Standard terms and conditions of sale
General
- These Terms and Conditions (“Terms” or “Agreement”) govern the sale of equipment (“Goods” or “Products”) by Triol company, named in the commercial offer and/or purchase order (“Seller” or “Triol”). A list of Triol group companies that may act as Seller under these Terms may be published from time to time at: Triol Group Companies List.docx. Such list is provided for reference only and shall not be a condition precedent to the enforceability or application of these Terms.
- These terms and conditions prevail over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is given hereby. Neither Seller’s commencement of performance nor delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. The Seller’s failure to object to conflicting or additional terms will not change or add to the terms of this agreement. Buyer’s acceptance of the Seller's commercial offer to sale Product and/or Services, as well as acceptance of the Products and/or Services themselves from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein.
- These Terms supersede all prior oral or written agreements, proposals, discussions, correspondence, representations, warranties and covenants. No course of prior dealings, acceptance or acquiescence in a course of performance and no usage of the trade shall be relevant to supplement, explain or modify this Terms. All representations, promises, warranties or statements by an agent or employee of Triol that differ in any way from this Terms hereof shall be given no effect or force. No waiver or alteration of Terms shall be binding unless in writing signed by the Seller. Notwithstanding the foregoing, if Seller and Buyer have separately negotiated and entered into a separate agreement signed by both parties (“Separate Agreement”), such Separate Agreement shall control over any conflicting term or condition of this Agreement.
- The price, terms of payment, quantity and delivery location (as defined below) for the Goods and/or Services may be separately agreed and/or set forth in a Commercial Offer ("CO") issued by the Seller and accepted by the Buyer or in a Purchase Order (“PO”) issued by the Buyer and accepted by the Seller (“Order”). In the event of any conflict or inconsistency between the terms of the CO and the PO, the terms of the CO shall prevail unless the Seller provides prior written consent to the contrary.
Ordering Procedure
- By issuing a Commercial Offer for Goods and/or Services to the Buyer, the Seller makes an offer to purchase such Goods and/or Services pursuant to this Terms. Any PO or other document issued by the Buyer in response hereto shall be deemed an acceptance of this offer solely on the basis of the Seller’s Terms, notwithstanding any reference to, or incorporation of, the Buyer’s terms and conditions.
- The Buyer shall be deemed to have accepted the Seller's CO without changes if the PO contains the same terms on its ‘face’ as the CO. A reference to the Buyer's standard terms and conditions shall not be deemed a change, as such standard terms and conditions are not applicable.
- If the Buyer indicates terms on the face of its PO that differ from those proposed by the Seller in CO, it shall be deemed to have made a counteroffer to the Seller. At this stage, the Order shall not be deemed to have been accepted by the Buyer.
- Seller has no obligation to accept any PO (either without corresponding CO or the one that has different terms in its face); however, Seller may accept a PO by confirming the order in writing or by delivering the applicable Goods and/or Services to Buyer, whichever occurs first. Seller may reject or cancel a PO, as well as offer the Buyer to amend the PO, which Seller may do without liability or penalty, and without constituting a waiver of any of Triol’s rights or remedies under this Agreement. The Seller may also indicate upon acceptance of the PO whether the Buyer's proposals have been accepted, or whether the PO will be subject to the terms and conditions set forth in the CO and these Terms. If the Buyer does not send their objections within 5 (five) calendar days of receiving the Seller's notification, the Seller's decision to approve the order shall be considered final and agreed upon by both parties.
- Upon acceptance of an Order, Buyer shall be obligated to purchase and accept from Seller the Goods and/or Services specified in such Order. Cancellation or modification of all or part of any Order is subject to Seller’s prior written consent in each instance. Buyer agrees to pay Seller all costs and damage incurred by Seller as a result of Buyer's delay or refusal to accept Goods and/or Services or as a result the cancellation or modification of the accepted Order.
Price and Payment
- Buyer shall purchase the Goods at the prices set forth in the accepted COs and/or POs.
