Trimax
Standard Terms
& Conditions
of Sale.
Revision 2.0 — 26 November, 2024
Trimax Standard Terms and Conditions of Sale — North America
1. Acceptance of Terms
Capitalized terms are defined below. Unless other terms are specified in Seller’s Quotation or Invoice, the following Terms and Conditions of Sale (“Terms”) will govern the offer and sale of all Goods and Services provided by Seller to Buyer. Any terms and conditions of sale (other than the economic terms of the Order) that may be contained in any purchase order or other form provided by Buyer will be without force and effect, regardless of when received by Seller. By placing an Order, Buyer accepts these Terms, and the sale and delivery by Seller of Goods and Services will be conclusively presumed to be subject to these Terms.
“Buyer” and “Seller” are identified on the Quotation or Invoice. “Goods” are all equipment, products, goods, or materials listed on a Quotation or Invoice. “Services” are services listed on a Quotation or Invoice. A “Quotation” is issued by Seller to Buyer to offer the sale of Goods and any Services and is valid for a period of 30 days from the date of issue. “Order” means Buyer’s commitment to purchase Goods from Seller. An “Invoice” is a written invoice for Goods and/or Services provided by Seller to Buyer for Orders accepted by Seller in writing or by performance.
2. Orders
Seller will have the right to accept or reject an Order in its sole discretion. Seller’s acceptance of an Order from Buyer may be subject to Buyer’s credit approval and other conditions required by Seller. Buyer will not have the right to cancel an Order without Seller’s prior written consent.
3. Prices and Taxes
Prices will be set forth in the Quotation or Seller’s published price schedules. Prices and these Terms are subject to change without notice. Unless specifically stated, prices do not include sales, use, excise, or other similar taxes or duties (“Taxes”). Buyer will pay any and all clearance charges, broker’s fees, Taxes, and other amounts payable in connection with Seller’s delivery of Goods and provision of Services. If Seller is required to pay any Taxes on the Goods or Services furnished hereunder, Buyer will promptly reimburse Seller for such Taxes.
4. Payment
Buyer will pay all Invoices within 30 days from the date of Invoice in U.S. dollars (or the currency indicated in the Invoice) in immediately available funds via wire transfer to an account designated by Seller or by check payable to Seller. Payment will not be deemed to have been received until Seller has received cleared funds. Buyer will make all payments due in full without any deduction, whether by way of set-off, counter-claim, discount, abatement or otherwise. If Buyer fails to pay Seller any sum due, Buyer will be liable to pay interest at an annual rate equal to the lesser of (a) 18% per annum, accruing on a daily basis until payment is made; or (b) the maximum amount permitted by law. In the event of non-payment or late payment, Buyer shall be responsible for all costs incurred by Seller in connection with the collection of the outstanding debt, including but not limited to reasonable attorney’s fees, court costs, and any other expenses associated with debt collection.
5. Delivery and Acceptance
Seller will deliver the Goods. Buyer will pay all freight, insurance, and other shipping expenses, as well as any special packing expenses. Seller will use commercially reasonable efforts to meet the quoted delivery dates and will have the right to deliver partial shipments of Goods. Buyer is deemed to have accepted the Goods upon delivery unless Buyer notifies Seller at the time of delivery of any loss, damage, shortage, or other non-conformity. In the absence of receipt of such notice, Buyer will have no right to reject the Goods or Services and will be required to pay the Invoice price for such Goods. Buyer will have no right to suspend or delay delivery of Goods. If Buyer fails to accept delivery of Goods, Seller will have the right to store or arrange storage of the Goods at Buyer’s risk and expense. Buyer will promptly pay for the reasonable costs of storage and insurance of the Goods until further notice. Seller will not accept returns of Goods without Seller’s prior written authorization.
6. Risk and Title
The risk of loss or damage to the Goods will pass to Buyer when the Goods are delivered to Buyer or its agents. Title to the Goods will pass to Buyer when Seller has received payment in full of the Invoice price of the Goods. Until title has passed to the buyer, the buyer will hold the Goods on a fiduciary basis as the manufacturer’s bailee. The buyer agrees to take all necessary precautions to prevent any damage to the Goods and to maintain the Goods in good condition. If the buyer fails to make full payment for the Goods, the manufacturer shall have the right to recover the Goods, at the buyer’s expense, without prejudice to any other remedies available to the manufacturer at law or in equity. The buyer agrees to cooperate fully with the manufacturer in recovering the Goods, including providing access to the Goods and any necessary documentation or information. The buyer shall be responsible for all costs incurred by the manufacturer in connection with the recovery of the Goods, including but not limited to transportation, storage, legal fees, and any other related expenses. The manufacturer’s recovery of the Goods shall not be deemed a cancellation of the sale unless the manufacturer expressly agrees to such cancellation in writing.
7. Security Interest
Buyer grants Seller a security interest in the Goods in the amount of the unpaid balance of the price until paid in full. Seller will have the right to file a financing statement for such security interest, and Buyer will sign any such statement or other documentation that Seller deems necessary to protect Seller’s security interest upon request by Seller.
8. Limited Warranty
a. New Equipment and Parts: Unless stated otherwise in the Quotation, the warranty is limited to the terms and conditions set forth in the Seller’s Warranty Policy.
b. Exclusions: The foregoing limited warranties do not apply if Buyer has not paid for the Goods or Services in full, and do not extend or apply to (i) any defects or losses due to misuse, accident, abuse, neglect, normal wear and tear, improper installation, failure to maintain, or improper application, or matters caused by the negligence or misconduct of Buyer or any third party; (ii) equipment that is sold “AS IS.”
9. Disclaimer
Except for the express warranties provided in these terms, seller and its suppliers make no and hereby disclaim any other warranties, express, implied, or statutory, with respect to the goods or services, including, without limitation, any implied warranty of title, merchantability, fitness for a particular purpose, infringement, or arising from course of performance, dealing, usage, or trade.
