Terms & Conditions

ENCORE GLASS TERMS AND CONDITIONS


PURCHASE AGREEMENT: For the purposes of this these Terms and Conditions, “Purchase Agreement” is defined to include all such documents presented to the customer in the course or cycle of business to secure goods and services. These include all order acknowledgements, order confirmations and invoices. This also includes the credit application submitted to Encore Glass, Inc. (Encore) for the purpose of securing credit terms with Encore for amounts that will be owed upon completion of its obligation under the forms of purchase agreement defined here.


DEBTOR: The term “Debtor” used in these Terms and Conditions is Encore’s Customer or the Purchaser and means any person or entity legally obligated to pay for any merchandise shipped by Encore pursuant to this Purchase Agreement. For the purposes of these Terms and Conditions, Customer and Debtor are the same and are used interchangeably in this document.


TERMS: Debtor shall pay to Encore the full amount of the price for the goods covered by this agreement within 30 days from the date of Encore's invoice. Debtor shall receive a discount of 1% of such price, after the deduction of any freight charges, taxes, tariffs, duties, insurance charges, and/or similar charges, if Debtor pays the total amount within 10 days of the invoice date. Encore reserves the right to require payment in advance or revoke payment terms if, in Encore's judgment, the Debtor's credit is or becomes impaired or the debtor does not adhere to its agreement to pay within the stated 30 day payment terms. Debtor shall pay to Encore on demand a late payment charge on any past due balance hereunder at the rate of 1.5% of such past due balance per 30 days outstanding calculated daily (but not in excess of any applicable lawful maximum rate). This 1.5% late payment charge per month is equivalent to 18% year and will be applied to all outstanding past due balances. The accrual or payment of interest does not authorize the Debtor to defer payment of any indebtedness beyond the credit terms as stated herein. Debtor agrees that failure to pay any invoice in full for any reason within payment terms of the invoice will automatically result in cancellation of any credit terms offered. Debtor further agrees that failure to pay any invoice in full within payment terms of the invoice will result in any outstanding invoices becoming due regardless of terms. Debtor agrees that all invoices become payable in full immediately if Debtor sells its business, goes out of business, goes into receivership, or its business is attached, becomes insolvent or bankrupt. Encore reserves the right to alter or revoke a Customer’s Credit Terms at any time, pursuant to its ongoing review of the Customer’s creditworthiness and payment history with Encore Glass.


INDEMNIFICATION RELATED TO CREDIT INQUIRIES: Debtor hereby authorizes Encore to contact or to make inquiries to any person, banking institution, credit bureau, or other business of any kind, at any time, regarding Debtor’s creditworthiness or regarding any other financial information that may be helpful to Encore to confirm the Debtor’s credit status and creditworthiness. This authorization is in no way limited to trade references that may have been provided at the time of application for credit terms. Debtor agrees to indemnify and hold Encore harmless from any and all liability connected with or arising from such contact or inquiry for the sole purpose of determining creditworthiness on an ongoing basis.


PRICES: All prices are cash prices unless otherwise agreed to in writing by Encore. The price of the goods covered by this agreement shall be Encore's price in effect at the date of delivery. Shipping allowances and prices are subject to change without notice. Prices are subject to correction for error. If Encore is required to collect or pay any Federal, State or Local Taxes, Tariffs or Duties, now or hereafter imposed or increased, or which relates to the manufacture, sale, transportation or delivery of any of the goods covered by this agreement, the price to be paid by the Customer for such goods shall be increased by the amount of such Tax, Tariff or Duty or increase; or the Customer shall otherwise reimburse Encore for the same upon demand. Taxes, Tariffs, Duties and/or similar charges are not included in the price and shall be borne by the Customer, unless otherwise agreed in writing by Encore. Unless otherwise indicated on the invoice or in a separate instrument from Encore, all prices are FOB to the shipment destination indicated on the invoice. Customer shall accept and pay for the quantity of goods actually delivered (excluding quantities in excess of 105% of the quantity specified on the invoice), even though such quantity may differ from the ordered quantity. Prior to delivery for all purposes hereunder, an over or under of 5% or less of the quantity specified on the invoice shall be deemed to be in compliance with this Purchase Agreement and is part of the quantity ordered.


CLOSURE COMPATIBILITY: It is Customer’s responsibility to determine the suitability of glass closures and closure liner materials for Customer’s product. Encore disclaims any express warranties or implied warranties, including warranties of merchantability or of fitness for a particular purpose. Customer assumes all risks that merchandise purchased from Encore will be suitable for its intended use.
FULL STACK INCREMENTS: Encore ships merchandise in full stack increments and it reserves the right to ship and invoice for a quantity which may vary from the quantity specified by Customer, and Customer agrees to accept delivery of and to pay for such revised quantity as shipped.


