Terms and Conditions
O.Berk Company, L.L.C.
These Terms and Conditions (“T&Cs”) apply to Seller’s samples, Quotations, Shipping Orders, Acknowledgements, Invoices and any and all sales of goods. With respect to, and only to the extent of, Seller’s samples, any references (other than in Sections 1, 3, 6(b), 7, 10-12) in these T&Cs to Seller’s sale of goods or Purchaser’s purchase of goods, shall be deemed to refer to Seller’s provision of samples to you and your request for samples. In such instances, “Purchaser” shall be deemed to refer to you, the party requesting the samples, and “goods” shall be deemed to refer to the samples.
1. Exclusive Terms and Conditions. Seller does not accept any terms and conditions for the sale of goods other than those expressly set forth below and Seller hereby offers to sell its goods only on the terms set forth in these T&Cs. Purchaser’s issuance of a purchase order and/or payment for such goods shall constitute Purchaser’s assent to these T&Cs notwithstanding any inconsistent or additional provisions presented by Purchaser, whether on Purchaser’s purchase order or otherwise. Seller rejects any inconsistent or additional provisions presented by Purchaser. These T&Cs of sale supersede all prior purchase orders, agreements, discussions, negotiations, proposals or communications. 2. No Warranty. SELLER MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO GOODS INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER MATTER, AND SELLER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OR LIABILITY RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR FUNCTIONALITY, OR DECORATING, LABELING OR PRODUCT COMPATIBILITY, REGARDLESS OF WHETHER GOODS ARE USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS PURCHASED OR ORDERED EITHER FROM SELLER OR FROM OTHER THIRD PARTIES. IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER OR ANY OTHER PERSON FOR LOSS OR DAMAGE ARISING, DIRECTLY OR INDIRECTLY, FROM THE USE OF GOODS OR ANY ALLEGED BREACH OR FROM ANY OTHER CAUSE REGARDLESS OF WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND PURCHASER ASSUMES RESPONSIBILITY FOR ALL BODILY INJURY OR PROPERTY DAMAGE RESULTING FROM THE HANDLING, POSSESSION OR USE OF GOODS BY PURCHASER OR ITS CUSTOMER OR OTHER END USER. PURCHASER’S SOLE REMEDY WITH RESPECT TO GOODS SHALL BE AS SET FORTH IN SECTION 3 BELOW. 3. Quantity; Sole and Exclusive Remedy; Claims and Returns; Acceptance of Goods. Seller reserves the right to deliver ten percent (10%) more or less than the quantity specified in any purchase order. Goods that do not conform to the specifications set forth in Seller’s Acknowledgement (or in the case of an on-line purchase via credit card or otherwise without an Acknowledgement or invoice, to the on-line specifications) may be returned to Seller only in accordance with the provisions of this Section 3. Purchaser shall make prompt inspection of goods and any claim on account of non-conforming goods, short count, or for any other cause, shall be deemed waived by Purchaser unless made in writing within ten (10) calendar days from the date of receipt of goods to which such claims relate. Non-conforming goods may be returned to Seller after inspection by Seller and only on receipt by Purchaser of definitive instructions from Seller. Seller shall, in its sole discretion, make the final determination as to whether goods are non-conforming. GOODS PROPERLY RETURNED AND DETERMINED BY SELLER TO BE NON-CONFORMING WILL BE REPLACED OR REPAIRED WITHOUT CHARGE OR, AT SELLER’S SOLE OPTION, PURCHASER WILL BE REFUNDED THE PRO-RATA PORTION OF THE PURCHASE PRICE APPLICABLE TO THE NON-CONFORMING GOODS, AND THIS SHALL BE PURCHASER’S EXCLUSIVE REMEDY. No refund or claim, whether as to goods delivered or for non-delivery of goods, shall be greater in amount than the purchase price of goods in respect of which such damages are claimed. The purchase price expressly excludes any and all freight and handling charges, taxes, customs, and import-export fees, duties, and tariffs; except to the extent that Seller receives a corresponding refund for same. 4. Purchaser’s Responsibility. PURCHASER IS SOLELY RESPONSIBLE FOR DETERMINING: (1) THE ADEQUACY OF GOODS FOR THE PARTICULAR PURPOSE AND USES CONTEMPLATED BY PURCHASER, ITS CUSTOMERS, OR ITS ULTIMATE USERS; (2) WHETHER GOODS SOLD HEREUNDER ARE SUITABLE FOR PURCHASER’S OR THE ULTIMATE USER’S PURPOSE OR COMPATIBLE FOR THEIR CONTENTS; AND (3) THE PROPER METHODS OF FILLING GOODS AND THE COMPATIBILITY AND FIT OF CLOSURES OR ANY OTHER PRODUCTS USED IN COMBINATION WITH GOODS. PURCHASER ASSUMES ALL RISKS AND LIABILITY FOR RESULTS OF USING GOODS PURCHASED FROM SELLER, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS. PURCHASER IS EXCLUSIVELY RESPONSIBLE FOR CLEANING GOODS AND FOR MEETING ANY SANITIZATION, STERILIZATION, AND OTHER REQUIREMENTS OF THE FILLING AND PACKAGING PROCESSES AND PURCHASER’S INTENDED USE OF GOODS. WITHOUT LIMITING THE PROVISIONS OF SECTION 2 ABOVE OR THIS SECTION 4, SELLER DOES NOT WARRANT THAT GOODS ARE SANITIZED OR STERILE. 