1. Walker & Zanger, LLC (“Walker Zanger” or “Seller”) provides information concerning its products, terms of sale, installation procedures and maintenance practices to assist its clients in making selection, usage, installation and maintenance decisions, to maximize their enjoyment of its products, and inform the client of terms and conditions which are part of the sales’ consideration. It is the responsibility of the client and/or the client’s installer to blend the product to the owner/client’s satisfaction. Client’s selection and usage of Walker Zanger’s products and the installation procedure and maintenance practice employed by each client are outside the direction and control of Walker Zanger and are strictly subject to these conditions of sale and solely the choice and responsibility of each client. Any deviation from these conditions must be in writing and signed by Walker Zanger, client and, where appropriate, client’s installer.
2. DISCLAIMER OF WARRANTIES. WALKER ZANGER DOES NOT WARRANTY ANY PRODUCT FOR ANY SPECIFIC USE, ANY INSTALLATION PROCEDURE, MAINTENANCE PRACTICE NOR THE AESTHETIC UNIFORMITY OF PRODUCTS. UPON INSTALLING OR USING ANY PRODUCT, BUYER WAIVES ALL CLAIMS RELATING TO THE PRODUCT, INCLUDING ALL EXPRESS WARRANTIES AND/OR IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS. SELLER DISCLAIMS ALL SUCH CLAIMS. WALKER ZANGER SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, NOR CONSEQUENTIAL DAMAGES ARISING FROM THE OWNERSHIP, USE, POSSESSION OR MAINTENANCE OF ANY PRODUCT BY ANY PERSON. ALL CLAIMS ARISING FROM THIS TRANSACTION OR THE PRODUCTS PROVIDED SHALL BE LIMITED TO THE REPLACEMENT VALUE OF THE PRODUCT(S) VIA ACCOUNT CREDIT.
3. Prices. Walker Zanger reserves the right to change its prices, terms and conditions of sale without notice. All prices are ExWorks Walker Zanger’s warehouse [INCOTERMS 2022], without insurance unless otherwise quoted. Title shall transfer with risk of loss.
4. Terms. Sales are made on a cash basis only unless prior “Open Account” status has been approved in advance by our credit department. When credit is granted, terms are 10 days net. Interest at 1-1/2% per month (18% per annum) or the maximum rate allowable by law, whichever is greater, as well as court costs and collection and attorneys’ and legal fees, will be charged on all past due invoices. Accounts over 60 days delinquent shall be C.O.D until account is made current. In the event of an assignment for the benefit of creditors, intervenor, or trustee for Buyer, liquidation, insolvency, dissolution or the filing of bankruptcy of Buyer not resolved within 10 days shall automatically revoke Open Account status, cancel all open orders, and make any outstanding balance immediately due and payable.
5. Limitations of Actions. THE PARTIES AGREE AN ACTION FOR BREACH OF CONTRACT MUST BE COMMENCED WITHIN ONE YEAR AFTER INVOICE DATE OF THE PRODUCTS GIVING RISE TO THE CLAIM.
6. Products’ Features. Natural Stone Products. Stone is a product of nature and no two pieces of stone are exactly alike. Every piece of stone has unique natural variations, markings, shadings, and inclusions which can include fissures, pits, open or dry seams, fossils or glass veins and differ in regard to moisture absorption, surface finish, texture and coefficient of friction. These are not defects but rather inherent characteristics of stone products, which may require periodic maintenance to maintain the products integrity. All stone tiles and products should be sealed with a penetrating sealer prior to grouting to prevent the grout from staining the stone. It is further recommended that these stone be resealed as part of normal maintenance procedures.
Metal, Glass, Glazed Ceramic and Porcelain Products. Differences in color, shape, size, moisture absorption, surface finish, texture, and coefficient of friction, are the unique characteristics that distinguish each of these tile products and should be considered in each customer’s purchase decision and decision regarding the intended use of the product selected. Variations of these characteristics can occur between production lots of the same product type and are inherent characteristics resulting from the manufacturing process. All sizes are nominal only and may vary. Finish trim pieces require a different manufacturing process than the field tile and as a result may vary slightly in color. Glazing on extreme relief (textured) ceramic tiles will vary in thickness and as a result the glazing may appear darker and lighter in different areas throughout the tile.
Glazed ceramic products are subject to crazing. Crazing is the cracking solely within the fired glaze due to tensile stresses, temperature fluctuation, or expansion and contraction of the tile body or setting bed. Crazing is not a defect, nor does it affect the durability of the products and is an inherent characteristic of the manufacturing process. Some tiles are intentionally induced to craze to produce what is known as a crackle finish. Crackle glaze tiles should be sealed with penetrating sealer prior to grouting to keep the grout from staining the clay body. Crackle glaze tiles should not be used on kitchen counter surfaces or surfaces subject to heavy uses. In areas that experience regular moisture, such as in showers, regular resealing of crackle glazes is a necessary practice.