- The payments shall be made against invoice provided to Buyer. Invoices shall be mailed to the Buyer at the address indicated on the face of the PO issued by the Buyer. Payment shall be considered to have been made on the day the payable sum is received by Triol. The payment shall be affected in accordance with the payment terms, stated in the agreed CO/PO, provided that there may be three types of payment, which should be made within following terms:
- advance payment is made within 5 (five) days from the day the CO was confirmed by the Buyer / PO was confirmed by the Seller;
- payment before shipment is made within 5 (five) days from the day of the receipt of Seller’s notification about the readiness of the Goods for picking up from Seller’s warehouse (transfer to carrier), in case of early notification (ten days till the date of shipment or more) – the Buyer may pay not later than 5 (five) days before the contractual date of shipment. In any case such payment couldn’t be made later then contractual date of shipment;
- after-payment is made after the picking up the Goods from Seller’s warehouse (transfer to carrier), within an amount of days, stated in the relevant Specification or PO, or specifically agreed by Parties in writing by amending the PO (clause 2.3 of the Contract) (if nothing stated – 10 (ten) days from the date of shipment is applied).
- In the context of payment terms, each batch of Goods / Service must be calculated separately.
- The payments shall be made by direct payment. Payment can also be carried out by opening the letter of credit by the Buyer or direct payment with the provision of a bank guarantee by the Buyer to the Seller. In case the Buyer opens the Letter of Credit or Bank Guarantee, the terms and the bank must be agreed by the Seller in writing.
- The Buyer shall not be entitled to withhold, deduct, or set off any amounts from payments due to the Seller under this Terms or any CO and/or PO, whether by reason of any actual or alleged claim, counterclaim, or otherwise, without the Seller’s prior written consent.
- Unless otherwise agreed in the Order or invoice, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, state and local sales, excise and value added, goods and services taxes, and any other taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes may appear as separate items on Seller’s invoice.
- Buyer shall provide Seller, on request, with properly completed resale certificates or exemption certificates for any tax from which Buyer claims exemption.
- Payment of customs duties (tariffs) upon delivery of the Goods shall be distributed in accordance with Incoterms, unless the Parties agree otherwise in writing.
- The Parties hereby agree that, in the event of a change in the tariff (customs) policy of the Seller's country and/or the Buyer's country, and/or the country of delivery of the Goods - after the order has been placed and accepted - which will result in additional payments (fees) being charged for the export/import of goods, the Buyer shall be obliged to pay such payments/fees. The Seller shall be entitled to pay such payments independently, but the Buyer shall be obliged to compensate the Seller for these expenses within ten business days from the date of the request. In the event of late payment, the Buyer undertakes to pay the Seller a penalty of 0.1% of the amount of the overdue payment for each day of delay.
- Buyer shall pay interest on all late payments calculated daily and compounded monthly, at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. Buyer also shall reimburse Triol for all reasonable costs incurred by Triol in collecting any late payments, including attorneys’ fees and court costs. In addition to all other remedies available under this Terms or at law (which Triol does not waive by the exercise of any rights under this Agreement), if Buyer fails to pay any undisputed amounts when due under this Agreement, Seller may suspend the delivery of any Goods and/or Services.
Delivery and Passage of Title
- Terms of Delivery shall be specified in the PO and/or CO.
- The Buyer is obliged to accept the Goods and/or Services in accordance with the conditions specified in the Order.
- Buyer shall inspect and test the Goods delivered hereunder for damage, visible defects or shortage immediately upon receipt and provide Seller notice and relevant report of any such damage, defect or shortage within ten (10) days of receipt. The absence of claims regarding visible defects at the stage of acceptance of the Goods deprives the Buyer of the right to make warranty claims regarding them in the future. Buyer's afterpayment for the Goods shall be deemed acceptance without objections.
- Moment of passing the risks of loss or damage of the Goods on to the Buyer is determined by the terms of delivery as set forth in the PO and/or CO in accordance with Incoterms 2020.
- Title to the Goods transfers from the Seller to the Buyer concurrently with passing the risks in accordance with the terms of delivery.
- The Seller shall use reasonable efforts to deliver the Goods and/or perform the Services within the agreed timeframes. The Parties expressly agree that time is not of the essence in the Order, and the Seller shall not be subject to any penalties, liquidated damages, or other liabilities arising from any delay in delivery or performance.
- If Buyer fails to take delivery of completed Goods within three (3) days from their originally scheduled delivery date, or within three (3) days from the date of relevant Seller’s notification, Seller's delivery obligations shall be deemed fulfilled, and the Buyer shall pay the Seller a daily storage fee in the amount of one tenth of one percent (0,1%) of the total price of the Goods stored, for each day of storage, which shall be paid to the Seller within ten (10) days of the date of Seller's invoice for such fee(s). In case of documented losses (cancelled freight, fines from the carrier, etc.) - they shall be charged in addition to the specified penalty and shall be reimbursed by the Buyer on the same terms. When conditions permit the Parties shall arrange for shipment to the Buyer.
