Terms of Use

“Company” or “Us” means deSter Corporation, a Georgia company incorporated and existing under the laws of the United States of America as applied in the State of Georgia, Control No. 0661783, having its registered office address at 2077 Convention Center Concourse Suite 450, College Park GA 30337, authorized by the Ohio Secretary of State to transact business in Ohio, which business will be conducted at Building 32 located at 1200 E. Kibby Street, Lima, Ohio 45804.

Introduction

Welcome to this Company Store. This site is provided as a service to our customers. Please review the following basic rules that govern your use of this site (the “Agreement”). Please note that your use of this site (the “Site”) constitutes your unconditional agreement to follow and be bound by these Terms of Use. Although you may “bookmark” a particular portion of this Site and thereby bypass this Agreement, your use of this Site still binds you to these Terms of Use. www.carry-packaging.com reserves the right to update or modify these Terms of Use at any time without prior notice to you. Your use of the Site following any such change constitutes your unconditional agreement to follow and be bound by these Terms of Use as changed. For this reason, we encourage you to review these Terms of Use whenever you use this Site.

Use of this Site

By accepting these Terms of Use through your use of the Site, you certify that you are 18 years of age or older. If you are under the age of 18 but at least 13 years of age, you may use this Site only under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Use. We do not intentionally collect personal information about children under the age of 13. Children under the age of 13 may not use this Site and parents or legal guardians may not agree to these Terms of Use on their behalf. If you are a parent or legal guardian agreeing to these Terms of Use for the benefit of a child between the ages of 13 and 18, be advised that you are fully responsible for his or her use of this Site, including all financial charges and legal liability that he or she may incur. If you do not agree to (or cannot comply with) any of these terms and conditions, do not use this Site. All billing and registration information provided must be truthful and accurate. Providing any untruthful or inaccurate information may constitute a breach of these Terms of Use. By confirming your purchase at the end of the checkout process, you agree to accept and pay for the item(s) requested.

All materials, including images, text, illustrations, designs, icons, photographs, programs, music clips or downloads, video clips and written and other materials that are part of this Site (collectively, the “Contents”) are intended solely for personal, non-commercial use. You may download or copy the Contents and other downloadable materials displayed on the Site for your personal use only. No right, title, or interest in any downloaded materials or software is transferred to you as a result of any such downloading or copying. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, any of the Contents, the Site or any related software. All software used on this Site is the property of or licensed to deSter Corporation, its franchisees, or its suppliers and protected by U.S. and international copyright laws. The Contents and software on this Site may be used only as a shopping resource. Any other use, including the reproduction, modification, distribution, transmission, republication, display, or performance, of the Contents on this Site is strictly prohibited. ‘deSter’ is a registered trademark of Gate Gourmet Switzerland GmbH as licensed to deSter Corporation.

Objectionable Material

You understand that by using this Site or any services provided on the Site, you may encounter Content that may be deemed by some to be offensive, indecent, or objectionable, which Content may or may not be identified as such. You agree to use the Site and any service at your sole risk and that deSter Corporation, its franchisees and its affiliates shall have no liability to you for Content that may be deemed offensive, indecent, or objectionable.

Site Security

Users are prohibited from violating or attempting to violate the security of the Site, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, “flooding,” “spamming,” “mailbombing” or “crashing;” (d) sending unsolicited email, including promotions and/or advertising of products or services; or (e) forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting. Violations of system or network security may result in civil or criminal liability. We investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software, or routine to interfere or attempt to interfere with the proper working of this Site or any activity being conducted on this Site. You agree, further, not to use or attempt to use any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search this Site other than the search engine and search agents available from us on this Site and other than generally available third party web browsers (e.g., Netscape Navigator, Microsoft Explorer).

Order Acceptance

Please note that there may be certain orders that we are unable to accept and must cancel. We reserve the right, at our sole discretion, to refuse or cancel any order for any reason. For your convenience, you will not be charged until your payment method is authorized, the order information is verified for accuracy and your order is shipped. Some situations that may result in your order being canceled include limitations on quantities available for purchase, inaccuracies, or errors in product or pricing information, or problems identified by our credit and fraud avoidance department. We may also require additional verifications or information before accepting any order. We will contact you if all or any portion of your order is canceled or if additional information is required to accept your order. If your order is canceled after your credit card has been charged, we will issue a credit to your credit card in the amount of
the charge.

