Terms and Conditions of Sale

1.      Definitions: “Seller” shall mean Beaufurn, LLC; “Purchaser” shall mean the person or entity listed on the order acknowledgement, and any subsidiary or affiliate of such person or entity receiving Products under the Contract; “Parties” shall mean the Purchaser and Seller, collectively; “Product(s)” shall mean the goods supplied pursuant to this Contract; “Contract” shall mean Beaufurn’s order acknowledgement, these Terms and Conditions of Sale, and the Limited Warranty; “Facility” shall mean any manufacturing or distribution facility operated by Seller.

2.      Method of Payment: A 50% deposit is due from Purchaser at the time of order of any Product. The balance is due before shipment of the Products and/or when the Products are ready to be shipped.   All payments shall be paid in United States Dollars and may be payable via cash, check, wire, or credit card only.

3.      Delivery and Risk of Loss: All prices of Products are FOB Seller’s Facility in North Carolina.  Title to and risk of loss of any Products sold hereunder shall pass to Purchaser upon Seller’s delivery of the Products to the carrier at Seller’s Facility. Seller is not responsible for loss or damage in transit. Purchaser shall bear the cost of freight from Seller’s Facility to Purchaser’s location.  Performance shall be deemed to have occurred at the point of delivery to carrier at Seller’s Facility. 

4.      Acceptance and Rejection: Promptly upon receipt of Products delivered hereunder, Purchaser shall carefully inspect such Products for any damage, defect, or shortage before signing the freight bill. All claims for shortage or nondelivery and any claim for damage or defect which could reasonably be discoverable in the course of such inspection shall be waived unless Purchaser shall notify Seller of the same within ten (10) days after receipt of such shipment of Products to which the claim relates.  If Purchaser rejects in whole or in part any nonconforming shipment of Products, Purchaser shall provide Seller written notice of such rejection not later than ten (10) days after receipt of such shipment of Products.  If Purchaser fails to provide Seller with such notice, Purchaser shall be deemed to have accepted the applicable shipment of Products.  Upon written notice of nonconformity of any Product, Seller shall have the right to cure said nonconformity within a reasonable time.  If Seller agrees with Purchaser’s determination that a shipment of Products does not comply with applicable specifications, Seller shall use reasonable efforts to replace the nonconforming Products, at no additional cost to Purchaser. 

5.      Product Prices: Product prices and specifications are subject to change without notice to Purchaser. All orders placed by Purchaser are subject to final confirmation by Seller.

6.      Product Dimensions: All advertised Product dimensions are subject to minor changes without notice to Purchaser or Purchaser’s consent. If dimensions are critical to Purchaser, Purchaser may advise Seller of such when ordering the Product(s).  Seller will make reasonable efforts to comply with Purchaser’s requests, however, Seller does not guarantee that the Products(s) will exactly conform to Purchaser’s requests or the advertised dimensions.

7.      Cancellations: All Products are finished to order and Purchaser shall have no right to cancel an order without first obtaining the prior written consent of Seller.  Seller will not consent to the cancellation by Purchaser of an order after production of such Products has begun. 

8.      Seller’s Right to Sell Product: Possession of Seller’s catalog and price list does not constitute authority to purchase or sell Products manufactured by Seller. Seller sells Products on a select dealership basis and reserves the right to decline orders from any prospective Purchaser or account.

9.      Collection Costs: Purchaser agrees to be liable for all collection costs. Overdue accounts shall be assessed a late payment fee at the rate of two percent (2%) per month or the maximum rate permitted by applicable law with respect to such obligations, whichever is less.

10.  Product Shipment and Delivery: Seller will ship Products as they are ready unless Purchaser’s order acknowledgement specifically states “Ship Complete” to indicate that all the Products should be shipped at one time.  Packaging charge, if any, is additional. Product delivery dates are not guaranteed. Seller assumes no liability in the event of any delivery delays.