- Seller shall provide Buyer with all necessary shipping documents for the Goods, including but not limited to the commercial invoice, packing list, bill of lading/air waybill, and any other documents required under this Terms or by applicable law. Such documents shall be delivered either together with the Goods at the time of shipment or sent separately. Any specific requirements of Buyer regarding shipping documents shall be subject to prior written agreement between the Parties.
- Seller shall provide any special certificates, including but not limited to certificates of origin, certificates of quality, etc., only if such certificates are specifically agreed in writing by the Parties either on the face of PO or in CO or otherwise in writing. The scope, format, and timing of such certificates shall be as agreed in writing by the Parties.
Warranty
- The Seller warrants that the Goods at the time of delivery are free from defects in materials and workmanship and conform to the technical specifications agreed in the PO and/or CO.
- The warranty period shall be twelve (12) months from the date the Goods are commissioned by the Buyer, but in any case no longer than twenty-four (24) months from the date of delivery.
- The warranty applies solely to defects in materials or workmanship attributable to the Seller. The warranty shall not cover: (a) normal wear and tear, consumables, and replaceable elements; (b) defects caused by improper storage, installation, use or maintenance; (c) operation of the Goods in conditions not in accordance with the Seller’s documentation (technical passport, operational manual, etc.); (d) damages resulting from external factors, accidents, negligence, or modifications made without the Seller’s prior written consent.
- In case of a warranty defect, the Buyer shall notify the Seller in writing within ten (10) calendar days from the date the defect is discovered and within the warranty period, providing all necessary information and a warranty report.
- 5.4.1. Upon receipt of the claim and a warranty report, the Seller shall analyze them and provide an Action Plan for defect elimination. The Seller’s sole obligation under the warranty shall be, at its discretion, either: (a) to repair the defective Goods, (b) to supply spare parts or replacement Goods free of charge, (c) to replace defective Goods with new Goods of proper quality.
- The Seller’s liability under the warranty shall be strictly limited to: (i) the cost of spare parts or replacement Goods, and (ii) the cost of transportation of such spare parts or replacement Goods to the delivery point in the Buyer’s country in accordance with the Incoterms conditions applicable to the Order.
- All expenses related to customs clearance in the Buyer’s country, including payment of import duties, taxes, fees, and other mandatory charges, shall be borne exclusively by the Buyer. All other expenses, including but not limited to costs of dismantling, installation, travel expenses of specialists, inspections, downtime, loss of profit, production loss, or any indirect and/or consequential damages, shall be borne exclusively by the Buyer.
- Spare parts supplied under warranty shall not extend or renew the original warranty period of the Goods. The warranty period for repaired and/or replaced Goods is not renewed.
- This warranty constitutes the sole and exclusive remedy available to the Buyer. To the maximum extent permitted by law, the Seller disclaims all other warranties, conditions, or obligations, whether express or implied, including but not limited to implied warranties of merchantability or fitness for a particular purpose.
- In the event that the Goods fail to meet the agreed quality requirements, the Seller shall not be subject to any penalties or liquidated damages. Any damages incurred by the Buyer in connection with such non-conformity shall be limited to direct, unavoidable, reasonable and properly documented damages, and in no event shall exceed the total price paid for the relevant defected Goods. The Seller’s aggregate liability under the warranty shall in no event exceed the purchase price of the defective Goods caused such damages.
- In the event of replacement of the Goods with new ones, the Seller shall be entitled to require the return of the originally supplied Goods.
- The warranty provided by the Seller under this Terms is personal to the Buyer and shall not extend to any third parties, including any subsequent purchasers, transferees, or end users of the Goods. The Buyer shall not represent or imply that such warranty extends beyond the Buyer without the Seller’s prior written consent.
- In any case Buyer shall not be entitled to, and Seller shall not be liable for, loss of profits or revenue, promotional or manufacturing expenses, overheads, business interruption cost, loss of data, removal or reinstallation costs, injury to reputation or loss of buyers, punitive damages, loss of contracts or orders or any indirect, special, incidental or consequential damages of any nature. Buyer’s recovery from Seller for any claim shall not exceed the purchase price paid for the affected products irrespective of the nature of the claim whether in contract, tort, warranty, or otherwise. Buyer will indemnify, defend and hold Seller harmless from any claims based on (a) Seller’s compliance with Buyer’s designs, specifications, or instructions, (b) modification of any products by anyone other than Seller, or (c) use in combination with other products.
