VERINEXT TERMS AND CONDITIONS OF SALE
The sale of products, licensing of software, sale of SaaS subscriptions, and services related to each (“Products”) by Verinext Corp. and its divisions, subsidiaries, and affiliates (“Verinext”) to the customer (“Customer”) placing an order with Verinext by signing a quotation provided by Verinext (a “Quote”), are subject to the terms set forth herein (the “Terms”) regardless of other or additional terms or conditions that conflict with or contradict this Agreement in any Customer purchase order, document, or other communication (“Customer Form”). Preprinted terms and conditions on any document of Customer, including, without limitation, Customer Forms, confirmations or any other general terms and conditions of Customer, and/or Verinext’s failure to object to conflicting or additional terms will not change, add to, supplement or modify in any way the Terms. The Quote together with the Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous communications, both written and oral. In addition, the sale of the Products listed on the Quote are subject to any and all terms or conditions from the manufacturer of such Products, including, but not limited to, user and term limitations. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of Products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with this Agreement.
Quotes from Verinext are invitations to tender and are subject to change at any time without notice. All orders (each an “Order”) are subject to acceptance by Verinext. Contracts between Customer and Verinext are formed upon Verinext’s written acceptance or execution of Customer’s Order and shall be subject to this Agreement. VERINEXT EXPRESSLY REJECTS ANY TERMS AND CONDITIONS CONTAINED IN ANY CUSTOMER FORM. Orders for special, customized, and value-added Products and Products specifically identified by Verinext as non-standard or “NCNR” are non-cancelable, non-reschedulable, non-changeable, and non-returnable. Once an Order is accepted by Verinext, Customer may not change, cancel or reschedule Orders for standard Products without Verinext’s consent.
Prices are subject to change at any time. Prices are for Products only and do not include taxes, shipping charges, freight, duties, and other charges or fees, such as fees for special packaging and labeling of the Products, permits, certificates, customs declarations and registration (collectively, “Additional Fees”). Customer is responsible for any Additional Fees.
3. Terms Of Payment
Payment of the total invoice amount, without offset or deduction, is due thirty (30) days from the invoice date or as otherwise approved in writing by Verinext. On any past due invoice, Verinext may charge interest from the payment due date to the date of payment at the lesser of (i) 18% per annum or (ii) the maximum amount that is allowed under the applicable law, plus in each case reasonable attorney fees and collection costs. At any time, Verinext may change the terms of Customer’s credit, require financial data from Customer for verification of Customer’s creditworthiness, require a bank guarantee or other security, or suspend any outstanding Orders of Customer. Verinext may apply payments to any of Customer’s accounts. If Customer defaults on any payment under this Agreement, Verinext may reschedule or cancel any outstanding delivery and declare all outstanding invoices due and payable immediately. Unless otherwise provided by applicable law, any credit issued by Verinext to Customer in respect of any of Customer’s accounts will expire if unused for twelve (12) months following the date of issuance of such credit. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute of Customer, whether relating to Verinext’s breach, bankruptcy or otherwise.
4. Delivery and Title
Unless otherwise specified by Verinext in writing, all deliveries by Verinext are FOB Destination. Title and risk of loss pass to Customer upon delivery of the Products to the agreed ship to address. Verinext will ship Products, Best Way – Insured. Verinext’s delivery dates are estimates only and subject to timely receipt of supplies by Verinext. Verinext is not liable for delays in delivery. Verinext reserves the right to make partial deliveries and Customer will accept delivery and pay for the Products delivered. A delayed delivery of any part of an Order does not entitle Customer to cancel other deliveries. All access keys or other credentials for software or SaaS Products will be controlled and distributed to Customer by Verinext. As collateral security for the payment of the purchase price of the Products, Customer hereby grants to Verinext a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether not existing or hereinafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted hereunder constitutes a purchase money security interest under the Pennsylvania Uniform Commercial Code.
