TERMS AND CONDITIONS OF SALE
Unless otherwise agreed to in writing by Ambrach, all sales to Customers of products shall be subject to the terms and conditions set forth below:
The parties acknowledge that they intend for kegs sold by Ambrach to Buyer to constitute returnable containers for beverages. Buyer represents and warrants to Ambrach that Buyer charges its customers a refundable deposit on all kegs and that the deposit is refunded or credited to customers when kegs are returned, except for when kegs are damaged while in a customer’s possession. Buyer further represents and warrants to Ambrach that Buyer refills and redelivers kegs to customers.
1. General Provisions
1.1 All purchases shall be made pursuant to a customer purchase order (“Purchase Order”). All deliveries shall be made in the quantities, at the times, and at the prices specified in a Purchase Order: which shall include any applicable changes for freight, handling, and insurance and customs duty fees. If at any time Ambrach has reason to believe that shipments will not be made as scheduled in the Purchase Order, Ambrach shall immediately provide notice to Purchaser setting forth the cause of the anticipated delay, and the projected date of shipment.
1.2 Ambrach may cancel pending Purchase Orders in the event of the happening of any of the following with respect to the customer: Insolvency; the filing of a voluntary petition in bankruptcy; the filing of an involuntary bankruptcy petition against Customer, the appointment of a receiver or trustee; or the execution of an assignment for the benefit of creditors.
1.3 Unless specifically set forth herein to the contrary, all Purchase Orders, and all rights and obligations of the parties related thereto, shall be governed by the Uniform Commercial Code as enacted and in force in the state of Oregon on the dates specified for delivery.
1.4 Acceptance of Purchase Orders by Ambrach is expressly limited to the terms and conditions set forth herein or otherwise agreed to by Ambrach in writing; any additional or different terms suggested or requested by Purchaser are hereby objected to and rejected unless expressly assented to in writing by Ambrach.
2. Payment. Customer shall deliver a payment equal to 50% of the Purchase Order price to Ambrach as a down payment immediately upon confirmation of a Purchase Order by Ambrach. Final payment of 50% upon receipt of Bill of Lading. In the event of payment via wire transfer, the Customer shall pay all related fees and costs.
3. Late Charges/Insufficient Funds. In the event of a late payment, Customer agrees to pay a late payment charge equal to five (5%) of the outstanding balance of any invoice remaining unpaid on its due date. In addition, Customer shall pay interest equal to one and one-half percent (1.5%) (Or the highest amount permitted by law), whichever is lower per month on the outstanding balance of any invoice remaining unpaid after the due date. In the event of a returned check due to insufficient funds, Ambrach will assess a $100 charge against Customer.
4. Collection. Customer agrees to pay Ambrach its reasonable expenses, including attorney’s fees and collection agency fees, incurred in collecting past due invoices or otherwise enforcing these terms and conditions.
5. Security Interest. To secure payment of all amounts due, Ambrach reserves the right to require a security interest of the Customer in the goods purchased and the proceeds from the sale thereof. At Ambrach’s request, Customer will promptly sign financing statements and any other documents appropriate to perfect or continue the security interest.
6. Product Condition. All products shall be of good quality and workmanship and free from defects, and shall be manufactured, produced, procured and supplied in full compliance with, and their sale or use shall not be in violation of, any federal, state, or local law, ordinance, or other regulation of any applicable public authority. Customer agrees to provide notice of any defect or noncompliance to Ambrach within ten (10) days of receipt of the product.
7. Indemnity. Ambrach agrees to defend Customer in all suits at law in equity and to indemnify and hold Customer harmless from and against any and all liability, loss, costs, damages (whether compensatory or punitive), attorney’s fees and other expenses which Customer may sustain by reason of any claim or suit brought against it for property damage or personal injury due to claimed defects in the goods, or by any claimed violation of any of the aforementioned or other applicable laws, ordinances, or regulations. Distributor further agrees to require the manufacturer or producer of the goods to join in this indemnity. Ambrach will accept return, at Ambrach’s cost and expense, of any goods alleged to infringe any copyright or patent, if Customer so requests.
