Terms and Conditions
These Terms and Conditions of Sale (these “Terms”) shall apply to and govern all Bartlein Barrels, Inc. (“Bartlein”) quotations, offers or sales of product(s) and/or service(s) (“Products”) to any individual or entity (“Buyer”) and, to the extent provided herein, to any individual or entity to whom Buyer may resell the Products (“End User”), except to the extent that these Terms conflict with a written contract, sales agreement or distributor agreement executed by Bartlein that expressly supersedes these Terms. Use of the Products and Bartlein quotations, offers and sales are expressly conditioned upon Buyer’s and/or End User’s acceptance of these Terms, which acceptance may be express or implied. For purposes hereof, Buyer and/or End User shall be deemed to accept these Terms upon receipt of these Terms and/or the receipt of any Products from Bartlein. Any attempt by Buyer or End User to vary these Terms in any acceptance, acknowledgment, confirmation, purchase order or other communication or document, which may contain additional, different or inconsistent terms, is hereby expressly objected to and rejected by Bartlein. Bartlein’s failure to object to provisions contained in any communication from Buyer or End User shall not be deemed to waive any provisions herein, or to accept any different terms and conditions communicated by Buyer or End User. These Terms apply in lieu of any course of dealing between the parties or usage of trade in the industry.
Prices and Taxes
All price proposals by Bartlein for Products, including those listed on Bartlein’s website, are subject to change without notice until Bartlein confirms Buyer’s order in writing (“Confirmed Order Date”). All prices are exclusive of applicable taxes, including, but not limited to, revenue or excise taxes, value added taxes, import duties (including brokerage fees) or other taxes or handling fees applicable to the manufacture or sale of any Products. All applicable taxes shall be the responsibility of and paid by Buyer unless Buyer provides a proper tax exemption certificate. Any amounts paid at any time by Bartlein that are the responsibility of Buyer, such as export license or handling fees or other shipping costs, shall be invoiced to Buyer and shall be reimbursed by Buyer to Bartlein, in accordance with Section 4, below. Bartlein will not be responsible for the payment of any penalties or special charges relating to Bartlein’s failure to comply with Buyer’s special requirements for order processing, handling, packaging, shipping or invoice.
Time of Delivery
Buyer acknowledges that any delivery date specified by Bartlein is an estimated and projected delivery date and that time of delivery by Bartlein is not of the essence.
All accounts are due and payable by Buyer net thirty (30) days from the date of invoice, unless Bartlein, in its sole discretion, requires from Buyer full or partial payment(s) in advance before proceeding with the order. Any taxes, fees or costs incurred by Bartlein in connection with the manufacture, sale, shipping or handling of any Products at any time after the original date of invoice will be separately invoiced to Buyer and shall be due and payable by Buyer in accordance with this Section. If amounts are not paid when due, Buyer agrees to pay interest on any unpaid balance at a rate of one and one half percent (1.5 %) per month, or the maximum rate permitted by law, whichever is less. Title to the Products shall remain in Bartlein until all accounts due and payable by Buyer are paid in full. Buyer agrees to pay Bartlein’s reasonable costs to collect delinquent accounts, including, but not limited to, attorney fees and costs of legal action.
Order Cancellation, Acceptance and Returns
All orders are final and non-cancelable by Buyer. Notwithstanding the foregoing, Bartlein may, in its sole discretion, permit Buyer to modify or cancel an order in whole or in part. Any permitted modification or cancellation shall only be effective upon Buyer’s receipt of Bartlein’s written confirmation of such modification or cancellation. Bartlein shall have the right to modify or cancel any order in whole or in part, upon notice to Buyer, in the event that Buyer becomes insolvent, adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statute, or otherwise in Bartlein’s judgment becomes unable to meet its financial obligations in the normal course of business. Buyer shall be responsible for any costs or expenses incurred by Bartlein in connection with a modified or cancelled order prior to any accepted modification or cancellation. Bartlein shall invoice any such costs or expenses to Buyer, plus, at Bartlein’s discretion, a reasonable profit, which shall be due and payable in accordance with Section 4, above. Products shall be deemed accepted after five (5) business days following delivery of the Products to Buyer, unless Buyer delivers written notice of rejections to Bartlein within such five-day period. Acceptance of the Products shall constitute an unqualified waiver by Buyer of any rights to reject the Products and such acceptance may not be revoked by Buyer. Buyer may reject the Products only when a reasonable inspection shows that the Products fail to conform substantially to the specifications for the Products, as set forth in the applicable order or quotation. Buyer’s remedies for any nonconformity detected after acceptance are limited to those expressly provided in the Limited Warranty set forth in Section 6, below.
For a period of one (1) year following the receipt of the Products by Buyer or End User, Bartlein warrants that the Products manufactured by Bartlein hereunder shall be free from defects in workmanship and shall conform to Bartlein’s published specifications or other specifications accepted in writing by Bartlein. This warranty shall be null and void and without force or effect hereunder as to any defect in the Products which arises from normal wear and tear, any neglect or other improper use, repair, negligence, excessive use, modification or integration of the Products with or into another third-party product, as determined in Bartlein’s sole discretion. Bartlein’s sole obligation for Products failing to comply with this warranty shall be, at its option, to repair, refinish, replace or issue credit for the nonconforming Products where (i) Bartlein has received written notice of any nonconformity; (ii) after Bartlein’s written authorization, Buyer or End User has returned the nonconforming Products to Bartlein; and (iii) Bartlein has determined that the Products are nonconforming and that such nonconformity is not the result of any action described in the foregoing sentence. THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS. BARTLEIN DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS PRODUCTS.
