The following standard terms and conditions shall apply to all transactions, including the sale of goods and the rendering of services, between Somnium, a California corporation, ("Somnium") and retail customers ("Customer"). Somnium and Customer are collectively referred to herein as the "Parties."
All retail sales of goods and rendering of services from Somnium to Customer shall be subject to these Terms and Conditions, whereas wholesale transactions are governed by a separate agreement. These Terms and Conditions are hereby incorporated into all agreements between Somnium and Customer.
2. Formation of Agreement:
An agreement for the sale of Products or the rendering of Services between Somnium and Customer shall become binding upon the earlier of (a) Somnium's written issuance of an order confirmation, service order or invoice (collectively referred to as "Purchase Order"), or (b) Customer's acceptance of delivery or performance. Oral statements by Somnium's employees, representatives or agents shall become binding between the Parties only upon written confirmation by Somnium. In the event of Customer's failure to expressly agree to the terms and conditions of any Agreement (as defined below), Customer shall be deemed to have assented to these Terms and Conditions by acceptance of, or payment for, any part of the Products or Services specified in the Purchase Order. These Terms and Conditions together with the provisions included in any Purchase Order accepted in writing by Somnium represent the entire agreement (the "Agreement") between Somnium and Customer.
3. Delivery and Performance:
a. Delivery of Products. Unless otherwise agreed to in writing by the Parties, Somnium will deliver and install all Deliverable Products (as defined in Section 3.b. below) according to the schedule and at the location specified in the Purchase Order. Such scheduled delivery and installation shall occur, however, only after: (i) Somnium's written acceptance of the Purchase Order and (ii) Customer's full payment for the Deliverable Products, including all applicable shipping and service charges. All delivery dates and schedules agreed to by Somnium shall be non-binding unless expressly agreed to as binding in writing by Somnium. Somnium's obligation to meet performance or delivery commitments is subject to Customer's satisfactory completion of all conditions precedent, including payment of all amounts due to Somnium when due.
b. Place of Delivery. Delivery shall be made at such location as Somnium specifies in the Purchase Order.
c. Additional Services. In addition to delivery and installation, if Customer requests in writing on the Purchase Order and pays a disposal fee (as specified in the Purchase Order), Somnium will dispose of one used mattress. Customer's used mattress must be made available for pick-up at the time of delivery at the location specified in the Purchase Order.
d. Performance of Services and Deliveries. All Services and Deliveries shall be provided during regular business hours (Monday - Friday 9:00 a.m. - 5:00 p.m) and in accordance with the Purchase Order. Performance of Services and Deliveries shall occur, however, only after: (i) Somnium's written acceptance of the Purchase Order, (ii) Customer's acknowledgment of the estimated cost for Services and authorization to perform the required delivery, pick up, exchange, service, repair or replacement and (iii) Customer's agreement to pay the final charge when due. Unless otherwise specified in the Purchase Order, the charge shall be due no later than at the time of outbound shipping. All performance commitments agreed to by Somnium shall be non-binding unless expressly agreed to as binding in writing by Somnium. All Services may, at Somnium's discretion, be performed at either Somnium's or Customer's premises, or at the premises of a third party selected by Somnium.
e. Customer's Right to Cancel. If Somnium fails to complete delivery or performance for any reason (i) within thirty (30) days after a non-binding delivery or performance date or (ii) fifteen (15) days after a binding delivery or performance date, Customer shall be entitled to cancel the Agreement without penalty. IN NO EVENT SHALL SOMNIUM BE LIABLE FOR DAMAGES CAUSED DIRECTLY OR INDIRECTLY BY ANY DELAY IN DELIVERY, PERFORMANCE OR INSTALLATION, CAUSED BY CIRCUMSTANCES OTHER THAN INTENTIONAL OR GROSSLY NEGLIGENT MISCONDUCT BY SOMNIUM, ITS EMPLOYEES, REPRESENTATIVES OR ITS AGENTS.
