DRY AGER USA LP
– GENERAL TERMS & CONDITIONS OF SALE
1. Scope of Application
1.1 These General Terms & Conditions of Sale (“Terms & Conditions”) shall apply to all sales and contracts for the sale of products and/or services of Dry Ager USA, LP (“Seller”) and shall govern all contractual and commercial relations between Seller and its customers (“Buyer”) (each a “Party” and jointly the “Parties”). In particular, these Terms & Conditions shall apply to sales to Buyers in the United States or Canada.
1.2 These Terms & Conditions are exclusive and supersede any purchase terms and conditions of Buyer; any prior written or oral agreements or understandings between the Parties; and any previous course of dealing, performance, or usage of trade.
1.3 Unless one or more terms of these Terms & Conditions is expressly exempted or modified by written agreement between the Seller and the Buyer, Buyer accepts all of these Terms & Conditions as binding.
1.4 In the event Seller’s products and services are sold through a third party, these Terms & Conditions will not apply and the transaction will be subject to the terms agreed to between such third party and its buyer. Should Seller be held to be under any warranty obligation concerning such transaction, its warranties shall be limited to the warranties contained in these Terms & Conditions.
1.5 The Seller reserves the right to amend or replace these Terms & Conditions from time to time.
1.6 If applicable, Buyer’s use of Seller’s online shop constitutes Buyer’s acceptance of these Terms & Conditions, as amended from time to time.
2.1 All offers to sell are nonbinding unless Seller states expressly in writing that the offer is firm. No offer shall remain open for more than ninety (90) days.
2.2 Graphic depictions and specifications included in Seller’s offer such as figures, drawings, models, diagrams, descriptions of dimensions and weights, and other representations of Seller’s products are only approximations and shall be regarded as such unless they are expressly identified as firm and binding. Any information provided by Seller concerning its products and services beyond specific purchase order documents is provided “as is” without any further warranty.
2.3 Seller reserves the right to modify the technical design of the ordered products to the extent that such modifications do not materially impair the intended fit, form or function of the products.
2.4 Seller retains at all times the unrestricted title to all quotations, drawings, models, layouts and other representations of a tangible or intangible nature. Buyer agrees to keep all of the aforesaid information confidential and agrees not to disclose such information directly or indirectly to any third party. All drawings and other documentation related to an offer shall be returned promptly if a contract has not been effected or generally, upon demand by Seller, and if such information was transmitted by electronic means, it shall be deleted immediately.
3. Conclusion of the Contract
3.1 A contract for the sale of Seller’s products and/or services is concluded upon the written acceptance by Seller of Buyer’s order, and these Terms & Conditions shall be incorporated into each contract by reference and made a part thereof (together, the “Contract”). The same applies to Buyer’s orders submitted through Seller’s online shop. The terms in the final order, as accepted by Seller, shall supersede any terms in these Terms & Conditions that are different.
3.2 If Seller does not communicate its acceptance within five (5) days of receipt of Buyer’s order, it shall be deemed that Seller has rejected the order.
3.3 Order processing and all related correspondence shall usually take place via electronic means incl. email. It is the Buyer`s responsibility to ensure that he/she provides correct and functioning contact information and that, if SPAM filters are used, all emails sent by the Seller or by third parties commissioned by the Seller with the order processing can be delivered. The language shall be English.
3.4 If offered by Seller, Buyer can access all Contract information through Seller’s website after creating log-in information.
4. Purchase Price and Payment, Set-off
4.1 Seller’s list prices are in U.S.-Dollars or Canadian Dollars and are subject to change without notice.
4.2 Firm price quotations will be honored for the period agreed to in writing by Seller.
4.3 Unless stated otherwise by Seller, price quotations do not include shipping or handling costs and are also exclusive of any state or municipal sales, use, value added, excise or other similar tax now in effect or hereafter levied on the sale of Seller’s products or services to Buyer. Seller will add the applicable amount of taxes to the invoice as a separate item and Buyer agrees to pay such amounts that Seller is obligated by law to pay or collect from Buyer unless Buyer furnishes Seller with a written tax exemption certificate, resellers certificate or, if applicable, a direct payment permit. The same shall apply to any money transfer costs (transfer fees, exchange rate charges), customs duties, imposts and other charges or assessments for deliveries outside the United States.
4.4 Despite Seller’s efforts to display correct prices, it may occur that some of the items listed on Seller’s website or authorized third party platforms are incorrectly priced. If the actual price of an item is less than the Contract price, the Buyer will be charged the lower amount. If the actual price is higher than the price stated in the Contract, the Seller will either contact the Buyer for resolving the issue before shipping the item, or Seller shall be entitled to terminate the Contract prior to shipment if the issue cannot be resolved between the Parties.
