BEST
CARPET VALUES INC HEREAFTER REFERRED TO AS B.C.V. OFFERS TO SELL TO BUYER EACH
PRODUCT SET FORTH ON THE B.C.V. INC. ISSUED INVOICE, ELETRONIC OR OTHER, SENT
TO BUYER ONLY UPON THE FOLLOWING TERMS AND CONDITIONS (COLLECTIVELY, A “SALE AGREEMENT”).
BY PLACING AN ORDER FOR A PRODUCT WITH B.C.V. INC., EXECUTING B.C.V.’S CREDIT
APPLICATION, SENDING OR MAKING PAYMENT, OR TAKING DELIVERY OF THE PRODUCT, BUYER
AGREES TO THE TERMS AND CONDITIONS OF THE SALE AGREEMENT AND ACKNOWLEDGES THAT
THE PERSON PLACING THE ORDER HAS THE AUTHORITY TO ENTER INTO THE SALE AGREEMENT
ON BUYER’S BEHALF.
1. Definitions. “Buyer” shall mean the individual
or entity so identified on the B.C.V. Inc. Invoice “B.C.V.” shall mean B.C.V.
Inc. except when some other affiliate or subsidiary of B.C.V. Inc. is otherwise
expressly identified on the Invoice. “Product(s)” shall mean such B.C.V. Inc.
product sold to Buyer pursuant to this Sale Agreement.
2. Relationship
of Parties. B.C.V. Inc. and Buyer are independent entities, where Buyer is
purchasing Product from B.C.V. Inc. for its use or for resale when so permitted.
If Buyer is otherwise authorized by B.C.V. to sell and distribute a Product, B.C.V.
hereby grants Buyer a nonexclusive, nontransferable, no assignable and limited
right to distribute, market and sell such Product to consumers. Buyer shall not
sell, transfer or otherwise provide any Product to another for resell without
the prior, written authorization of B.C.V. Inc. B.C.V. Inc. reserves the right
to sell and to authorize other entities to sell such Product through all means
and channels of distribution and in competition with Buyer. Buyer acknowledges
that it has no authority to bind or contract in the name or for the account of
B.C.V. Inc., to create any liability against B.C.V. Inc. or to exert and direction
or control over B.C.V. Inc’s personnel.
3. Order and Delivery of a
Product. Buyer shall bear all risk and expense for delivery of Product,
including without limitation, shipping, loading, unloading, storage, freight,
and insurance. A Product may be shipped to Buyer in whole or in part and will
be shipped F.O.B. B.C.V. Inc. shipping location, unless otherwise
specified on the face of the invoice. Title to a Product shall pass to Buyer,
when delivered to the carrier, even if the Product is shipped freight prepaid,
unless otherwise specified on the face of the invoice. Among other things, a signed
delivery receipt or bill of lading will constitute proof of delivery. The choice
of carrier is made solely at the discretion of Buyer, and B.C.V.
Inc. makes no representation as to the acceptability of a particular carrier.
Except when B.C.V. Inc. expressly publishes Special Offers or otherwise agrees
in writing, B.C.V. does not guarantee shipment or delivery by a certain
date or time although B.C.V. Inc. will strive to deliver a Product by the date
that it may communicate to Buyer. B.C.V. Inc. shall not be liable to Buyer,
or any other person, for any loss or damage of any kind which results from
delay in shipment, delivery, or failure to give notice of delay, whether or not
such delay was caused by B.C.V. Inc. or otherwise. B.C.V. Inc. reserves
the right to backorder any Product and to ship from backorder in such order as
B.C.V. Inc. determines. ALL SALES ARE FINAL.
4. Canceled Orders and
Returns. No order may be canceled or Product returned to B.C.V. Inc. unless
done so in accordance with B.C.V.’s Cancellation/Return Policy. Orders for standard
Products may be canceled prior to shipment provided that B.C.V. Inc. has not had
to order or purchase the product and receives proper notice from Buyer and approves
the cancellation, assigning a cancellation number. Special orders, orders for
non-standard product, and orders where the Product is cut., altered, or prepared
at the request of Buyer may not be canceled or returned at anytime unless expressly
agreed to in writing by B.C.V. Inc. Returns for standard Product ie products that
are in stock, can only be made if approved by B.C.V. Inc. and documented by B.C.V.
Inc. through the issuance of a Return Goods Authorization. No Product shall be
accepted for return until the Buyer obtains a Return Goods Authorization number
from B.C.V. Inc. All refused or canceled orders, as well as all other B.C.V. authorized
accommodation returns are subject to B.C.V.’s applicable restocking fee plus freight
charges for delivery and return. Title in a returned Product will pass when B.C.V.
takes possession of the Product and verifies the Product with an approved Return
Goods Authorization. BCV RESERVES THE RIGHT NOT TO CANCEL ANY ORDER AT ANYTIME
FOR ANY REASON.