5. Software Licenses And Saas Subscriptions
Any software license or SaaS subscription is subject to the provider’s end user license agreement (“EULA”) or such license or other agreement entered into between Customer and the provider (“OEM Agreements”). In the event that such software or SaaS Products are governed by a EULA, Verinext will endeavor to provide a link to such terms on the Quote, provided that Customer shall be responsible for adherence to all OEM terms whether or not specifically provided on the Quote. In the event of a conflict between any OEM Terms and this Agreement, the OEM Terms shall control. OEM Terms shall solely control: (i) automatic renewals of any software license or SaaS subscription term; (ii) any warranties and indemnifications offered by the OEM for the Software, Subscriptions, and/or related Services; (iii) all Software and Subscription usage and access grants as well as restrictions; (iv) termination of any Software license or Subscription agreement; (v) returns allowance and procedure; and (vi) Customer’s sole rights and remedies in any way related to the software, SaaS subscriptions, and/or related services.
6. Automatic Renewal
CUSTOMER UNDERSTANDS THAT THE TERM OF CERTAIN SOFTWARE LICENSES, SUBSCRIPTIONS, AND RELATED SERVICES MAY AUTOMATICALLY RENEW UNDER THE RELEVANT OEM TERMS. CUSTOMER IS SOLELY RESPONSIBLE FOR PROVIDING NOTICE TO VERINEXT AND PROVIDER TO NOT RENEW IN THE TIME SET FORTH WITHIN THE OEM TERMS. IN THE EVENT THAT CUSTOMER FAILS TO PROVIDE SUCH NOTICE OR PROVIDES SUCH NOTICE AFTER THE TIME PERIOD SET FORTH WITHIN THE OEM TERMS, CUSTOMER SHALL CONTINUE TO BE RESPONSIBLE FOR ALL FEES. VERINEXT RESERVES ALL RIGHTS AND REMEDIES IN LAW AND EQUITY IN THE EVENT CUSTOMER BREACHES THIS SECTION.
7. Product Return
Customer may return products to Verinext only with a return material authorization (“RMA”) number issued by Verinext. Customer must notify Verinext in writing of any damage to the outer packaging or the Products, shortage, or other discrepancy (“Visual Defect”) within three (3) days after receipt of the shipment; otherwise, Customer is deemed to have accepted the Products and may not revoke acceptance. RMAs will be issued only for Visual Defects created solely by Verinext or the original manufacturer, and only if Customer satisfies the notice requirement. RMAs will not be granted for damage, shortage, or other discrepancy created by Customer, the carrier or freight provider, or any other third party. Product return pursuant to a warranty requires written notice from Customer to Verinext within the warranty period detailing the Product defect. Customer must return the Products to Verinext freight prepaid in original manufacturer’s shipping cartons or equivalent, along with acceptable proof of purchase, within the warranty period and as specified in the RMA. Any returns are subject to original distributor and/or original manufacturer terms of return. With respect to Products returned to Verinext that Verinext determines, in its sole discretion are not eligible for return, Verinext will, at Verinext’s discretion, either send such Products back to Customer, freight collect, or hold such Product for Customer’s account at Customer’s expense. Returns of any software or SaaS Products will be allowed solely as provided under the applicable OEM Agreement and with an RMA from Verinext.
8. Verinext’s Limited Warranty
Verinext will pass through to Customer any transferable Product warranties, indemnities, and remedies provided to Verinext by the manufacturer, including any warranties and indemnities for intellectual property infringement. If required by law, Verinext warrants that at the time of delivery, the Products shall have the specifications stated by the manufacturer in its published data sheet for the Products for twelve (12) months from delivery of Products. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, VERINEXT MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE, TITLE OR NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. Customer’s sole remedies for breach of Verinext’s warranty are, at Verinext’s choice: (i) repair of the non-conforming Products; (ii) replacement of the non-conforming Products at no cost to Customer; or (iii) refund of the applicable portion of the purchase price of the non-conforming Products. Notwithstanding anything herein to the contrary, Verinext shall not be liable for breach of warranties if: (a) Customer makes use of the Products after giving notice to Verinext of such non-conforming Product; (b) the defect arose because of Customer’s failure to follow Verinext’s instructions, whether written or oral, as to the storage, installation, commissioning, use or maintenance of the Products; or (c) Customer alters or repairs such Products without the prior written consent of Verinext.
