In these terms and conditions
"Customer" means the party or parties identified as such in the Sales Order, Invoice or Quotation (as defined below);
"Goods" means the products or services listed in the Sales Order, Invoice or Quotation;
"Order" means a Sales Order, Invoice or Quotation accepted by the Customer;
"Party" means either the Customer and the Seller, and “Parties” means the Customer and Seller;
"Seller" means Nerval Corporation, dba “NERVAL”;
"Terms" means these terms and conditions;
"Lands" means the lands to which the Goods shall be delivered;
"Owner" means the registered owner of the Lands;
"Carrier" means the carrier hired to deliver the Goods to the Lands”
All Goods supplied shall only be offered, rendered, supplied or provided according these Terms. These Terms constitute the entire agreement between the Parties with respect to the provision of the Goods and supersedes all other terms either expressed or implied by law. None of the Terms set out herein may be added to, waived, modified, superseded or otherwise altered except by a written instrument signed by an officer of the Seller and delivered to Customer. No employee or agent of Seller is empowered to alter or amend these Terms as set out herein. Failure to enforce any or all of these Terms in a particular instance shall not constitute a waiver of or preclude subsequent enforcement of any or all such Terms. In the event of any part or parts of these Terms being held invalid, such holding shall not invalidate the remainder of these Terms.
Terms of Payment
All Orders shall be paid in full prior to delivery unless otherwise agreed to in writing by Seller.
All custom or special Orders require a deposit equal to 50% of the total price of the Goods (the “Deposit”) prior to the Seller initiating assembly of the Order. The Customer acknowledges that the Seller will not begin assembly of the Order until it has received the Deposit. All payments in excess of the Deposit shall, unless otherwise agreed to by the Seller in writing, be made by the Customer prior to delivery pursuant to these terms and conditions
On Seller approved credit only, payments are due 30 days from date of invoice, failing which the Seller shall be entitled to register a Builders’ Lien against the Lands. With respect to Goods, including shipping costs, that are not capable of being invoiced at time of delivery, payment is due on date of invoice. If agreed to by the Seller, the Customer may make payment for the Goods by way of credit card, certified check, bank draft, online payment link, or wire transfer provided that the Customer pays all applicable service fees charged on such transactions.
All NSF cheques will be subject to a $50.00 NSF charge. All payments shall be made in the currency specified by the Seller. Interest shall accrue at the rate of 2% per month on any amounts that are past due and shall be calculated from invoice date until same is fully paid, both before and after judgment. Customer shall be responsible for all collection costs incurred by the Seller, including, without limitation, legal fees and disbursements on a solicitor and his own client basis.
Cancellations, Pricing Changes and Returns
All Orders for custom or special order products cannot be cancelled.
Cancellation of an Order shall only be allowed if the Seller agrees in writing to the cancellation. All cancellations and returns are subject to a cancellation/return fee equal to 25% of the total value of the Order. The Seller shall be entitled to deduct the Cancellation Fee from the Deposit.
All returns must be accompanied by an RMA number which is to be acquired from Seller prior to return of Goods.
All claims for damages to Goods in transit must be made to Carrier.
Pricing is based upon Goods listed in Order – changes will result in pricing changes.
All prices quoted are valid for 30 days, except for changes experienced due to fluctuating exchange rates.
All prices are provided at the exchange rates prevailing during the time the quote is issued. If exchange rates fluctuate, the quoted price will change, and any outstanding amounts for confirmed orders will be billed in accordance to the change in exchange rates.
Unless the Order expressly states otherwise, all Orders shall be delivered FOB Nerval China or FOB Nerval Vietnam as the case may be.
All shipping and handling costs shall be the responsibility of the Customer including charges resulting from delay in unloading. If Seller agrees to pay for shipping costs, all such costs will be invoiced to Customer at Seller cost plus 5%.
Customer acknowledges that any shipping schedule is quoted by the Carrier and any delays in delivery of the Goods are the responsibility of the Carrier and Customer. All risk for Goods shall pass to the Customer upon delivery to the Carrier and the Customer shall be responsible to insure all Goods being shipped.
The Customer shall unload the Goods from the carrier’s ocean containers within the timeframe allotted by the shipping carrier. The Customer will be notified of the allotted timeframe prior to delivery. Notwithstanding anything herein to the contrary, the Customer acknowledges, consents, and agrees that title to the Goods passes to the Customer only at such time as the Seller receives final payment of the final price of the Goods, including shipping and related costs, in full.
Customer acknowledges that title to the Goods shall remain with Seller until paid for in full. Notwithstanding the foregoing, risk shall be Customer’s risk upon delivery to the Carrier as provided for herein.
Subject to the limitation of warranty set out in these terms and conditions, the Seller warrants to the Customer that the Goods that are manufactured or produced by the Seller shall be free of defects in material and/or workmanship attributable to manufacture for the duration of time that is specified in NERVAL’s warranty documents (see www.nervalcorp.com to view product warranties). The applicable product specific terms & conditions are specified in the warranty documents for each product.
The foregoing warranties do not apply to any Goods which have been subject to misuse, neglect, accident, modification, or damage resulting from improper handling after such Goods are delivered to the Carrier in good order, or from exposure by anyone other than the Seller to weather or extreme atmospheric conditions.