5. Product Variance & Compliance. Each Product
shall be deemed to be without defect and in conformity with its specifications
and the terms of the Sales Agreement even though reasonable variances may exist.
Buyer acknowledges that it is an accepted standard in the industry that for a
Product and among products (i) color variations exist between dye lots, stains,
pieces of wood, etc.; (ii) natural characteristics exist (i.e., wood Products
may have mineral streaks, knots or grain variations): (iii) cut and measurement
variances occur (i.e., a Product’s actual sizing may vary by as much as ten (10%)
from measurements stated on a final order description); and (iv) shrinkage, separation,
expansion and warping occur, even when the Product is properly installed (i.e.,
a wood Product may expand or contract due to seasonal and temperature changes,
thereby creating separation between boards). As a result, B.C.V. Inc. cannot and
does not guarantee that a Product or Products, whether in whole or in part, will
exactly match in specification, color, character, form, cut, fit or otherwise.
And Buyer acknowledges that reasonable variance, including (without limitation)
those stated herein, are permissible. Additionally, B.C.V. Inc. shall have no
liability if a Product does not conform to any applicable state, county or local
ordinance, as the conformity of a Product to each state, county and local ordinance
is the sole responsibility of the Buyer. B.C.V. Inc. reserves the right to change
its Products and components of its Products (i.e., backing, yarn system, etc.)
without prior notice, although in circumstances where an order from Buyer has
been accepted by B.C.V. Inc. B.C.V. Inc. will use commercially reasonable efforts
to ensure that such change will not affect Product performance in a materially
adverse manner. All sales are final. There are no deductions or chargebacks allowed
for any reason.
6. Electronic, programing or listing B.C.V. reserves
the right to cancel any order or offer the material at the the B.C.V. approved
price in any case where the price listed is incorrect or the freight was incorrectly
calculated, or the stock is or was depleted.
7. Taxes. Buyer assumes
exclusive liability for any and all taxes, tariffs, fees, duties, withholdings
or like charges, whether domestic or foreign, now imposed or hereafter becoming
effective (“Taxes”) related to the Product and its purchases from B.C.V. Inc.
(other than those based on the net income of B.C.V. Inc. ), including without
limitation, federal, provincial, state and local taxes, value-added taxes, goods
and services taxes, stamp, documentary, excise or property taxes, duties and other
governmental charges.
8. Limited Warranty. Provided that a Product
is not altered or damaged by someone other than B.C.V. Inc., and for up to one
year from the date that B.C.V. Inc. ships the Product to Buyer, B.C.V. Inc. hereby
warrants that such Product (other than Promotional or Irregular Goods, as described
below) shall (i) conform to B.C.V. Inc.’s published specifications and generally
released consumer/end-user limited warranty coverage terms, subject to reasonable
variations, manufacturing tolerances, the occurrence of non-material or minor
separations and appearance deviations, and (ii) for authorized resellers of B.C.V.
Inc., shall be merchantable for ordinary purposes for which such Product is intended
to be used. Notwithstanding the foregoing, once a Product has been installed,
such Product is deemed accepted by Buyer and no warranty shall apply for color,
characteristics, cut, fit or appearance related claims.
As Buyer’s sole
and exclusive remedy for a breach of the above warranty and at B.C.V. Inc.’s sole
discretion. B.C.V. Inc. will either replace or repair a Product that does not
conform to an applicable B.C.V. warranty; provided, however, that B.C.V. Inc.
shall not be responsible to replace or repair a Product which has been damaged
or altered by Buyer or its customers. With respect to a Product sold as “Promotional”
or “irregular” Goods by B.C.V. Inc., including, without limitation, drops, discontinued
items, specials, closeouts, seconds or the like, such Product is sold to Buyer
“AS IS/WHERE IS” without any warranty of any kind except as otherwise expressly
agreed to or published by B.C.V. EXCEPT AS SET FORTH ABOVE AND TO THE MAXIMUM
EXTENT PERMITTED BY LAW, B.C.V. INC. MAKES NO OTHER WARRANTIES FOR A PRODUCT OR
UNDER THIS AGREEMENT AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE WARRANTY OF WITNESS FOR A PARTICULAR PURPOSE OR USE.
For
consumers and installers who as Buyers believe that a warranted Product is defective,
such persons should return the Product to the dealer or installer from whom they
purchased the Product for inspection and consideration as to warranty coverage
(including possible replacement). All Buyers must inform B.C.V. Inc., by providing
within the applicable warranty or statutory period, complete and specific itemized
detail of all claims in warranty or at law that such Buyer may have for such warranty
or statutory remedy to be applicable.
