GENERAL TERMS AND CONDITIONS OF SALE

 

The following General Terms and Conditions of Sale and Delivery (the “Terms”), including any and all conditions stated within any additional documents referenced herein, are applicable to all transactions resulting in the sale of Products (as hereinafter defined) from Verellen, Inc. (“Verellen”). These Terms only apply to Products purchased directly from Verellen and do not apply to any products purchased from any other party. Any terms, conditions, specifications or similar not expressly stated within these Terms are expressly excluded from this document and refused by Verellen. These Terms can only be amended by a writing signed by an authorized Verellen representative.

 

 

 

Acceptance by Verellen of any offer to purchase any of Verellen’s products (the “Products”) by any purchaser (the “Purchaser”) is made, if at all, only in writing by Verellen at its home office in High Point, North Carolina through the issuance of a written sales order (“Sales Order”). In the event of Purchaser’s rejection of these Terms, Purchaser’s order shall immediately be cancelled. Any additional terms or modifications proposed by Purchaser in Purchaser’s purchase order shall be void unless specifically agreed to beforehand and in writing by Verellen.

 

 

Unless stated otherwise on any particular Verellen quote (“Quote”), all Quotes for the sales of Products will be in writing and shall be valid for fourteen (14) calendar days from the date of original issue. Unless expressly stated otherwise within any particular Quote, all prices quoted include standard packaging fees and sales taxes (where applicable). Any and all taxes (other than Verellen’s franchise, net income, or excess profit taxes) assessed in association with Purchaser’s acquisition of Products by any authorized taxing authority and/or governmental body shall be Purchaser’s sole and absolute payment responsibility. Subsequent modifications by Purchaser to the quantity or specific identity of Products may require Verellen to issue a new Quote.

 

 

(a) Deposits. Following Verellen’s issuance of a Sales Order, Purchaser shall be required to timely submit to Verellen any deposit expressly listed as required within such Sales Order. Sales Orders requiring deposits will state the required deposit amount, the timeline for Purchaser to submit the same and any other pertinent details. Verellen may, in its sole and absolute discretion, elect to terminate any Sales Order lacking a timely paid deposit. All deposits paid to Verellen are non-refundable as all Products are made to order.

 

(b) Payments. Following Verellen’s issuance of a Sales Order and unless instructed otherwise directly by Verellen in writing (including within the stated terms of any Quote), Purchaser shall be required to submit full and complete payment to Verellen for the Products listed within any such Sales Order upon confirmation from Verellen that the Products are ready to ship. All Verellen prices are quoted and/or listed in United States Dollars. Verellen accepts payment by check, credit card and wire transfer. Purchaser shall be deemed to have performed its payment obligation only when Verellen’s bank has received payment in full of the respective sums due in actually and finally collected funds. Verellen may, in its sole and absolute discretion, elect from time to time to offer or withdraw credit to Purchaser on terms solely established by Verellen.

 

 

Verellen, in its sole and absolute discretion, may unilaterally cancel any Sales Order if (i) Purchaser fails to timely make any deposit for Products stated as required within the Sales Order, (ii) Purchaser becomes insolvent, files for bankruptcy, or makes assignments on behalf of its creditors, or (iii) Purchaser fails to accept an otherwise ready for shipment order for sixty (60) or more calendar days following initial notice from Verellen to Purchaser of the availability of the same. For the purposes of clarity and removal of doubt, Verellen’s ability to terminate the Sales Order hereunder shall entitle Verellen to retain (i) Purchaser’s deposit(s) AND (ii) the Products in connection with any Sales Order.

 

 

Unless expressly stated otherwise within the Sales Order and/or other documentation for any particular sale, all prices are FOB Shipping Point as the same is defined in Incoterms 2020. Beginning on the earlier of ten (10) days after final invoice or Verellen’s original notification to Purchaser of the Product’s readiness for shipment, Verellen shall impose on Purchaser a storage fee of $25 - $75 per day per item.

 

 

(a) Non-Conforming Goods. Purchaser shall have the exclusive duty to inspect all Products. Such inspection shall occur immediately following Purchaser’s initial receipt of the Products. All non-conforming goods claims must be made by Purchaser in writing specifying the nature of the alleged non-conformity within either (i) three (3) business days following Purchaser’s initial receipt of the Products for packaging with visible non-conformities or (ii) ten (10) business days following Purchaser’s initial receipt of the Products for concealed non-conformities, unless otherwise agreed to by Verellen. As a requirement for any claim relating to non-conforming goods, Purchaser shall provide a delivery receipt reflecting the delivery date of such non-conforming Products. For the purposes of clarity and removal of date, for products that are warehoused or stored separately from Purchaser’s warehouse or location, the date of delivery of such Products shall be the date that such Products were delivered to the separate warehouse or location, not the date that the Purchaser initially accesses the Products. Purchaser’s failure to notify Verellen of any non-conforming Products within such periods as set forth above following the Purchaser’s initial receipt of the goods shall constitute (i) Purchaser’s full and complete acceptance of the Products and (ii) Purchaser’s waiver of any further right of inspection and/or claims of non-conforming Products. Within a reasonable time after any such timely notification, Verellen will inspect the alleged non-conforming Products and, if and only if they are deemed in Verellen’s sole discretion to indeed be non-conforming, Verellen will, at Verellen’s sole option, (i) replace any non-conforming Products or (ii) refund the Purchaser’s purchase price for such non-conforming Products (but only to the degree that Purchaser has paid for the same). Verellen shall not be liable for any incidental or consequential damages in connection therewith. These remedies are Purchaser’s exclusive remedies for non-conforming goods. Purchaser acknowledges that it consensually waives the specific remedies stated for the delivery of non-conforming goods as stated and as that term is defined within Article 2 of the Uniform Commercial Code.

