TERMS AND CONDITIONS
These terms and conditions govern the sale of all products and services by Fenster Trading and Services, Inc. (the “Company”) to its customer (the “Customer”). Signing on the conforme shall be deemed an acceptance of such terms and conditions:
1. Products
a. The Customer shall purchase the products more specifically described in the Purchase Order (the “Products”). The Company reserves the right to modify details in its Products to reflect current styles and latest design innovations.
b. Purchase of the Products shall include the hardware for the installation as well as the installation thereof. Insistence by the Customer to use its own hardware may alter the appearance of the Products as shown in Company brochures and shall void any warranty on the Products.
c. The Company shall not be responsible for typographical errors or errors of omission in the description of its Products in its catalogues, brochures, website, or any other marketing materials.
2. Placement of Order
a. The Company shall complete a purchase order specifying the Products to be purchased, any specifications thereon, the purchase price of the Products, the estimated time and date of delivery, specifications on its installation and such other information as the Company may deem necessary (the “Purchase Order”).
b. Customer shall sign its conformity to the Purchase Order as well as these Terms and Conditions and deliver the Purchase Order to the Company personally or by facsimile. The completed Purchase Order shall bind the Customer upon acceptance thereof by the Company.
c. No changes in the specifications of the Purchase Order shall be allowed unless authorized by the Company and any such changes, as well as cancellations of Purchase Order, shall be subject to charges for costs incurred. Charges for cancellation, or changes in specifications when applicable, shall include the purchase price of the Product cancelled and/or changed since the Products can no longer be returned by the Company to its supplier.
3. Purchase Price and Payment
a. Prices of the Products shall be in accordance with the price agreed upon by the Company and the Customer, based on the quotation made by the Company. The Purchase Price does not include Value-Added Tax and any and all other applicable taxes which may be imposed by the national or local government, which taxes shall be for the account of the Customer but shall include shipping costs, broker’s fee and importation taxes and fees.
b. Prices of the Company’s Products are subject to change without prior notice to the Customer. In the event of any change in prices, orders on hand shall be invoiced at the price in effect at the time the Products are shipped.
c. The purchase price shall be paid in cash or in check payable to “Fenster Trading and Services, Corp.” under the following terms:
i. A downpayment equivalent to Fifty Percent (50%) of the total purchase price shall be paid upon execution and delivery by Customer of the Purchase Order and these Terms and Conditions to the Company; provided, Company shall forward the Purchase Order to its supplier in Germany only after check payment has been cleared;
ii. Forty Percent (40%) of the purchase price upon delivery of Products to Customer and inspection thereof; and
iii. Balance of Ten Percent (10%) shall be paid upon completion of installation of the Products.
d. All payments to be made by the Customer hereunder shall include Value-Added Tax and all other applicable taxes.
e. Failure to pay any amount when due shall subject the Customer to a penalty at the rate of Two Percent (2%) per month on the amount due until full payment thereof.
4. Delivery of Products to Customer
a. The Company does not warrant the delivery of the Products to the Customer on the exact delivery date stated in the Purchase Order, as such date is merely approximated.
b. The Company shall not be liable for failure to deliver the Products on the estimated date due to events such as, but not limited to, common carrier delays, failure of independent vendors to deliver materials or parts, or strikes, fires, floods, snows, accidents and such events which are beyond the control of the Company.
c. The Company shall exert effort to effect delivery of the Products to the Customer when the cause of delay shall have ceased.
5. Ownership of Products
Title to the Products sold shall pass to the Customer only upon full payment thereof. Check payments shall not be deemed paid until cleared and encashed.
6. Back Orders
Orders for Products which were not included in the original shipment due to shortage of stock or such other conditions beyond the Company’s control shall be governed by the same terms and conditions of sale as if it were included in the original shipment.
7. Claims by Customer
a. Upon arrival of the Products in the Company’s store, Company shall immediately contact the Customer and request its authorized representative to inspect said Products for any damages or defects. The Customer’s authorized representative shall notify the Company in writing for any damages or defects within two (2) days from said inspection. Failure to so notify shall constitute a waiver of any claim against the Company for any Product damage or defect.
b. Products which are found to be damaged or defective and reported to the Company in accordance with Section 7(a) hereof shall be repaired or replaced by the Company. In no event shall the Company be responsible for any damage to the Products arising from the improper handling and/or storage of or the use of damaged, defective or improper tools or materials in assembling or handling the Products by the Customer.
c. Upon full payment of the Products, the Company shall replace, or provide replacement parts for, defective Products due to substandard materials or poor workmanship subject to the following terms and conditions:
i. Customer/Owners of Products outside Germany shall enjoy a warranty for fifteen (15) years from date of purchase, i.e. full payment of Purchase Price. Coordination and execution of service and costs incurred for shipping, handling, transfers, insurance, transportation and installation shall be the responsibility of the Customer/Owner.