4. Price, Payment Terms and Return Policy:
a. Non-Binding Price Quotes. All prices quoted in catalogues, advertising brochures, price lists, cost estimates, quotes for delivery charges and any offers made by Somnium employees, representatives or agents shall be subject to change without notice and shall be non-binding until written issuance of Purchase Order by Somnium.
b. Prices. Unless otherwise agreed to in writing, all prices for Products, Services and Deliveries are based upon Somnium's retail price list in effect at the time of contract formation. Prices stated in the Purchase Order or any part of the Agreement may not include duties or sales, use, excise or similar taxes or governmental charges, which may now or hereafter be applicable to the Agreement, Products, Services or the shipment and/or use thereof, including withheld taxes. Unless otherwise agreed to in writing by Somnium, Customer shall promptly after notice of payment by Somnium of any duty, tax or other charge or of any withholding of the same, pay or reimburse Somnium.
c. Price Increases. Notwithstanding Section 4.a. above, if delivery or performance is delayed for any reason for more than ninety (90) days after the agreed upon date, Somnium shall have the right to charge Customer such prices for Products or Services as stated in Somnium's retail price list in effect at the time of actual delivery or performance; provided, however, that Customer shall have the right to cancel the agreement if such price charged by Somnium exceeds the originally agreed upon price by more than five percent (5%).
d. Payment. Unless otherwise agreed upon in writing, all payments for Products and Deliveries shall be due and payable in full upon execution of the Purchase Order. All payments shall be made in United States Dollars (US$) payable in cash, by major credit card, certified check or money order. Certified checks and money orders shall be made payable to 'Somnium'.
e. Late Payment. In any event of Customer's payment default, Somnium shall be entitled to receive from Customer (i) a late payment charge assessed at the lower of 1.5% per thirty (30) days of delinquency or fraction thereof for all unpaid amounts owed by Customer or the highest rate permitted by California law, plus (ii) attorneys' fees and costs of litigation, arbitration and/or mediation incurred, as a result of said default or any other breach of any Agreement (including costs and expenses of collection). Until full payment is received, Somnium reserves the rights (i) to claim additional damages, if any, caused by Customer's delay in payment, (ii) to refuse delivery of additional Products or rendering of additional Services, (iii) refuse to honor the product warranties (described in Section 5 below) and (iv) request reasonable advance payments for future performance of Services. All products remain property of Somnium until fully paid for.
f. Acceleration upon Default. Notwithstanding Somnium's rights under Section 4.e. above, in the event of (i) Customer's failure to pay any amount when due, or (ii) filing of a petition in bankruptcy by or against Customer, assignment for the benefit of Customer's creditors and/or appointment of a receiver for Customer's assets or business, all amounts owed Somnium by Customer, whether due or not, shall become due immediately, and Somnium shall have the right to cancel all agreements not fully performed by Customer.
Setoff. Customer shall have no right to withhold or setoff any payments.
g. Return Policy. Unless otherwise expressly agreed to in writing by Somnium, all retail sales of Somnium mattresses are final. However, sales processed through our company online store give customers the opportunity to test a mattress for a ten-day period after delivery and return it to us for a full refund (minus all shipping and handling charges) if they are not completely satisfied with their purchase for any reason. Any return request must be made in writing and be received by Somnium within the ten-day period through our website contact form, via email to firstname.lastname@example.org, or at our mailing address at 1801 Lincoln Blvd. #146, Venice, CA 90291. Proof of purchase must accompany the return request. The product will be assigned a return order and needs to be returned promptly to a Somnium warehouse, shipping pre-paid, in its original packaging and like-new condition. Any product not meeting these criteria will be refused. This exception to our retail return policy covers manufacturer direct sales through our own website only and explicitly excludes sales through retailers, websites, affiliates, or other agents.
a. Product Warranty. Somnium warrants (the "Warranty") to the original purchaser that products will provide use free from defects in workmanship and materials for a period of ten years from the initial date of purchase. This is a limited, prorated warranty and provides coverage as follows:
b. Service Warranty. Any Services performed by Somnium under any agreement with Customer will be performed in a good and workmanlike manner, in conformance with the written requirements and specifications set forth in the Purchase Order. The warranty set forth in this Section 5.b. shall be for a term of thirty (30) days from the completion of Services.