- The Seller shall have no obligation to indemnify, defend, release, or hold harmless the Buyer, the Buyer’s affiliates, shareholders, directors, officers, employees, agents, subcontractors, suppliers, or customers from any losses, damages, liabilities, costs, expenses, claims, suits, or demands of any kind whatsoever, whether arising in contract, tort, statute, equity, or otherwise, including without limitation any claims relating to personal injury, death, property damage, intellectual property infringement, environmental harm, or economic loss. The Parties expressly agree that the Buyer assumes all risks and liabilities associated with the use, resale, or distribution of the Goods, except as may be expressly and unambiguously provided for in this Agreement.
Force Majeure
Seller is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, pandemics, embargoes, sanctions, governmental export or import restrictions, cyberattacks, power outages, breakdown of machinery, interruption of utilities or communication networks, labor disputes not limited to Seller’s employees, or any other events or circumstances beyond Seller’s reasonable control, whether similar or dissimilar to the foregoing, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.
- While the amount of Confidential Information to be disclosed is completely within the discretion of Disclosing Party. The Buyer undertakes not to manufacture the goods of the Seller and goods, which are supplied by the Seller.
- The Disclosing Party shall make disclosure of proprietary and confidential information (“Confidential Information”) in a manner permitting the most appropriate and certain communication, i.e., orally, in writing, or partly orally and in writing. “Confidential Information” shall mean any and all data and information contained in any tangible medium of expression as provided by one party ("Disclosing Party") to the other party ("Receiving Party") pursuant to this Agreement and shall include but not be limited to ideas, concepts, development plans for new or improved products or processes, data, formulae, techniques, designs, sketches, know-how, photographs, plans, drawings, specifications, samples, test specimens, reports, customer lists, price lists, findings, studies, computer programs and technical documentation, trade secrets, diagrams, or inventions, and all other relevant information pertaining thereto and which is prominently marked as "Proprietary" or "Confidential." In the case of any item of information that cannot be so marked, such as verbal or oral information, such item of information shall be considered Confidential Information if identified as "confidential" before the disclosure thereof to the Receiving Party and subsequently reduced to writing by the Disclosing Party and delivered to the Receiving Party within thirty (30) days of the date of such disclosure. Upon request of the Disclosing Party, the Receiving Party agrees to (a) return all Confidential Information to the Disclosing Party, or (b) destroy all such Confidential Information and certify such destruction to the Disclosing Party by an appropriate officer of the Receiving Party.
- The Receiving Party hereby covenants and agrees that it (a) will not knowingly (either directly or indirectly) reveal or disclose Confidential Information or the fact that the parties have entered into this Agreement, to any other person, partnership, association, or corporation; (b) will treat all such Confidential Information received from the Disclosing Party as confidential and proprietary in nature to the Disclosing Party; and (c) will safeguard the secrecy of such Confidential Information by following procedures at least as stringent as those used in safeguarding its own valuable confidential information and trade secrets.
- The Receiving Party covenants and agrees not to use, sell, lease, license or otherwise commercially use Confidential Information or distribute information regarding the relationship of the parties, either directly or indirectly, unless express, prior written authorization is obtained from the Disclosing Party signed by an appropriate officer.
- To maintain the confidentiality attaching to Confidential Information, the Receiving Party shall
- (a) limit disclosure of Confidential Information only to those of its employees (i) who have a reasonable need to know and use such Confidential Information in furtherance of this Agreement; (ii) who have been informed of the confidential nature of the Confidential Information of the Disclosing Party and of the obligations of the Receiving Party in respect thereof; and (iii) who have executed agreements with the Receiving Party obligating such employees to maintain the confidentiality of the Confidential Information at least to the extent required by this Agreement; (b) not make copies of Confidential Information without the prior written approval of the Disclosing Party, except to the extent necessary to carry out the Purpose(s) specified in this Agreement; (c) not use, reproduce, transform or store any Confidential Information in an externally accessible computer or electronic information retrieval system transmitted in any form or by any means whatsoever outside of its usual place of business; (d) not permit or allow the Confidential Information to be used or accessed by or otherwise made available to any consultant or contractor of the Receiving Party without the prior written permission of the Disclosing Party; and (e) not make any changes, modifications or enhancements to the Confidential Information, or to create any derivative work from such Confidential Information.