Pricing Information

While we strive to provide accurate product and pricing information, pricing or typographical errors may occur. We cannot confirm the price of an item until after you order. In the event that an item is listed at an incorrect price or with incorrect information due to an error in pricing or product information, we shall have the right, at our sole discretion, to refuse or cancel any orders placed for that item. In the event that an item is mispriced, we may, at our discretion, either contact you for instructions or cancel your order and notify you of such cancellation.

Quantity Limits & Dealer Sales

We reserve the right, at our sole discretion, to limit the quantity of items purchased per person, per household or per order. These restrictions may be applicable to orders placed by the same Company Store account, the same credit card, and also to orders that use the same billing and/or shipping address. We will provide notification to the customer should such limits be applied. We also reserve the right, at our sole discretion, to prohibit sales to dealers.

Copyrights and Trademarks

Unless otherwise noted, all Contents are copyrights, trademarks, trade dress and/or other intellectual property owned, controlled or licensed by Us, one of our affiliates or by third parties who have licensed their materials to us and are protected by U.S. and international copyright laws. The compilation (meaning the collection, arrangement, and assembly) of all Contents on this site is the exclusive property of deSter Corporation and is also protected by U.S. and international copyright laws.

deSter Corporation and its suppliers and licensors expressly reserve all intellectual property rights in all text, programs, products, processes, technology, content, and other materials which appear on this Site. Access to this Site does not confer and shall not be considered as conferring upon anyone any license under any intellectual property rights.

The ‘deSter’ names and logos and all related product and service names, design marks and slogans are the trademarks or service marks of Gate Gourmet Switzerland GmbH or deSter Corporation All other marks are the property of their respective companies. No trademark or service mark license is granted in connection with the materials contained on this Site. Access to this Site does not authorize anyone to use any name, logo, or mark in any manner.

References on this Site to any names, marks, products or services of third parties or hypertext links to third party sites or information are provided solely as a convenience to you and do not in any way constitute or imply deSter Corporation’s, or any of its franchisees’ or our endorsement, sponsorship or recommendation of the third party, information, product or service. We are not responsible for the content of any third party sites and do not make any representations regarding the content or accuracy of material on such sites. If you decide to link to any such third party web sites, you do so entirely at your own risk.

Colors

We have made every effort to display the colors of our products that appear on the Site as accurately as possible. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor’s display of any color will be accurate.

Indemnification

You agree to defend, indemnify, and hold harmless deSter Corporation from and against any and all claims, damages, costs, and expenses, including attorneys’ fees, arising from or related to your use of the Site.

Termination

These Terms of Use are effective unless and until terminated by either you or Us. You may terminate this Agreement at any time, provided that you discontinue any further use of this Site. We also may terminate this Agreement at any time and may do so immediately without notice, and accordingly deny you access to the Site, if in our sole discretion you fail to comply with any term or provision of this Agreement. Upon any termination of the Agreement by either you or us, you must promptly destroy all materials downloaded or otherwise obtained from this Site, as well as all copies of such materials, whether made under the Terms of Use or otherwise.

Disclaimer

THIS SITE IS PROVIDED BY US ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS SITE. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, WE DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, FOR ANY MERCHANDISE OFFERED ON THIS SITE. YOU ACKNOWLEDGE, BY YOUR USE OF THIS COMPANY STORE WEB SITE, THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THIS DISCLAIMER DOES NOT APPLY TO ANY PRODUCT WARRANTY OFFERED BY THE MANUFACTURER OF THE ITEM. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL PFG VENTURES, L.P., PROFORMA, INC., OR ANY PROFORMA FRANCHISEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS OR SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE COMPANY STORE SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF AN AUTHORIZED REPRESENTATIVE OF DESTER CORPORATION HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES PAID BY YOU IN CONNECTION WITH YOUR USE OF THE SITE DURING THE SIX MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