ii. The Company shall not be liable for damages to the Products caused by the independent shipping contractor, improper handling or misuse of the Products, glass breakage, the use of applied tints or films, any alterations to the Products including customer-applied paint finishes, or improper installation by third parties and other analogous circumstances.
iii. The Company shall not be liable for damages to the Products caused by acts of nature including earthquakes, strong winds, fire or flood, natural weathering of exterior finishes and corrosion.
d. The Company shall not be liable for any regional or local building codes relating to thermal value, fire codes or other structural codes and ratings.
e. The Company shall not be liable for any expense incurred by the Customer in having the Products repaired or replaced by any entity other than the Company. Any such repair or replacement shall void any warranty on the Product.
f. In no event shall the Company be liable for any special, incidental or
g. consequential damages.
8. Warranties by the Company
The Company warrants that the Products conform to the catalogue or price list description or the specifications indicated in the pertinent Purchase Order.
This warranty shall be in lieu of all other warranties, expressed or implied, and of all other obligations and liabilities. In no event shall the Company be liable for any contingent liabilities.
9. Installation and Care of the Products
a. The Company shall/may assemble and/or install the Products for the Customer in accordance with the work order specifications laid down in the Purchase Order.
b. All Products shall be installed by experienced Company mechanics and shall conform to the highest standards of the industry. Upon completion of the installation, the Customer’s authorized representative shall inspect the same and acknowledge in writing his acceptance of the final work.
c. Materials furnished by an entity other than the Company to be used for the assembly and/or installation of the Products shall void the warranty provided by the Company on the Products. The Customer shall purchase said materials at its own risk ascertaining its compatibility with the Products and conformity with local building and fire codes and architectural standards.
d. The Company shall not be liable for any expense incurred by the Customer in modifying and/or repairing Products which become inaccurate or defective due to the use of non-Company furnished material.
e. Fasteners, where exposed, shall be made of aluminum, stainless steel or plated steel in accordance with German standards. Perimeter anchors shall be made of aluminum or steel, provided, the steel is properly isolated from the aluminum. Where aluminum sections are placed in contact with steel, concrete, plaster, or other dissimilar materials, the entire aluminum surface of contact shall be back-painted with a heavy coat of approved bituminous paint.
f. All joints between the aluminum framing and the wood or masonry shall be sealed in order to secure watertight installation. The Company does not provide structural support for the framing system, trim, and/or metal sub-sills. The Company may, however, at its option, and if so requested by the Customer, provide one or more of these services and/or products.
g. The Customer shall protect the PVC, wood and aluminum parts of the Products against damage from construction activities and harmful substances. Upon completion of any construction, the Customer and/or general contractor shall be responsible for cleaning the PVC, wood or aluminum parts of the Products with clear water containing mild soap or detergent or a petroleum product such as white gasoline, kerosene, or distillate. Customer shall ensure that no abrasive agents are used.
h. Warehousing, electrical, security services and telephone lines shall be provided by the Customer, free of charge, at the job site. Masonry, carpentry and all other jobs, which are not within the scope of work provided in the Purchase Order, shall be billed accordingly.
10. Marketing
The Customer hereby authorizes the Company to take photographs of the Products, the process of installation and the installed Products for the Company’s marketing archive.
11. No Implied Waiver
Leniency or failure of either party to insist upon a strict compliance with all the foregoing Terms and Conditions shall not be interpreted as a waiver on the part of the non-defaulting party to enforce strict compliance with the Terms and Conditions. No waiver, amendment, or supplement to these terms and conditions shall be implied therefrom. Any waiver, amendment or supplement hereof to be valid and effective shall be in writing and acknowledged before a notary public.
12. Assignability
This rights and obligations of the parties under these Terms and Conditions shall not be assignable by either party without the written consent of the other.
13. All Rights Cumulative
No right or remedy conferred upon or reserved to the Customer is exclusive of any other right or remedy herein, or by law or equity provided or permitted; but each shall be cumulative of any other right or remedy provided in these Terms and Conditions.
14. Third Party Claim
The Customer agrees to hold the Company free and harmless from any and all claims, actions or judgments arising from acts or omissions of the Customer, its agents, employees or representatives which result in harm or injury to any third party.
15. Governing Law
These Terms and Conditions shall be governed by and construed and implemented for all purposes in accordance with Philippine laws.
16. Severability
In the event that any of the terms and conditions hereof is in conflict with or is otherwise unenforceable under any law, rule or regulation of the government or any subdivision thereof, such term or condition shall be deemed stricken, but such invalidity or unenforceability shall not invalidate or render unenforceable the remainder of these Terms and Conditions.
17. Amendment
These Terms and Conditions may be amended only by the written agreement of the parties through their duly authorized officers or representatives.
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