Terms and Conditions for the Online Sale of Goods and Services
1. General. THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS WEBSITE, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH US, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
These terms and conditions (these “Terms”) apply to the purchase and sale of products and services through beveragelements.com, bvrgelements.com and affiliated websites (collectively the “Site”). These Terms are subject to change by ONLINE TRANSACTION PROCESSING, LLC (referred to as “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. The latest version of these Terms will be posted on this Site, and you should review these Terms prior to purchasing any product or services that are available through this Site. Your continued use of this Site after a posted change in these Terms will constitute your acceptance of and agreement to such changes.
2. Product Warning and Notice. Compressed gas equipment is dangerous and poses a risk of explosion, fire, suffocation, poisoning, extreme cold, extreme heat and related injuries. Misuse, using the wrong equipment, or using equipment under unsafe conditions can result in property damage, bodily injury, and/or death. Selecting the correct cylinder, correct valve, and other compressed gas equipment for your application is critical to ensure safety. If you are unsure about what equipment is to be used you should seek competent technical expertise. The content and materials of the Site are not a recommendation or suggestion of an appropriate product, service, procedure, or use for any intended application. Users of the Site, its content and its materials and/or the purchaser or user of any product from the Site are solely responsible for the safe use and application of any information and products obtained on or through the Site.
3. Product and Information Use. The content and materials provided by the Site are for general informational purposes only and are provided on an “as is” and “as available” basis. The Site and its affiliates, agents, and assigns make no representations or warranties as to the accuracy of the content and materials of the Site, or regarding the condition or functionality of the Site, its suitability for use, or that this Web service will be uninterrupted. The Site does not provide legal opinion or advice in any form. Users of the Site should obtain any necessary legal advice on the application of any information contained on the Site, or on the transport, storage, or other use of any product obtained through the Site, from a qualified attorney.
4. Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation e-mail with your order number. Acceptance of your order and the formation of the contract of sale between ONLINE TRANSACTION PROCESSING, LLC and you will not take place unless and until you have received your order confirmation e-mail. You have the option to cancel your order at any time before we have sent your order confirmation e-mail by calling or emailing our Customer Service Department at 1-866-496-4983 or firstname.lastname@example.org.
5. Prices and Payment Terms
a. All prices posted on this Site are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation e-mail. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation e-mail. We are not responsible for pricing, typographical or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.
b. Terms of payment are within our sole discretion and payment must be received by us before our acceptance of an order. We accept most major credit cards and PayPal for all purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
6. Shipments; Delivery; Title and Risk of Loss.
a. We will arrange for shipment of the products to you. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process. We may, at our discretion, ship orders using a carrier other than the one specified during the ordering process.
b. Title and risk of loss pass to you upon our transfer of the products to the carrier—FCA our facility in Wyoming, Minnesota (INCOTERMS 2010). Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
7. Inspection and Rejection of Nonconforming Goods.
a. You will inspect the Goods within two business days of receipt (”Inspection Period”). You will be deemed to have accepted the Goods unless you notify us in writing of any Nonconforming Goods during the Inspection Period and furnish such written evidence or other documentation as reasonably required by us. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in your order; or (ii) product’s label or packaging incorrectly identifies its contents.
b. If you timely notify us of any Nonconforming Goods, we will, in our sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by you in connection therewith. You will ship, at your expense and risk of loss, the Nonconforming Goods to our facility located in Wyoming, Minnesota. If we exercise our option to replace Nonconforming Goods, we will, after receiving your shipment of Nonconforming Goods, ship to you, at your expense and risk of loss, the replaced Goods FCA our facility located in Wyoming, Minnesota.
c. You acknowledge and agree that the remedies set forth in Section 7(b) are your exclusive remedies for the delivery of Nonconforming Goods.
