Terms and Conditions
Below you will find the Terms and Conditions applicable to Seller’s provision of samples, as well as Seller’s Quotations, Shipping Orders, Acknowledgements, Invoices and any and all sales of goods. With respect to, and only to the extent of, Seller’s provision of samples, any references (other than in Paragraph 7(b) below and Paragraphs 1, 2, 4, 8, 11-13, which are inapplicable to Seller’s provision of samples) in these Terms and Conditions 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 upon the following terms and conditions. Purchaser’s issuance of a purchase order and/or payment for such goods shall constitute Purchaser’s assent to the terms and conditions set forth below notwithstanding any inconsistent or additional provisions presented by Purchaser, whether on a Purchaser’s purchase order or otherwise. Seller expressly rejects any such inconsistent or additional provisions presented by Purchaser. The terms and conditions of sale contained herein supersede all prior purchase orders, agreements, discussions, negotiations, proposals or communications between the parties
2) Quantity. Seller reserves the right to deliver ten percent (10%) more or less than the quantity specified in any purchase order.
3) No Warranty. SELLER MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE 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, USABILITY OR FUNCTIONALITY, OR DECORATING, LABELING OR PRODUCT COMPATIBILITY, REGARDLESS OF WHETHER THE 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 THE 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 PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM THE HANDLING, POSSESSION OR USE OF THE GOODS BY PURCHASER OR ITS CUSTOMER OR OTHER END USER. PURCHASER’S SOLE REMEDY WITH RESPECT TO THE GOODS SHALL BE AS SET FORTH IN PARAGRAPH 4 BELOW.
4) Sole and Exclusive Remedy; Claims and Returns; Acceptance of Goods. 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 Paragraph 4 set forth below. 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 upon receipt by Purchaser of definitive instructions from Seller. The final determination as to whether goods are non-conforming shall be made by Seller in its sole discretion. 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 GIVEN A REFUND OF THE PRO-RATA PORTION OF THE PURCHASE PRICE APPLICABLE TO THE NON-CONFORMING GOODS, AND THIS SHALL BE PURCHASER’S EXCLUSIVE REMEDY AGAINST SELLER. No claim of any kind, whether as to goods delivered or for non-delivery of goods, shall be greater in amount than the purchase price of the goods in respect of which such damages are claimed. For the avoidance of doubt, for purposes of calculating the refund, if any, of the purchase price, and the maximum claim against Seller for goods delivered or for non-delivery of goods, the purchase price expressly excludes any and all freight and handling charges, taxes, customs, and import-export fees, duties, and tariffs; provided however, that to the extent Seller receives a refund of any taxes, customs, and import-export fees, duties, and tariffs paid by Purchaser with respect to such purchase price on returned goods, such refund shall be similarly refunded to Purchaser.
5) Purchaser’s Responsibility. PURCHASER IS SOLELY RESPONSIBLE FOR DETERMINING: (1) THE ADEQUACY OF THE GOODS FOR THE PARTICULAR PURPOSE AND USES CONTEMPLATED BY PURCHASER, ITS CUSTOMERS, OR ITS ULTIMATE USERS; (2) WHETHER GOODS SOLD HEREUNDER ARE SUITABLE FOR THE MATERIALS BEING PLACED IN THEM BY OR AT THE DIRECTION OF PURCHASER OR THE ULTIMATE USER; AND (3) THE PROPER METHODS OF FILLING THE GOODS AND THE COMPATIBILITY AND FIT OF CLOSURES TO BE USED ON THE GOODS OR ANY OTHER PRODUCTS TO BE USED IN COMBINATION WITH THE GOODS, TAKING INTO ACCOUNT THE LIKELY STORAGE AND THE USE OF THE FILLED GOODS BY PURCHASER, THE PACKAGER, THE FILLER, AND THE ULTIMATE USER. PRODUCT COMPATIBILITY IS PURCHASER'S SOLE RESPONSIBILITY. IT IS PURCHASER’S SOLE RESPONSIBILITY TO EVALUATE COMPATIBILITY WHEN FILLED AND WITH FILLED OR FINISHED PRODUCTS; TO EVALUATE COMPATIBILITY WITH ANY OTHER PRODUCTS WITH WHICH THE GOODS ARE INTENDED TO FIT OR BE USED; TO DETERMINE MAXIMUM LOAD CAPABILITY WITH FILLED PRODUCT BEFORE STACKING; AND TO CONSIDER THE EFFECT OF REAL WORLD USE AND ENVIRONMENTAL FACTORS, INCLUDING, WITHOUT LIMITATION, SHIPPING AND STORAGE METHODS. PURCHASER IS CAUTIONED TO SATISFY ITSELF OR ITS CUSTOMER BY PURCHASER’S OWN TESTING OR OTHERWISE, THAT SELLER’S GOODS ARE SUITABLE FOR PURCHASER’S OR THE ULTIMATE USER’S PURPOSE. PURCHASER ASSUMES ALL RISKS AND LIABILITY FOR RESULTS OF USING THE GOODS PURCHASED FROM SELLER, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS. PURCHASER IS EXCLUSIVELY RESPONSIBLE FOR CLEANING THE GOODS AND FOR MEETING ANY SANITIZATION, STERILIZATION, AND OTHER REQUIREMENTS OF THE FILLING AND PACKAGING PROCESSES AND PURCHASER’S INTENDED USE OF THE GOODS. SELLER IS NOT RESPONSIBLE FOR PROVIDING THE GOODS IN A SANITIZED OR STERILE CONDITION. WITHOUT LIMITING THE PROVISIONS OF PARAGRAPH 3 ABOVE OR THIS PARAGRAPH 5, SELLER DOES NOT WARRANT THAT THE GOODS ARE SANITIZED OR STERILE.