- Nothing hereinabove contained shall deprive the Receiving Party of the right to use or disclose any information (a) which is, at the time of disclosure, known to the trade or the public; (b) which becomes at a date later than the time of disclosure known to the trade or the public through no fault of the Receiving Party; (c) which is possessed by the Receiving Party, as evidenced by the Receiving Party's written records, before receipt thereof from the Disclosing Party; (d) which is disclosed to the Receiving Party in good faith by a third party who has an independent right to such information; (e) which is independently developed by or for the Receiving Party without access to the information received from the Disclosing Party, as evidenced by the Receiving Party's written records; or (f) which is required to be disclosed by the Receiving Party pursuant to an order of a court of competent jurisdiction or other governmental agency having the power to order such disclosure, provided the Receiving Party uses its best efforts to provide timely notice to the Disclosing Party of such order in order to permit the Disclosing Party an opportunity to contest such order.
- The Receiving Party understands and agrees that the Disclosing Party is entitled, in the event of any breach of this Agreement, to seek a restraining order and/or injunction from any competent court to enjoin and restrain the Receiving Party and its employees or agents from any disclosure of Proprietary Information of the Disclosing Party. Such equitable remedies shall be in addition to and not in lieu of any damages to which the Disclosing Party may be entitled by law.
Changes, Assignment, Termination, Survival
- Changes. After the Order has been approved, no changes, additions, or modifications shall be valid or binding unless made in writing and duly signed by authorized representatives of both Parties. Any verbal or implied agreements shall have no effect.
- Assignment. Each Party may not assign or novate (including by change of ownership or control, by operation of Law or otherwise) this Order or any interest herein, including payment, without other Party’s prior written consent which shall not be unreasonably withheld. Any assignment or novation not in compliance with this section shall be null and void.
- Termination for convenience. Either Party may terminate all or any part of this Order without cause until it was accepted by the other Party. Termination for convenience of the accepted Order may be performed only by the consent of both Parties in writing.
- Termination for default. Either Party may, by providing written notice to the other Party, terminate this Order in whole or in part pursuant to this Section if the other Party (i) delays the performance of its obligations under this Order for a period exceeding one hundred (100) calendar days; or (ii) expressly acknowledges in writing its inability to fulfill its obligations under this Order. As a mandatory condition for termination under this Section, the terminating Party shall first provide the defaulting Party with written warning that specifies the default and states that the Order may be terminated if the default is not cured. The defaulting Party shall have thirty (30) calendar days from receipt of such warning to remedy the default.
- Survival. Completion or cancellation of this Order will not affect any obligations which expressly survive or accrued before the Order’s completion or cancellation (Paragraph 7, Paragraph 10, etc.).
Sanction Compliance
- The Seller represents and warrants not being an entity sanctioned/listed by the UN, the EU or the USA (or owned 50% or more, also in the aggregate, by an entity/individual listed by the USA). Moreover, the Seller represents and warrants being fully compliant with all the applicable provisions on international restrictive measures currently in force.
- The Buyer certifies and warrants as follows:
- The Buyer is not designated on, or associated with, any party designated on any government restricted parties list, including without limitation, the U.S. Commerce Department Bureau of Industry and Security ("BIS") Denied Persons List and Entity List or Unverified List, the U.S. Treasury Department Office of Foreign Assets Control ("OFAC") Specially Designated Nationals and Blocked Persons List, the U.S. State Department Directorate of Defense Trade Controls ("DDTC") Debarred Parties List and Nonproliferation Sanctions list, the United Nations Security Council Sanctions list, the Australia Consolidated list, the Canadian Restricted Entities list, the EU Financial Sanctions and UN Sanctioned Countries lists, and the World Bank List of Debarred Firms.(SDN) or entity sanctioned by the United Nations, US or the European Union (“Sanctioned Persons”) or owned 50% or more or controlled by one or more Sanctioned Persons;
- The Buyer will comply with all economic sanctions laws and regulations, including the laws and regulations of the US, UN and EU;
- The Buyer shall not sell, transfer, lease or otherwise make available the goods bought from the Seller to any Sanctioned Person;
- The Buyer is not engaging and will not engage in any other transaction that could be subject to secondary sanctions under the laws and regulations of the US, UN or EU;
- The Buyer warrants that any Sanctioned Persons:
- do not own an interest in the Buyer’s company or its affiliates;
- b) are not members of the Buyer’s management team or management team of its affiliates;
- c) are not employees, consultants, contractors of the Buyer or its affiliates;
- d) no goods purchased by the Buyer will be supplied to any Sanctioned Persons or to their related companies;
- e) the Buyer has taken due diligence measures by checking the ultimate consignee to prevent the Goods being diverted to any Sanctioned Persons, obtaining similar assurances from the final buyer (if any).