c. Ten-Year Prorated Warranty. If Customer provides Somnium with a signed product registration card prior to the end of the warranty period Somnium shall provide a limited ten-year warranty (the "Limited Warranty") for all mattress and mattress frame products ("Mattress Products"). During the initial five (5) years following delivery, Somnium shall replace all defective parts on any Mattress Product at no cost to Customer (excluding shipping and handling costs). For the latter five-year period, Customer may replace the defective Mattress Product by paying to Somnium the applicable replacement fee: Year 6 Replacement Fee for Replacement Mattress Product is 50% of (i) then-existing retail price for same Product or (ii) if Product has been discontinued, the last retail price for Product or the current retail price of a comparable model. 7th year: Same as above at sixty percent (60%) 8th Same as above at seventy percent (70%) 9th Same as above at eighty percent (80%) 10th Same as above at ninety percent (90%)
The replacement fee and/or any warranty shipping and handling charges are due and payable to Somnium prior to shipping of the Replacement Product.
This warranty covers all components and all defects in materials and manufacturing. Should a failure occur in any of the components, including the springs, basic construction or the cover, Somnium will repair or replace, at our option, the defective product, be it the mattress and/or box and/or cover. You will be asked only to cover the cost of shipping and handling. This warranty is not transferable. For warranty purposes, 'defective' is defined as 1) A mattress core exhibiting separation of the laminated components; or 2) An area of compression in excess of 1" when compared with edge height when the mattress is placed on a solid, flat surface, or 3) Cover failure associated with defective materials or faulty workmanship, or 4) Spring failure associated with defective materials or faulty workmanship.
Repair or replacement of the mattress or foundation does not extend this warranty or begin a new warranty period. When making a claim against this warranty, you will be required to produce an acceptable copy of proof of purchase and return the defective item, delivery pre-paid, accompanied by a valid return order to a Somnium warehouse. This warranty is exclusive and is in lieu of any other warranty, representation, indemnity, or guarantee whether expressed or implied, oral or written, arising by law, custom, or prior policy made or offered by Somnium, it’s dealers, representatives, or employees. Purchaser acknowledges, by placing the Somnium mattress into use, that this warranty specifically excludes claims for incidental damages or loss and is valid only to the original purchaser.
d. Warranty Service. Any claim for service under the Warranty must be made in writing by the Customer through the retail location where the Products were purchased and accompanied by proof of purchase. During the Warranty term and the initial five-year term of the Limited Warranty, Somnium will repair or replace, at its sole discretion, any part or parts of the warranted Products it deems defective. For replacement of Mattress Products during the latter five (5) years of the Limited Warranty, Somnium shall have the option of providing Customer with the same products or if such Products have been discontinued, a products which are substantially same in quality, features and retail value. Somnium shall take reasonable steps to ensure that a replacement Mattress Product is delivered to Customer within thirty (30) days Somnium's receipt of Customer's warranty service claim.
e. Remedies. Somnium's sole responsibility under the warranties set forth in this Section 5 is limited to the repair or replacement of any defective part of the Products and repair or correction of any defective part of the Services, which repair or correction may, in the discretion of Somnium, be performed at Somnium's or Customer's premises, or at the premises of a third party selected by Somnium. All shipping charges are the responsibility of the Customer.
f. Exclusions. Customer's alteration of the Product, negligence, misuse, failure to maintain, exposure, accidents, commercial usage or improper handling of the Products shall relieve Somnium of all responsibilities under the warranties set forth in this section. High concentrations of chlorine bleach and/or chlorinated disinfectants will degrade textile surfaces. Damage associated with the accumulated build up of chlorine ions will invalidate the warranty. When chlorine based cleaning products are used, they must be thoroughly rinsed with clear water after the required wet contact period. The mattress must be protected from physical damage and abuse. Mechanical tearing, puncturing, cutting, or abrading will invalidate the warranty, as will storing the mattress vertically, bending it, or jumping on it. Using the mattress on an adjustable bed or placing it inside a bed frame or on any other base that supplies an uneven resting surface will also void the warranty. The cover must be intact and in use at all times. The continued use of mattresses with defective, damaged, or excessively worn covers will invalidate the mattress core warranty.