9. Indemnity Liability Limitation.
Buyer hereby agrees to indemnify, reimburse in full, defend and hold harmless
B.C.V. Inc., its parent, subsidiaries, affiliates, officers, directors, personnel
and agents from and against any and all liability, claims, suites, actions, losses,
costs or expenses including (without limitation) reasonable attorneys’ fees relating
to or arising out of any claim or demand (a)for any Taxes or related penalties
and interest, (b)due to Buyer’s breach of the Sale Agreement; (c)that Buyer’s
customers or a third party may make against B.C.V. Inc. based upon or arising
from damage due to the acts and/or omissions of Buyer or due to the installation
of Product; (d)related to the failure of any payment sent or made by Buyer to
be honored or to satisfy the requirement of this Agreement; (e)for infringement
or misappropriation of a third party’s intellectual property rights based upon
B.C.V. Inc.’s incorporation of any designs, formulas or specifications in a Product
where such designs, formulas or specifications have been specifically ordered
or requested by Buyer. To the maximum extent allowable under applicable law and
excluding those liabilities that by law B.C.V. Inc. cannot limit or disclaim,
(i) B.C.V.’s aggregate liability arising from or relating damages, including without
limitation, lost revenues, loss of use of the Product, loss resulting from improper
storage, processing, padding/cushion, delay in delivery or shipment or errors
in shipment or labeling, loss of data, or the cost of any substitute Product or
related equipment, even if B.C.V. Inc. has been advised of the possibility of
such damages.
10. Cancellation. B.C.V. Inc. may cancel or terminate
a Sale Agreement in whole or in part at any time by giving oral or written notice
of such to Buyer. Cancellation or termination by B.C.V. Inc. shall not constitute
a waiver or release of any other rights and remedies of B.C.V. Inc. in contract
or provided by law or at equity.
11. Governing Law. Each Sale
Agreement shall be governed and construed in accordance with the laws of the State
of Georgia, without reference to any conflicts of law principles. Any litigation
instituted by Buyer against B.C.V. Inc. that pertains in any manner to this Agreement
must be instituted in the Superior Court of Murray County, Georgia or the United
States District Court, Northern District of Georgia, Rome Division. Any such litigation
instituted against Buyer by B.C.V. Inc. may, at B.C.V.’s option, be instituted
in the courts above identified for the State of Georgia or in the state in which
Buyer maintains its principal place of business. The U.N. Convention on Contracts
for the international Sale of Goods shall not apply to this Sale Agreement. If
any term, provision or condition of a Sale Agreement is held invalid or unenforceable,
the same shall not invalidate or otherwise affect any other provision thereof.
Any reproduction of this Sale Agreement by any reliable means shall be deemed
an original. Notices provided from Buyer to B.C.V. Inc. shall be in writing; notices
provided from B.C.V. to Buyer may be giving verbally or in writing. The parties
have required that this Sale Agreement and all related documents be drawn up in
the English language. Les parties conviennent et exigent expressement que ce Contrat
et tous les documents qui s’y rapportent soient redges on anglais.
12.
Attorneys’ Fees. In the event legal action is undertaken by B.C.V. Inc. to
collect any amounts due to B.C.V. Inc. by Buyer hereunder and if B.C.V. Inc. prevails
in such action, then Buyer shall reimburse B.C.V. Inc. for its reasonable attorney
fees and costs incurred in conjunction with such action, which amount shall not
exceed the maximum amount allowed by law of the forum in which such action is
brought.
13. Assignment. Buyer shall not assign, transfer or
sublicense this Sale Agreement, or any rights or obligations herein, without the
prior written consent of B.C.V. Inc. Any assignment or attempt to assign this
Sale Agreement, in whole or in part, by operation of law or otherwise, without
B.C.V.’s prior written consent shall be null and void. B.C.V. Inc. shall have
the right to assign, transfer or sublicense all or any part of this Sale Agreement
to another at any time and without the consent of Buyer.
14. Confidential
Information. Buyer agrees to receive and hold Confidential Information of
B.C.V. Inc. in trust and in strictest confidence and shall not use, reproduce,
distribute, disclose or otherwise disseminate any Confidential Information except
as necessary to perform its obligations hereunder. Disclosures of the Confidential
Information may be made only to Buyer’s employees and agents who have a specific
need to know and are subject to confidentiality restrictions at least as restrictive
as those contained herein. “Confidential Information” means confidential information
relating to the business, products and services of B.C.V. Inc., which is or has
been disclosed to Buyer, and which has value to B.C.V. Inc. and is not generally
know to B.C.V. Inc.’s competitors, including (without limitation), information
regarding product specifications and product plans, designs, costs, prices, finances,
marketing plans, business opportunities, personnel, R&D activities and know-how.
