- Reservation of Rights.
Porcelanosa reserves the right to refuse to sell or deliver to any Customer for any reason and without notice.
- Trade Customers.
When contracting with trade customers, this Agreement shall be for commercial (non consumer) purposes only.
- Force Majeure.
Porcelanosa shall not be liable for any reasonable delay in performance or failure to perform which is attributable to any cause beyond its immediate or reasonable control, including, but not limited to, acts of God, acts or requests of government or governmental agencies in their non-commercial capacity, riot or civil commotion, sabotage, fire, flood, explosion, damage to plants or facilities, pandemics, epidemics, typhoons, quarantine restrictions, government mandates, weather, or other catastrophes, strikes, civil disobedience, military acts, fabrication delays, inability to obtain Items, or transportation delays. Each or any of these incidents will extend Porcelanosa’s time to perform under the agreement, and Porcelanosa shall not be responsible for any labor charges, installation charges, loss, damage, detention, breach or delay, or other consequential losses or incidental damages arising from such delays.
- Disclaimer of Other Warranties and Limitation on Liability.
THE WARRANTIES DESCRIBED IN THIS DOCUMENT ARE IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS OR COVENANTS WITH RESPECT TO THE PRODUCTS, SERVICES AND OTHERWISE ARISING UNDER THIS AGREEMENT, AND PORCELANOSA EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING IN STATUTE, COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PORCELANOSA DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS, AND ALL LIABILITY FOR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO YOUR PURCHASE, THE PRODUCTS, THE SERVICES OR YOUR INABILITY TO USE SUCH PRODUCTS OR SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER OR NOT YOU HAVE ADVISED US OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, OR WHETHER OR NOT WE SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. Some jurisdictions do not allow limitations of how long an implied warranty lasts or the exclusion or limitation of certain damages, so these limitations and exclusions may not apply to you. This warranty gives the consumer specific legal rights. You may also have other rights that vary from jurisdiction to jurisdiction.
Porcelanosa may use third party providers to fulfill its obligations under this agreement, including order fulfillment, product installation and shipment/delivery. Customer acknowledge that Porcelanosa may not be directly performing the services and agree to such subcontracting with a subcontractor of Porcelanosa’s choosing.
- No Assignment or Third-Party Beneficiaries.
This agreement is between Customer and Porcelanosa. No other person shall have any rights to enforce any of its terms against Porcelanosa. Customer is not permitted to assign this agreement to any third party, and assignment in violation of this provision is void. Any warranty coverage may only be assigned according to the assignment provisions of the applicable warranty. Nonetheless, Porcelanosa may assign its rights and duties under these Terms and Conditions to any party at any time without notice.
- GOVERNING LAW AND VENUE.
THESE TERMS AND CONDITIONS OF USE ARE GOVERNED ACCORDING TO THE LAWS OF THE STATE OF NEW JERSEY, U.S.A., WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PRINCIPLES. INTELLECTUAL PROPERTY CLAIMS AS SPECIFIED BELOW THAT ARE NOT SUBMITTED FOR ARBITRATION SHALL BE BROUGHT IN THE COURTS OF NEW JERSEY AND THE UNITED STATES DISTRICT COURT OF NEW JERSEY. THE PARTIES AGREE TO THE JURISDICTION OF THE COURTS OF NEW JERSEY AND THE UNITED STATES DISTRICT COURT OF NEW JERSEY FOR ALL INTELLECTUAL PROPERTY CLAIMS NOT SUBMITTED FOR ARBITRATION. EACH PARTY WAIVES ANY CHALLENGE TO VENUE OR PERSONAL JURISDICTION, AND ALL PARTIES HEREBY WAIVE ANY CLAIM OF IMPROPER VENUE OR INCONVENIENT FORUM TO THE FULL EXTENT PERMITTED BY LAW FOR ALL INTELLECTUAL PROPERTY CLAIMS NOT SUBMITTED FOR ARBITRATION.
- ARBITRATION AGreement.
Please read this section carefully. Except as the Terms & Conditions otherwise provide, you waive your rights to try any claim in court before a judge or jury and to bring or participate in any class, collective, or other representative action.