5. Technical Assistance. At Purchaser’s request, Seller may provide limited technical assistance and information regarding the use of goods; SELLER DISCLAIMS ALL RESPONSIBILITY AND LIABILITY OF ANY SUCH TECHNICAL ASSISTANCE OR INFORMATION. Purchaser agrees that any such assistance is provided without any warranty or guaranty by Seller and Purchaser assumes sole responsibility for the results obtained in reliance thereon. 6. Limitation of Liability. (a) Seller shall have no liability for samples that are not provided. In the event the samples provided hereunder are defective or undesirable in any respect, Purchaser’s exclusive remedy against Seller is to request a replacement. The aggregate liability of Seller with respect to samples, whether based on an alleged breach or any other theory of liability, shall not exceed the value of the samples, as determined by Seller, in its sole discretion, non-conforming or defective. Samples are not provided for resale.(b) THE AGGREGATE LIABILITY OF SELLER WITH RESPECT TO GOODS SOLD TO PURCHASER, WHETHER BASED ON AN ALLEGED BREACH OR ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE PRO-RATA PORTION OF THE PURCHASE PRICE (EXPRESSLY EXCLUDING ANY AND ALL FREIGHT AND HANDLING CHARGES, TAXES, CUSTOMS, AND IMPORT-EXPORT FEES, DUTIES, AND TARIFFS) APPLICABLE TO GOODS DETERMINED BY SELLER, IN ITS SOLE DISCRETION, TO BE NON-CONFORMING OR TO BE THE SOURCE OF THE CLAIM. (c) SELLER SHALL NOT BE LIABLE FOR LOSS OF USE, LOST PROFITS OR ANY OTHER SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES REGARDLESS OF CAUSE. 7. Delayed Delivery; Certain Remedies; and Storage. Seller's prices and terms of delivery in effect on date of shipment shall govern. Seller will endeavor to accommodate Purchaser’s requested shipment and delivery dates, however, no such dates are guaranteed and Seller has no liability whatsoever, for delayed shipment or delivery of goods. Shipment is contingent on, among other things, availability at Seller’s supplier; delivery is contingent on, among other things, the supplier and the carrier and the speed of clearance of goods through customs. Seller does not warrant availability of goods. If Purchaser requests partial, staggered, or delayed delivery, Seller reserves the right to require payment for all completed deliveries before making further deliveries and to increase the price for additional production, transportation or other costs, other terms to the contrary notwithstanding. If Purchaser has not complied with any of its obligations, including, but not limited to, timely payment of all invoices (including, but not limited to, storage fees within 30 days of invoice), accepting delivery of goods, or timely purchasing or releasing goods in accordance with its agreement (whether set forth in Seller’s Quote, Purchase Order Acknowledgment or elsewhere), Seller shall have all rights and remedies, including, but not limited to, requiring payment in advance or COD terms, requiring Purchaser to accept delivery of the goods (after payment), and/or in Seller’s sole, non-reviewable discretion, determine to dispose of the goods (whether through sale, destruction, or otherwise) without any penalty to Seller, and Purchaser shall remain liable for the invoice and any storage and disposition fees, less any excess proceeds (after taking into account Seller’s expenses) that Seller received from the disposition of such goods. Purchaser expressly waives any and all claims relating to Seller’s disposition of the goods, including, the manner thereof. Without limiting the foregoing, all goods ordered by Purchaser pursuant to a purchase order will be, at Seller’s sole non-reviewable and non-waivable discretion, subject to monthly storage charges of 5% of the value of the stored goods from the sooner (unless Seller’s Quote or Purchase Order Acknowledgment specifies that it will be the later) of (x) the date or time set forth in the purchase order for the release of such goods or (y) thirty (30) days from the date that such goods are available. 8. Force Majeure. Seller is not responsible for any loss or damage occurring by reason of delay or inability to deliver caused by acts of God; pandemics; severe weather; war; common disaster; fires; strikes; labor disruptions; curtailment of Seller’s operations; delays in delivery of material or goods by suppliers; imposition of governmental embargoes, regulations, price limitations or controls; accident; delays of common carriers; delays in customs clearance; or from any other cause which is unavoidable or beyond Seller’s reasonable control. Any date may be extended, at Seller’s option, to the extent of any delay resulting from force majeure. 9. Amendments or Modifications. NO REPRESENTATIVE OF SELLER IS AUTHORIZED TO MAKE ANY ORAL COMMITMENTS, PROMISES, WARRANTIES, REPRESENTATIONS, OR MODIFICATIONS OF THESE T&CS. SELLER SHALL NOT BE CONTRACTUALLY BOUND TO ANY PROVISION OR ANY AGREEMENT OF ANY NATURE UNLESS EXPRESSLY AGREED IN A WRITING EXECUTED BY AN AUTHORIZED OFFICER OF SELLER. 