|This is a legal contract and agreement ("Agreement") between you and the Berne
Apparel Company ("Berne Apparel"). By accessing,
browsing, and using this website ("Site") to purchase garments and other
products ("Merchandise"), you (i) acknowledge that you have read, understood,
and accepted the terms and conditions of this Agreement, and (ii) agree that
such terms and conditions are a legal contract by which you are bound and which
govern the purchase of Merchandise by you from Berne Apparel.
If for any reason you do not agree with and accept all the terms and conditions
of this Agreement, you should discontinue using this Site for purposes of
As discussed below, Berne Apparel reserves the right, from time to time, to
change this Agreement.
By using this Site for purposes of purchasing Merchandise, you further agree
to the terms and conditions of Berne Apparel's
and the Terms and Conditions of Use.
LOG-IN AND PASSWORD
In order to use the Site to purchase Merchandise, you must set up a
BerneApparel.com account and be approved by Berne Apparel. You will need to
complete an account request form in order to obtain approval by Berne Apparel.
Upon approval by Berne Apparel, a user name and initial password will be
e-mailed to you. Once the initial password has been issued, Berne Apparel
recommends that you change the password (See the "My Account" section). You are
solely responsible for maintaining the confidentiality of your user name and
password. Berne Apparel is not responsible for unauthorized use of your user
name and password.
Berne Apparel will never contact you (e-mail, phone, fax or other) and request
your password. Berne Apparel highly recommends that you periodically change
PRICE, QUANTITY, PAYMENT TERMS, AND ACCEPTANCE OF ORDERS
- The price and quantity of Merchandise purchased and sold will be stated on
your purchase confirmation that will be e-mailed to you at the e-mail address
you provided during the registration process. Freight costs, which are paid by
you, may only be estimated. Actual freight costs may vary.
- Unless otherwise agreed to by Berne Apparel, payment of the purchase price
is due and owing at the time you submit your order. Payments may be made by
credit card. Berne Apparel, in its discretion, may agree to other payment terms,
subject to prior credit approval.
- All orders are subject to approval and acceptance by Berne Apparel.
Berne Apparel may reject orders for any reason, including without limitation a
decision based on your credit status.
All Merchandise is shipped FOB, Ossian, Indiana. The risk of loss shifts to
you after Berne Apparel has delivered the Merchandise to the common carrier for
shipment. Berne Apparel is not responsible for any delays after Berne Apparel
has delivered the Merchandise to the common carrier.
DELIVERY AND INSPECTION
Delivery dates are estimated and are based upon market and production conditions
at the time of your order. Berne Apparel is not liable for any delay in or
failure to make one or more shipments if such delay or failure is due to acts
of God, war, riot, embargoes, acts of civil or military authorities, fires,
floods, accidents, quarantine, restrictions, mill conditions, strikes, delays
in transportation, fuel, parts, labor or materials, or any other circumstances
or cause beyond Berne Apparel's control.
You are required to promptly inspect the Merchandise upon delivery.
You should immediately notify Berne Apparel if the Merchandise does not conform
to your order or if the Merchandise is defective or fails to conform to the warranty.
Except as provided below, Berne Apparel warrants that, subject to normal use,
the Merchandise will be free of defects in material and workmanship for a period
of 1 year from the date of sale to you.
This warranty does not cover or include and Berne Apparel has no liability for:
The Merchandise is not flame-resistant or acid-resistant. The Merchandise should
not be worn if the person wearing the Merchandise is exposed to fire, other
flammable materials, or acids. You are prohibited from warranting or representing
that the Merchandise is flame-resistant or acid-resistant. Berne Apparel makes no
representations or warranties as to the use of the Merchandise in cold or wet weather.
- problems caused by misuse or abuse of the Merchandise, or
- Merchandise that has been decorated, modified with embroidery, or otherwise altered.
If the Merchandise fails to conform to the warranty, you must promptly give
written notice to Berne Apparel of the warranty claim. You may give notice by
e-mail, fax, or US mail. See our Site for where to send the notice.
If the Merchandise fails to conform to the warranty and if you make a timely
claim of breach of warranty, then Berne Apparel will, upon return of the
Merchandise, refund or credit the purchase price, or if the Merchandise has not
been returned, in Berne Apparel's discretion, Berne Apparel may adjust the purchase
price and refund or credit your account with the adjustment. The procedure for
returning Merchandise is provided below. Berne Apparel may set off any refund
against any outstanding amount owed by you to Berne Apparel.