6. Disclaimers and Limitations of Liability:
a. Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR OTHERWISE IN WRITING BY SOMNIUM, SOMNIUM HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS OR SERVICES PROVIDED UNDER ANY AGREEMENT WITH CUSTOMER, ARISING FROM CONTRACT OR TORT, OR IMPOSED BY STATUTE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOMNIUM DOES NOT REPRESENT OR WARRANT THAT THE UTILIZATION BY CUSTOMER OF THE PRODUCTS OR SERVICES WILL BE SUCCESSFUL, OR THAT THE USE OF THE PRODUCTS OR SERVICES WILL BE ECONOMICALLY PROFITABLE FOR CUSTOMER
b. No Consequential Damages. IN NO EVENT SHALL SOMNIUM BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH SUCH CLAIM IS BROUGHT, INCLUDING BUT NOT LIMITED TO DELAY IN PERFORMANCE, BREACH OF CONTRACT, TORT, OR STATUTE, AND REGARDLESS WHETHER SOMNIUM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND ANY FAILURE OF ESSENTIAL PURPOSE OF A LIMITED REMEDY UNDER THESE TERMS AND CONDITIONS.
c. Limitation of Liability. THE PARTIES AGREE THAT IF SOMNIUM SHOULD BE FOUND LIABLE FOR LOSS OR DAMAGE DUE FROM FAILURE OF SOMNIUM TO PERFORM ANY OF THE OBLIGATIONS IN ANY AGREEMENT BETWEEN THE PARTIES, SOMNIUM'S AGGREGATE LIABILITY SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES EXCLUDING ALL SHIPPING AND HANDLING CHARGES, AS THE CASE MAY BE, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. THIS LIABILITY SHALL BE EXCLUSIVE. THE PROVISIONS OF THIS SECTION 6.C. SHALL APPLY IF LOSSES OR DAMAGES, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULT DIRECTLY FROM PERFORMANCE OR NONPERFORMANCE OF ANY OBLIGATION IMPOSED BY ANY AGREEMENT ON, OR FROM NEGLIGENCE, ACTIVE OR OTHERWISE, OF SOMNIUM, ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR ASSIGNS.
7. Force Majeure:
Neither Party shall be liable or deemed to be in default by reason of any delay or failure in performance under these Terms and Conditions or any other agreement between the Parties, which results, in whole or in part, directly or indirectly, in any contingency, delay, failure, or cause of any nature beyond the reasonable control of such Party, and not arising out of a breach by such Party of these Terms and Conditions or any other agreement between the parties, including without in any way limiting the generality of the foregoing, on account of strikes, lockouts, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, weather, or unavailability of necessary utilities or raw materials, failure of suppliers or subcontractors to timely deliver conforming components or materials, unavailability of components, activities of a combination of workmen or other labor difficulties, export control regulation, proclamation, decree, regulation, ordinance, or instructions of Government or other public authorities, or judgment or decree of a court of competent jurisdiction (a "Force Majeure Event"). Except as otherwise provided hereafter, each Party shall be entitled to an extension of the date of any performance required of such Party under these Terms and Conditions if the failure of the Party to perform was due to a Force Majeure Event; provided, however, that a Force Majeure Event shall not be recognized under these Terms and Conditions unless: (1) the Party seeking to assert such an event gives notice of the existence of such event to the other Party, which notice shall explain in reasonable detail the nature of the Force Majeure Event, the obligations that have been affected by the Force Majeure Event, and how such Force Majeure event has impaired the performance of such obligations ("Force Majeure Event Notice"), and (2) such Force Majeure Event actually and materially impairs the due performance of such Parties' obligations and continues for not less than three (3) consecutive business days. On receipt of the Force Majeure Event Notice by the other Party and the continuation of such Force Majeure Event for three (3) consecutive business days, the performance required of the notifying Party shall be extended on a day-to-day basis commencing on the date the Force Majeure Event Notice was given until such Force Majeure Event has terminated. In the event the Force Majeure Event continues for more than thirty (30) consecutive business days, either Party may, on the giving of written notice to the other, cancel the underlying agreement.