8. Freight Policy. Freight terms are DDP customer’s location. DDP means Delivered Duty Paid as defined in INCOTERMS 2010.
9. Delivery Scheduling At the time Ambrach confirms a Purchase Order, the Ambrach will provide an estimated delivery date.
10. Shipping Documents. All Purchase Orders shall be delivered to Purchaser with a commercial invoice and packing list.
11. Returns Policy. Purchaser shall make a written request to Ambrach via email or fax for return authorization (“RA”) for product returns to due to overage (quantity shipped exceeds quantity ordered), damage or receipt of incorrect product. Requests for RA must be received by Distributor no later than ten (10) days following receipt of the product. If return authorization is not provided to Purchaser in writing via e-mail or fax within five (5) business days, a second request will be made via e-mail or fax. No return shall be processed by Distributor without an RA.
11.1 Core Product. If a keg is able to be filled and store beverage without leaking or spillage while using an Ambrach approved Micro Matic valve, the parties acknowledge and agree that such a keg is deemed to meet core product purpose and does not qualify as damaged or incorrect. Without limiting the generality of the foregoing, weld splatter and metal burrs on handles do not qualify as damaged or incorrect and are not grounds for product return or refund.
11.2 Product Custom Options. Notwithstanding the foregoing, is Purchaser requests customizations such as stamped embossing, chemical embossing, laser etching, color banding, silk screening and any other Purchaser requested customizations, the parties acknowledge and agree that deviations from those customization specifications do not qualify as damaged or incorrect and are not grounds for product return or refund. Without limiting the generality of the foregoing, Ambrach will use reasonable efforts to satisfy Purchaser requested customizations and if Purchaser is dissatisfied, Ambrach may, but is not required, to consider alternative solutions, which Ambrach may select and pursue at its sole and absolute discretion, including, without limitation, stickers/labels to cover defects and/or discounted pricing not to exceed 10% of the item’s purchase price.
12. Governing Law. This Agreement shall be governed by and construed in accordance with laws of the state of Oregon. Venue for any actions or proceeding relating to the agreement shall exclusively be in Multnomah County, Oregon.
13. Attorney’s Fees. The prevailing party in any action or proceeding to enforce or interpret this agreement will be entitle to costs and reasonable attorney’s fees, at trial and on appeal.
14. Amendment. This Agreement may not be amended except upon the written consent of the parties.
15. Waiver. Waiver by either party of a breach of or any term or provision of this Agreement will be not be construed as a waiver of any subsequent breach of the same or any other term or provision by either party.
16. Severability. If any term (or the application of it to any person or circumstances) shall to any extent be invalid or unenforceable, the remainder of the terms and conditions and the application of such term or provision to persons or circumstances other than those to which it has held invalid or unenforceable will not be effected, and each term or provision will be valid and enforceable to the fullest extent permitted by law.
17. Successors and Assigns. These terms and conditions shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
18. Force Majeure. Any delay or failure in the performance by either Party hereunder shall be excused if and to the extent caused by the occurrence of a Force Majeure. For purposes of this Agreement, Force Majeure shall mean a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of the Party claiming Force Majeure, including acts of God, fires, floods, explosions, riots, wars, hurricane, sabotage terrorism, vandalism. Accident, restraint of government, governmental acts, injunctions, labor strikes, customs, delays, and strikes at port, that prevent Ambrach from furnishing the materials or equipment, and other like events that are beyond the reasonable anticipation and control of the Party affected thereby, despite such Party’s reasonable efforts to Prevent, avoid, delay, or mitigate the effect of such acts, events or occurrences, and which events or the effects thereof are not attributable to a Party’s failure to perform its obligations under this Agreement. Prevent, avoid, delay, or mitigate the effect of such acts, events or occurrences, and which events or the effects thereof are not attributable to a Party’s failure to perform its obligations under this Agreement.
19. Entire Agreement. These terms and conditions supersede all previous representations, understandings or agreements and shall prevail notwithstanding any variance with the terms and conditions of any order submitted.
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