General Terms. All sales of goods and/or services (collectively, "Products") by Benssussen Deutsch & Associates ("Seller") to any person or entity ("Buyer") via www.ConstellationBeerGear.com (the "Website") are subject to and governed by these Terms and Conditions of Sale (these "Terms and Conditions"). Purchases via the Website may only be made by and for registered, authorized accounts. By using the Website and/or completing a purchase on the Website (a "Sale Transaction"), such user, account and corresponding Buyer agree to be bound by these Terms and Conditions. No addition or alteration to these Terms and Conditions shall be valid or enforceable unless specifically agreed to in writing by Seller. Seller reserves the right to reject any order, revoke and offer, and to correct any errors, inaccuracies or omissions in any offer or price at any time, even if the order has been confirmed and payment processed. Seller also reserves the right to cancel all or a portion of any agreement for the sale of Products at any time prior to Seller's delivery of Products, without liability of any kind to Seller (other than to refund any payments made by Buyer for such cancelled Products, provided that cancellation is not due to Buyer's breach or default). No terms or conditions appearing in any purchase order, confirmation or other document furnished by or on behalf of Buyer (whether before or after the date of these Terms and Conditions) that are in variance or conflict with these Terms and Conditions will be binding upon Seller, and any such terms or conditions in variance or conflict with these Terms and Conditions will be deemed waived by Buyer.
Products May Only Be Advertised and Sold in the United States. The Products are for sale to and shipment to a Buyer located in the United States (the "Territory"). Buyer covenants and agrees that Buyer will not sell, ship or otherwise distribute Products to persons who are outside the Territory or to persons who intend to or are likely to sell, ship or distribute such Products outside the Territory, or to persons Buyer knows, or has reason to believe, will sell, ship or distribute such Products outside the Territory.
Buyer's Acceptance of Products. Buyer agrees to inspect fully all Products delivered to it at the time of delivery. In the event that such inspection reveals any damage or other non-conformity in the Products, returns will be accepted within 60 days of receipt for full refund. However, Custom orders are nonrefundable. To return merchandise, simply complete the Returns & Exchange form that is included in your shipment with the quantity returned and reason. Place form with merchandise and affix the return label (included as well in shipment) to the box. All returns must be accompanied by the Returns & Exchanges form in order to be processed. Apply proper postage and mail to: BDA Attention: Returns 1201 Perry Road Suite 101 Plainfield, IN 46168 If Buyer fails to notify the Seller pursuant to the terms above, in writing of any such damage or other non-conformity, then Buyer shall be deemed to have accepted the Products delivered. Such acceptance shall constitute an irrevocable acceptance of the Products by Buyer and a waiver of any and all claims Buyer may otherwise have had against Seller with respect to the damage and/or non-conformity of such Products. Seller shall not accept Products for return after such Products are accepted by Buyer.
Prices. All prices are stated and charged in U.S. Dollars. All prices, terms and conditions of sale are subject to change without notice.
Terms of Payment. Payment shall be due at the time of purchase payable with a credit card.
Advertisement of Products. Any online advertising or sale of Products by Buyer must be via a website approved in advance by Seller that has geo-blocking capability designed to restrict access to such website pages offering the Products only to visitors physically located in the United States. No Products may be sold on auction websites (e.g. eBay) or marketplace sites (e.g. eBay and Amazon.com).
References to Corona and the Property. The Products may contain designs, logos, artwork, trademarks or copyrighted matter (the "Property") owned by Cerveceria Modelo, S. de R.L. de C.V. or its assignee (collectively, "Owner"). Buyer is not granted any rights in such Property and shall not acquire any rights in the Property. Buyer may refer to the Property or other elements of the Property solely for the purpose of accurately identifying the Property depicted on those products (such use is referred to as "Nominative Use"). Buyer shall not make any trademark use of the Property or use the Property other than Nominative Use. Buyer agrees to promptly change or correct, at Buyer's sole expense, any materials or activity that Seller determines is inaccurate, objectionable, misleading, or misuses the Property. Buyer may not create the impression that it is an authorized reseller of Owner or Seller or that Buyer is affiliated with Owner or Seller, or that Owner or Seller have sponsored, authorized, approved or endorsed Buyer. Buyer shall not register or use any domain name or business name containing or confusingly similar to any name or mark of Owner or Seller. Buyer shall not use any Property in or on any search engine or other online advertising or promotion, including, without limitation, as a keyword, as a hashtag or moniker or in email addresses, without Seller's prior written permission.