a. Conflict of Provisions. In the event of any conflict between these Terms and Conditions and the provisions included in any Invoice or Purchase Order or Service Order accepted in writing by Somnium, the provisions included in such Purchase Order or Service Order or Invoice shall control. Unless Somnium has expressly agreed in writing to any other terms and conditions, these Terms and Conditions shall prevail notwithstanding conflicting terms and conditions on any order (other than a Purchase Order or Service Order) or other document submitted by Customer.
b. Amendments. Except as specifically provided for in these Terms and Conditions, no modification or amendment of these Terms and Conditions shall be effective unless in writing and executed by a duly authorized representative of each Party.
c. Notices. Any notice required or permitted under these Terms and Conditions shall be given in writing and shall be deemed effectively given (i) upon personal delivery, (ii) two (2) business days after deposit with a nationally recognized overnight delivery service if delivered within the United States, (iii) five (5) business days after deposit with an internationally recognized overnight delivery service if delivered outside of the United States, or (iv) upon receipt of confirmation, if transmitted by telefax, or (v) upon receipt of confirmation, if transmitted by email. All notices shall be delivered to the addresses set forth in the Purchase Order or Service Order or at such other address as either Party may designate by ten (10) days advance written notice to the other Party.
d. Assignment. Customer may not assign (including assignments by law, mergers, acquisitions or any other change of control) its rights and/or delegate the performance of its duties under these Terms and Conditions without Somnium's prior written approval. Any proposed assignment or delegation made by Customer without the requisite consent shall be null and void.
e. Headings. The headings and subheadings in these Terms and Conditions are provided for convenience only and shall not control the interpretation of these Terms and Conditions.
f. Partial Invalidity. If any provision hereof is found invalid or unenforceable pursuant to a final judicial decree or decision, the remainder of these Terms and Conditions will remain valid and enforceable according to these terms.
g. Further Assurances. The Parties shall at their own cost and expense do such further acts, perform such further actions, execute and deliver such further or additional documents and instruments as may be reasonably required or appropriate to consummate, evidence, or confirm the agreements and understandings contained herein and to carry out the intent and purposes of these Terms and Conditions.
h. Waiver. No waiver of any provision of the Agreement shall be binding unless in writing signed by an authorized representative of the party against whom the waiver is asserted, and unless expressly made generally applicable, shall apply only to the specific instance for which the waiver is given. The failure of either Party to assert any of its rights under these Terms and Conditions shall not be deemed to constitute a waiver of that Party's right thereafter to enforce each and every provision of these Terms and Conditions in accordance with its terms.
i. Government Compliance. Each Party shall at all times and at its own expense strictly comply with all applicable laws, rules, regulations, and governmental orders, now or hereafter in effect, relating to the performance of these Terms and Conditions.
j. Governing Law and Jurisdiction. The parties agree that all Agreements shall for all purposes be deemed to have been signed, sealed and delivered in the State of California. All Agreements shall be governed and construed in accordance with the laws of the State of California without regard to the conflicts of laws or principles thereof. Customer waives any objections against and expressly agrees to submit to the personal jurisdiction of the state or federal courts located in Los Angeles, California; provided, however, that Somnium, in its sole discretion, shall have the right to file suit or institute proceedings against Customer at Customer's principal place of business or residence.
h. Accrued Obligations. All obligations of Customer under any Agreement which have accrued prior to cancellation or termination of such Agreement shall survive such cancellation or termination.
l. Attorneys' Fees. In the event of any action instituted between the parties in connection with the Agreement or any subsequent agreement between the parties, the prevailing party shall be entitled to recover from the losing party all the prevailing party's costs and expenses, including court costs and reasonable attorneys' fees.
m. Statute of Limitations. No action arising from any Agreement or performance thereunder may be brought by Customer more than one (1) year after the cause of action has accrued.