10. Limitation of Liability
Notwithstanding anything in these terms to the contrary, to the maximum extent permitted by applicable law, (a) in no event will seller or its suppliers be liable to buyer or any third party for costs of procurement of substitute goods or services, or for any special, indirect, exemplary, incidental, punitive, or consequential damages (including, without limitation, damages for loss of profits, business interruption, or any other loss), as a result of the offer, sale, or use of goods or services, under any theory of liability, whether based in contract, negligence, tort, warranty, or other wrongful act or omission of seller, and even if seller has been advised of the possibility of such damages and (b) seller’s total liability for all claims will be limited to direct damages in an amount not to exceed the total price paid to seller pursuant to the order under which liability arose.
11. Indemnification
To the fullest extent permitted by applicable law, Buyer will defend, indemnify, and hold harmless Seller, its subsidiaries, affiliates, parents, partners, their successors and assigns, and each of their respective past and present directors, officers, employees, and agents (collectively “Seller Indemnitees”) from and against any and all losses, damages, liabilities, demands, claims, actions, judgments, charges, court costs, and legal or other expenses, including, without limitation, reasonable attorneys’ fees (“Liabilities”), which Seller Indemnitees may sustain, incur or become liable for in defending or compromising any suit, action, or other proceeding arising out of, related to, or in any way connected with Buyer’s purchase, sale, or use of the Goods or Services, including, but not limited to, Buyer’s misuse of such Goods or Services, environmental claims resulting from Buyer’s use of the Goods or Services, or any other acts or omissions, wilful misconduct or negligence, whether active or passive, on the part of Buyer; provided, however, Buyer will have no indemnity obligations under this paragraph for any Liabilities caused solely by the wilful misconduct or negligence of a Seller Indemnitee or covered by Seller’s infringement indemnification obligations set forth in these Terms.
12. Privacy Notice
Seller, acting as controller, collects certain personal data regarding Buyer, its employees, and its representatives as required for the purposes described below, including name, title, email address, phone number, and mailing address (“Personal Data”). Such Personal Data will need to be provided in order for Seller to be able to manage Seller’s supply of Goods to Buyer. Seller may share Personal Data with its affiliates around the world. Seller and its affiliates will collect and use Personal Data in accordance with applicable privacy and data protection laws, solely to communicate with Buyer regarding pending and potential supply activities, for customer management purposes and other legitimate business purposes concerning Buyer’s and Seller’s business relationship.
13. Force Majeure
The Seller shall not be held liable for any failure or delay in performance under this contract if such failure or delay results from events or circumstances beyond the Seller’s reasonable control. Such events include, but are not limited to, natural disasters, acts of government or civil authorities, strikes, labor disputes, pandemics, war, terrorism, or any other force majeure event that prevents or delays the Seller’s ability to perform its obligations under this agreement.
14. Assignment
The Buyer is prohibited from assigning or transferring any Quotations or Orders, in whole or in part, without the prior written consent of the Seller. The Seller reserves the right to assign, transfer, or otherwise dispose of its rights, or delegate or subcontract any or all of its obligations under this contract, in whole or in part, to any of its affiliates, successors, or any third party to whom the Seller’s business or assets are transferred. It is further understood that the Seller does not owe any warranty or guarantee to third parties who are not direct parties to this agreement.
15. Dispute Resolution and Governing Law
In the event that a dispute arises out of or in connection with this contract, including any alleged breach of its terms, the parties agree to make a good faith effort to resolve the matter through direct negotiation. If the dispute cannot be resolved by such discussions, the parties shall attempt to resolve the dispute through mediation administered by the American Arbitration Association (AAA) under its Commercial Mediation Procedures, prior to pursuing arbitration. If mediation fails to resolve the dispute, the matter shall be referred to binding arbitration administered by the AAA in accordance with its Commercial Arbitration Rules. The arbitration proceedings will take place in Fayetteville, Georgia, and shall be governed by the laws of the State of Georgia.
The arbitrators shall have the authority to issue a binding award, and the judgment resulting from the arbitration may be entered in any court of competent jurisdiction. However, the arbitrators shall not have the authority to award punitive damages or any other damages that exceed the actual damages suffered by the prevailing party, except as required by applicable statute. Additionally, the arbitrators will not award consequential damages in any arbitration proceeding under this section. The arbitrators may decide on the allocation of arbitration costs and expenses between the parties, but shall not award attorney’s fees. Except where required by law, neither party nor the arbitrators shall disclose the existence, content, or outcome of any arbitration proceeding without the prior written consent of both parties.
16. Language
These Terms are drafted and executed in the English language. In the event that these Terms are translated into any other language for convenience or legal compliance, the English version shall prevail in case of any conflict, to the fullest extent permitted by applicable law.
17. Miscellaneous
Time is of the essence with respect to payment obligations under this agreement. The Buyer acknowledges that its decision to purchase Goods or Services from the Seller has not been influenced by any representations, warranties, or assurances other than those expressly stated within these Terms. These Terms represent the complete and exclusive agreement between the parties and supersede all prior agreements, negotiations, or communications, both written and oral, concerning the subject matter herein. No provision of these Terms may be amended, supplemented, or otherwise altered unless in writing and signed by an authorized representative of the Seller.
Any waiver by either party of a provision in these Terms on a particular occasion shall not be deemed a waiver of that provision on any other occasion or of any other provision. Section headings are for convenience only and shall not affect the interpretation or application of any provision. If any provision of these Terms is determined to be invalid or unenforceable, the parties will promptly agree to substitute a valid provision that reflects the original intent of the invalid provision, and the remainder of these Terms will continue to be in full force and effect.