- Whenever The Seller's performance would be in violation of or risk the imposition of sanctions under any US, UN or EU economic or trade sanctions laws and regulations, the Seller, after notifying the Buyer, may at its sole discretion not perform and any contractual provisions requiring such performance by the Seller shall be null and void.
- The Buyer agrees to indemnify and hold harmless the Seller in any case the Buyer does not comply with the clause 2.
Intellectual Property
- All Goods, products, materials, technical documentation transferred by Parties within the framework of the Contract, are objects of intellectual property and constitute a commercial secret of the Seller.
- The Goods transferred under the Contract to the Buyer must be sold with the TRIOL Trademark, under the same name and nomenclature. If the Buyer would like to market the Goods which was transferred to it under the Contract without TRIOL Trademark, the separate License Agreement should be signed.
- The Seller has the exclusive right to IP objects used in Goods transferred under the Contract. Granting permission to use IP objects to third parties. Prohibit the use of IP objects, including preventing its illegal use by third parties. No license on the Intellectual Property Rights is granted to the Buyer under the Contract.
- The Buyer has no right to submit applications for obtaining security documents for intellectual property, technical solutions and software products used in Goods transferred under the Contract, as well as to objects created on the basis of them.
- All improvements, modifications, derivative works on the basis of the Goods could be made only upon the prior written consent of the Seller. Such improvements, modifications, derivative works and intellectual property rights in them are the sole property of the Seller.
- The Buyer has no right to use the technical documentation, products, materials, and information that are the intellectual property of the Seller, may be the know-how and trade secret of the Seller, transferred and became known as a result of the work under the Contract for and with intentions not covered by the Contract.
- The Parties acknowledge and agree that any breach by the Buyer of this Section 13 would cause substantial harm to the Seller, including but not limited to loss of goodwill, market position, and proprietary rights, the exact amount of which would be difficult to ascertain. Therefore, the Parties agree that, in the event of such breach, the Buyer shall pay to the Seller liquidated damages in the amount of USD 500,000.00 (five hundred thousand United States dollars), as a genuine pre-estimate of the Seller’s potential losses, within five (5) business days of issuance of the relevant invoice. This shall not limit the Seller’s right, at its sole discretion, to claim compensation for actual proven damages and lost profits in excess of the said amount.
Other Terms
- The Buyer shall be solely responsible, at its own expense, for obtaining and maintaining any and all insurance coverage it deems necessary or appropriate in connection with its activities, including but not limited to commercial general liability, property, automobile, workers’ compensation, professional liability, cyber liability, or any other insurance required by law or by its own risk assessment. The Seller shall have no obligation to procure, maintain, or contribute to any insurance coverage for the Buyer, and the Buyer agrees that any such insurance is its sole responsibility.
- Any inspections, audits, tests, or access to Seller’s facilities, records, goods, materials, processes, drawings, or services by Buyer, its Affiliates, customers, representatives, or any third party designated by Buyer (“Inspection Activities”) shall be permitted only upon the prior written consent of both Parties, which consent may be withheld at Seller’s sole discretion. The scope, timing, frequency, duration, and procedures of any such Inspection Activities shall be mutually agreed in writing in advance. No Inspection Activities shall be conducted without such agreement, and Seller shall have the right to deny or limit such access in its sole discretion.
- 11.2.1. Seller shall not be obligated to provide access to its premises, subcontractors, personnel, systems, records, or any confidential or proprietary information except as expressly agreed in writing. All Inspection Activities shall be conducted in a manner that:
- does not disrupt Seller’s operations;
- protects Seller’s trade secrets, proprietary information, and any confidential information of Seller or disclosed to Seller by third parties; and
- complies with all applicable laws, regulations, and internal safety procedures of Seller.