General

This Agreement represents the complete agreement between the parties and supersedes all prior agreements and representations between them. Headings used in these Terms of Use are for reference purposes only and in no way define or limit the scope of the section. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the other terms of this Agreement shall remain in full force and effect. Our failure to act with respect to a breach of this Agreement by you or others does not constitute a waiver and shall not limit our rights with respect to such breach or any subsequent breaches. This Agreement shall be governed by and construed under the laws of the State of Georgia (U.S.A.) without regard to conflicts of law provisions. Any action or proceeding arising out of or related to this Agreement or your use of this Site must be brought in the state or federal courts of the State of Georgia and you consent to the exclusive personal jurisdiction of such courts.

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Unless otherwise agreed to in writing by the Parties, the following terms and conditions (the “T&Cs”) are applicable to the purchase of certain goods (“Goods”) by the customer named in the purchase order or in the financial proposal, as applicable (“Buyer”) from deSter Corporation (“Supplier”) (each individually a “Party” and collectively the “Parties”). These T&Cs are incorporated by reference into all written and electronic orders between Buyer and Supplier as if expressly set forth therein.

Exclusivity.

Supplier shall be Buyer’s exclusive provider of the Goods.

Termination and Suspension Rights.

Either Party shall have the right to terminate these T&Cs by providing written notice in the event of the occurrence of one or more of the following circumstances: a) if the other Party fails, in a material way, to perform or comply with any of its material covenants or obligations contained in these T&Cs, and such failure is not capable of being remedied, or in the event such failure is capable of being remedied, but is not remedied and cured in all material respects within thirty (30) days after the date written notice of such failure is delivered to the non-compliant Party; or b) if the other Party is in the process of liquidation or is in the final steps leading towards its liquidation; has an administrator, receiver or statutory manager appointed over all or any of its assets and/or business, provided that in the case of any of the events described above, they are not dismissed or stayed within ten (10) days and are not in order to effect solvent reconstruction of the relevant Party. If Buyer fails to pay any amounts owing hereunder in full and on, or by, the date due, Supplier may, at its sole discretion and without liability, on seven (7) days prior written notice, restrict or suspend the performance  of its obligation.

Post Termination Provision.

Stock, Goods in Process and Pending Orders. In the event of termination of their relationship (irrespective of the reason, the manner of termination and/or the terminating Party), Buyer is under the obligation to take and pay for all Goods, customized components and Buyer specific semi-finished goods and raw materials, which are being held in stock (irrespective of their location) and any Goods for which an order has been placed with Supplier’s suppliers in accordance with the forecast (if applicable) unless parties have agreed on a stock run-down schedule. This post termination provision also applies in the event one or more Goods are replaced and/or cancelled. Upon termination, all amounts Buyer owes Supplier in relation to these T&Cs shall become immediately due and payable as a result of and at the moment of such termination. Investment Recovery. If Buyer specific investments in tools, molds, machines and design are required then a specific investment recovery provision will apply at termination.

Quantity.

Supplier’s offer is based on Buyer forecasted volumes. The Parties shall estimate, as much as possible in mutual consultation, the quantities that will be called off and delivered periodically. In the event Buyer fails to realize the minimum volume agreed in a given term, Supplier may agree to carry-forward the unrealized volume. In the absence of Supplier’s consent or if Buyer shall have failed to realize at least 95% of the consolidated volume over the initial term then Supplier shall be entitled to claim adequate compensation for unrealized volumes (including but not limited to the residual value of relevant capital investments).

Business Contingency.

Supplier accepts that Buyer shall be entitled to source alternative products from third party suppliers to prevent disruption of supplies whenever Supplier is unable to deliver the Goods within the agreed lead-time and provided Supplier is unable to deliver alternative goods of same function, quality and price within a reasonable time. Supplier will then undertake to compensate Buyer for a reasonable price difference but capped at +10% (ten per cent) of the price of Supplier’s substituted goods and limited in time to 3 (three) months. Buyer should revert back to Supplier once Supplier confirms being able again to deliver the Goods within the agreed lead-time.

Prices. Change of Taxes, Duties and Fees.