INSPECTION, REJECTION AND ACCEPTANCE: Customer shall, at its own expense, inspect the goods upon receipt of merchandise delivered to the FOB shipping destination indicated on the invoice. If the Customer refuses or fails to actually inspect the goods as required in the preceding sentence, Customer shall nevertheless be deemed to have inspected the goods. Customer shall have the right to reject any container or other item comprising a part of the goods that does not conform, in any material respect, to the final version of the written specifications for such container or item previously submitted by the Customer to and accepted by Encore. Any such rejection must be evidenced by a written notice given to Encore within the same business day or next business day from the date of receipt of merchandise. This rejection written notice shall contain a detailed description of the reasons for the Customer's rejection of the specified goods. Customer agrees that once the goods are accepted there may be no revocation of acceptance. If Customer refuses to receive the goods from Encore or the transportation carrier, then Customer will be deemed to have wrongfully refused to take delivery of the goods and to have repudiated and breached its Purchase Agreement with Encore. Buyer will not use any goods or services unless it is satisfied that the goods and services are suitable for the buyer’s use and conform to all of its requirements. Buyer also agrees to store and use all goods and services in a controlled and safe environment.


ALLOWANCES: If after the exercise of reasonable care, the Customer incurs excessive breakage or discovers any nonconformities in respect of the goods during the first washing, sterilizing and filling of the goods, Customer shall notify Encore of the same within 24 hours following such first filling. Such notice shall contain a detailed description of the type of breakage incurred, the nonconformities discovered, and the quantity of goods affected thereby. Breakage and nonconformities affecting 2% or less of the quantity of goods covered by this agreement shall be borne by the Customer. Any breakage or nonconformities in excess of 2% of the quantity of goods covered by this agreement shall, to the extent of such excess, entitle Customer in accordance with the following paragraph, to replacement goods or a credit against, as applicable, the price hereunder of such goods, provided that Customer has
notified Encore of such breakage or nonconformity within such 24 hour time period. In no event shall Customer have any right or remedy against Encore with respect to any such breakage or nonconformities if a written claim, therefore, is not delivered to Encore within 30 days after the date of the delivery of the goods to Customer. Delivery to Encore of such written claim within the aforesaid 30 day period is an absolute condition precedent to Customer's right to institute any action or proceeding for such breakage or nonconformities. All claims hereunder are subject to Encore's verification and Encore shall be given the opportunity to conduct, as its option, an investigation of all such claims, either by inspection at Customer's place of business or by having the goods returned to Encore's facilities. No goods may be returned without Encore's prior written consent.


REMEDIES: Customer's sole remedies and Encore's sole liability for any excess breakage in respect of the goods, as determined above, or the failure of any of the goods to conform to specifications described above or to otherwise be defective shall be limited to one of the following at Encore options: (i) repairing, if practical, or replacing with conforming goods the particular containers or items comprising the damaged or nonconforming goods or (ii) allowing a credit against the Customer's account in an amount equal to the price as determined on a per item basis of the particular containers or items comprising the damaged or defective goods. The remedies provided herein shall be the sole and exclusive remedies of the customer for any breakage, nonconformities or defects in respect of the goods or for any breach of any contractual or legal duty arising out of the sale of the goods to customer. In no event shall Encore be responsible or liable to Customer or to any user or to any third party for any economical loss, physical harm, incidental, consequential or special damages (including, without limitation, downtime, loss of profits and/or loss of business opportunities) arising from any breakage, nonconformity or defect in respect of the goods.


APPLICABLE LAW: The agreement formed hereby is made under, and shall be construed and interpreted in accordance with, the substantive laws of the state of California without regard to the conflict of laws rules or principles thereof.


ARBITRATION: At the choice of the party to the terms and conditions of this Purchase Agreement (as represented by the presented orders, order acknowledgements or invoices) who files the initial action regarding any past, present or future dispute, claim or controversy arising out of or relating to this Purchase Agreement or the existence, scope, breach, termination, enforcement, interpretation or validity of this Purchase Agreement or this arbitration clause herein, such action shall be filed in and determined by a court of appropriate jurisdiction in any county in California, or by binding arbitration before one arbitrator under either JAMS Rules and Procedures or under American Arbitration Association Commercial Arbitration Rules including the Optional Rules for Emergency Measures of Protection. Judgment on an arbitration award may be entered in any court having jurisdiction. This arbitration clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The court or arbitrator shall award to the prevailing party all of its costs and fees in any action to enforce the provisions of these Terms and Conditions as it pertains to the Purchase Agreement. “Costs and fees” include all reasonable pre-award expenses of an action to enforce this Purchase Agreement, including arbitrator’s fees, administrative fees, travel expenses, court costs, witness and attorney fees and all out-of-pocket expenses. This Purchase Agreement shall be interpreted in accordance with the laws of the State of California and shall be governed by the Federal Arbitration Act.