6) Technical Assistance. At Purchaser’s request, Seller may provide limited technical assistance and information with respect to the use of the goods. Purchaser agrees that any such assistance is provided without any warranty or guaranty by Seller and is accepted by Purchaser at Purchaser’s risk and Purchaser assumes sole responsibility for the results obtained in reliance thereon. Seller makes no representation about the accuracy or correctness of any technical assistance or information that Seller may provide. SELLER ASSUMES NO OBLIGATION OR LIABILITY FOR ANY TECHNICAL ASSISTANCE OR INFORMATION IT PROVIDES CONCERNING THE GOODS AND SELLER DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR DAMAGE OR INJURY RESULTING FROM THE USE OF SELLER’S GOODS REGARDLESS OF ANY TECHNICAL ASSISTANCE OR INFORMATION THAT SELLER MAY PROVIDE.
7) Limitation of Liability. (a) The following shall be applicable to Seller’s provision of samples: 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, your exclusive remedy against Seller is to return such samples and request a replacement. The aggregate liability of Seller with respect to samples provided to you, whether based on an alleged breach or any other theory of liability, shall not exceed the value applicable to the samples determined by Seller, in its sole discretion, to be non-conforming or defective. In no event shall Seller be liable for loss of use, lost profits, or for any other special, incidental, or consequential damages regardless of cause. 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 APPLICABLE TO THE GOODS DETERMINED BY SELLER, IN ITS SOLE DISCRETION, TO BE NON-CONFORMING. IN NO EVENT SHALL SELLER BE LIABLE FOR LOSS OF USE, LOST PROFITS OR FOR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES REGARDLESS OF CAUSE. FOR THE AVOIDANCE OF DOUBT, FOR PURPOSES OF CALCULATING SELLER’S MAXIMUM AGGREGATE LIABILITY, THE PURCHASE PRICE EXPRESSLY EXCLUDES ANY AND ALL FREIGHT AND HANDLING CHARGES, TAXES, CUSTOMS, AND IMPORT-EXPORT FEES, DUTIES, AND TARIFFS.
8) Credit Approval; Delayed Delivery and Storage. Acceptance of any purchase order by Seller is subject to a satisfactory credit report of Purchaser. Seller hereby reserves the right to cancel this Agreement and/or withhold further shipments in the event of an adverse change in the financial condition of Purchaser. 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 is not responsible, and has no liability whatsoever, for delayed shipment or delivery of goods; it being understood that shipment is contingent on many variables, including, without limitation, availability at Seller’s supplier, delivery is contingent on, among other things, the supplier and the carrier and the speed of clearance of the goods through customs. Seller does not warrant availability of goods or any shipment or delivery dates. 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. All goods ordered by Purchaser pursuant to a purchase order will be subject to storage charges from the date available if not released within sixty (60) days from the date available and subject to billing for the total value of merchandise.
9) 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; 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 delivery date may be extended, at Seller’s option, to the extent of any delay resulting from a force majeure event.
10) Amendments or Modifications. NO REPRESENTATIVE OF SELLER IS AUTHORIZED TO MAKE ANY ORAL COMMITMENTS, PROMISES, WARRANTIES, OR REPRESENTATIONS OR MODIFICATIONS OF THESE TERMS. 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.
11) Risk of Loss. Seller is not responsible for delays of carrier, delays in customs clearance, damage of goods in transit, or any loss after shipment has been received by carrier. Purchaser assumes all risk of loss, shortage, delay, or damage in transit (including, but not limited to, customs clearance) once the goods are delivered to a carrier for shipment to Purchaser.
12) 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 attorney’s fees and expenses and other costs of collection.
13) Cancellation. No order in process of production is subject to cancellation, deferment of delivery or change in specifications without advance written consent of the Seller by one of its authorized officers. Purchaser will be responsible to pay the full purchase price if goods are manufactured in response to a purchase order cancelled by Purchaser prior to (or after) shipment.
14) 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 Terms and Conditions and/or by purchasing the goods, Purchaser hereby submits to the exclusive jurisdiction of the State and Federal courts in New Jersey for any disputes arising from, concerning, or relating to these Terms and Conditions or any transaction between or involving Purchaser and Seller; provided, however, that Seller may enforce any judgment in any jurisdiction by suit on the judgment or in any other manner provided by law.
15) Delivery, Handling Charges, Taxes, Customs, Duties, and Tariffs. Unless expressly stated otherwise in a Quotation or Invoice, the Purchase Price does not include freight charges, special handling charges, taxes, customs and import-export fees, duties and tariffs.
16) 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 Paragraph.