8. Returns and Refunds. Except for any products designated on the Site as non-returnable, we will accept a return of the products for a refund of your purchase price, less the original shipping and handling costs, provided such return is made within 45 days of delivery date and provided such products are returned in their original condition. To return products, you must e-mail our Customer Service Department at email@example.com to obtain a Return Merchandise Authorization (”RMA”) number before shipping your product. No returns of any type will be accepted without an RMA number. You are responsible for all shipping and handling charges on returned items. You bear the risk of loss during shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection. All returns are subject to a 15% restocking fee.
9. No Product Warranty. Products manufactured by a third party (”Third Party Product”) constitute substantially all of the goods available for sale on the Site. WE MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
10. Limitation of Liability.
a. IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO US FOR THE GOODS SOLD HEREUNDER.
11. Your Duty to Warn; Indemnification. If the Goods are purchased by you for resale, then you acknowledge that we will not affix to the Goods warnings labels that set forth hazards related to use of Goods themselves or intended contents (“Product Warnings”). You further acknowledge that you have a duty to warn end-users about dangers inherent in using the Goods, and we have no such duty. You will be solely responsible for, and assume all obligations for and liability associated with, determining the use of Goods and associated risks, as well as affixing to Goods all appropriate warning labels, including those warning labels required by law and any appropriate Product Warnings. You will defend, indemnify and hold us harmless against all claims and losses costs arising out of or related to (i) failure or alleged failure to provide or affix warning labels, including Product Warnings, on Goods, (ii) any deficiencies in warning labels provided or affixed to Goods, or (iii) Our act of providing or/and affixing warning labels to Goods in accordance with your specifications, including causes of action in negligence, tort, product liability, strict liability or warranty.
12. Export Regulation Compliance. You agree to comply with all applicable laws and regulations of the various states and of the United States including all Export Regulations, as defined below. You represent and warrant that you are buying products or services from the Site for your own use only, and not for resale or export. Products and services purchased from the Site may be controlled for export purposes by export regulations, including but not limited to, the Export Administration Act of 1979 (50 U.S.C. 2401-2410), the Export Administration Regulations promulgated thereunder (15 C.F.R. 768-799), the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations (collectively, ”Export Regulations”).
14. External and Third-Party Links. The Site may contain information derived from, or links to, resources outside of the control of the Site. The Site makes no representations or warranties of the accuracy of any information provided by resources beyond its control. These links are provided only as a convenience and the inclusion of any link does not imply or constitute an endorsement by the Site of the linked resource or its content.
15. Intellectual Property. The terms and phrases Beverage Elements, bvrgelements.com, beveragelements.com, @bvrgelements, and the associated logos and depictions thereof are trademarks of Online Transaction Processing, LLC. All content and materials contained on the Site, including but not limited to: text, graphics, logos, icons, movies, images, audio, digital downloads, data compilations, software and website programming are the property of Online Transaction Processing, LLC.
16. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
17. Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Minnesota.
18. Dispute Resolution and Binding Arbitration.
a. YOU AND ONLINE TRANSACTION PROCESSING, LLC, ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
b. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
c. The arbitration will be administered by the American Arbitration Association (”AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section. The Federal Arbitration Act will govern the interpretation and enforcement of this section.
d. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
e. If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law.
f. You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR US WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
g. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
19. Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
20. No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of ONLINE TRANSACTION PROCESSING, LLC.
21. No Third Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
a. To You. We may provide any notice to you under these Terms by: (i) sending a message to the e-mail address you provide or (ii) by posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.
b. To Us. To give us notice under these Terms, you must contact us as follows: (i) by facsimile transmission to 888-503-0392; or (ii) by personal delivery, overnight courier or registered or certified mail to Online Transaction Processing, LLC, Central Avenue NE, Box 123, Blaine MN 55434. We may update the facsimile number or address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
23. Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
©2016 Online Transaction Processing, LLC. All Rights Reserved.
The terms and phrases Beverage Elements, @bvrgelements, @beveragelements, bvrgelements.com, beveragelements.com, beverageelements.com, B.E., and the associated logos and depictions thereof are trademarks of Online Transaction Processing, LLC.