Terms and Conditions for Online Sales

THE INFORMATION CONTAINED HEREIN SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE TRANSACTION(S) CONTEMPLATED FOR HEREBY. THESE TERMS REQUIRE THE USE OF ARBITRATION (ON AN INDIVIDUAL BASIS ONLY; I.E., CASE CONSOLIDATIONS AND CLASS-ACTIONS ARE NOT PERMITTED) IN ORDER TO RESOLVE DISPUTES. PLEASE REVIEW THIS DOCUMENT IN ITS ENTIRETY BEFORE ENTERING INTO ANY TRANSACTION HEREUNDER IN ORDER TO CONFIRM YOUR ACCEPTANCE HEREOF. YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE UNLESS AND UNTIL YOU: (A) AGREE TO THESE TERMS AND CONDITIONS IN THEIR ENTIRETY; (B) ARE AT LEAST 18 YEARS OLD; (C) HAVE THE LEGAL AUTHORITY TO BIND THE ORGANIZATION THAT YOU REPRESENT, IF ANY, TO THESE TERMS AND CONDITIONS; AND (D) ARE NOT PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, PRODUCTS, OR SERVICES BY ANY APPLICABLE LAW, RULE, OR REGULATION.

1.     Applicability of Terms and Conditions: These terms and conditions (these "Terms") shall apply to your purchase of products and related services through https://us.bergtoys.com/  (the "Site"). These Terms are subject to change at any time without prior written notice by BERG USA LLC (referred to herein as either “Company,” “we,” “us,” or “our”). The most recent version of these Terms shall be posted for your review at any time on the Site. Please review these Terms in their entirety prior to engaging in any transaction on the Site. Your continued use of the Site after any posting of updated Terms (which shall be dated as of their most recent update) shall constitute your acceptance of and agreement to any changes therein made.

2.     Online Orders: When placing an order on our Site, you are effectively offering to purchase whatever products and services you select (the “Products”). We reserve the right to accept or reject all or any portion of any order in our own discretion. Should we elect to accept your offer, you will receive a confirming email at the email address that you provide at such time. Notwithstanding, we reserve the right to cancel any order once accepted by us (as evidenced by a confirming email) at any time in our sole discretion. Additionally, you have the option of cancelling your order (in its entirety only) at any time prior to our having sent to you the confirming email referenced herein. If you seek to place a recurring order, there is no guarantee that the pricing will remain the same on subsequent fulfilments unless so specified in writing. Certain frequently asked questions regarding ordering are available at the following address: https://us.bergtoys.com/pages/ordering-berg.

3.     Payment Terms: All applicable prices are set forth alongside the Products offered on the Site. Such prices are subject to change at any time by us in our sole discretion, without notice, and the inclusion of any Products on the Site does not imply that the Products will be available at such time. You will be responsible for the prices stated at the time of your transaction, as well as any: (i) sales, use, excise (including customs), and related taxes; and (ii) shipping and handling charges. Payment may only be made with a valid credit, debit card, or use of a bona-fide electronic payment provider (i.e., PayPal). By using any such card or payment provider, you are hereby representing and warranting your full right and authority to make such purchase in the manner elected without violating any applicable law, rule, or regulation. Payment shall be made within thirty (30) days of the date of the invoice or order confirmation, or such other payment term as may be specified on the applicable invoice. Certain frequently asked questions relating to payment are available at the following address: https://us.bergtoys.com/pages/payment-berg

4.     Shipping Information: It is our responsibility to ship your accepted order to you at the address you provide when making the order. You will be responsible for all associated shipping & handling charges. While we agree to use reasonable efforts to meet the shipping and delivery dates provided online, we shall not be responsible for any delays in shipments. Certain frequently asked questions regarding delivery are available at the following address: https://us.bergtoys.com/pages/delivery.

5.     Returns: If you, for any reason, are not satisfied with your order, you may return be eligible to return it for a refund; provided: (i) the items(s) were not designated as non-returnable; (ii) your return is made within fourteen (14) days of delivery; (iii) the merchandise is returned in the same condition as originally received by you; and (iv) the Products are not obsolete or discontinued. Once the Products are received by us, we will refund your purchase price, less the original shipping & handling charges and a re-stocking fee. All returns must be made pursuant to the specific return procedure and subject to the terms specifically set forth on the Site (which can be found at: https://us.bergtoys.com/pages/returns-berg). You bear the risk of loss or damage during shipment (other than when returning non-conforming merchandise) and as such, you are advised to obtain appropriate insurance. Your refund will be credited back to the same payment method used to make the applicable purchase.

