Standard Terms and Conditions of Sale
Berman Bedding, Inc. ("Seller")
- Acceptance of Terms. Seller's terms and conditions shall govern the purchase and sale of any and all goods, equipment, and products (collectively, "Goods") set forth in the Seller's order confirmation to the party wishing to purchase the Goods from Seller ("Buyer"). Regardless as to whether Buyer's purchase order contains terms and conditions to the contrary, Seller's acceptance of any such purchase order or other offer to purchase Goods from Seller by Buyer shall be expressly conditioned on Buyer's acceptance of Seller's Standard Terms and Conditions of Sale. Seller explicitly rejects any and all additional or different terms and conditions of purchase from Buyer.
- Payment Terms. All invoices from Seller to Buyer shall be paid by Buyer within thirty (30) days from the date of Seller's invoice, unless otherwise agreed upon in writing by Seller. Failure of Buyer to pay all undisputed invoiced amounts within thirty (30) days shall be subject to interest accruing at the greater of two-tenths of one percent (0.2%) per day the invoice payment is late, beginning from the date of invoice, or the maximum allowable by law. Any disputed invoiced amount shall be raised by Buyer to Seller within seven (7) days from the date of Seller's invoice, and failure to timely do so shall constitute a waiver by Buyer of any disputed invoice amount. Buyer shall not be entitled to back charges or set-offs without prior written consent of Seller.
- Taxes and Other Costs. Unless Seller agrees otherwise in writing, Buyer shall be responsible for payment of all taxes (including but not limited to applicable sales or use tax, tariffs, duties, or other levies), freight, storage, insurance, required permits or other governmental charges directly related to the Goods.
- Shipment of Goods. Unless Seller agrees otherwise in writing, delivery of the Goods shall be Ex Works Seller's factory (Incoterms 2010). Title to the Goods shall not pass to Buyer until the Goods have been paid for in full under the respective invoice. Unless otherwise agreed to in writing by Seller, any delivery or shipping dates are estimates only; provided however that Seller shall utilize all commercially reasonable efforts to meet those dates. Seller shall not be liable for any damages to Buyer (whether direct, consequential, liquidated, or otherwise) for failure to meet said estimated shipping or delivery date. Any particular freight instructions must be provided to Seller by Buyer in writing not less than thirty (30) days prior to the estimated date of delivery. Buyer shall be responsible for any freight charges that are not within normal practices between the Buyer and Seller or beyond normal industry standards.
- Inspection of the Goods. Any inspection of the Goods pre-shipment required by Buyer (at Buyer's sole cost and expense) must be coordinated with Seller with a minimum of five (5) days' written notice. Any inspection of the Goods by Buyer after receipt of the Goods by Buyer may be completed at Buyer's discretion and at Buyer's sole cost and expense, but Seller must be notified in writing of any inconsistencies or deviations within ten (10) business days from Buyer's receipt of Goods. In the event Buyer fails to notify Seller of inconsistencies or deviations within this timeframe, Buyer irrevocably waives any and all claims against Seller for the purported inconsistency or deviation of the Goods at the time of delivery.
- Changes/Termination. After acceptance of order by Seller, no change in the scope of work for the production of Goods by Seller (including any attempted order cancellation or termination), shall be accepted without a written change order agreed by both Buyer and Seller in writing. Seller shall be entitled to an equitable modification by Buyer to price and performance duration for any change to the scope of work (including, without limitation, quantity or quality of Goods or delivery schedule) for any reason whatsoever (including, without limitation, a Force Majeure event or change in applicable law, regulation, etc. affecting the Goods or production thereof). A "Force Majeure event" shall be defined as any event that is beyond a party's control that could not have been easily avoided or overcome that are not the result of that party's actions (examples of Force Majeure event include, but are not limited to, the following: acts of war, terrorism, riots, strikes or lockouts, natural catastrophes (including pandemic or epidemic), declarations of disaster by a governmental agency, or extreme weather conditions beyond normal weather patterns).
- Goods Warranty. Seller warrants to Buyer that all Goods produced by Seller for Buyer shall conform to the specifications and descriptions provided by Buyer and that the Goods (and components thereof) shall be free from defects in material and workmanship for the following durations: (a) sewn seam pad for two (2) years from the manufacture date and (b) welded seam pads for one (1) year from the manufacture date ("Warranty Period"). In the event Buyer provides written notice to Seller of a purported breach of this warranty, Seller shall, after investigation and approval of Buyer's claim, as Buyer's sole and exclusive remedy and at Seller's sole option, repair or replace the Goods or refund the purchase price of the defective Goods. Seller's warranty is expressly conditioned on (i) Buyer disinfecting and cleaning the Goods in strict conformance with Seller's written cleaning and disinfection procedures, (ii) the Buyer retaining all legally required labels on the Goods, and (iii) Buyer not applying adhesive tape to the Goods at any time. Seller's warranty does not extend to normal wear and tear or misuse of the Goods. THE WARRANTIES SET FORTH IN THIS SECTION 7 ARE SELLER'S SOLE AND EXCLUSIVE WARRANTIES AND SELLER MAKES NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTIBILITY OR IMPLIED WARRANTY OF FITNESS FOR PURPOSE. FURTHERMORE, THIS WARRANTY IS SUBJECT TO THE LIMITATION OF LIABILITY PROVISION SET FORTH IN SECTION 14 BELOW.