11.  Storage Charges: Postponement of shipment beyond Seller’s scheduled ship date will result in a storage charge at the rate of two and one-half percent (2.5%) per month on invoice total.

12.  Minimum Order: Minimum quantity order may apply on some Product styles.

13.  Products Including Marble: If Purchaser purchases Products including marble, Purchaser acknowledges and agrees that even though marble tops are anti-stain treated prior to leaving the factory, marble is a porous material and food or liquid stains may occur if they are not removed immediately after happening. Purchaser further acknowledges that Seller recommends that marble tops be re-treated with anti-stain at least twice a year using commercially available products.

14.  Table Top and Table Base Product: Purchaser acknowledges and agrees that recommended table top/base sizes are for reference only. It is Purchaser's sole responsibility to confirm suitability for specific applications.

15.  Products with Wood Finishes:  Purchaser acknowledges and agrees that due to natural variations in the color of wood in its unfinished state, Products with wood finishes may show slight variations in color from the samples.

16.  Products made with Purchaser’s Own Material (“COM”): COM will be scheduled for production only after receipt and inspection of the COM by Seller.
Purchaser acknowledges and agrees that in COM orders the actual yardage required to accommodate fabric patterns may vary substantially from the amount specified in the Price List. All of Seller’s yardage estimates are based in 54 inch wide finished vinyls or fabrics.
 If Purchaser must have exact yardage requirements, Purchaser must forward 120% of yardage for one Product (see yardage requirement in Price List) and a request yardage estimate. In most cases this will permit an accurate usage calculation.
 All COM must be shipped prepaid and clearly marked with the Purchaser's name and purchase order number.
 Leather material is subject to a twenty percent (20%) surcharge in upholstery work.
 Seller reserves the right to refuse any COM or require a written unconditional release prior to production of Products using the COM.
 Seller’s Limited Warranty does not cover the quality and durability of any upholstery materials, including COM, and Seller shall not be held responsible for wear, fading or performance of any upholstery or other materials, whether supplied by the Purchaser or by Seller. Seller is not responsible for any flaws or defects or variations in color of COM.
 Seller assumes no responsibility for the flame retardancy of any COM. Purchasers are solely responsible for making sure that COM complies with all applicable codes and regulations.

17.  Product Returns: Written authorization (“Return Authorization”) is required by Seller for Purchaser to return any Product. No credit is allowed for Products returned without such prior written consent by Seller. A Return Authorization sent to Purchaser by Seller must accompany all returned merchandise; otherwise shipment will be refused. Failure to enclose a Return Authorization and proper identification will result in credits being delayed. Returned Products are subject to a restocking charge of fifty percent (50%) of the purchase price of the Products. Products in orders that included upholstered merchandise (including, without limitation, Products made with COM), special material, manufacturing sizes, etc are not returnable. Returns must be made within 15 days of the date of the Return Authorization.

18.  Seller’s Remedies: Seller retains the right upon breach of this Contract by the Purchaser to sell any Products in Seller’s possession. In effecting any resale based upon breach of this Contract by Purchaser, the Purchaser shall remain liable for any net deficiency on resale of Product. Seller shall be entitled to reasonable attorney's fees and costs.

19.  Purchaser’s Remedies: PURCHASER’s exclusive remedy for shortage OF PRODUCT, damaged or defective Product (whether or not occurring as a result of SELLER’s alleged negligence or gross negligence) or any other cause of action arising out of SELLER’S SALE OF PRODUCTS is expressly limited TO replacement of nonconforming Products or payment of an amount not to exceed the purchase price of the Products for which damages are claimed, at PURCHASER’s option. PURCHASER SHALL HAVE NO RIGHT TO WITHHOLD PAYMENT OR make a REDUCTION IN PRICE.  PURCHASER’s remedy of replacement or refund is available only if nonconformance was not caused by PURCHASER’s misuse, neglect, improper storage, OR transportation, by accident, fire or other hazard.  PURCHASER’S REMEDIES FOR BREACH OF WARRANTY BY SELLER SHALL BE LIMITED TO OBTAINING CONFORMING PRODUCTS FROM SELLER, THE CREDITING OF PURCHASER’S ACCOUNT WITH SELLER FOR ANY AMOUNTS PURCHASER MAY ALREADY HAVE PAID FOR NONCONFORMING PRODUCTS OR REFUND TO PURCHASER OF AMOUNTS PAID FOR SUCH NON-CONFORMING PRODUCTS. 