The remedy of
represents and constitutes the sole and exclusive remedy available to you for a
breach of warranty claim, breach of contract claim, tort claim (including
negligence or strict liability), or any other claim with respect to the
Merchandise. The remedy shall be determined by Berne Apparel in its sole discretion.
- adjusting the purchase price of the non-conforming Merchandise, or
- refunding or issuing a credit to you,
You are prohibited from altering or modifying the tags that accompany the
Merchandise. Berne Apparel is not responsible for any representations or
warranties made by you to the consumer.
Unless otherwise authorized in advance by Berne Apparel, and such authorization
may be given in Berne Apparel's sole discretion, only Merchandise
that is defective and otherwise is subject to a valid warranty claim may be
returned. In the absence of a valid warranty claim, Berne Apparel will consider
authorization of the return of Merchandise only if the request is made within
sixty (60) days after the date of delivery to you of the Merchandise.
You may not return any Merchandise after it has been decorated, modified with
embroidery, or otherwise altered.
Before returning any Merchandise to Berne Apparel, you must obtain prior
authorization from Berne Apparel. Merchandise may not be returned without first
obtaining authorization from Berne Apparel. You may request authorization by
calling the Berne Apparel customer service department. The customer service
department hours are as follows:
- Monday-Friday, 8 a.m.-5 p.m. EST (800-843-7657)
BERNE APPAREL MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND BERNE APPAREL
EXPRESSLY EXCLUDES AND DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY
THE LIABILITY OF THE BERNE APPAREL ARISING OUT THE SUPPLYING OR SELLING OF THE
MERCHANDISE, OR ITS USE BY YOU OR YOUR CUSTOMER, AND WHETHER BASED UPON BREACH
OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR
OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE PURCHASE PRICE OF THE MERCHANDISE.
THE REMEDIES SET FORTH ABOVE SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF
YOU AND THE SOLE AND EXCLUSIVE LIABILITY OF BERNE APPAREL WHETHER THE CLAIMS ARE
BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR
OTHERWISE. UNDER NO CIRCUMSTANCES SHALL BERNE APPAREL BE LIABLE TO YOU OR YOUR
CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL,
INCIDENTAL, OR PUNITIVE DAMAGES, WHETHER
BASED UPON LOST GOODWILL, LOST RESALE PROFITS, WORK STOPPAGE, PROPERTY DAMAGE,
LOSS OF USE, EXPENSES OF RECALL, OR OTHERWISE.
This Agreement sets forth the entire agreement of the parties with respect to
the subject matter. These terms and conditions may not be altered, supplemented
or amended by the use of any other documents.
Berne Apparel may change this Agreement at any time without notice by updating
this Site and the change is effective immediately upon such posting and change
to the Site. By using the Site for purposes of purchasing Merchandise, you agree
to be bound by any such changes. You should periodically visit the Site and this
page to determine the then current terms and conditions of which you are bound.
APPLICABLE LAW AND VENUE
If any provision(s) of this Agreement is held by a court of competent
jurisdiction to be contrary to law, then such provision(s) shall be construed,
as nearly as possible, to reflect the intentions of the parties with the other
provisions remaining in full force and effect. Berne Apparel's failure to
exercise or enforce any right or provision of this Agreement shall not constitute
a waiver of such right or provision. This Agreement may be assigned in whole or
in part by Berne Apparel. This Agreement may not be assigned in any manner by
you without the express, prior permission of Berne Apparel. This Agreement shall
be governed by and construed in accordance with the laws of the State of Indiana
notwithstanding any conflict of laws provisions. You irrevocably and
unconditionally (i) consent to submit to the exclusive jurisdiction of the state
and federal courts in the County of Allen, Indiana (the "Indiana Courts") for
any litigation or dispute arising out of or relating to this Agreement, (ii)
agree not to commence any litigation arising out of relating to this Agreement
except in the Indiana Courts, and (iii) agree not to plead or claim that such
litigation brought therein has been brought in an inconvenient forum.
If any provision of these terms and conditions shall be ruled unenforceable,
then the remainder shall be enforced to the extent permissible.
|COPYRIGHT 2008 THE BERNE APPAREL CORPORATION