CARBONATED BEVERAGES: Any part of the goods covered hereby which consist of conventional bare glass beverage bottles with a capacity of up to and including 36 fluid ounces are intended for use, and Customer shall only use the same, in the packaging of carbonated beverages to a maximum of 3 gas volumes, or which consist of conventional bare glass beverage bottles with a capacity up to 1.5 liters, are intended for use, and Customer shall only use the same, in the packaging of carbonated beverages to a maximum of 3 gas volumes.


TASTE AND AROMA: Encore offers no representations or warranties with respect to taste or aroma. Encore’s customer, by accepting the goods sold by Encore, acknowledges that wines that have been bottled using natural cork closures may occasionally exhibit taste or aroma characteristics which in the wine industry have been described as “corky.” Encore is not able to readily determine whether a particular cork which is used as a closure with the bottling of a particular wine will or will not cause that wine to exhibit a “corky” taste or aroma. Accordingly, Encore gives no representation or warranty with respect to the effect of the use of the cork products being sold by Encore, or any cork supplied to the Customer external to Encore, on the wine being bottled, and any such representation and warranty is hereby expressly disclaimed.


GENERAL: This document, when executed by Encore, together with any additional instruments executed by Encore pertaining to the goods covered hereby, constitutes the entire agreement and understanding between Encore and its Customer with respect to the goods covered and the transaction contemplated hereby and supersedes all prior written or oral understandings, agreements, statements, representations or warranties relating to the goods or the transaction contemplated hereby. Neither this agreement or any provision hereof shall be amended, modified, released or waived except by written instrument executed by each of the parties hereto which specifically addresses such amendment, modification, release or waiver. Encore's agreement to sell the goods covered by this agreement is expressly made conditional on Customer's assent to all of the terms and conditions in this agreement. No other terms and conditions shall apply unless specifically accepted by Encore in writing. Customer's assent is conclusively established by Customer's acceptance of any goods shipped under this agreement. In the event Customer offers to purchase from Encore the goods covered by this agreement and Encore's acceptance, through this document, states terms additional to or different from those offered by Customer, Encore's acceptance is expressly made conditional on Customer's assent to the additional and different terms contained in this document. Encore warrants that it has title to the goods sold hereunder, provided, to the extent that the goods are manufactured or purchased in accordance with designs, specifications or instructions provided by the Customer to Encore. Encore does not warrant that the goods will be free from infringement of any United States or foreign letters patent, and Customer shall indemnify, defend and hold harmless Encore from and against any claim for infringement of any United States or foreign letters patent, trademark or other propriety interest on account of Encore's use or application of such designs, specifications and/or instructions provided by Customer to Encore. Other than the express warranty of title set forth above, Encore makes no express warranties with respect to the goods. All implied warranties existing under the law with respect to the sale of the goods or the transaction contemplated hereby are expressly disclaimed and negated without limiting the foregoing. Encore negates and disclaims any implied warranty of merchantability and any implied warranty of fitness for a particular purpose. Customer acknowledges the foregoing disclaimers and that Customer has not relied upon and that no employee, agent or any other party acting on behalf of Encore has made any statement, representation or warranty regarding the goods or the transaction contemplated hereby. Failure of Encore to insist on compliance with any provision of this agreement shall not be considered as a waiver by Encore of subsequent compliance with the same or any other provision hereof. Encore shall not be liable for any breach of this agreement or of any duty or obligation arising out of or related to this agreement in any amount in excess of the net contract price of the goods with respect to which such breach occurs, and in no event shall encore be liable or responsible to customer or any third party for loss of contents or for incidental, consequential or special damages. The invalidity of any of the provisions hereof shall not serve to invalidate the remaining provisions of this agreement. The rights and remedies herein reserved to Encore shall be cumulative and in addition to any other rights and remedies provided by law. Customer's rights and obligations under this agreement may not be assigned or transferred without the express written consent of Encore. Customer shall indemnify, defend and hold harmless Encore from and against any and all claims, demands or actions relating to the goods covered or the transaction contemplated hereby asserted against Encore and based on any express or implied warranty described as being disclaimed or negated hereunder by Encore, or which are otherwise based on any obligation disclaimed, waived or released herein, whether asserted by Customer or any third party.

The right bottle is just a few clicks away.

[show/hide]