- Buyer shall ensure that all persons participating in Inspection Activities are subject to confidentiality obligations no less protective than those set forth in this Terms. Buyer shall indemnify, defend, and hold harmless Seller from any losses, liabilities, damages, costs, or expenses arising out of or in connection with any Inspection Activities, including any claims by third parties.
- The results of any Inspection Activities shall not be binding on Seller and shall not constitute any admission of breach, non-compliance, or any modification of Seller’s warranties, representations, obligations, or liabilities under this Terms. Such results shall be considered for informational purposes only, without prejudice to Seller’s rights under this Terms.
- Product Withdrawal by Seller
- Seller shall have the right, at its sole discretion, to initiate a product withdrawal or recall of any goods supplied under this Order if Seller reasonably determines that such goods may not meet contractual, safety, quality, or legal requirements. Seller shall notify Buyer in writing of its decision to withdraw the goods, including the reason for such withdrawal and the proposed procedure.
- Upon receipt of such notice, Buyer shall promptly cease distribution or use of the affected goods and, at Seller’s expense, return them to Seller for inspection, repair, replacement, or other corrective action as directed by Seller. Buyer shall cooperate fully with Seller in facilitating the withdrawal, including but not limited to identifying the location of affected goods, assisting in logistics, and providing relevant information.
- Seller’s sole obligation under this Section shall be to perform the corrective action it reasonably elects, and Seller shall have no further liability for any damages, losses, costs, or claims arising out of or related to such withdrawal or recall, including indirect, consequential, incidental, punitive, or lost profits.
- Under no circumstances shall Seller’s total liability under this Section exceed the purchase price paid by Buyer for the Goods subject to withdrawal or recall.
- Buyer expressly waives any claims for damages or indemnification from Seller beyond the remedies set forth in this Section.
- No Suspension by Buyer. Buyer shall have no right to suspend, delay, or otherwise interrupt the performance of this Order, in whole or in part, for any reason, except by mutual written agreement of the Parties. Any request by Buyer to suspend performance must be agreed in writing by Seller, including the scope, duration, and conditions of such suspension. In the absence of such written agreement, any alleged suspension shall be deemed invalid and shall not affect Seller’s obligations or entitle Buyer to any relief or remedy.
- Waiver. No claim or right arising out of a breach of this Order can be discharged in whole or in part by a waiver or renunciation unless supported by consideration and made in writing signed by the aggrieved party. Either party’s failure to enforce any provisions hereof shall not be construed to be a waiver of a party’s right thereafter to enforce each and every such provision.
Governing Law
- This Agreement shall in all respects be governed by and interpreted in accordance with the laws of the State Texas, U.S., including the Uniform Commercial Code as enacted in Texas. However, if both Parties are registered and operating in the same country outside the United States, this Agreement shall instead be governed by and interpreted in accordance with the laws of that country.
- Any disputes arising from the Order or these Terms shall be placed by the parties under the jurisdiction of the Court of Arbitration at the Polish Chamber of Commerce in Warsaw. The arbitral tribunal shall consist of a single arbitrator. The place of the Arbitration Court meeting is the city of Warsaw. The language of the arbitration proceedings is English.
However, if both Parties are registered and operating in the same country, any such disputes shall be referred to the competent court at the place of registration of the Defendant.
In any case, at the sole discretion of the Seller, the Seller may instead file a claim in the competent court at the place of registration of the Buyer.
- Should Seller breach any of the provisions of the Terms and/or the Order, Buyer agrees that any suit or other legal action by Buyer must be commenced within one year after the cause of action has accrued.
- Except to the extent expressly required by applicable mandatory law, Seller shall not be obligated to comply with any laws, regulations, rules, standards, industry practices, or quality standards, guidelines, codes of conduct, manuals, specifications, or requirements of Buyer or any third party. Seller’s obligations under this Order shall be limited solely to those legal requirements that are directly and expressly applicable to Seller under the jurisdiction where the Services are performed or Goods are supplied. Buyer acknowledges that any additional compliance obligations must be expressly and specifically agreed to in writing by Seller, and no such obligations shall arise by implication, industry practice, or Buyer’s standards.
E-mail: @triolcorp.eu
Address: 10370 Richmond Ave., Suite 1175, Houston, TX 77042
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