4.5 Seller’s price is payable in U.S.-Dollars (or, if applicable, Canadian Dollars). Payment can be made using one of the methods mentioned in the Seller’s online shop or in other written communication. If not specified otherwise, terms of payment are: 100% due from Buyer within eight (8) days upon receipt of Seller’s invoice.
4.6 Payments not received in full on or before the due date are subject to an interest charge of one (1) percent per month (compounded monthly) of the outstanding amount for each month or part thereof in which there remains an unpaid balance in Buyer’s account.
4.7 If for any reason Buyer’s credit is or becomes objectionable to Seller, either before or after the conclusion of the Contract, Seller reserves the right to modify credit terms, including making demand for additional securities; to deliver the goods COD; to require payment in advance; and to take any other appropriate steps to ensure Buyer’s performance.
4.8 After the goods have been delivered to Buyer and the satisfaction of Seller’s rights seems at risk (e.g., the Buyer suspends payments, an insolvency petition is filed, Buyer’s checks are not honored), Seller may demand the immediate settlement of all of his claims or the return of the goods.
4.9 Part deliveries shall be considered installment deliveries, with each installment being a separate sale and being invoiced separately. A failure to pay for an installment within the required time for payment is an anticipatory material breach of other installments by Buyer and Seller shall have the right to stop further deliveries.
4.10 Buyer agrees to pay all costs of collection, including reasonable attorney’s fees in the event it becomes necessary for Seller to enforce Buyer’s payment obligations under the Contract and in accordance with these Terms & Conditions.
4.11 Buyer may only set off own claims against Seller’s claims if those claims have been recognized by Seller in writing or if they are evidenced by a final enforceable court or similar decision.
5. Shipment and Delivery
5.1 Goods are shipped to the delivery address indicated by the Buyer, unless otherwise agreed.
5.2 The Buyer shall promptly inform Seller of the exact delivery address. The Seller does not assume any liability for errors occurring in this context and any additional costs resulting from such errors shall be borne by Buyer. Should the carrier return the goods to the Seller because delivery to the Buyer was not possible, the Buyer shall bear the costs for the unsuccessful delivery.
5.3 Once a shipment has been scheduled by Seller, Buyer may not cancel or postpone a scheduled shipment without Seller’s written consent. Any such request by Buyer to cancel or reschedule may be rejected by Seller as untimely or, at Seller’s option, may be accepted upon payment of an appropriate cancellation or rescheduling charge for resulting losses and expenses to Seller.
5.4 The required delivery time is deemed to be complied with if, on the expiry thereof, the products to be delivered have left Seller’s premises or the Buyer has been informed that the goods are ready for dispatch. Deliveries ex works Seller are deemed to be executed as soon as the goods are ready for collection by Buyer. If goods are loaded to Buyer’s means of transportation by Seller’s employees, the latter are deemed to be persons employed by Buyer in the performance of his obligations.
5.5 All acknowledged shipping and delivery dates are approximate, based upon known conditions existing at the time of the Contract conclusion. To the extent that delays are foreseeable or become foreseeable to Seller, the Seller shall promptly inform the Buyer thereof; provided, however, that the failure of Seller to so inform the Buyer shall not be grounds for terminating the Contract. Seller shall be granted a grace period of eight (8) weeks, except in cases where the Contract expressly says otherwise or where Buyer can prove that his/her interest in the Contract would be forfeited due to the delayed delivery in which case Buyer shall be entitled to terminate the Contract and receive a return of any deposit or prepayment. Any further compensation to Buyer for damages suffered as a result of such a delay is hereby excluded.
5.5.1 Delivery times shall be extended by periods during which Buyer is in default of his/her payment obligations or any other material contractual obligation.
5.5.2 The delivery time shall be reasonably extended upon an event of force majeure or other unforeseeable events arising after the conclusion of the Contract that are beyond the Seller’s control. Such events include, without limitation, fires, floods, earthquakes, riots, strikes and lockout, epidemics, freight embargoes, terrorist acts, labor shortages, fuel and other energy shortages, inability to secure materials and supplies, incorrect or improper self-supply, changes in governmental policies and rules, orders and regulations inhibiting Seller’s ability to perform under the Contract, and any other cause beyond Seller’s reasonable control.