9. Limitation Of Liability
TO THE EXTENT PERMITTED BY LAW, NEITHER VERINEXT NOR ITS EMPLOYEES OR AGENTS ARE LIABLE FOR, AND CUSTOMER IS NOT ENTITLED TO, ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, LOSS OF USE, REWORK, MANUFACTURING EXPENSE, INJURY TO REPUTATION, OR LOSS OF CUSTOMERS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER’S RECOVERY FROM VERINEXT FOR ANY DIRECT DAMAGES WILL NOT EXCEED THE PRICE OF THE PRODUCT AT ISSUE. TO THE EXTENT THE PRECEDING LIMITATION OF LIABILITY IS DEEMED INVALID UNDER APPLICABLE LAW, VERINEXT’S TOTAL LIABILITY IN ANY EVENT WILL NOT EXCEED USD $50,000 OR THE EQUIVALENT THEREOF. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD VERINEXT HARMLESS FROM ANY CLAIMS BASED ON: (I) VERINEXT’S COMPLIANCE WITH CUSTOMER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS; (II) MODIFICATION OF ANY PRODUCT BY ANYONE OTHER THAN VERINEXT; (III) CUSTOMER’S VIOLATION OF ANY OEM AGREEMENT; (IV) FAILURE TO PROVIDE NOTICE OF NON RENEWAL IN ACCORDANCE WITH SECTION 6; OR (V) USE OF PRODUCTS IN COMBINATION WITH OTHER PRODUCTS OR IN VIOLATION OF SECTION 11 BELOW.
10. Forces Beyond Verinext’s Control
Verinext is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (for example: acts of nature, acts or omissions of the Customer, operational disruptions, man-made or natural disasters, epidemic medical crises, materials shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor or materials through its regular sources).
11. Use Of Products
Customer shall comply with the manufacturer’s or supplier’s, or, if applicable, Verinext’s, Product specifications. Products are not authorized for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or serious property damage. If Customer uses or sells the Products for use in any such applications or fails to comply with the manufacturer’s Product specifications, Customer acknowledges that such use, sale, or non-compliance is at Customer’s sole risk.
Certain Products sold by Verinext and other related technology and documentation are subject to export control laws, regulations and orders of the United States, the European Union, and/or other countries (“Export Laws”). Customer shall comply with such Export Laws and obtain any license, permit, or authorization required to transfer, sell, export, re-export, or import the Products and related technology and documentation.
13. Product Information
Product information (for example, statements or advice (technical or otherwise) advertisement content, and information related to a Product’s specifications, features, export/import control classifications, uses or conformance with legal or other requirements) is provided by Verinext on an “AS IS” basis and does not form a part of the properties of the Product. Verinext makes no representation as to the accuracy or completeness of the Product information, and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION. Verinext recommends Customer validate any Product Information before using or acting on such information. All Product information is subject to change without notice. Verinext is not responsible for typographical or other errors or omissions in Product information.
14. Electronic Orders
In the event that any part of the purchase and sale of Products utilizes electronic data interchange, customer’s internal portal or third party portal, or any other electronic means (“Electronic Purchase Order”), this Agreement will continue to apply to the purchase and sale of Products between Customer and Verinext.
15. General Terms And Conditions
a. Pennsylvania law, without regard to any conflict of law principles, shall govern all matters related to this Agreement including without limitation its validity, interpretation, construction, and performance as well as all claims and causes of action whether arising under contract, tort, or any other legal theory. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply to this Agreement. Any legal suit, action, or proceedings arising out of or relating to this Agreement shall be instituted in the federal courts of the United State of America located in Philadelphia, Pennsylvania or the courts of the Commonwealth of Pennsylvania located in Montgomery Count, Pennsylvania.
b. Customer may not assign this Agreement or delegate its obligations hereunder without the prior written consent of Verinext, and Verinext’s affiliates may perform Verinext’s obligations under this Agreement. Any purported assignment or delegation in violation of this Section shall be null and void. This Agreement is binding on successors and assigns.
c. This Agreement can only be modified in writing signed by authorized representatives of both Verinext and Customer.
d. Verinext and Customer are independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership.
e. Verinext’s failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions.
f. The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions.
g. Products are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses, and Customer will comply with such rights.
h. Customer and Verinext will comply with applicable laws and regulations.