- Agreement to Binding Arbitration for All “Disputes”
- Exceptions to Arbitration
Notwithstanding the foregoing, in lieu of arbitration: (1) either you or Porcelanosa can bring an individual claim in small claims court in the United States of America consistent with any applicable jurisdictional and monetary limits that may apply, provided that it is brought and maintained as an individual claim; and (2) you agree that you or Porcelanosa may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
- Jury Trial & Class Action Waiver
Except as the Terms & Conditions otherwise provide, you and Porcelanosa acknowledge and agree that you are each waiving the right to a trial by jury. The parties further agree that any arbitration shall be conducted in their individual capacities and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND PORCELANSOA AGREE THAT ANY ARBITRATION REQUIRED BY THE ARBITRATION AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS. You and Porcelanosa may not be plaintiffs or class members in any purported class, collective, or representative proceeding, and may each bring claims against the other only in your or its individual capacity. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the individual claim.
If any court or arbitrator determines that any term in the immediately preceding paragraph is unenforceable for any reason as to any claim, then the Arbitration Agreement will be inapplicable to that claim, and that claim will instead proceed through litigation in court rather than by arbitration, but only after the conclusion of the arbitration of any claim or dispute that is subject to the Arbitration Agreement.
- Governing Law & Arbitration Rules
The Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern the interpretation and enforcement of this section. If the FAA is found not to apply to any issue that arises under this section or the enforcement of the Arbitration Agreement, then that issue shall be resolved under the laws of the State of New Jersey.
- Initiating Arbitration
If you intend to seek arbitration you must first send a written notice (“Notice”), by first class or certified mail to Porcelanosa, Attn: _____, Address. If Porcelanosa intends to seek arbitration, Porcelanosa will send a Notice to the current billing address on your account. The Notice must describe the nature and basis of the claim and the specific relief sought. If the parties cannot reach an agreement within 60 days from the receipt of the Notice, either party may initiate arbitration proceedings.
A form to initiate arbitration proceedings is available on the AAA site at www.adr.org. In addition to filing this form with the AAA, the party initiating the arbitration must mail a copy of the completed form to the opposing party within 30 days. You may send such copy to Porcelanosa at ____________, and Porcelanosa will send such copy to the current billing address on your account or to your attorney, if you have retained one.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules unless otherwise noted below. For claims of $10,000 (US Dollars) or less, you will pay the filing fee specified in the rules of the AAA. Porcelanosa will pay any additional required filing fees, and all administration and arbitrator fees (collectively, “Arbitration Fees”) unless the arbitrator determines that your claim is frivolous. For claims over $10,000 (US Dollars), you will pay the filing fee, and the AAA rules will govern payment and allocation of administration and arbitrator fees.
- Location & Procedure
If your claim is for $10,000 (US Dollars) or less, you may choose to have arbitration conducted solely on the basis of documents submitted to the arbitrator, via a telephone hearing, by an in-person hearing in the county of your residence, or as otherwise mutually agreed to by the parties. If your claim exceeds $10,000 (US Dollars), the location of the arbitration and the parties’ right to a hearing will be determined in accordance with the rules of the AAA.
- Arbitrator’s Decision
The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
- Attorney’s Fees.
If Customer refuses to accept goods, defaults in payment, or otherwise defaults and if Porcelanosa then incurs legal fees. Customer shall pay Porcelanosa’s attorney fees.
Each part and Section of this Agreement is severable if held invalid or unenforceable by a court of competent jurisdiction. The remaining portions of this Agreement will not be affected and will be valid and enforceable.
Any failure to exercise or delay in exercising any right, remedy, power, or privilege arising from this Agreement by Porcelanosa will not be considered a waiver thereof, and no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Upon termination, all provisions of these Terms and Conditions which are by their nature intended to survive termination, all representations and warranties, all limitations of liability, and all indemnities shall survive such termination.
- Modifications of Terms and Conditions.
Porcelanosa reserves the right to change these terms and conditions at any time without prior notice.
The captions herein are solely for the convenience of the parties and shall have no legal significance whatsoever.