5.6 Unless otherwise agreed, the delivery time starts upon receipt of all documents required for processing the order and upon settlement of all technical and commercial details between the Parties including, without limitation, procurement of all required official certificates and approvals by Buyer and payment of any deposit demanded by Seller.
5.7 Seller shall be entitled to make part deliveries if this is commercially expedient and reasonable under the circumstances.
5.8 If delivery is delayed, Buyer may demand a statement from Seller whether he wants to withdraw from the Contract or intends to deliver within a reasonable period of time. If Seller fails to make such a declaration within ten (10) days, Buyer shall be entitled to terminate the Contract without further obligation to Seller.
5.9 In no event shall Seller be responsible for any delay or non-arrival of a timely shipped delivery which is caused by third parties and not by any intentional or grossly negligent wrongful act or omission of Seller.
5.10 Unless otherwise agreed upon, Seller (i) may select packing, shipment, routing and carrier, and (ii) goods will be packaged according to industry standards and special packaging will be subject to additional charges.
6. Passing of Title and Risk
6.1 In a shipment contract, all risks, title, and right to possession of the goods pass to the Buyer upon Seller’s delivery to the carrier at the point of shipment, subject to a security interest of Seller in the goods until payment in full is received. If the Contract provides for delivery FOB Buyer’s destination, the risk passes upon transfer of the goods to the latter. In the case of delivery FOB Seller’s premises the risk passes to Buyer as soon as the goods are ready for loading by Buyer. This shall also apply in cases where dispatch is delayed for circumstances beyond Seller’s control. Products ready for dispatch but held for Buyer after timely notice to Buyer or stored for Buyer upon Buyer’s request shall be at the risk and expense of Buyer.
6.2 Unless otherwise agreed to, all return consignments, regardless of the reason for the return, shall be at the Buyer’s risk and expense.
7. Acceptance, Duty to Inspect
7.1 Upon arrival of the delivery at the designated site, the Buyer shall inspect the goods for quantity, identity with the contract goods, and condition.
7.2 Buyer shall accept any tender of products which substantially conform to the description of the products set forth in the Contract. Buyer shall be deemed to have accepted drawings, specifications, technical documentation, samples, prototypes and products unless Buyer gives Seller written notice stating with specificity any and all defects and nonconforming characteristics which cause the Buyer to reject the goods. In the case of defects discoverable through inspection, said notice shall be given to Seller within five (5) business days after receipt of the goods. In the case of defects not discoverable through inspection, notice shall be given within thirty (30) days of receipt of the goods or such other period as is deemed reasonable by Seller. If Buyer has reason to believe that the goods may be defective, Buyer shall keep the packaging materials.
7.3 ALL DEFECTS AND NON-CONFORMITIES WHICH ARE NOT SPECIFIED IN SAID NOTICE ARE WAIVED.
8. Seller’s Right to Terminate the Contract and Remedies
8.1 In case of force majeure or other unforeseeable events beyond the Seller’s control (as defined herein, Sect. 5), Seller shall be entitled, after notice to Buyer and prior to delivery, to terminate the Contract if such event substantially changes the economic intent or the substance of the respective performances, substantially impacts the Seller’s enterprise, and/or entails the impracticability or impossibility to perform the contractually agreed services on the part of the Seller. The Buyer shall be entitled to a refund of payments already made but shall not be entitled to any other compensation because of such termination.
8.2 Prior to delivery, Seller may terminate the Contract if Buyer is in payment arrears under this Contract or any other agreement with Seller; if Buyer has misrepresented his credit standing to Seller; or if his assets have been subjected to insolvency or composition proceedings. Buyer will be refunded any payments already made, adjusted by any claims Seller may have.
8.3 If Buyer fails, with or without cause, to furnish Seller with instructions for, or refuses to accept delivery of any of the products sold under the Contract, or is otherwise in default or repudiates all or any part of the Contract, or advises Seller that he will be in default in the performance of any of his obligations, or fails to pay when due any invoice under this Contract or any other agreement with Seller, or if any action is commenced by or against Buyer seeking the appointment of a trustee or receiver or the entry of an order for debtor’s relief for Buyer, then, in addition to any and all remedies allowed by law, Seller, without notice,
(a) may bill and declare due and payable all undelivered products under the Contract and/or any other agreement between Seller and Buyer;
(b) may cease performance of his obligations under any agreement between Seller and Buyer and postpone shipment until such default, breach, or repudiation is removed;
(c) may cancel any undelivered portions of the products in whole or in part; and/or
(d) may recover products in transit or delivered, repossess all products which may be stored by Seller for Buyer’s account and otherwise enforce its remedies for Buyer’s default.