The prices offered by Supplier under these T&Cs do not include transportation costs, insurance, any taxes or fees or similar charges, unless expressly agreed otherwise between the Parties in writing. If included, the prices are based on the rates of taxes, duties, and fees at the time of quotation and will be adjusted whenever necessary following a change.The Buyer shall pay all taxes imposed by any taxation authority and required to be paid by Supplier or the Buyer as a result of, or pursuant to, the sale of Goods under these T&Cs. The Buyer shall also be responsible for any interest or penalties or associated charges assessed in connection with such taxes. For purposes hereof, “taxes” includes any and all taxes, VAT or sales tax or similar taxation, charges, levies, imposts, excises, duties and any usage fees or similar fees. Notwithstanding anything to the contrary stated or implied herein, in the event that there occurs any changes (i) as a result of any decision taken by a local or supra-national public authority, including any governmental entity, (ii) increased security demands, (iii) increased storage costs or (iv) any other assimilated matter, the result of which triggers a direct or indirect cost increase to Supplier in the sale of the Goods, Supplier shall be entitled to pass such increased costs in full onto Buyer at any time.

Payment.

Buyer agrees that on-time punctual payment of invoices and other amounts due is of the essence of these T&Cs, and that any payments not received on the due date therefore shall accrue interest at a rate of 1% (one percent) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. It is understood that such charge is only an interest on the basis of the untimely payment of the amount due and that therefore the Supplier shall be entitled to claim all additional costs and damages, including but not limited to, administrative costs, indirect damages, loss of business opportunities, attorney fees’ and expenses, etc. Buyer agrees that such charge is not a penalty but an actual measure of the damages incurred by Supplier. In addition, Buyer shall reimburse Supplier on a full indemnity basis for losses incurred by Supplier (including attorneys’ fees and expenses) with regard to late payments.

Risk of loss and retention of Title.

Risk or loss of, or damage to, all Goods provided by Supplier to Buyer passes to Buyer upon delivery of those Goods in accordance with the relevant Incoterms 2010 applicable.  Title to all Goods provided by Supplier to Buyer will pass to Buyer upon Supplier’s receipt of payment in full for such Goods.

Warranty and Inspection.

Supplier only warrants that at the moment of delivery the Goods comply with the agreed specifications and that they are then suited for their normal use.Supplier does not give any other guarantee in respect of the Goods, whether express or implied. Minor differences in size, weight, colour or material never represents a defect and cannot constitute sufficient reason for rejection, warranty or liability. Any delivery of Goods should be subject to an inspection upon delivery by Buyer to identify any visible or apparent damage and/or defects to the goods (through non-intrusive inspection). Warranty claims need to be filed within 7 (seven) calendar days following discovery. If written notification has not been received within the seven (7) calendar days period, the Goods will be deemed as accepted and no further recourses are available to the Buyer. It is understood that in the event that Supplier had no knowledge of such invisible damage or defect, it cannot be liable for any losses or damages. In case of delivery of non-conforming Goods, demanding replacement is Buyer’s sole and exclusive remedy.

Limitation and Exclusion of Liability. Statute of Limitation. Insurance.

Supplier shall be liable to Buyer for any and all proven liabilities, claims, demands, suits, judgments, causes of action, losses, damages, fines and expenses (“Losses”) incurred by Buyer, which arise directly out of Supplier’s proven gross negligence or wilful misconduct in its performance of its obligations under these T&Cs, with Buyer using all commercially reasonable efforts to mitigate any such Losses at all times, except to the extent that the Losses are caused, or contributed to, by the proven gross negligence or wilful misconduct of Buyer. Notwithstanding the above, Supplier shall not be liable for any consequential, incidental or indirect loss, punitive damages, or any loss of profit, opportunity, business, revenue or other economic advantage. Furthermore, the Supplier shall not be liable, under any circumstance, for any damages, claims, demands, suits, actions, losses, etc. … of any third parties incurred by the Buyer in connection with the Goods. Supplier’s liability to the Buyer under these T&Cs shall not exceed the fees paid for Goods in the preceding 12 (twelve) month period and in the annual aggregate. Any action resulting from our breach of these T&Cs must be commenced within one (1) year after the cause of action has accrued. Any limitation of liability under these T&Cs applies to any claim, regardless of whether such liability arises from a claim based upon contract, tort or otherwise.Each Party undertakes to procure and maintain appropriate insurance coverage throughout the term of their relationship with reputable insurers and an insurance certificate confirming coverage and payment of premiums will be provided to the other Party upon first written request.