6.     Buyer’s Representations & Warranties;

(a)   You represent and warrant to us as follows: (i) that you have the right to enter into any transaction contemplated for hereby without violating these Terms, any applicable law, rule, or regulation, and/or any agreement with, or rights of, any third party; (ii) that you will use the Products and services provided hereunder exactly as authorized and never in any way that would violate any applicable law or third party right of any kind, including local and state regulations governing sales, construction, installation, and/or use of products for certain purposes or in certain locations; and (iii) that you are buying Products from the Site for solely your own use, and not for resale and/or export.

(b)        You understand and acknowledge that use of the Products, including without limitation use of the Products without proper supervision, training, or equipment, may be dangerous and may involve the risk that you will sustain serious injury, temporary or permanent disability, death, and/or property damage. You further acknowledge and represent that you or any user of the Products: (i) are qualified and of suitable age to use the Products; (ii) will at all times wear a helmet and such other applicable safety equipment as may be appropriate while using the Products; (iii) will inspect the Products for damage before use, and repair or replace damaged Products immediately; (iv) have read the product manual and all related safety and security materials; (v) will not consume or be under the influence of any alcohol or drugs at any time while using the Products; and (vi) have fully read and understand the risks associated with use of the Products.

7.     Assumption of the Risk. YOU AND ANYONE YOU PERMIT TO USE THE PRODUCTS VOLUNTARILY ASSUME ALL RISK AND DANGERS, INCLUDING WITHOUT LIMITATION THE RISK OF INJURY OR DAMAGE, PURSUANT TO YOUR USE OF THE PRODUCTS.

8.     Indemnification. You agree to defend, indemnify and hold harmless us and our affiliates, licensors, and service providers, as well as our and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns, from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees of any nature whatsoever, including, without limitation, reasonable attorneys' fees, out of or relating in any way to your: (i) acquisition, use, purchase, shipment, transportation, delivery, lease or sublease, ownership, operation, possession, control, storage, or return of the Products; (ii) breach of any of the representations, warranties, guarantees or other terms and conditions contained herein; (iii) your failure to relay instructions to other users of the Products or otherwise ensure that such user’s use is consistent with the provisions of these Terms; (iv) any claim for damages to property or injuries to persons or fines or penalties incurred as a result of or caused by the acts or omissions of any of your employees, agents, contractors, or subcontractors; (v) any use of our Products other than as expressly authorized herein.

9.     Limited Warranty; Disclaimers; Limitations on Liability

(a)         We represent and warrant to you that any Products purchased by you on the Site, when used specifically as authorized by us and without modification thereto, shall be free from defects in design, material, workmanship and conform to Company’s specifications for the warranty period set forth at https://us.bergtoys.com/pages/warranty-and-support-berg, subject to any additional limitations and exclusions set forth therein. Notwithstanding the foregoing, this warranty shall not apply when the Products are subject to: (i) negligence, misconduct, misuse, abuse, accident, improper installation or handling, unusual environmental conditions, or other extreme stress, alteration, repair by anyone other than us (or one of our authorized representatives); (ii) use with any third-party product or service (other than as specifically authorized in advance by us), or (iii) use in breach of this agreement or violation of any provided-for instructions. Notwithstanding the foregoing, any products manufactured by a third party and incorporated in any Products provided hereunder are not covered by this limited warranty. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.  ALL OTHER WARRANTIES, AND SPECIFICALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED.

(b)        Notwithstanding anything set forth herein to the contrary, your sole remedy with respect to a breach by us of our warranties to you shall be to inform us, in writing, of your desire to exercise this limited warranty, along with a sufficiently detailed explanation of your reason(s), so that we may either, in our sole discretion: (i) repair or replace the Products in question; or (ii) credit or refund your purchase price; provided, that you shall be responsible for shipping & handling charges and any other costs associated with this warranty and for the risk of loss in transit during such time, if and as applicable. Visible defects must be reported in writing within 8 days of delivery; hidden defects, within 8 days of discovery following the time when you actually discovered, or should have discovered, any defect(s) or non-conformance. We reserve the right to verify any such claim pursuant to our customary procedures in connection therewith. This warranty period is not extended if we have to repair or replace a warranted product or re-perform a warranted service. This limited warranty extends only to you as the original purchaser of our products from our Site. In order to obtain warranty service, please contact us through the following link https://us.bergtoys.com/pages/contact. SUBJECT TO APPLICABLE LAW, THE REMEDIES SET FORTH ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES, AND OUR ENTIRE OBLIGATION AND LIABILITY, FOR ANY BREACH OF OUR LIMITED WARRANTY.

(c)         THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.  ALL OTHER WARRANTIES, AND SPECIFICALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED.

(d)        SUBJECT TO APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL COMPANY'S OBLIGATION OR LIABILITY HEREUNDER EXCEED THE PURCHASE PRICE YOU PAID ON THE SITE FOR ANY PRODUCTS OR SERVICES. ADDITIONALLY, SUBJECT TO APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY LOSS OF USE, DATA, BUSINESS, GOODWILL, REPUTATION, OR REVENUE, AND/OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OR OTHER DIRECT OR INDIRECT LOSSES OF ANY KIND.