8.4 Seller’s foregoing remedies shall be cumulative but not exclusive.
9. Buyer’s Right to Cancellation and Return of Goods
9.1 Solely limited to goods that are standard products not specifically manufactured or modified for Buyer, Buyer may terminate the Contract without any further obligation, provided the notice is received by Seller prior to commencement of shipment.
9.2 Seller, in its sole discretion, may allow Buyer in writing to return non-defective and non-used goods within fourteen (14) days after delivery. Such returned goods must be received by Seller within thirty (30) days from the authorization date. Authorization will not be granted in instances as the following:
– Goods for which the price is dependent on fluctuations in the financial markets which cannot be controlled by the Seller;
– Goods that are made to Buyer’s specifications or are otherwise customized;
– Goods which may wear or deteriorate quickly;
– Sealed goods which are not suitable for return due to health protection or hygiene reasons, once unsealed by Buyer;
– Items such as newspapers, periodicals or magazines;
– Sealed audio or video recordings or sealed computer software once unsealed by Buyer; or
– If so decided by Seller for any other reason in its sole discretion.
Buyer bears the cost of the return and assumes the full risk for the goods until delivery to the Seller. Authorized return of goods in the original packaging are subject to a fifteen (15)% restocking fee, goods that are returned in other than the original packaging are subject to a twenty (20)% restocking fee or the costs needed for reconditioning, whichever is greater. Seller’s refund is reduced, in Seller’s reasonable discretion, to the extent that the goods are damaged or parts of the returned goods are missing, including documentation, warranty cards, manuals and accessories.
10. Liquidated Damages
Buyer and Seller agree that all provisions for liquidated damages for a Party’s breach of its duties under the Contract, as set forth in these Terms & Conditions, are reasonable in light of the anticipated or actual harm caused by the breach, the difficulties of proving the loss, and the inconvenience or infeasibility of otherwise obtaining an adequate remedy.
11. Express Warranties, Buyer’s Remedies
11.1 Subject to the limitations and disclaimers set forth elsewhere in these Terms & Conditions, Seller warrants to the Buyer as follows:
(a) Seller’s products, at the time of their delivery to Buyer, will conform in all material respects to the applicable drawings and specifications identified in the Contract, as they may thereafter be amended or modified in accordance with these Terms & Conditions;
(b) Seller’s products shall be free from manufacturing defects in materials and workmanship when used in accordance with the Seller’s guidelines; and
(c) the products will be free and clear of all liens, encumbrances, and other claims except for Seller’s reservation of a security interest in the products prior to receipt of payment in full.
11.2 The warranty period for Seller’s products is one (1) year from the date of shipment unless otherwise specified by Seller in a warranty statement provided with the product. Products or parts thereof which are replaced or repaired under Seller’s warranties are warranted only for the remaining unexpired portion of the original warranty period.
11.3 Seller’s express warranties are nontransferable and are conditioned upon (a) installation, maintenance and normal use in conformity with instructions (e.g. technical specifications, use & care manuals, operation manuals, service communications) furnished by the Seller, if any; and (b) the products not having been subjected to misuse, neglect, accident, inadequate storage, improper installation, alteration, repair, or improper testing which, in Seller’s judgment, would adversely affect the condition or operation of the products. Seller expressly excludes from its express warranty any condition caused by ordinary wear and tear or by chemical, electrochemical or electric influences beyond Seller’s control.
11.4 These express warranties exclude any responsibility or liability of Seller and any affiliated companies, for:
(a) damages or defects due to accident, abuse, misuse, abnormal operating conditions, negligence, accidental causes or improper maintenance or attributable to written specifications or instructions furnished by Buyer;
(b) defects in products manufactured by others than Seller and its affiliated companies, and furnished by Seller hereunder, it being understood and agreed by the Parties that the only warranty provided for such products shall be the warranty provided by the manufacturer thereof which, if assignable, Seller will assign to Buyer, if requested by Buyer.
11.5 Seller’s duty, and the sole and exclusive remedy of Buyer under Seller’s warranties, is, at Seller’s option and subject to the terms hereof, to repair, to replace without any additional charge and ship the products or parts to Buyer FOB Seller’s premises, or to keep the products and refund/credit Buyer’s account in the amount of the purchase price of the products which are returned, or offered to be returned by Buyer to Seller during the warranty period. All products or parts thereof replaced under warranty shall become the property of the Seller.
11.6 Seller’s duties under his warranties as described above shall be contingent upon:
(a) the Buyer notifying in writing the Seller promptly within five (5) days after discovery of any alleged defect or nonconformity with the Contract; and
(b) the Seller, upon examination of such products, being satisfied that the products are defective or nonconforming as claimed.