No Modification to Products or Packaging. Buyer shall sell Products in the original packaging for such Products and shall not modify the Products or packaging.
Business Conduct. Seller shall at all times conduct business in a manner which reflects favorably on the Products and goodwill and reputation of the Property. In Buyer's marketing and sales of Products, Buyer shall conduct its business in an ethical manner and avoid business practices that are or may be perceived as deceptive, misleading, or improper. Buyer shall not make any false or misleading statement concerning the Products.
Governing Law; Jurisdiction. These Terms and Conditions and all Sale Transactions shall be construed and governed by and under the laws of the State of Illinois, without regard to its conflicts of laws principles. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to these Terms and Conditions or any matter between Buyer and Seller shall (without limiting Seller's right to commence and prosecute any action, suit or proceeding in any other jurisdiction or venue) be commenced and prosecuted only in a federal or state court located in the County of Cook in the State of Illinois, and Seller and Buyer each consents to the jurisdiction and venue of such court. Any action against Seller for any claim asserted under any Sale Transaction or other matter, including in connection with the sale of any Products, must be commenced within one (1) year after such cause of action shall have accrued.
Warranties; Limitation of Liability. Seller warrants that the Products will meet Seller's standard specifications for such Products. SELLER (INCLUDING ALL AFFILIATES, CONTRACTORS, AND AGENTS AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFERS SUCCESSORS AND ASSIGNS), ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO ANY PRODUCTS, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITIONS OF NONFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR LOSS OF BUSINESS OR PROFIT OR ANY OTHER ECONOMIC LOSS, OR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES. THE FOREGOING WARRANTY DOES NOT APPLY TO PRODUCTS WHICH HAVE BEEN ALTERED, CONVERTED, CHANGED, OR USED IN MANUFACTURE. NOTWITHSTANDING THE FOREGOING, PRODUCTS SOLD AS "SECONDS" OR "USED" ARE SOLD "AS IS" WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND. IN NO EVENT SHALL SELLER'S LIABILITY EXCEED BUYER'S PURCHASE PRICE OF THE PRODUCTS THAT ARE THE SUBJECT OF ANY CLAIMS MADE BY BUYER. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES OR LIABILITY, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. YOU AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR SELLER'S SALE OF PRODUCTS AND SERVICES TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF SELLER HAS BEEN ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LIABILITIES.
Default; Indemnification. Buyer's failure to make any payment to Seller by the date due Seller or failure to perform any of its obligations in accordance with the Terms and Conditions, or if Buyer breaches any other representation, warranty, obligation or agreement made to Seller shall be deemed an "Events of Default." Upon an Event of Default, Seller shall be entitled to collect from Buyer all reasonable costs and expenses, including reasonable attorneys' fees, incurred in enforcing the Terms and Conditions. Buyer agrees to save and keep Seller free and harmless from, and indemnify Seller against, any loss, damage or expense, including attorney's fees and costs, which Seller suffers or incurs as a result of Buyer's breach of or failure to comply with any provision, representation, warranty, obligation or agreement made by Buyer to Seller, as well as from any failure of Buyer to store, prepare, sell or use the Products other than in a normal, intended, customary, safe and lawful manner, as well as from any shipment or sale outside of the Territory or sale or shipment to persons who Licensee knows, or has reason to believe, will export such articles from the Territory. The failure of Seller at any time to require performance by Buyer of any provision of the Terms and Conditions shall in no way constitute a waiver of that provision or affect the full right of Seller to require such performance by Buyer at any time after such failure, nor shall any waiver by Seller of a breach by Buyer of any provision of these Terms and Conditions constitute a waiver of any succeeding breach by Buyer of the same or any other such provision. All rights and remedies of Seller under the Terms and Conditions and applicable law are cumulative.