10. Risk of Loss. Seller is not responsible for damage of goods in transit, or any loss after shipment has been received by carrier. Purchaser assumes all risk of loss, shortage, or damage in transit, once goods are delivered to a carrier for shipment to Purchaser. Notwithstanding the foregoing, whether or not goods are available or have shipped to Purchaser, Purchaser assumes all risk of loss whether or not the goods remain in Seller’s direct or indirect custody or possession, at the time Seller invoices for such goods. If Purchaser refuses to take delivery of goods available for release, or does not pay for storage fees within thirty (30) days from the date of invoice, Seller shall have the right, in its sole, non-reviewable discretion, to dispose (whether through sale, destruction, or otherwise) of the goods without any penalty, and Purchaser shall remain liable for the invoice and any storage and disposition fees, less any excess proceeds (after taking into account Seller’s expenses) that Seller received from the disposition of such goods. Purchaser expressly waives any and all claims relating to Seller’s disposition of the goods, including, the manner thereof. 11. Payment and Credit Terms; Service Charges and Fees of Collection. All invoices are due upon presentment and shall be paid without deductions or setoff in U.S. dollars. Payment terms are net thirty (30) days from date of invoice unless otherwise specified in the invoice or if Purchaser is making an on-line credit card purchase. Seller shall have the right to retain a lien on all unshipped goods and goods recovered in transit until all of Purchaser’s indebtedness has been paid in full. If any payment is past due, Seller may impose a service charge of the lesser of the maximum amount allowed by applicable law or 1½% per month (18% per annum). A $10.00 service charge will be imposed on all returned checks. If any Purchaser, including a Purchaser with established credit, fails to make payment within the specified terms, Seller may, in addition to any and all other remedies available at law or in equity, defer shipment of goods or may, at its option, cancel all or any part of any unshipped order. Seller shall have the right of setoff and deduction for any sums owed. Purchaser agrees that any credit balance transaction not applied or requested within one (1) year will be subject to forfeiture, and Seller shall have no further liability. In the event Seller refers Purchaser’s account for collection or retains counsel to enforce its rights against Purchaser, then whether or not suit is instituted, Purchaser agrees to pay Seller all of Seller’s attorneys’ fees and expenses and other costs of collection. 12. Cancellation. No order is subject to cancellation, deferment of delivery, or change in specifications without advance written consent of Seller, which shall be in Seller’s sole and non-reviewable discretion, by one of its authorized officers. If Seller does not consent, Purchaser shall be responsible to pay the full purchase price. Even if Seller does consent, Purchaser shall be responsible to pay the full purchase price if Purchaser cancels or modifies a purchase order as to which goods have been manufactured; if Seller consents to cancel the order prior to production, Purchaser shall be responsible for all cancellation charges imposed by Seller’s supplier (whether the manufacturer or otherwise), including, without limitation, any cancellation fees. In addition, in the event Seller’s vendors impose increased costs or charges, including, but not limited to, resin cost increases and/or freight surcharges, Seller shall have the right to cancel or modify an impacted sale. 13. Governing Law and Exclusive Jurisdiction. All transactions between Purchaser and Seller shall be deemed to be entered into in the State of New Jersey and shall be governed by the laws of New Jersey, without regard to conflicts of law principles. By accepting these T&Cs and/or by purchasing goods, Purchaser hereby submits to the exclusive jurisdiction of the State and Federal courts in New Jersey for any dispute arising from, concerning, or relating to these T&Cs or any transaction between or involving Purchaser and Seller; provided, however, that Seller may enforce any judgment in any jurisdiction. 14. Charges/Taxes/Customs/Duties/Tariffs; Pass-through of Additional or Increased Costs. Unless stated otherwise in a Quotation, Acknowledgment, or Invoice, the Purchase Price does not include freight, handling, taxes, customs and import-export fees, duties and tariffs. Regardless of whether the Quotation, Acknowledgment, or Invoice states the Purchase Price or that such charges are included or are extra, Seller may pass through and/or issue supplemental invoices to Purchaser, for increased or additional charges and costs that are imposed by Seller’s vendors or regulatory authorities, including, but not limited to, increased resin costs and/or freight surcharges. 15. Consent to Use of Image for Seller’s Marketing Purposes. Purchaser hereby consents to Seller’s use (for Seller’s marketing purposes only), on Seller’s website, the BottleStore.com website, and in Seller’s marketing materials, of images of goods sold by Seller to Purchaser, including, without limitation, when such goods are filled and decorated. Purchaser acknowledges that it shall not receive, or be entitled to receive, any compensation or other benefit due to Seller’s use as set forth in this Section.