Last Updated: April 8, 2024
WHITE DOVE MATTRESS LTD.
TERMS AND CONDITIONS FOR THE SALE OF GOODS WITH RETAILERS
Applicability. These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) by White Dove Mattress Ltd. (“Seller”) to the buyer named in the attached Purchase Order (as defined herein) (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. The attached applicable purchase order (the “Purchase Order”) and these Terms (collectively, this “Agreement”), together with any written policies applicable to Buyer, comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
Purchase Order Acceptance and Cancellation. Buyer agrees that Buyer’s order provided in a Purchase Order is an offer to buy, under these Terms, all products indicated in such Purchase Order. All Purchase Orders must be accepted by Seller or Seller will not be obligated to sell the Goods to Buyer. Purchase Orders are not subject to cancellation or modification, in whole or in part, except with Seller’s express written consent. Seller may require, as a condition to such consent, payment by Buyer to Seller of an amount specified by Seller to compensate Seller for: (a) the price of all Goods that have been delivered and not previously paid for by Seller; plus (b) the actual cost incurred by Seller that is properly allocable to the Goods not delivered at the time of cancellation, including, without limitation, the costs of materials or other items purchase for use in producing such Goods; plus (c) the profit, including reasonable overhead, that Seller would have realized from full performance by Buyer; plus (d) the reasonable costs incurred by Seller in making settlement and effecting collection hereunder provided that the items listed as special preparations are not subject to cancellation except by payment of the full sales price. Buyer may require delivery of any Goods for which payment by Buyer has been made. Buyer shall pay Seller such amounts within fifteen (15) days following Seller’s written notice thereof. Buyer shall not cancel any Purchase Orders after Seller has initiated shipment of such Purchase Order.
Prices. Buyer shall purchase the Goods from Seller at the prices (the “Prices”) indicated on the Purchase Order. All Prices are exclusive of all sales, use, value added, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. Buyer shall be solely responsible for assessing whether it is responsible to pay any such taxes, duties or charges.
Payment Terms. Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller’s invoice. Buyer shall pay interest on all late payments at the lesser of the rate of one and a half percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), if Buyer fails to comply with the terms of payment, Seller shall be entitled to hold shipment until payment is made. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise. Each issuance of a Purchase Order to Seller will constitute Buyer’s representation and warranty that Buyer is solvent and is able to pay for the Goods identified in such Purchase Order in accordance with the terms of this Agreement. Buyer shall furnish Seller with statements accurately and fairly evidencing Buyer’s financial condition as Seller may, from time to time, reasonably request. If, at any time, Seller determines in its sole discretion that Buyer’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Seller’s other right under this Agreement, at law or in equity, Seller may without liability or penalty, take one or more of the following actions: (i) on written Notice, modify the payment terms for outstanding and future purchases, including requiring Buyer to pay for Goods on a cash in advance or cash on delivery basis; (ii) reject any Purchase Order received from Buyer; (iii) cancel any previously accepted Purchase Orders; (iv) delay or withhold any further shipment of Goods to Buyer; (v) stop delivery of any Goods in transit and cause such Goods in transit to be returned to Seller; (vi) terminate this Agreement; and/or (vii) accelerate the due date of all amounts owning by Buyer to Seller.
Shipment; Delivery; Title and Risk of Loss. Seller shall make delivery in accordance with the terms on the face of the Purchase Order. The Goods will be delivered within a reasonable time after the receipt of the Purchase Order. Seller shall not be liable for any delays, loss, or damage in transit. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to Buyer’s shipping address indicated on the Purchase Order (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s order. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
Inspection and Rejection of Nonconforming Goods. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods within three (3) days of delivery to the Delivery Point and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (a) the product shipped is different than identified in the Purchase Order; or (b) the product’s label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion and after inspection of such Goods, (i) replace such Nonconforming Goods with conforming Goods or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Unless otherwise specified, Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s address listed on the Purchase Order. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section 5 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. If Buyer’s order includes any custom or special order items that cannot reasonably be resold by Seller to other customers, and if fabrication has already commenced or cannot be terminated without additional out-of-pocket costs to Seller, then Buyer shall, at its election, either (i) pay the reasonable out-of-pocket costs incurred by Seller to cancel or terminate such custom or special order, or (ii) pay the specified Price for such items and take delivery thereof as scheduled.
Limited Warranty. All Goods sold by Buyer are accompanied by a written limited warranty, the terms and conditions of which are incorporated herein by this reference, and which may be found at https://whitedoveusa.com/warranty/. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 87 SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Indemnification; Limitation of Liability. Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors, and assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, incurred by Indemnified Party arising out of or resulting from any third-party claim alleging: (a) Buyer’s breach of this Agreement, (b) Buyer’s negligence or more culpable act or omission in connection with the performance of this Agreement; (c) any bodily injury, death of any third party or damage to real or tangible personal property caused by the negligent acts or omissions of Buyer or Buyer’s employees and agents; or (d) Buyer’s failure to comply with applicable law. To the extent necessary to give full and complete effect to this Agreement to indemnify Indemnified Party, Buyer, for itself and for its agents, successors, and assigns, specifically and expressly waives whatever immunity from liability it might be afforded under Section 35, Article II of the Ohio Constitution, Ohio Revised Code Section 4123.74, and any and all other immunities afforded by constitutional provisions, statutes, and common law principles currently recognized or that may from time to time be recognized, in the State of Ohio and all other states throughout the United States. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS GIVING RISE TO THE CLAIM.
Compliance with Laws. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may immediately terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods. Commission for Purchase in Territory. Buyer acknowledges that Seller will be selling the same or substantially similar Goods online directly to customers. By purchasing Goods from Seller under these Terms, Buyer agrees to participate in white glove delivery service to Seller’s online customers. If a customer purchases such Goods from Seller directly through Seller’s website and such customer requests white glove delivery within Buyer’s Territory (as defined below), Buyer shall complete the white glove delivery of such Goods to the customer in exchange for (a) a rebate from Seller of the delivery fee paid by the customer; and (b) a commission calculated in accordance with the commission rates set forth in Seller’s Commission Policy, which may be amended by Seller in its discretion from time to time, and which is incorporated herein by reference. Buyer’s “Territory” shall be assessed based on (i) whether Buyer has the specific Goods on display and (ii) whether Buyer is the closest retailer or reseller of the Goods based on the customer’s requested delivery location by zip code.
Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the laws of the State of Indiana without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Ohio.
Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
Waiver; Amendment. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
Confidential Information. All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement, and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.