It is the Buyer’s responsibility to seal, reseal and maintain the products. Failure to maintain the product voids any and all warranties. Samples provided may not be exact as the purchased product due to naturally occurring features.
7. Vapor/Moisture Barrier Disclaimer. When stone products or ceramic, porcelain, glass or metal tile is installed on a concrete slab at ground level, it is the responsibility of the customer and the customer’s installer to ensure that the slab is dry and fully cured and that a proper vapor moisture barrier is in place between the concrete slab and the stone product, ceramic, glass or metal tile prior to installation. All shower floor substrates and twelve inches up the adjacent perimeter walls must have a waterproof membrane on the top surface of the fully cured mortar bed prior to tiling. Any defect arising from or connected to installation is the sole liability and responsibility of the installer. Walker Zanger does not warrant, recommend, nor endorse any installers.
8. Electronic Notice; Delays; Inspection Requirement. Buyer agrees to receive all notices, invoices, and other communications by electronic means, at the email address that has been provided by Buyer. Walker Zanger is not responsible for delivery delays beyond its control. It is the responsibility of the customer, the customer’s representatives, general contractor, subcontractors, installer and any person responsible to the owner regarding the installation of the product or the finished product, to INSPECT each Walker Zanger product upon delivery to the job site. All merchandise should be checked in and INSPECTED immediately upon delivery, using the Walker Zanger packing list sent with the merchandise, to insure the delivery of all listed items and the absence of damage. All claims of damage must be reported by facsimile transmission within 48 hours of delivery to the delivery carrier and to Walker Zanger. DO NOT RETURN MERCHANDISE WITHOUT STRICTLY COMPLYING WITH THE RETURN MERCHANDISE POLICY SET FORTH BELOW. Time is of the essence in regard to these inspection and reporting requirements.
9. Return Merchandise Policy:
A. Materials authorized for returns are subject to a 30% restocking charge plus freight charges.
B. No material may be returned for credit later than 30 days from date of invoicing.
C. No material may be returned without prior authorization. Call our Customer Service for a Return Authorization (RA) number prior to shipping and return within fifteen days. The RA is required for account credit. Returns without prior authorization may not be credited.
D. No returns of special orders shall be authorized or permitted.
E. PACKAGING IS CRITICAL, ALL RETURNS MUST BE PROPERLY PACKED TO AVOID DAMAGE AND ELIMINATE BREAKAGE. CREDIT WILL NOT BE ISSUED FOR MERCHANDISE THAT IS DAMAGED OR BROKEN DUE TO IMPROPER PACKAGING OR HANDLING. FILING OF DAMAGE CLAIMS WITH FREIGHT CARRIERS IS CUSTOMER’S SOLE RESPONSIBILITY.
F. Time is of the essence.
10. Force Majeure, Acts of third parties and God. Walker Zanger shall have no liability or responsibility for any fees, costs, damages, losses or expenses caused in whole or in part by third parties or God including inter alia those arising or resulting from delays, unavailability or discontinuation of products, strikes, employee shortages, pandemics, quarantines, war, weather. If one of these (or more) occurs, Walker Zanger shall endeavor to recommend alternative products with Buyer solely responsible for any increase in price.
11. Construction Liens. Buyer is responsible for the payment of all contractors, subcontractors and installers (“Workers”). In the event a Worker is not paid in full, such Worker may bring a construction lien against the Buyer’s property or materials. It is Buyer’s sole responsibility to pay all Workers. Failure to pay Worker directly or through another party or the levying of a construction lien does not impact Buyer’s responsibility to pay Walker Zanger in full.
12. Severability. If any term or condition hereof is invalid, illegal or incapable of being enforced by any law, regulation, public policy, all other terms and conditions shall remain and be given full effect with the invalidated term substituted with a term or condition which maintains the intent of the parties.
13. Waiver. The failure of Walker Zanger to enforce any term or condition found herein shall not waive its right to enforce such term or condition nor shall such waiver be given continuing effect.
14. Venue and Choice of Law. Litigation costs and local laws are part of the consideration of these conditions and terms of sale. The parties agree to the personal jurisdiction of the court of appropriate jurisdiction located in Miami Dade County. The laws of the State of Florida shall apply. In the event Buyer files or brings a claim in any other jurisdiction, Buyer shall be responsible for all legal costs, attorneys’ fees for a change of venue action to move the claim to this agreed jurisdiction. Both parties waive the right to a jury trial.