DATE LAST MODIFIED: July 25, 2018
CHANGES TO SERVICES, AGREEMENT AND/OR WEBSITE
Brian Benson Cellars may amend any part of this Agreement at any time, and the amended terms will be effective 2 days after initial posting at the Website. In addition, Brian Benson Cellars may, without prior notice, add, delete or modify some or all of the Services and/or content available on the Website at any time in its sole discretion. Further, Brian Benson Cellars may discontinue disseminating any portion of information or category of information and/or may change or eliminate any transmission method. IF ANY OF THESE RULES OR ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, YOU SHOULD IMMEDIATELY DISCONTINUE USE OF THE SERVICES AND WEBSITE. YOUR CONTINUED USE OF THE SERVICES OR WEBSITE NOW, OR FOLLOWING THE POSTING OF NOTICE OF ANY CHANGES IN THIS AGREEMENT OR ANY UPDATED VERSION OF THIS AGREEMENT, WILL INDICATE ACCEPTANCE BY YOU OF SUCH RULES, CHANGES AND/OR MODIFICATIONS. You should review this Agreement periodically to ensure you become aware of changes which are made to this Agreement by Brian Benson Cellars from time to time.
BRIAN BENSON CELLARS’ ROLE
You acknowledge that Brian Benson Cellars is not, unless expressly otherwise set forth within the Website, a manufacturer of any item subject to a Listing. Your communications with manufacturers and/or distributors are solely your responsibility, and any issue which may arise between you and a manufacturer or distributor, whether such issue involves a Listing or any other matter, is to be resolved between you and such manufacturer or distributor without the involvement of Brian Benson Cellars. You agree that Brian Benson Cellars shall not be liable for any damages or costs of any type arising out of or in any way connected with your purchase and/or use of any material, product, kit, machine, component or product from the Website or otherwise through Brian Benson Cellars. As such, you shall not name Brian Benson Cellars or any of its officers or equity holders as a party in any litigation or arbitration arising out any communications or transactions with a manufacturer or distributor.
For purposes of clarity, because Brian Benson Cellars is not a manufacturer, Brian Benson Cellars does not make, and should not be construed as having made, any representation or warranty of any kind concerning any products or components described in any Listing or Posting, including without limitation any representation or warranty regarding the quality, safety or legality of such materials or products, or the truth or accuracy of any descriptions associated with any Listing or Posting. Additionally, Brian Benson Cellars makes no representation or warranty of any kind as to the willingness or ability of either a buyer, manufacturer or distributor to complete a sale or any other transaction.
TERMS OF SALE
In the event you purchase any products at the Website (each, an “Item”), these Terms of Sale (together with the remainder of this Agreement) shall be binding on you.
The preprinted terms of any documents, such as purchase orders, that you may submit to us in conjunction with an order for products or materials will not alter, change or add to these Terms of Sale, regardless of how we acknowledge or accept your order and regardless of the fact that such preprinted terms may contain language stipulating that they supersede these Terms of Sale or this Agreement. All orders are deemed to have been placed and accepted in Fort Collins, Colorado. All orders are subject to acceptance by us, and once accepted, an order cannot be cancelled, modified or rescheduled by you without our consent. We reserve the right to reject or cancel any order, or to limit the size of any order, at any time in our sole discretion.
Availability of Items described within any Listing are subject to change without notice. If an Item is not in stock when you place your order, we will do our best to advise you when the Item will be available. Brian Benson Cellars shall not be liable for any claims or damages arising in connection with one or more Items which are out of stock or otherwise unavailable. Brian Benson Cellars reserves the right to discontinue the sale of any Item at any time without notice to you or any other third party.
Prices for any Items included within a Listing shall be as set forth at the Website from time to time. We reserve the right to increase the price for any Item without notice to you (provided, that we will not increase prices for Items which have been previously ordered by you in accordance with this Agreement but not yet shipped). We are not responsible for any errors on the Website. In the event an Item is listed at an incorrect price due to typographical, photographic or technical error or error in pricing information received from our suppliers, distributors or manufacturers, we reserve the right to refuse or cancel any orders placed for that Item listed at the incorrect price.
Taxes; Customs; Duties
All prices are net of any sales, use, excise, value added and similar taxes imposed by any governmental authority regardless of how denominated; and any international shipping charges, broker’s fees, consular fees and customs duties, which shall all be your sole responsibility. You shall pay all such taxes or charges or provide us with a tax or levy exemption certificate acceptable to the applicable taxing or levying authority. In the event (i) we are required to pay any taxes or other charges for which you are responsible, you shall promptly repay these amounts to us immediately upon receipt of our invoice, or (ii) we ship any Item(s) internationally which have been pre-paid, we have the right to cause such Item(s) to be returned or otherwise disposed of in the event you fail to pay any customs or duties required to be paid in accordance with the agreed-upon shipment terms.
We accept payment by VISA, MasterCard, Discover, American Express and JCB. Your credit card will be charged at the time any order is placed. You agree not to withhold from or ofiset against any amount owing to us for any reason. You also agree to address any and all product and transaction claims solely with us and not to initiate, under any set of circumstances, charge refusals or charge-backs with credit card issuers, and you agree to indemnify us for any expenses or damages we may sufier on account the initiation by you of any such charge refusal or charge- back. You shall, as is the case with other disputes arising hereunder, be entitled to resolve any and all such disputes pursuant to the dispute resolution Section set forth below. In addition to our other rights, we reserve the right to cancel or suspend delivery of all or part of an order if you are delinquent in any payments owing to us. We shall retain a purchase money security interest in any products delivered to you until we have received payment in full. You agree to pay, in connection with any past due balance, (i) a late payment charge of 11⁄2 percent per month, but not in excess of the lawful maximum, and (ii) all costs incurred by us in collecting such past due balance, including, without limitation, court and arbitration costs and attorney’s fees.
