Terms & Conditions: Direct Purchase

DIRECT PURCHASE TERMS AND CONDITIONS

1. ACCEPTANCE OF PURCHASE ORDERS

Sales of any goods or any related services (collectively, “Products”) referenced in Moore-Merkowitz Tile, Ltd’s quote to Customer (“Quote”), Customer’s written Purchase Order to Moore-Merkowitz Tile, Ltd (“Purchase Order”), and/or Moore-Merkowitz Tile, Ltd’s invoice to Customer (“Invoice”) are expressly conditioned upon the terms and conditions set forth below. Any additional or different terms specified or referenced in Customer’s Purchase Order are hereby excluded and shall not be deemed effective or binding unless expressly agreed to in writing by an authorized representative of Moore-Merkowitz Tile, Ltd. These terms and conditions represent the entire agreement between the Customer and Moore-Merkowitz Tile, Ltd pertaining to the subject matter of Customer’s purchase and shall supersede all prior oral and written agreements, proposals, communications, and documents. No Purchase Order placed by Customer shall be deemed accepted unless or until Moore-Merkowitz Tile, Ltd issues a written acknowledgement. Any amendment, change order, revision, or termination to an already-accepted Purchase Order shall be subject to acceptance by an authorized representative of Moore-Merkowitz Tile, Ltd.

2. PRICES, PAYMENT, & TAXES

2.1. Quotes are valid for 30 days. The price set forth in Moore-Merkowitz Tile, Ltd’s Quote (“Price”) are in United States Dollars. Nothing set forth in Customer’s Purchase Order shall modify or amend the quoted Prices, quantities, and/or the scope of Products offered, unless such modification or addition is agreed to in writing by Moore-Merkowitz Tile, Ltd prior to the Purchase Order.

2.2. The Quote will include an estimated shipping cost. Shipping charges are billed separately and are paid before shipment.

2.3. Moore-Merkowitz Tile, Ltd will issue an Invoice upon receipt of Customer’s Purchase Order and/or acceptance of Quote. Customer agrees to pay 2/3 of the Price on receipt of Invoice and agrees to pay the balance before shipment of goods on receipt of updated Invoice which will include shipping and other additional charges. Payment may be made by credit card or check. An additional processing charge is added for payment by credit card.

2.4. The prices are exclusive of any taxes (including, without limitation, sales, use, value added, goods and services, business, property (real or personal, tangible or intangible), license, documentation, registration, import, export, excise, franchise, stamp, or other tax), custom fees or tolls, levy, impost, withholding, fee, duty or other charge of any nature imposed by any governmental authority or other tax authority in any jurisdiction, and any and all fines, penalties, additions to tax, interest and other charges relating thereto (collectively, “Taxes”). All Taxes shall be paid by Customer in addition to the Price. Customer shall deliver any certifications and other documents required to demonstrate eligibility and to benefit from any exemption or other relief from any Tax.

3. NO REFUNDS

ONCE AN ORDER IS PLACED, MOORE-MERKOWITZ TILE, LTD DOES NOT ACCEPT ORDER CANCELATIONS OR RETURNS AND NO REFUNDS WILL BE MADE.

4. PACKAGING, SHIPPING

4.1. Moore-Merkowitz Tile, Ltd shall pack all Products in accordance with its standard commercial practices. If Customer has any special shipping or handling requirements, Customer shall notify Moore-Merkowitz Tile, Ltd in a timely manner regarding any such special requirements, and Customer shall be responsible for any increase in cost to pack the Purchase Order.

4.2. The Price does not include any shipping or handling charges, and Customer shall incur both the cost and the risk for bringing the Products to their final destination. Shipment will be made by UPS Ground or other freight service. Moore-Merkowitz Tile, Ltd shall not be deemed to have assumed any liability in connection with the shipment, nor shall the carrier be construed as an agent of Moore-Merkowitz Tile, Ltd.

4.3. Customer shall not refuse a shipment. In the event a shipment is refused, the order will incur additional shipping charges that the customer will be responsible for paying. Unless otherwise agreed to by Moore-Merkowitz Tile, Ltd in writing, delivery shall be deemed to have occurred FOB origin. This means that the Customer assumes title of the goods the moment the freight carrier picks up the Products from our facility.

5. DAMAGE

5.1. Customer is responsible for inspecting freight for shortages or signs of damage upon receipt of goods. Any tile damages must be reported on freight driver’s delivery receipt. Customer must photograph any damaged tile and packaging upon arrival. All freight, loss, and damage claims must be filed with Moore-Merkowitz within 72 hours from the moment the shipment was delivered.

6. DELIVERY, TITLE, AND RISK OF LOSS

6.1. Moore-Merkowitz Tile, Ltd’s quoted delivery schedule represents its best estimate and is based on current schedules and workload. Moore-Merkowitz Tile, Ltd shall have no liability for delay or any damages or losses sustained by Customer as a result of such estimate not being met. Partial deliveries shall be permitted.

6.2. Unless otherwise agreed to by Moore-Merkowitz Tile, Ltd in writing, delivery shall be deemed to have occurred FOB origin.

6.3. Title and liability for loss or damage to the Products shall transfer from Moore-Merkowitz Tile, Ltd to Customer upon delivery of the Products at FOB origin.

