Terms and Conditions
These Terms and Conditions ("T&Cs") apply to O.Berk West LLC (“O.Berk”)’s samples, Quotations, Shipping Orders, Acknowledgements, Invoices and any and all sales of goods. With respect to, and only to the extent of, O.Berk’s samples, any references (other than in Sections 1, 3, 6(b), 7, 10-12) in these T&Cs to O.Berk’s sale of goods or Purchaser’s purchase of goods, shall be deemed to refer to O.Berk’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. O.Berk does not accept any terms and conditions for the sale of goods other than those expressly set forth below and O.Berk 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. O.Berk 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. O.BERK 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 O.BERK 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 O.BERK OR FROM OTHER THIRD PARTIES. IN NO EVENT SHALL O.BERK 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 O.BERK 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. O.Berk 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 O.Berk’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 O.Berk 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 O.Berk after inspection by O.Berk and only on receipt by Purchaser of definitive instructions from O.Berk. O.Berk shall, in its sole discretion, make the final determination as to whether goods are non-conforming. GOODS PROPERLY RETURNED AND DETERMINED BY O.BERK TO BE NON-CONFORMING WILL BE REPLACED OR REPAIRED WITHOUT CHARGE OR, AT O.BERK’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 O.Berk 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 O.BERK, 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, O.BERK DOES NOT WARRANT THAT GOODS ARE SANITIZED OR STERILE.
5. Technical Assistance. At Purchaser’s request, O.Berk may provide limited technical assistance and information regarding the use of goods; O.BERK 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 O.Berk and Purchaser assumes sole responsibility for the results obtained in reliance thereon.
6. Limitation of Liability. (a) O.Berk 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 O.Berk is to request a replacement. The aggregate liability of O.Berk 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 O.Berk, in its sole discretion, non-conforming or defective. Samples are not provided for resale.(b) THE AGGREGATE LIABILITY OF O.BERK 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 O.BERK, IN ITS SOLE DISCRETION, TO BE NON-CONFORMING OR TO BE THE SOURCE OF THE CLAIM. (c) O.BERK 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. O.Berk's prices and terms of delivery in effect on date of shipment shall govern. O.Berk will endeavor to accommodate Purchaser’s requested shipment and delivery dates, however, no such dates are guaranteed and O.Berk has no liability whatsoever, for delayed shipment or delivery of goods. Shipment is contingent on, among other things, availability at O.Berk’s supplier; delivery is contingent on, among other things, the supplier and the carrier and the speed of clearance of goods through customs. O.Berk does not warrant availability of goods. If Purchaser requests partial, staggered, or delayed delivery, O.Berk 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 O.Berk’s Quote, Purchase Order Acknowledgment or elsewhere), O.Berk 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 O.Berk’s sole, non-reviewable discretion, determine to dispose of the goods (whether through sale, destruction, or otherwise) without any penalty to O.Berk, and Purchaser shall remain liable for the invoice and any storage and disposition fees, less any excess proceeds (after taking into account O.Berk’s expenses) that O.Berk received from the disposition of such goods. Purchaser expressly waives any and all claims relating to O.Berk’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 O.Berk’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 O.Berk’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. O.Berk 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 O.Berk’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 O.Berk’s reasonable control. Any date may be extended, at O.Berk’s option, to the extent of any delay resulting from force majeure.
9. Amendments or Modifications. NO REPRESENTATIVE OF O.BERK IS AUTHORIZED TO MAKE ANY ORAL COMMITMENTS, PROMISES, WARRANTIES, REPRESENTATIONS, OR MODIFICATIONS OF THESE T&CS. O.BERK 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 O.BERK.
10. Risk of Loss. O.Berk 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 O.Berk’s direct or indirect custody or possession, at the time O.Berk 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, O.Berk 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 O.Berk’s expenses) that O.Berk received from the disposition of such goods. Purchaser expressly waives any and all claims relating to O.Berk’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. O.Berk 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, O.Berk 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, O.Berk 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. O.Berk 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 O.Berk shall have no further liability. In the event O.Berk 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 O.Berk all of O.Berk’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 O.Berk, which shall be in O.Berk’s sole and non-reviewable discretion, by one of its authorized officers. If O.Berk does not consent, Purchaser shall be responsible to pay the full purchase price. Even if O.Berk 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 O.Berk consents to cancel the order prior to production, Purchaser shall be responsible for all cancellation charges imposed by O.Berk’s supplier (whether the manufacturer or otherwise), including, without limitation, any cancellation fees. In addition, in the event O.Berk’s vendors impose increased costs or charges, including, but not limited to, resin cost increases and/or freight surcharges, O.Berk shall have the right to cancel or modify an impacted sale.
13. Governing Law and Exclusive Jurisdiction. All transactions between Purchaser and O.Berk 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 O.Berk; provided, however, that O.Berk 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, O.Berk may pass through and/or issue supplemental invoices to Purchaser, for increased or additional charges and costs that are imposed by O.Berk’s vendors or regulatory authorities, including, but not limited to, increased resin costs and/or freight surcharges.
15. Consent to Use of Image for O.Berk’s Marketing Purposes. Purchaser hereby consents to O.Berk’s use (for O.Berk’s marketing purposes only), on O.Berk’s website, the BottleStore.com website, and in O.Berk’s marketing materials, of images of goods sold by O.Berk 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 O.Berk’s use as set forth in this Section.