All products are shipped FOB our shipping point. You will be responsible for any loss or damage to a product once we give it to the common carrier for delivery to you. Unless you request a specific means of delivery which we are able to accommodate, we will select the common carrier. You are responsible for all transportation and related shipping costs (including any duties charged in connection with international shipments), the charges for which will be provided on the Website at the time of purchase or otherwise communicated to you. Shipping dates are approximate. It is your responsibility to provide accurate contact information that allows the shipper to contact you when shipment is made. Additional storage and/or shipping charges and other warehouse charges may apply if we or the shipper is unable to contact you, or if you are not available to receive the shipped Items, or if Items are redirected at your request. If a shipping rate is quoted at an incorrect rate due to typographical error or error in pricing information, we shall have the right to refuse, adjust or cancel the applicable order whether or not the order has been confirmed or whether or not payment has been remitted. We shall make every reasonable efiort to meet your specified delivery date, but in no case shall we be liable to you if we are unable to meet such date. We may make deliveries in installments. Any delay in any one installment will not give you the right to cancel that or any other installment. You must submit any claim for shortages to us within thirty (30) days of the arrival of the products at your facility.
You must first receive a Return Material Authorization (“RMA”) from us before completing an Item return, regardless of the reason for the return. This applies to all Item returns permitted under these Terms of Sale. We are not obligated to accept any return without a proper RMA. Unauthorized returns will be reshipped to you at your expense. We also reserve the right to impose reasonable handling charges in the event we either accept or reject an unauthorized return, as well as re-stocking fees as posted at the Site or otherwise charged from time to time.
It is your responsibility to inspect all Items purchased from us and to notify us immediately if you believe you should not accept any of them. You must promptly tell us specifically why you are rejecting the Items and why you believe they are non-conforming. We will only accept properly rejected products within thirty (30) days of their shipment to you. At our discretion, we will either exchange or repair the non-conforming Items. Returned Items must be in their original shipping cartons, complete with all parts and packing materials and packed in the same manner in which such Items were shipped, and shall be returned to our designated return location freight prepaid. The original manufacturer’s warranty will define your rights with respect to any Items found to be defective beyond this thirty (30) day period. We shall have sole discretion in determining whether or not to accept a return.
Reselling by You
You shall purchase Items through the Website solely for your own use. You agree to indemnify and hold us harmless from any claims asserted by a third party, regardless of the theory under which such claim is asserted, arising out of the resale or distribution of any Items by you. Also, you are not authorized to use any of our trademarks or trade names or those of our manufacturers, distributors or suppliers without our or their written consents, as the case may be.
Limitation of Liability
NEITHER OF US, IN CONNECTION WITH ANY SALE OF ITEMS INCLUDED WITHIN ANY LISTING, SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, PROCUREMENT COSTS, OR BUSINESS INTERRUPTION COSTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY DAMAGES IN EXCESS OF (X) THE PURCHASE PRICE OF THE ITEMS GIVING RISE TO THE APPLICABLE CLAIM REGARDLESS OF THE THEORY UNDER WHICH SUCH CLAIM IS ASSERTED, OR (Y) FOR ALL OTHER TYPES OF CLAIMS, THE AGGREGATE AMOUNT PAID BY YOU TO Brian Benson Cellars DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.
The collective limitations on our liability under these Terms of Sale apply also to our suppliers who are intended beneficiaries of these limitations.
You agree not to export or re-export any Item except in full compliance with the export control laws and regulations of the United States government, its departments and agencies, or import or re-export any product or technical data except in full compliance of the laws of the jurisdiction into which, or from which, such product or technical data is being imported or re-exported.
Except for payment obligations, neither of us shall be liable for any failure to perform in connection with any sale of an Item due to causes beyond our reasonable control, respectively, including but not limited to acts of God or nature, war, fire, bad weather, flood, accident, labor trouble or shortage, civil disturbance, plant shutdown, equipment failure, voluntary or involuntary compliance with any applicable governmental regulation or order, or shortage or inability to obtain (on terms deemed practicable by the party affected) any raw materials (including energy), equipment or transportation. In cases of material shortages we reserve the right to allocate the delivery of affected materials as we see fit. The time for performance shall be extended by the period of the applicable force majeure event.
You hereby recognize Brian Benson Cellars intellectual property rights in its name, the Website and all other intellectual property owned by Brian Benson Cellars, and nothing herein shall be deemed to assign ownership of any such intellectual property to you. You affirm that you are obtaining the Items sold through the Website for use as intended. You will not reverse-engineer or use any Item to develop similar products or materials to those purchased from the Website, nor will you knowingly or willingly permit your customers, employees, contractors or affiliates to do the same. For purposes of these Terms of Sale, “reverse engineering” includes, but is not limited to, disassembly of a product or material, or utilization of our specifications and/or literature for the purposes of developing one or more similar or derivative products or services that can be reasonably regarded as competitive with our ofierings.
Neither of us shall be deemed to be the agent or legal representative of the other for any purpose whatsoever. We are independent contractors and neither of us shall represent or hold ourselves out in any other capacity.
You may not assign these Terms of Sale, by operation of law or otherwise, without our prior written consent. Any assignment attempted in violation of this provision shall be void and of no legal efiect.
Nothing herein shall be deemed to limit or restrict our ability to sell products, materials or services to, or otherwise work, with any other company, business or individual, including, without limitation, your direct competitors.