20.  Representations and Warranties:  Seller offers a Limited Warranty on Products sold to Purchaser.  Said Limited Warranty is expressly incorporated by reference into this Contract. 

21.  Limitation of Liability: SELLER WILL NOT BE LIABLE TO PURCHASER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING PUNITIVE OR TREBLE DAMAGES OR ATTORNEY’S FEES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF PURCHASER OR ITS CLIENTS OR PURCHASERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF GOODWILL, PROFITS, USE OF MONEY OR USE OF PRODUCTS OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE IN CONNECTION WITH OR ARISING OUT OF THE CONTRACT, EXCEPT IN THE CASE OF PERSONAL INJURY OR PROPERTY DAMAGE WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY.  Purchaser assumes responsibility for all personal injury and property damage resulting from the handling, possession, use, or resale of any Product.  Any action by Purchaser for breach of this Contract by Seller or any other causes of action of Purchaser expressly allowed under this Contract must be commenced within one year after the cause of action has accrued.

22.  Indemnity: Purchaser agrees to indemnify, hold harmless and defend Seller and Seller’s directors, officers, employees and agents, and the directors, officers, employees and agents of any Seller parent, subsidiary or related company (the “Seller Indemnitees”) from and against any and all claims, suits, losses, damages, costs, fees and expenses arising out of the death or injury to person or damage to property resulting from the sale, marketing or use of the Products by Purchaser, except to the extent that such claims, suits, losses, damages, costs, fees or expenses arise or result from any negligent or wrongful act or omission of Seller.

23.  Insurance: Seller shall obtain insurance coverage as required by law and such other insurance coverage as Seller deems necessary, in its sole discretion, to fulfill its obligations under this Contract.

24.  Force Majeure:  No liability shall result from Seller’s nonperformance or delay in performance hereunder, when due to (i) war (whether or not declared and whether or not the United States or the country in which Purchaser’s place of business is located is a participant), act of the public enemy, act of God, riot, fire, explosion, flood, storm, accident, or sabotage; (ii) strike, lockout or other labor trouble (whether or not such labor trouble is within the reasonable control of Seller); (iii) compliance with any law, act, regulation, priority, request or recommendation of any governmental authority; (iv) unavailability, shortage or significant increase in the cost of fuel, raw materials, energy sources or labor; (v) mechanical failure or breakdown of equipment; or (vi) any contingency beyond the reasonable control of Seller interfering with the production, supply, or transportation of the Products covered by the Contract or with the supply of raw materials used in connection therewith.  In such event, quantities so affected will be eliminated from the Contract without liability to either Party thereof. 

25.  Miscellaneous: (a)  Remedies not Exclusive: All remedies available to the Parties for breach of obligations herein are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy will not be deemed an election of such remedy to the exclusion of other remedies.  (b)  Dispute Resolution: Any dispute between Seller and Purchaser arising under or related to this Contract shall be resolved by arbitration in Winston-Salem, North Carolina, USA, under the rules of the American Arbitration Association and under the laws of the State of North Carolina, excluding its choice of law rules.    The United Nations Convention on Contracts for the International Sale of Goods shall not apply.  (c) Severability: In the event any provision of the Contract is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of the Contract will remain in full force and effect. (d) Waiver: A failure by either Party to insist on performance of any of the terms of the Contract, a failure by either party to exercise any right or privilege, or a waiver of any breach hereunder shall not constitute a waiver of any other right or privilege, whether of the same or similar type. (e) Nonassignability; Binding on Successors: Except in connection with any sale of all or substantially all of either Party’s assets, whether by merger or otherwise, any attempted assignment of the rights or delegation of the obligations under the Contract, whether by operation of law or otherwise, shall be void without the prior written consent of the nonassigning or nondelegating Party. In the case of any permitted assignment or transfer of or under the Contract, the Contract shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the Parties hereto. (f) Commercial Terms:  Unless otherwise specifically provided on the face of the order acknowledgement, commercial trade terms used in the Contract shall be as defined in accordance with the North Carolina Uniform Commercial Code. (g) Ambiguities:  Ambiguities, if any, in the Contract shall not be construed against either Party, irrespective of which Party may be deemed to have authored the ambiguous provision. (h) Survival of Obligations:  Any termination of the Contract shall not affect any monies owing or obligations incurred by either of the Parties prior to the effective date of the termination.  The representations and warranties set forth in this Contract shall survive expiration or termination for any reason of the Contract.