IN NO EVENT SHALL BARTLEIN BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE ARISING OUT OF OR RELATING TO THE SALE OF ANY BARTLEIN PRODUCTS, OR PERFORMANCE OR NONPERFORMANCE OF THESE TERMS, INCLUDING, WITHOUT TERMS AND CONDITIONS OF SALE LIMITATION, DELAY, LOST REVENUE, LOST PROFITS OR LOSS OF GOODWILL, EVEN IF BARTLEIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BARTLEIN BE LIABLE FOR ANY DIRECT OR CONSEQUENTIAL DAMAGES OR INJURIES SUSTAINED IN THE USE OF THE PRODUCTS. BUYER’S AND END USER’S AGGREGATE RECOVERY FROM BARTLEIN FOR ANY CLAIM OTHER THAN THOSE EXCLUDED HEREIN SHALL NOT EXCEED BUYER’S PURCHASE PRICE FOR THE PRODUCTS GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE. BARTLEIN SHALL NOT BE LIABLE FOR ANY CLAIMS BASED ON BARTLEIN’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATIONS OF ANY PRODUCTS BY PARTIES OTHER THAN BARTLEIN, OR USE IN COMBINATION WITH OTHER PRODUCTS. IF, FOR ANY REASON, THE FOREGOING LIMITATIONS ARE FOUND BY AN ARBITRATION PANEL OR COURT TO BE INVALID OR INAPPLICABLE UNDER ANY APPLICABLE STATE OR FEDERAL LAW, BUYER AND END USER AGREE THAT BARTLEIN’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO ACTUAL DAMAGES WITHOUT REGARD TO ANY PUNITIVE OR EXEMPLARY DAMAGES PROVIDED BY ANY SUCH APPLICABLE LAW.
Buyer or End User may acquire knowledge of Confidential Information of Bartlein in connection with Products and/or Bartlein’s performance hereunder and agree not to use or disclose, directly or indirectly, Confidential Information for its own benefit or for the benefit of any third party. “Confidential Information” includes but is not limited to all information, whether written or oral, or whether marked as confidential, in any form, including, without limitation, information relating to the Products, research, development, methods of manufacture, trade secrets, work product and other material or information considered proprietary by Bartlein relating to the Products or current or anticipated business of Bartlein that is disclosed directly or indirectly to Buyer or End User. All Confidential Information is and shall remain the property of Bartlein. Buyer and End User agree not to copy, decompile, disassemble, discover, reverse engineer or otherwise design around, in whole or in part, or attempt to do so, any Products or Confidential Information. The obligation of this Section 8 shall be in effect during the term of these Terms and will continue for a period of five (5) years thereafter.
Compliance with Laws
Buyer and End User shall comply with federal, state, and local laws, rules and regulations pertaining to the Products purchased or received under these Terms. Buyer and End User are advised that the Products purchased or received from Bartlein under these Terms, including, but not limited to, any related drawings, samples, or technical manuals, may be restricted under the Arms Export Control Act, International Traffic in Arms Regulations, Export Administration Act and/or Export Administration Regulations (together, “Export Laws”), and Buyer and End User shall comply with all Export Laws in connection with the purchase of the Products. In addition, assembly of Bartlein parts or placing other accessories onto the Products, and/or their transport or resale may violate applicable laws, rules or regulations and are done at Buyer’s and/or End User’s sole risk. Buyer and End User expressly assume all responsibility and all liability for its conduct and compliance with all laws, rules and regulations, and Bartlein expressly disclaims any responsibility or liability therefor.
Buyer and End User shall each defend, indemnify and hold harmless Bartlein, its officers, employees, agents, successors and assigns from and against all liability, loss, damage, cost and expense (including attorneys’ fees) arising from, related to, or in any way connected with any allegation, claim, action, suit or threat thereof, including by any third party, for the death or injury of any person(s) or damage or destruction of any property, arising out of, relating to, or in any way connected with the Products, including, but not limited to, their use, testing, sale or distribution, unless arising out of Bartlein’s intentionally tortious conduct or breach of Limited Warranty set forth in Section 6.
Risk of Loss
Unless otherwise agreed to in writing by Bartlein, the risk of loss of or damage to the Products shall pass to Buyer at the time the Products are delivered to a carrier at Bartlein’s facility or other loading point. Bartlein shall not be liable for any loss of any kind to Buyer arising from any damage to the Products occurring after the risk has passed to Buyer however caused, nor shall any liability or obligation of Buyer to Bartlein be diminished or extinguished by reason of such loss.
Bartlein shall not be liable for any loss or damage arising from Bartlein’s delay in performing or failure to perform as a result of equipment failures, power failures, labor disputes, riots, insurrections, civil disturbances, shortages of materials, fires, floods, storms, explosions, acts of god, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance by third parties or any other occurrence or loss beyond the reasonable control of Bartlein.
Assignment and Subcontracting
Bartlein shall be entitled at all times to delegate or assign its rights under these Terms in whole or in part, or to subcontract any part of the work or services to be provided to Buyer, as it deems necessary or desirable.
Buyer and End User hereby acknowledge and agree that failure by Bartlein to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter. All rights and remedies of Bartlein under these Terms and at law and in equity are cumulative and not mutually exclusive.
Applicable Law; Venue
Buyer and End User each hereby consent that any suit, action or proceeding arising out of or related to these Terms shall be resolved exclusively under the laws to the State of Wisconsin, without regard to Wisconsin’s conflicts of laws rule, and shall be venued exclusively in the federal or state courts located in Washington County, Wisconsin.
The invalidity, illegality or unenforceability of any provision of these Terms shall not affect or impair the validity, legality, or enforceability of any other provision of these Terms, which shall remain in full force and effect.
Amendment of Terms
These Terms shall not be waived or amended except by Bartlein’s express written agreement.