7. FORCE MAJEURE AND EXCUSABLE DELAY

7.1. Moore-Merkowitz Tile, Ltd shall not be liable for any damages of any kind for delayed or non-performance if such delayed or non-performance is due directly or indirectly to:

(a) Customer, including omissions or failure to act on the part of Customer or its agents or employees;

(b) An Event of Force Majeure, defined herein as including acts of God, acts of public enemies, fires, floods or unusually severe weather conditions, strikes, lockouts, disputes with workmen or other hostilities, embargoes, wars, riots or civil disturbances, epidemics or quarantine restrictions, delays or shortages of transportation, governmental action including the government’s denial or failure to grant an export license or other needed government authorization; or

(c) Causes beyond Moore-Merkowitz Tile, Ltd’s reasonable control, including severe accidents at Moore-Merkowitz Tile, Ltd’s facility, unforeseen production or engineering delays or inability of Moore-Merkowitz Tile, Ltd or its vendors to secure adequate materials, manufacturing facilities or labor, or any other acts and causes not within the control of Moore-Merkowitz Tile, Ltd, which by the exercise of due diligence and reasonable effort, Moore-Merkowitz Tile, Ltd would not have been able to foresee, avoid or overcome.

7.2. Moore-Merkowitz Tile, Ltd shall notify Customer of any delayed or non-performance due to an excusable delay or Event of Force Majeure as soon as practicable. If either such event should occur, Moore-Merkowitz Tile, Ltd’s period of performance shall be extended for a period of time equal to the duration of either such event.

8. PRODUCT DISCLAIMER

Customer has had the opportunity to request and approve color samples. Due to the nature of the raw materials and the production methods used for handmade ceramic art tile, some variation in size, color and surface from batch to batch is not only expected but enhances the beauty of the tile and the finished installation. The finished tile order can vary from the approved color sample(s). Crazing, which is the development of small surface cracks in the glaze, may occur and is not considered a defect. No guarantee is made against crazing. Moore-Merkowitz Tile, Ltd does not guarantee exact color matching for add-on orders due to potential changes in raw materials and natural variation that occurs from batch to batch.

9. LIMITED WARRANTY

MOORE-MERKOWITZ TILE, LTD DOES NOT WARRANT ANY PRODUCT FOR ANY SPECIFIC USE OR INSTALLATION PROCEDURE OR MAINTENANCE PRACTICE. UPON PURCHASING OR INSTALLING OR USING ANY PRODUCT, CUSTOMER WAIVES ALL CLAIMS RELATING TO THE PRODUCT, INCLUDING (BUT NOT LIMITED TO) ALL CLAIMS RELATING TO EXPRESS WARRANTIES AND/OR STATUTORY OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND ALL IMPLIED WARRANTIES OF FITNESS AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS. MOORE-MERKOWITZ TILE, LTD DISCLAIMS ALL SUCH WARRANTIES. ALL PURCHASES ARE “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS”. MOORE-MERKOWITZ TILE, LTD SHALL NOT BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE OWNERSHIP, USE, POSSESSION OR MAINTENANCE OF ANY PRODUCT BY ANY PERSON OR OTHERWISE.

10. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AND REGARDLESS OF THE NUMBER OF CLAIMS OR THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT, EQUITY, STATUTE, TORT, NEGLIGENCE (ACTIVE OR PASSIVE) OR OTHERWISE, MOORE-MERKOWITZ TILE, LTD SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQEUENTIAL DAMAGES OF ANY KIND, AND SHALL NOT BE LIABLE TO CUSTOMER FOR LOSSES OF USE, DATA, PROFIT, REVENUE, INCOME, BUSINESS, ANTICIPATED SAVINGS, REPUTATION, AND MORE GENERALLY, ANY LOSSES OF AN ECONOMIC OR FINANCIAL NATURE, REGARDLESS OF WHETHER SUCH LOSSES MAY BE DEEMED AS CONSEQUENTIAL OR ARISING DIRECTLY AND NATURALLY FROM THE INCIDENT GIVING RISE TO THE CLAIM, AND REGARDLESS OF WHETHER SUCH LOSSES ARE FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. EXCLUDING GROSS NEGLIGENCE OR WILLFULL MISCONDUCT, MOORE-MERKOWITZ TILE, LTD’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH A PURCHASE ORDER, QUOTE OR INVOICE SHALL IN NO EVENT EXCEED ACTUAL, DIRECT, AND PROVEN DAMAGES OF THE PRICE OF THE PRODUCT DIRECTLY PURCHASED BY CUSTOMER UNDER THE PURCHASE ORDER, QUOTE, OR INVOICE GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY. TO THE EXTENT THESE TERMS AND CONDITIONS CONTAIN ANY SPECIFIC REMEDIES PROVIDED BY MOORE-MERKOWITZ TILE, LTD TO CUSTOMER, REGARDLESS OF FORM, SUCH REMEDIES SHALL BE PROVIDED BY MOORE-MERKOWITZ TILE, LTD ON A SOLE AND EXCLUSIVE BASIS AND IN LIEU OF ANY OTHER REMEDIES, DAMAGES, OR LOSSES.

10. INTELLECTUAL PROPERTY

11. GOVERNING LAW

These Terms and Conditions and any action related hereto shall be governed by and construed in accordance with the substantive laws of the State of New York without regard to conflict of laws and all disputes arising under or relating to the purchase from Moore-Merkowitz Tile, Ltd shall be brought and resolved solely and exclusively in the State Court located in Allegany County, New York.

12. MODIFICATION

Any modification of these Terms and Conditions shall be valid only if it is in writing and signed by the authorized representatives of both Moore-Merkowitz Tile, Ltd and Customer.

13. WAIVER

If either party, at its option, agrees to waive any of these Terms and Conditions, then such waiver shall not for any purpose be construed as a waiver of any succeeding breach of the same or of any other of these Terms and Conditions; nor shall such a waiver be deemed as a course of conduct.

14. SEVERABILITY

If any of these Terms and Conditions are at any time held to be invalid or unenforceable, then such term or condition shall be construed as severable and shall not in any way render invalid or unenforceable the remainder of these Terms and Conditions, which shall remain in full force and effect.

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If you have any questions about these Terms, please contact us.