The foregoing warranty is EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE, BY STATUTE OR OTHERWISE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE SELLER DOES NOT WARRANT ANY GOODS WHICH ARE UPHOLSTERED GOODS AND/OR SOFT GOODS FOR WEARING QUALITY, COLOURFASTNESS, FABRIC SHRINKAGE, WRINKLING, OR STRETCHING, unless expressly stated on the Seller’s Contract Fabric Books, a copy of which has been or will be provided to the Customer upon request. THE SELLER DOES NOT WARRANTY TEMPERED GLASS.
The Customer acknowledges that each piece of furniture produced by the Seller relies on Hardwood products for structural integrity and natural beauty. The Customer further acknowledges that, like all natural creations, no two trees are alike and each tree has its own distinct characteristics and unique beauty. The Customer further acknowledges that any furniture sold by the Seller to the Customer is the product of many different trees, which enhances the beauty and individuality of each piece of furniture produces and that, as a result of combining different trees into one piece of furniture, colour variations are inherent in the finished furniture product.
The Seller shall not be liable to the Customer for special, indirect, consequential or incidental losses or damages of any kind or nature whatsoever, or other costs, charges, penalties or liquidated damages, regardless of whether arising from breach of contract, warranty, tort, strict liability or otherwise, even if advised of the possibility of such loss or damage or if such loss or damage could have been reasonably foreseen.
The Seller’s sole obligation for failing to comply with this warranty shall be, at its sole discretion, to either repair, replace or issue credit for any nonconforming or defective Goods where, within the above warranty period: (i) the Seller has received written notice of any nonconforming or defective Goods; (ii) after obtaining the Seller’s written authorization, the Customer has, at its sole cost and expense, returned such nonconforming or defective Goods to the Seller; and (iii) the Seller has determined that the Goods are nonconforming or defective and that such nonconformity or defect is not the result of some misuse by the Customer, or any third party.
Claims for Shortages and Defective Goods
Any claims by the Customer for shortages in any of the Goods delivered to the Customer must be made in writing to the Seller within 10 days following receipt of the Goods by the Customer. If the Customer does not provide such notice within the period set out herein, the Customer shall be deemed to have accepted the Goods as delivered. The Seller reserves the right to confirm such shortage.
Upon receipt of the Goods at the Lands by the Customer, the Customer shall examine the Goods and notify the Seller in writing within 10 days of any non-conformity or damage to the Goods. If the Customer does not provide such notice within the 10 day period set out herein, the Customer shall be deemed to have accepted the Goods as delivered.
The Seller reserves the right to inspect and confirm, in its sole discretion, any alleged non-conformity or damage before authorizing a return, replacement or credit to the Customer. The Customer acknowledges that authorized returns are subject to a restocking fee of 25% of the total value of the Order, as well as shipping and handling costs, in each case payable by the Customer.
Notwithstanding the foregoing, Goods which are custom made for the Customer are not eligible to be replaced unless such Goods are materially inconsistent with the instructions and specifications provided by the Customer and such instructions contained no error. For greater certainty, the Customer further acknowledges that any error caused by the written instructions and specifications given to the Seller by the Customer shall not be sufficient cause to reject the Goods.
The Customer acknowledges that any model or sample shown to Customer is used merely to illustrate the general type and quality of the Goods ordered by the Customer, and not to represent that the Goods supplied to the Customer will necessarily conform in all respects to the sample or model.
If, upon receiving an Order from the Customer:
(a) The Seller notifies (the “Notice”) the Customer that the nature of the Goods ordered by the Customer requires the Seller to obtain the Goods in excess of the quantity ordered by the Customer (the “Overage”); and
(b) The Customer confirms to the Seller that it still wishes to proceed with the Order,
Then the Customer shall be required to purchase all of the Goods obtained by the Seller in order to satisfy the Order as provided in the Notice including, without limitation, the Overage, on the terms and conditions set out herein.
Customer shall pay Seller for Goods provided as contemplated herein and shipping costs if paid by Seller and billed to Customer and labour costs if paid by Seller and billed to Customer and shall also pay all taxes or other levies (other than income taxes) imposable or imposed by any government, governmental unit or similar authority with respect to the charges made or payments received in connection with the Order.
Revision by Seller
The Seller reserves the right to revise these terms and conditions with respect to subsequent Orders by written notice to the Customer of any such revisions. Any such revisions shall be binding upon the Customer without further action unless the Customer objects to such revisions by written notice to the Seller within ten days of receipt of notice of such revisions.
Governing Law, Resolution of Disputes
The Order, these Terms, and the performance thereof shall be governed by, subject to and construed under the laws of the Province of Alberta and the federal laws of Canada applicable therein, without regard to any provision regarding conflict of laws. The Customer specifically attorns to the exclusive jurisdiction of the Courts of the Province of Alberta.
Any delay or failure of the Seller to perform its obligations under this Offer shall be excused if, and to the extent, that the delay or failures are caused by an event or occurrence beyond the reasonable control of the Seller and without its fault or negligence, such as, by way of example and not by way of limitation, acts of God, action by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, pandemics or other outbreaks of disease, wars, sabotage, labour problems (including lockouts, strikes and slowdowns), inability to obtain power, material, labour, equipment or transportation, or court injunction or order, provided that a lack of funds shall not be an event or occurrence beyond the reasonable control of the Seller.
Joint and Several Liability
The term “Customer” as used herein may be applicable to one or more party and the singular shall include the plural. If more than one party is referred to as the Customer in the Order, then their obligations and liabilities shall be joint and several.
These Terms shall enure to the benefit of and be binding upon each of the Parties and their respective heirs, executors, administrators, successors and permitted assigns.