- Seller's Indemnity. Seller shall indemnify, defend, and hold harmless Buyer from any third-party claim against Buyer for personal injury, death, or damage to real property, solely to the extent by Seller's gross negligence or willful misconduct. Seller shall have the sole authority to direct the defense and settle any indemnified claim. Seller's indemnification is expressly conditioned on Buyer notifying Seller of any claim for which Buyer is requesting indemnification and Buyer providing reasonable cooperation in defense of any claim. Seller's indemnification is limited to claims brought within the Warranty Period.
- Specifications of Goods. Buyer hereby acknowledges that Seller is only the manufacturer of Goods, the specifications for which Buyer has and retains sole responsibility of creating, drafting, or otherwise providing to Seller, with which Seller is obligated to manufacture the Goods in accordance. Seller makes no representation or warranty of any nature to the Goods conforming with any applicable federal, state, or local rule, regulation, statute, or law in any manner whatsoever, including but not limited to use or labeling requirements of the Goods. Buyer shall bear ultimate responsibility for determining the suitability or use of the Goods for its own purposes. Notwithstanding anything to the contrary, Buyer hereby agrees to indemnify, defend, and hold harmless Seller from any third-party claim against Seller for personal injury, death, damage to real property, violations of federal, state, or local rule, regulation, statute, or law; provided however that Buyer's indemnity of Seller shall not extend to instances of Seller's gross negligence or willful misconduct.
- Dispute Resolution, Choice of Law. The parties shall make every effort to negotiate in good faith between themselves to resolve any dispute under this agreement. Should the parties be unable to resolve a dispute arising out of or relating to this agreement, the parties agree to first mediate the dispute through a jointly chosen mediator at a mutually agreeable site under the then current Mediation Procedures of the American Arbitration Association ("AAA"). Should the parties be unable to resolve their dispute through mediation, the parties hereby agree to finally settle the dispute through binding arbitration administered by AAA under its then current domestic or international Commercial Arbitration Rules by one arbitrator mutually agreed upon by the parties in Erie County, Pennsylvania.
This agreement shall be construed in accordance with, and governed in all respects by, the laws of the Commonwealth of Pennsylvania, without regard to conflicts of law principles. To the extent it would apply, both Buyer and Seller hereby reject the applicability of the United Nations Convention on Contracts for the International Sale of Goods to the applicable transaction between the parties.
- Ownership of Intellectual Property. Seller shall retain ownership of any and all devices, designs, estimates, prices, notes, electronic data, software and other documents or information created, prepared, or otherwise disclosed by Seller to Buyer reasonably required to produce the Goods, along with any related intellectual property rights. Buyer shall retain ownership of any and all devices, designs, estimates, prices, notes, electronic data, software and other documents or information created, prepared, or otherwise disclosed by Buyer to Seller reasonably required to produce the Goods, along with any related intellectual property rights. In the event that Buyer and Seller jointly develop any new intellectual property, Buyer and Seller shall jointly own said intellectual property in proportion to the extent of contribution. Each party hereby grants the other a limited, non-exclusive, non-transferable license to use any such information, material, or intellectual property solely for and to the extent required to produce or use the Goods, as the case may be.
- Termination. Either party may terminate this agreement for a material default (i.e. failure to perform its obligations under this agreement) upon written notice of default to the defaulting party with a thirty (30) day cure period after receipt of notice. If Buyer suspends an order without a change order for thirty (30) or more days, Seller may terminate this Agreement without liability upon ten (10) days' written notice to Buyer. Notwithstanding anything to the contrary, in the event of a termination for any reason, Seller shall be entitled to payment for work performed, whether delivered or undelivered, prior to the date of termination.
- Export Compliance. Buyer agrees that the Goods shall not at any time directly or indirectly be used, exported, sold, transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with such applicable export laws and regulations. BUYER AGREES TO INDEMNIFY AND HOLD SELLER HARMLESS FROM ANY AND ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS AND FINES RELATED TO NONCOMPLIANCE WITH APPLICABLE EXPORT LAWS AND REGULATIONS.
- Limitation of Liability. SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY MANNER. NOTWITHSTANDING ANYTHING TO THE CONTRARY, SELLER'S TOTAL LIABLITY TO BUYER ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS, SHALL BE LIMITED TO THE PURCHASE PRICE PAID BY BUYER TO SELLER UNDER THE APPLICABLE TRANSACTION.
- Miscellaneous Provisions. (a) Assignment: Neither party may assign, sublicense, or otherwise transfer their respective rights or obligations under this Agreement without prior written consent from the other party and any purported transfer of this Agreement without the prior written consent of the other shall be void and of no force and effect; (b) Severability: Should a particular provision of this agreement be deemed to be unenforceable by a court of competent jurisdiction, said unenforceable provision shall be modified by the court to the extent possible, and if such modification is impossible, then the unenforceable provision shall be stricken and the rest of the agreement shall continue in full force and effect; (c) Survival: The following articles shall survive the termination of this agreement: Article 7, 8, 10, 11, 14, and 15; (d) Entire Agreement: These Standard Terms and Conditions of Sale between the parties with respect to the subject matter herein, and this agreement supersedes any prior understanding or representation of any kind, whether oral or written, preceding the date of this agreement and any purported amendment to this agreement must be in writing and signed by both parties.