Delivery. All dates quoted for shipment of Products are estimates only and are not guaranteed. Seller may make partial deliveries of Products. Seller will endeavor to meet the quoted shipment dates, but shall have no liability for any delay in shipment or delivery, and shall be held harmless from any damage or loss incurred by Buyer due to such delay. Seller reserves the right of carrier selection. All Products are shipped by Seller to Buyer F.O.B. Seller's place of business. Notwithstanding the foregoing, Seller shall have the right to stop or divert any Products while in transit following an Event of Default or if Seller reasonably anticipates an Event of Default.
Taxes. In addition to the purchase price of the Products and any other amounts required to be paid by Buyer, Buyer shall be solely responsible for and, upon demand of Seller, shall pay to Seller the amount of all governmental taxes, duties and other charges (collectively, "Taxes") imposed under any existing or future law upon or with respect to the sale, purchase, delivery, storage, use or transportation of the Products (excluding income taxes imposed upon Seller). Buyer may, however, in lieu of payment of any such Tax, provide to Seller tax exemption certificates, if any, from appropriate taxing authorities in a form acceptable to Seller establishing Buyer's exemption from such Tax.
Confidentiality. All information furnished by or on behalf of Seller to Buyer (the "Information") is and will remain the exclusive property of Seller. Buyer shall keep all Information confidential and will not disclose any Information to any other person other than its employees and agents who have a bona fide need for it in connection with Buyer's business, and Buyer shall not use or disclose such Information for any other purpose, without prior written consent of Seller. "Information" includes, without limitation, all designs, drawings, specifications, plans, proposals, quotes, estimates, drafts and documents prepared by Seller in connection with any Products or any sale or potential sale of Products. Buyer understands and agrees that Seller would be irreparably harmed by the unauthorized use of the Information and that monetary damages alone may not be sufficient to make Seller whole. Buyer will (a) cooperate in all reasonable respects with Seller, at its request, to prevent any unauthorized use or disclosure of any of the Information and (b) notify Seller upon Buyer's discovery of any unauthorized use or disclosure of any of the Information. The confidentiality obligation above will not apply to any Information to the extent it (i) is or becomes publicly available through no act or omission of Buyer or its employees or agents or (ii) it is required to be disclosed under applicable laws. This obligation of confidentiality shall indefinitely survive the completion of all sales of Products.
Delays. Seller will be excused for delays in performance under any Sale Transaction caused by acts of God, fire, flood, strikes and other labor troubles, wars, acts of government, acts of terrorism, inability to obtain material, equipment or transportation and damaged plant facilities which prevent manufacture, or any other cause, natural or otherwise, beyond Seller's reasonable control. In such event, the time for Seller's performance shall be extended by the period of any such delay.
Severability. If any provision in these Terms and Conditions or any Sale Transaction is determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of these Terms and Conditions or any Sale Transaction shall be unaffected and such provision shall be reformed to the extent necessary to be legal, valid and enforceable.
Assignment. Buyer may not assign any of its rights or obligations under any Sale Transaction or any portion of it to any third party. Seller may assign all or any portion of any Sale Transaction upon notice to Buyer or subcontract any obligations thereunder.
Cancellation. Partial or total cancellation of any Sale Transaction may be made by Buyer only upon Seller's written consent and then only on the condition that Buyer reimburses Seller for all losses and damages resulting from such cancellation.
Independent Contractor. Seller is an independent contractor and not an employee, agent or partner of Buyer.
Set-off. No claims for monies due or to become due from Seller to Buyer shall be subject to deduction by Buyer for any set-off or counterclaim arising out of any Sale Transaction.
Integration. These Terms and Conditions constitute the entire agreement of Seller and Buyer with respect to its subject matter and supersede all prior oral and written agreements between the parties with respect to the same subject matter.