Limited Warranty

1.      Beaufurn LLC (Seller) offers a Limited Warranty on products (“Products”) sold by the Seller to the original purchaser (Purchaser), covering defects in material and workmanship for a period of one year from the date of invoice, subject to the terms, conditions and limitations described below. When other manufacturers warranties exist, Purchaser's claim must be made directly to those manufacturers, and all such warranties shall be in lieu of this Limited Warranty. Any such warranty shall be the sole warranty to the Purchaser.

2.      Purchaser shall promptly notify Seller in writing of any defect in any Product purchased from Seller, in reasonable detail to the satisfaction of Seller. Seller has the right to inspect any Product claimed defective before making a final determination of the claim.

3.      Seller's liability under this Limited Warranty is limited to the repair or replacement of any Product determined by Seller to be defective. Seller has sole discretion to determine which method will be used to correct non conformities. Reimbursement for repairs locally made must be approved by Seller in writing in advance. Purchaser and Seller agree that this remedy is exclusive.

4.      Claims for delays or damages occurring during transit or unloading of Products are to be made directly to the applicable freight carrier, and are not covered under this Limited Warranty. Seller will assist Purchaser in making such claims. This Limited Warranty does not cover claims for damages resulting from normal wear and tear or unusual conditions of use.

5.      DISCLAIMER OF OTHER WARRANTIES
THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE, OR IMPLIED WARRANTY OF NONINFRINGEMENT AND ALL OTHER POTENTIAL OBLIGATIONS OR LIABILITIES ON THE PART OF THE SELLER, EXCEPT THE WARRANTY OF TITLE.  FURTHER, SELLER SPECIFICALLY MAKES NO WARRANTIES AS TO ANY SERVICES OR AS TO COMPLIANCE WITH LAWS, REGULATIONS, OR STANDARDS.

6.      DISCLAIMER OF OTHER LOSS
SELLER SHALL NOT BE LIABLE FOR LOST PROFITS, REPLACEMENT RENTAL COSTS, OTHER COSTS OF REPAIR OR REPLACEMENT, OR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES RESULTING FROM ANY DEFECTS IN MATERIAL OR WORKMANSHIP. EXCEPT SET FORTH HEREIN, SELLER SHALL NOT BE LIABLE FOR THE COST OF LABOR EXPENDED BY OTHERS ON ANY DEFECTIVE PRODUCT OR CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES TO ANYONE BY REASON OF DEFECTIVE MATERIAL OR WORKMANSHIP. THE LIABILITY OF SELLER IS LIMITED TO REPAIRING OR REPLACING DEFECTIVE PRODUCT IN ACCORDANCE WITH THE TERMS OF THIS WARRANTY.

DISPUTE RESOLUTION AND GOVERNING LAW
Any dispute between Seller and Purchaser arising under or related to this transaction or this Limited Warranty, including without limitation the arbitrability of such dispute, shall be resolved by arbitration in Winston-Salem, North Carolina, USA, under the rules of the American Arbitration Association and under the laws of the State of North Carolina.