THE TERMS OF SALE (“Agreement”) outlined below govern each user account and all purchases made with and through Berkshire Corporation, the owner and operator of berkshire.com (the “Website”) and its online e-commerce store.
In this Agreement, “you” and “your” refer to you as an individual and, if you are making purchases on behalf of an organization, your organization. “We”, “us”, “our”, and “Berkshire” refer to Berkshire Corporation, its employees, representatives, officers, directors, agents, successors and assigns.
- CHANGES TO THE WEBSITE — We may add to, update, delete from or modify the Website at any time in our sole discretion. Berkshire reserves the right to discontinue, temporarily or permanently, all or any portion of the Website with or without notice. You agree that Berkshire will not be liable to you or to any third party for any such modification, suspension or discontinuance.
- PAYMENT TERMS — Terms of payment are within Berkshire’s sole discretion. Unless otherwise agreed to by Berkshire, payment must be received by Berkshire prior to Berkshire’s acceptance of an order. Payment for the Products will be made by credit card, or some other prearranged or acceptable payment method [such as via a PayPal or Google Checkout account], unless credit terms have been agreed to between you and Berkshire. Berkshire reserves the right to cancel any order at its sole discretion.You agree to pay all charges incurred in connection with your purchase (including any applicable taxes) at the rates in effect when submitting your order. Do not assume that a cancellation or change of an order you have placed with Berkshire has been effected until you receive a confirmation from Berkshire via email or the Website. As stated above, you will be responsible for, and your third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before your order cancellation/change request was received. Should you use a credit card or other third party payment service to pay for your order, you agree to first contact Berkshire at xxx.berkshire.com to question any disputed charge before disputing any such charge through the credit card company or other third party payment service provider.If you have agreed to credit terms with Berkshire, you hereby grant to Berkshire a first priority purchase money security interest and/or chattel mortgage in the Products purchased by you or any of your organization’s subsidiaries or affiliates, and each person or entity using your identification number and password, and any accounts receivable or cash from resale thereof until full payment is made to Berkshire. You authorize Berkshire to file any financing statements or other appropriate documents with any and all governmental authorities to perfect the validity, priority, and enforceability of Berkshire’s lien and security interest.
- PRICING— All prices published by Berkshire may be changed at any time without notice. Despite our best efforts, a small number of the Products on our Website might be mispriced. If we discover a mispricing, we will do one of the following:
- If an item’s correct price is lower than our stated price, we will charge the lower amount and ship you the item.
- If an item’s correct price is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation.
Berkshire is not responsible for pricing, typographical, or other errors in any offer by Berkshire and reserves the right to cancel any orders arising from such errors. The costs for shipping, taxes, and handling are not reflected in the list price of Products at the Website, and shall be your responsibility unless the Website expressly indicates that such charges are included in the list price.
- YOUR OBLIGATIONS — You understand that it is your responsibility to review, upon first receipt, whether delivered to you by e-mail, by a posting on the Website, or by any other electronic means, all order confirmations, statements of referral balances, transaction history, notices and other communications. Any information contained therein shall be binding upon you, if you do not object, either in writing or via electronic mail, within twenty-four hours after any such document or information is sent to you or available on the Website. In all cases, Berkshire reserves the right to determine the validity of your objection to the transaction. Such notices, information and other communications from Berkshire shall be deemed to be delivered and available to you whether actually received or not.You agree that Berkshire fulfills its legal obligation to deliver to you any such document if sent via electronic delivery. Electronic delivery may be in the form of an email, an electronic mail attachment, a posting on the Website, or in the form of an available download from the Website.You represent that you will download the relevant document promptly after receiving notice of its availability. Should you experience any difficulty opening a document electronically delivered by Berkshire, you agree to promptly advise Berkshire in order to allow us to make the required delivery by other means. Failure to advise Berkshire of such difficulty within twenty-four hours after delivery shall serve as an affirmation that you were able to receive and open said document.
- YOUR RESPONSIBILITIES — You represent that you or your organization, as appropriate, will be the sole and exclusive authorized user of your password associated with your Berkshire online account, and that you accept sole responsibility for use, confidentiality and protection of the password as well as for all orders and information changes (i.e., changes of address) entered into your account using such password.You accept full responsibility for the monitoring and safeguarding of your account. You will immediately notify Berkshire in writing delivered via e-mail if you become aware of any loss, theft or unauthorized use of your password and account number; or any failure by you to receive a message from us indicating that an order was received and executed or any inaccurate information in your account or transaction history. The use and storage of any information, including, without limitation, the password, transaction activity and any other information or orders available on your personal computer is at your own risk and is your sole responsibility. You are responsible for providing and maintaining the communications equipment (including personal computers and modems) and telephone or alternative services required for accessing and using the Website or related services, and for all communications service fees and charges incurred by you in accessing the Website or related services.
- TITLE / RISK OF LOSS / DAMAGED SHIPMENTS — All items purchased from Berkshire are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier. You agree that Berkshire is not liable for damaged or lost goods during shipment. Prices stated are F.O.B. point of origin, freight collect, or if agreed by Berkshire, by freight prepaid to destination specified in the order via Berkshire’s preferred carrier. If customer specifies a particular manner or method of shipment, than all costs associated with such shipment shall be at Customer’s expense. Berkshire will not provide receipts for shipping and handling charges. COD shipments are not permitted. Other terms and conditions may apply for other than standard ground delivery (“Other Freight Services”), including without limitation, expedited same day delivery, air freight, freight collect, export orders, hazardous materials, customer’s carrier, shipments outside the contiguous U.S. or other special handling by the carrier.Customer must pay any extra charges incurred for other Freight Services. Fuel surcharges shall be added to all shipments as applicable. Identification of the goods to the contract, title and risk of loss pass to customer upon tender of shipment to the carrier, or to Customer’s truck, trucker or agent. If the product is damaged in transit, Customer’s only recourse is to file a claim with the carrier. Claims must be made to the carrier or trucker or agent within 15 days from receipt or such shorter time as may apply under the terms of carriage. Certain carriers have rules with respect to preservation of packaging and other materials for claims processing. Customer is solely responsible for complying with all such requirements and for making timely claims to the carrier, trucker or agent.