(e)         We make no representation as to the completeness, accuracy or currency of any information on the Site, and specifically advise you that information on the Site may be inaccurate, incomplete or out-of-date. All product details in catalogs, brochures or on the Site, including documents, drawings, specifications, or images, may not be accurate or accurately represent of the actual product. All product specifications are subject to change without notice.

(f)          The UN Convention on Contracts for the International Sale of Goods shall not apply to Products purchased from this Site.

10.  Privacy Policy and Website Terms of Use: Please review our Privacy Policy and Website Terms of Use, which can be found at the following addresses respectively: https://us.bergtoys.com/pages/privacy-policy.The Privacy Policy governs our processing of all personal information that we may collect from any person through the use of our Site. The Website Terms of Use governs your use of our Site in general.

11.  Governing Law/Binding Arbitration.

(a)         Governing Law: These Terms shall be governed by the laws of the Commonwealth of Pennsylvania without regard to its conflict of laws principles.

(b)        Binding Arbitration: Subject to subsection (c) below and all applicable laws, you are agreeing to give up: (i) your right to litigate any claims that may arise hereunder in court or before a jury; and (ii) your right to consolidate any claim and/or participate in any class-action claim that may arise hereunder in any manner or forum. Instead, any claim, dispute, or controversy of any kind or nature arising hereunder which cannot be amicably resolved by us shall be solely and finally settled by arbitration administered by the American Bar Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before a panel of 3 arbitrators sitting in West Chester, Pennsylvania, Chester County. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the Commonwealth of Pennsylvania. The decision of the arbitrator(s) shall be in writing with written findings of fact and shall be final and binding on the parties. We shall bear all of our own costs, as well as your reasonable outside attorneys’ fees, actually incurred in connection with any such arbitration proceedings; provided, however, that if we are the prevailing party, we shall be entitled to reimbursement for those amounts that were expended on your behalf. With respect to any arbitration hereunder, as stated above, you hereby expressly waive any right to consolidate any claim and/or participate in any class-action claim of any kind or nature. This Section 13. provides your sole recourse for the settlement of any disputes arising out of, in connection with, or related to these Terms. If any provision of this clause is found unenforceable, such unenforceable provision will be removed and the remaining terms will be enforced.

(c)         Small-Claims Option: Notwithstanding the foregoing, you may elect to pursue a breach of warranty claim in small-claims court rather than submit to binding arbitration, but only if you provide us with written notice of your desire to do so within 1 day of your purchase transaction. Any small-claims court proceeding initiated hereunder will be limited solely to your individual dispute; i.e., you are not permitted to file, or participate in, a class action suit or consolidated claim in small-claims court with respect to these Terms.

12.  General Provisions

(a)         Assignment: Company may assign or otherwise transfer any or all of its rights or obligations hereunder, in whole or in part, to any third party in its sole discretion. You may not assign any of your rights or delegate any of your duties hereunder at any time without our prior written consent in each instance, and any attempt to do so shall be null and void.

(b)        Third Party Beneficiaries: These Terms are for your sole benefit and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

(c)         Force Majeure: Company shall not be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including without limitation, war, weather, strikes, floods, lockouts, fires, pandemics, epidemics, local disease outbreaks, public health emergencies, acts of God, terrorism, and/or delivery, vendor, supplier, or other third party delays, non-performance, or failures of any kind.

(d)        Notices: We may provide notices hereunder to you by email; regular mail; or posting them on the Site. You shall be responsible for ensuring that you have provided us with your current email and mailing addresses. You can contact us at any time by any of the following means: (i) e-mail, at: legal@berg.com; or (ii) personal delivery, overnight courier, or registered or certified mail to: BERG USA LLC, 608 Jeffers Circle, Exton, Pennsylvania 19341.

(e)         No Waivers: Our failure to enforce any of our rights hereunder will not constitute a waiver of our right to make such enforcement in the future, subject to applicable law.

(f)          Entire Agreement: These Terms, along with the confirmation email referenced in Section 2 above, any instructions that we provide you with relating to any product or service you obtain from us through the Site, and our Site’s “Terms of Use” and “Privacy Policy,” shall, collectively, be deemed a final and integrated agreement between you and us with respect to the subject matter hereof. In the event that any part or portion of these Terms is deemed to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect.

(g)         Statute of Limitations: To the extent permitted by law, any Claim or dispute by you arising out of or related in any way to these Terms,  the Site, or the Products, other than intellectual property or indemnification claims, must be filed within one year after such claim or dispute arose; otherwise, the claim is permanently barred, which means that you will not have the right to assert the claim.