 

(b) Disclaimer of Other Warranties.THE PURCHASER’S SOLE AND EXCLUSIVE REMEDY FOR A NON-PERFORMING PRODUCT IS AS STATED, IF AT ALL, WITHIN THE WARRANTIES PROVIDED BY THE UNDERLYING MANUFACTURER OF SUCH PRODUCT. SUCH WARRANTIES, IF ANY, AND REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND MADE IN LIEU OF ALL OTHER WARRANTIES, REMEDIES, RIGHTS OR CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED

 

WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. VERELLEN SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND.

 

 

(c) Limitation of Remedies. The remedies contained herein are Purchaser’s only remedies concerning the Products or occurrences related thereto. In no case shall Verellen be liable for any indirect, incidental, punitive, special or consequential damages, including but not limited to, damages to other property, inconvenience, damages for loss of profits, revenue, goodwill or use, incurred by Purchaser or any third party, whether in an action in contract, tort, strict liability, or imposed by statute, or otherwise, even if advised of the possibility of such damages.

 

(d) No Other Warranties. No agent, representative, or employee of Verellen is authorized to change the warranties herein or to give any other warranty, express or implied, unless approved in writing by an officer of Verellen.

 

(e) Entire Contract. These General Terms and Conditions of Sale and Delivery contain and constitute the complete purchase contract and terms of sale between the parties respecting the sale of Products and supersede all other agreements, written or verbal, between the parties related to the Products, and may not be modified, rescinded, or cancelled, or any right of Verellen thereunder waived, except in a writing signed by an officer of Verellen.

 

 

All Products are made to order, and as such, all sales of Products are final.

 

 

Verellen shall have no liability for any non-performance or delay in performance of its obligations due to events beyond its reasonable control, including, without limitation, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation, embargoes or delays, acts of God, and breakdown in machinery or equipment.

 

 

Purchaser agrees to hold harmless and indemnify Verellen for any claim or action by any third person arising out of or alleged to arise out of the design, manufacture, or use of the Products.

 

Purchaser can cancel any order within two (2) days after first receiving a written communication confirming such order from Verellen, unless Verellen has notified the Purchaser of the readiness of shipment of the Products. Outside of this period, Purchaser can only cancel or modify an order with Verellen’s prior written consent.

 

All right, title, and interest in and to the intellectual property rights in and associated with the Products, including technology and trade secrets embodied therein and any custom developments created by Verellen for Purchaser, and any derivative works thereof, shall belong solely and exclusively to Verellen, and Purchaser shall have no rights whatsoever in any of the foregoing. Purchaser shall not be granted an ownership interest in the intellectual property rights in the Products either in whole or in part. In the event of a violation (or threatened violation) of Verellen’s intellectual property rights, Verellen shall have the right, in addition to such other remedies as may be available pursuant to law or these Terms, to temporary or permanent injunctive relief enjoining such act or threatened act as both Verellen and Purchaser acknowledge and agree that the legal remedies for such violations or threatened violations are inadequate and that Verellen would suffer irreparable harm.

 

(a) Choice of Law; Venue. These General Terms and Conditions and, to the fullest extent permitted by applicable law, all matters arising out of or relating in any way to these Terms and Conditions (whether arising in contract or in tort), shall be governed by and construed in accordance with the laws of the State of North Carolina, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than North Carolina. The application of the Convention on Contracts for the International Sale of Goods is hereby fully excluded. By purchasing Products from Verellen, Purchaser fully acknowledges and agrees that any controversy, claim, or dispute arising out of or related to the Products, these General Terms and Conditions, or the breach thereof, shall be solely and exclusively brought in either (i) the state courts of North Carolina in Guilford County or (ii) the Federal Courts located in North Carolina having jurisdiction over Guilford County. Purchaser hereby consents fully to and waives any dispute over personal jurisdiction to such venue and courts.

 

(b) Compliance with Laws. Purchaser represents and warrants to Verellen that Purchaser is familiar with and understands all federal, state, and local laws, rules, regulations, orders, and standards (collectively called “Laws”) applicable to the Products. Unless otherwise expressly agreed in writing signed by Verellen and Purchaser, Verellen shall not be liable to Purchaser for, and Purchaser agrees to indemnify and defend and hold Verellen harmless from, any liability arising or alleged to arise out of, any failure of the Products to conform to any such Laws.

 

(c) Purchaser’s Default, Attorney Fees. If Purchaser should default in the payment of any sums due and owing to Verellen and Verellen engages counsel in respect thereof, Purchaser agrees to pay, in addition to the balance then due and owing, Verellen’s reasonable attorney fees and all costs of collection.

 

(d) Reservation of Rights. No failure of Verellen to insist upon or compel compliance by Purchaser with any of the terms, provisions, or conditions hereof shall be construed as a waiver by Verellen of its rights to insist upon compliance therewith in the future.

 

(e) Trademarks. “Verellen”, “Atelier” and the affiliated logo devices are trademarks of Verellen, Inc. Any unauthorized use of these trademarks, or other trademarks owned by Verellen, Inc., is strictly prohibited.

 

(f) Severability. The provisions of these General Terms and Conditions are severable and the invalidity of any one provision or term shall not affect the enforceability of the remaining provisions or terms.

 

(g) No Right of Set Off. Purchaser shall not enjoy a right of set-off againt any amount due Verellen under any circumstance except for claims that have been finally adjudicated or are fully undisputed.

 

(h) As used within these Terms, the term “writing” shall also include any electronic communication between Purchaser and Verellen.