- LIMITED WARRANTY — You should inspect the Product immediately upon receipt of the Product. If the Product is found to have defects not attributable to shipping damage (shipping damage is addressed in Paragraph 10 below), you have 30 days after the receipt of the Product to notify Berkshire for an exchange or refund. If Berkshire is not notified within 30 days, the Product is deemed satisfactory. Berkshire warrants that the Products are as generally described in the applicable catalogue or internet graphic and text. No other express warranty is made. Any image, graphic model or sample was used merely to illustrate the general type and quality of Products and not to represent that the Products would necessarily conform to the image, graphic model or sample.
- RETURN POLICY — Please call (800) 242-7000 for a Return Material Authorization (RMA). Once you obtain a RMA#, we will accept Products for return or exchange within 30 days of invoice, as long as they are unopened and returned in their original packaging. We will credit the purchase amount (excluding shipping and handling charges) of the returned item to your account within one billing cycle. If the product was damaged during shipment, Berkshire will not accept the return — instead a claim must be filed with the delivery company. Such claims must be made to the carrier within 15 days from receipt or such shorter time as may apply under the terms of carriage.Products that are returned more than 30 days after purchase will not be accepted or credited. If you choose to exchange the item for another item of equal value available online at our Website, we will ship the new product when we receive the returned item provided that we receive the return within 30 days of invoice. Berkshire ships its products through [the United Parcel Service (UPS) carrier by way of ground service through commercial delivery firms]. Shipping fees for refunded items must be prepaid by you. If you have further questions or would like to speak to us about another customer service issue, please contact our Customer Service department at (800) 242-7000.
- CHOICE OF LAW / VENUE — This Agreement and the rights and obligations of the parties with respect to any Product shall be governed by and construed in accordance with applicable laws, without regard to its choice of law rules. Any action brought in connection with this Agreement shall be brought only in applicable state or federal courts. In any such action, both parties consent to the personal jurisdiction of the federal and/or state courts and waive any objections to venue of such courts. Application of the U.N. Convention of Contracts for the International Sale of Goods is expressly excluded. Certain policies and/or procedures may be further outlined on the Website, and by your use of the Website and the Products, you agree to be bound by any and all such postings.
- LIMITATIONS / RESTRICTIONS / TERMINATIONS — You understand that Berkshire may at any time, at our sole discretion and without prior notice to you, prohibit or restrict your access to the use of the Website or related services or your ability to purchase products on the Website. Berkshire may terminate your account at any time, for any reason of for no reason, and without prior notice to you. You are free to terminate your account with Berkshire at any time for any reason, provided that you agree that the closing of an account will not affect the rights and/or obligations of either party incurred prior to the date the account is closed.
- LIMITATION OF LIABILITY — In no event shall Berkshire, its officers, directors, employees, affiliates, subsidiaries, agents, other partners or anyone involved in creating, producing, delivering Berkshire’s Products be liable, whether in contract, warranty, tort (including negligence), or any other form of liability, arising out of or relating to a Product, Product order or Berkshire’s acts or omissions, for: (i) any indirect, special, incidental or consequential damages that may be incurred by you as a result of your use of a Product, inability to use a Product or sale of a Product to a third party; (ii) any breach of any warranty by Berkshire; (iii) any loss of data, income, business or profits (whether direct or indirect) that may be incurred by you; and (iv) any claim, damage, or loss which may be incurred by you as a result of (a) the availability of Website and/or any other third-party web sites, (b) any reliance placed by you on any advertising, Products, services or other content or materials on, or available from, the Website or any third-party web site; or (c) your failure to secure your account access information and to immediately notify Berkshire of such a security breach as described above; (iv) any of your transactions with third parties or other users; or (v) any claim, damage, or loss that may arise as a result of the handling, mishandling or loss of any order. The limitations on Berkshire’s liability to you above shall apply whether or not Berkshire has been advised of the possibility of such losses or damages arising. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction. To the extent that any applicable statute applies, which modifies the above, Berkshire’s liability shall not include any hypothetical gains or losses, and it is agreed that the trier of fact shall only consider the actual facts, or lack thereof, of the parties to this Agreement. Any action by you must be commenced within one year after the cause of action has accrued.
- LEGAL CAPACITY — You represent that you have the required legal capacity and that you are of the required legal age (i.e., eighteen years of age) to enter into this Agreement and that, except where you are entering into this Agreement and making purchases on behalf of an organization, no one except you has any interest in your account with us. In the case of your making purchases on behalf of an organization, by indicating your agreement below you are representing that you have the authority to bind your organization.
- ASSIGNMENT — You shall not assign any order, or any interest therein, without the prior written consent of Berkshire. Berkshire may cancel any assigned order or any order that you attempt to assign, all without liability by Berkshire to you or to the assignee or purported assignee. If products are purchased by a buying office or buying group as agent for you, the you and the group or agent are bound by this Agreement.
BY USING THIS WEBSITE, YOU ARE INDICATING YOUR AGREEMENT TO BE CONTRACTUALLY BOUND BY THE ABOVE TERMS.