11.7 THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED AND IMPLIED INCLUDING, THE WARRANTY OF MERCHANTABILITY OF FITNESS OF PURPOSE. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER CAUSE OF ACTION, SHALL SELLER, AND ITS AFFILIATED COMPANIES, BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR PERSONAL INJURY OR PROPERTY DAMAGES.
12. General Limitation of Seller’s Liability
12.1 Seller’s goods have been designed, marketed and sold for use in the U.S. and Canada, provided that Seller may elect not to ship goods outside of the continental United States (i.e., excluding Hawaii, Alaska or other non-continental possessions and territories of the United States). The goods are not intended for use outside of the United States or Canada. It is the sole responsibility of the Buyer for complying with all applicable laws and regulations of the country for which the goods are destined.Seller is not liable or responsible if Buyer violates any such laws.
12.2 Buyer is solely responsible for proper use of the goods sold hereunder and for following all guidelines including any manuals provided by Seller. That is particular true for products used for storage or dry aging of food or beverage items.
12.3 SELLER SHALL NOT BE LIABLE FOR ANY PERSONAL OR PHYSICAL INJURY INCLUDING BODILY HARM RESULTING FROM ANY MISUSE OF THE PRODUCTS SOLD HEREUNDER INCLUDING BUT NOT LIMITED TO IMPROPER STORAGE OR DRY AGING OF FOOD OR BEVERAGE ITEMS.
12.4 NOTWITHSTANDING ANYTHING SET FORTH IN THESE TERMS & CONDITIONS, AND TO THE EXTENT PERMITTED BY LAW, SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY LOSS OF USE, REVENUE OR ANTICIPATED PROFITS, OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, GENERAL, SPECIAL, CONTINGENT OR PUNITIVE DAMAGES IN CONNECTION WITH ANY BREACH OF WARRANTY OR OTHER BREACH OF SELLER’S OBLIGATIONS UNDER THE CONTRACT AND THESE TERMS & CONDITIONS OF SALE, INCLUDING, WITHOUT LIMITATION, DELAYS IN DELIVERY TIMES OR NONDELIVERY OF PRODUCTS AND SERVICES.
12.5 TO THE EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO ANY EXPRESS CLAIMS OF BUYER STATED IN THESE TERMS & CONDITIONS, IN NO EVENT SHALL SELLER’S LIABILITY EXCEED THE PRICE THE BUYER PAID TO THE SELLER FOR THE SPECIFIC GOODS PROVIDED BY THE SELLER GIVING RISE TO A CLAIM OR CAUSE OF ACTION.
12.6 The Seller shall have no liability or responsibility whatsoever for any losses suffered or caused by materials downloaded from Seller’s website.
12.7 The Seller shall have no liability or responsibility whatsoever for the content, accuracy, or function of third party websites which can be accessed through Seller’s website. Such links are provided in good faith by Seller without any liability and endorsement of the contents of the other websites.
13. Statute of Limitations
Any action for an alleged breach of the Contract or any claim related to the Contract must be commenced within one (1) year after the cause of action has accrued. Any action not brought within the aforesaid time limit shall be barred, regardless of any statutory period of limitation that may otherwise apply under the laws of any applicable jurisdiction.
14. Applicable Law, Dispute Resolution, Waiver of Right to Jury Trial
14.1 The Contract and all rights and obligations hereunder shall be governed, construed and enforced under the laws of the State of Georgia, without regard to its conflict of laws rules. To the extent that any rights and obligations of the Parties are not specifically described herein, those rights and obligations shall be inferred in accordance with the provisions of the Georgia Uniform Commercial Code. The United Nations Convention on the International Sale of Goods (CISG) shall not apply.
14.2 Any disputes and claims arising from the contractual relationship shall be settled exclusively by arbitration following the rules of the American Arbitration Association. The proceedings shall be conducted by one arbitrator and be held in Atlanta, Georgia. In proceedings initiated by Seller, Seller shall have the right to commence the proceedings at or near Buyer’s place of business.
14.3 In the event of any court proceedings in the United States, the Parties hereby waive any right to a trial by jury.
15.1 If one or several provisions of the Contract is held to be unenforceable or invalid, in whole or in part, the validity of the contract and all its remaining provisions shall not be affected and shall continue in full force and effect.
15.2 Buyer may not assign any rights or obligations under the Contract, including these General Conditions of Sale, to any third person without the express written consent of Seller.