Headquartered in Ede, the Netherlands, and registered with the Chamber of Commerce in Arnhem under no. 09094642.

Article 1 - Applicability

1.1 These General Terms and Conditions (hereinafter referred to as “Terms”) apply to all offers, quotations, and agreements between BERG USA LLC (hereinafter “BERG USA”), a subsidiary of BERG Toys B.V. (“BERG”), and any buyer (hereinafter “Buyer”). This includes any agreements where BERG USA acts as the offeror, seller, or contractor.
1.2 Deviating or supplementary stipulations are valid only if confirmed by BERG USA in writing. Such stipulations do not affect the applicability of other provisions of these Terms.
1.3 By accepting these Terms, the Buyer also agrees to their applicability to all future agreements with BERG USA.

Article 2 - Offers and Formation of Agreements

2.1 All offers, quotations, and orders—oral or written—are non-binding unless otherwise explicitly stated.
2.2 All documents, including drawings, specifications, or images in catalogs, brochures, or BERG USA’s website, are approximate and not binding, and are intended solely as guidance for the Buyer.
2.3 Buyer-provided information is assumed accurate and complete, and BERG USA bases its offers on this assumption.
2.4 An agreement is established when BERG USA issues a written order confirmation or begins fulfilling the Buyer’s order.

Article 3 - Prices

3.1 All prices exclude sales tax, shipping, storage, customs, and any other incidental costs unless expressly stated otherwise.
3.2 The purchase price is determined by BERG USA’s most recent price lists. Prices may be updated annually.
3.3 BERG USA reserves the right to amend prices with 30 days’ prior written notice. If the Buyer wishes to cancel due to a price increase within two months of agreement formation, they may do so by compensating BERG USA for any costs incurred.

Article 4 - Payment

4.1 Payments must be made to BERG USA’s bank account as stated on the invoice within 30 days or the specified term.
4.2 BERG USA may require advance payment. The Buyer must also provide requested payment security to BERG USA’s satisfaction.
4.3 Failure to pay on time results in automatic default, incurring 2% monthly interest from the invoice date.
4.4 If BERG USA requires legal assistance for collection, the Buyer is responsible for all associated costs, including a minimum of 15% of the outstanding amount.

Article 5 - Delivery

5.1 Deliveries are ‘Free on Board’ (FOB) from BERG USA’s location, per the latest Incoterms, unless otherwise specified in writing.
5.2 Delivery timelines are estimates. Delays due to Buyer’s unclear instructions or unforeseen events extend the delivery period accordingly.
5.3 Early or partial deliveries are allowed, and Buyer is required to accept them.
5.4 Risk and responsibility transfer to Buyer upon delivery.

Article 6 - Complaints and Claims

6.1 Visible defects must be reported in writing within 8 days of delivery; hidden defects, within 8 days of discovery.
6.2 BERG USA may, at its discretion, repair, replace, or provide a proportional refund for valid complaints.
6.3 Submitting complaints does not grant the Buyer rights to delay or suspend payment.

Article 7 - Product Use, Manual Responsibility, and Liability in Commercial Settings

7.1 It is Buyer’s responsibility to obtain and review the product manual. If not received, Buyer must contact BERG USA before using the product. BERG USA is not liable for any misuse due to a missing or unreviewed manual.
7.2 For products used commercially (e.g., parks, recreational venues), Buyer acknowledges that any agreement for use is between the end-user and the operating venue, not BERG USA. Therefore, BERG USA is not responsible for incidents or injuries in these settings.
7.3 Claims for injuries or damages occurring in commercial settings must be directed to the operating venue, and neither the venue nor the customer may join in claims against BERG USA.

Article 8 - Warranty

8.1 BERG USA provides a warranty for the products under the conditions specified in each product’s warranty document.
8.2 Warranty claims are void if Buyer fails to comply with their obligations, such as correct use and maintenance of the product.
8.3 BERG USA will, at its discretion, repair, replace, or provide a refund for warranted products. Buyer is responsible for shipping, assembly, and additional costs related to repairs.

Article 9 - BERG USA as a Reseller and Jurisdictional Limitations

9.1 BERG USA acts solely as a reseller of BERG products manufactured by BERG Toys B.V. in the Netherlands.
9.2 Claims regarding product defects, design, or performance must be directed to BERG Toys B.V., with Dutch law applying to such claims.
9.3 These Terms, including all related transactions, are governed by the laws of the State of Delaware, USA.

Article 10 - Retention of Title

10.1 Title to delivered goods remains with BERG USA until full payment is received. The Buyer must care for and insure such goods.
10.2 If Buyer defaults, BERG USA may reclaim the products.

Article 11 - Limitation of Liability

11.1 BERG USA’s liability is limited to the amount covered by its insurance or, in absence of insurance, the product’s purchase price. BERG USA is not liable for indirect or consequential damages.
11.2 Buyer indemnifies BERG USA from third-party claims arising from Buyer’s improper product use or failure to relay instructions to users.

Article 12 - Termination and Suspension

12.1 BERG USA may suspend or terminate agreements if Buyer defaults or faces financial distress, including bankruptcy or insolvency.
12.2 If terminated due to Buyer’s default, all payments for costs incurred up to termination remain due.

Article 13 - Force Majeure

13.1 Force majeure includes circumstances beyond BERG USA’s control, such as natural disasters, strikes, or supply chain interruptions.
13.2 In force majeure cases, both parties may suspend obligations. If extended for more than three months, either party may terminate the agreement.

Article 14 - Intellectual Property

14.1 BERG USA retains all intellectual property rights related to its products and materials.
14.2 The Buyer is prohibited from using, copying, or sharing BERG USA’s intellectual property without express written consent.

Article 15 - Confidentiality

15.1 All information provided by BERG USA is confidential and for agreement performance only. Unauthorized disclosure may incur a penalty.

Article 16 - Expiry Date

16.1 Any claims against BERG USA expire one year from the date of delivery or the date delivery should have occurred.

Article 17 - Transfer of Rights

17.1 The Buyer cannot transfer any rights or obligations under this agreement without BERG USA’s written consent.

Article 18 - Governing Law and Competent Court

18.1 These Terms and agreements between BERG USA and Buyer are governed by Delaware law.
18.2 All disputes are subject to the exclusive jurisdiction of Delaware courts.

 

Version Updated: November 2024