Exemption from Liability; Force Majeure.

For the purpose of these T&Cs force majeure is defined as follows: each circumstance outside the control of Supplier that could reasonably not be foreseen and that makes it impossible for Supplier to partially or completely fulfil its obligations under these T&Cs. Circumstances causing force majeure can be, amongst others: labour unrest (including but not limited to strike, go-slow, work to rule), acts of storm, fire, explosion, flood, earthquake or other natural disaster, act of public enemy, war (declared or not declared), hostility, riot, civil commotion, embargo, terrorism, sabotage, accident, pandemic, epidemic or quarantine restriction, interruption or difficulty in obtaining necessary labour or raw materials, lack of or failure of transportation, breakdown of plant or essential machinery, emergency repair or maintenance, disruption of computer services, breakdown or shortage of utilities, delay in delivery or defects in goods supplied by suppliers or subcontractors to Supplier, or the intervention of any governmental body beyond the reasonable control of Supplier. An event of force majeure will not release Buyer from its payment obligation. Supplier shall be released from performance without incurring any liability towards Buyer in case of an event of force majeure.

Proprietary Rights.

All intellectual property interests and rights in and to the goods and all rights, title and interest in and to any and all equipment, molds and inventions, whether or not patentable, registered or unregistered designs rights, copyrights, and/or technology provided, created or developed by Supplier or any one of its affiliates or sub-contractors shall be retained exclusively by Supplier and/or its affiliate(s) and/or its sub-contractors. Supplier shall also be the sole owner of all rights, title, and interest in and to trademarks, service marks, trade dress, logos and any other indicia of source of Supplier or any one of its affiliates. Buyer shall not disclose any information with respect to the Goods, the manufacturing process of the Goods and developments concerning future products and/or new manufacturing processes to any third parties.

Subcontracting and Assignment.

Supplier does not accept any restriction or impediment on its ability to subcontract any part, or all, of the services it is required to perform. Neither Party may assign or transfer these T&Cs, or any right of action on it, without the other Party’s written consent.  Supplier shall however be entitled to assign or transfer these T&Cs to any member of the gategroup™ whereby the Swiss incorporated company gategroup Holding AG shall be used as ultimate parent company to determine the gategroup™.

Confidentiality.

The contents of these T&Cs, any information on the other Party and the other Party’s business is sensitive, confidential and shall not be disclosed, divulged or shared by either Party to any third party without the express written consent of the non-disclosing Party, unless the information is manifestly in the public domain at the time of disclosure or such disclosure is required by valid legal process or is otherwise required by law, in which event the Party required to make the disclosure shall give the other Party prompt written notification thereof.  Each Party will ensure, and will be liable for ensuring, that its directors, employees, agents, advisers and subcontractors shall not disclose any confidential information.

Miscellaneous.

These T&Cs can only be amended or supplemented by written agreement between the Parties. These T&Csare a sale and purchase agreement, and at no point during the term of these T&Cs shall the Buyer be authorized to act on behalf or in the name of Supplier towards any third party. If a court of competent jurisdiction holds any provision of these T&Cs invalid or unenforceable, the other provisions of these T&Cs will remain in full force and effect.  Any provision of these T&Cs held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.  Any invalid or unenforceable provision (or part of it) shall be replaced by a provision which reflects both Parties’ original intention in good faith when these T&Cswere concluded. These T&Cs should be exclusively governed by and construed in accordance with the laws of the State of Georgia, U.S.A. The applicability of all other (inter-) national regulations that could apply to cross border trade transactions (and most notably the Vienna Sales Treaty of 1980) is herewith expressly excluded.   All disputes resulting from or in relation to these T&Cs shall be submitted to the exclusive jurisdiction of the courts of the State of Georgia, U.S.A.