General Conditions for Use of This Site
Trebor® maintains this Internet site (the “Site”) for your personal information, education, and communication. Please feel free to browse the Site. You may download material displayed on the Site for non-commercial, personal use only provided you also retain all copyright and other proprietary notices contained on the materials. You may not, however, distribute, modify, transmit, reuse, re-post or use the content of the Site for public or commercial purposes, including the text, images, audio and video without Trebor’s written permission.
Your access to and use of the Site is also subject to the following conditions (“General Conditions”) and all applicable laws. By accessing and browsing the Site, you accept, without limitation or qualification, the General Conditions and acknowledge that any other agreements between you and Trebor are superseded and of no force or effect.
1. You should assume that everything you see or read on the Site is copyrighted unless otherwise noted and may not be used except as provided in these General Conditions or in the text on the Site without the written permission of Trebor. Trebor neither warrants nor represents that your use of materials displayed on the Site will not infringe rights of third parties not owned by or affiliated with Trebor.
2. While Trebor uses reasonable efforts to include accurate and up-to-date information in the Site, Trebor makes no warranties or representations as to its accuracy. Trebor assumes no liability or responsibility for any errors or omissions in the content of the Site.
3. Your use of and browsing in the Site are at your risk. Neither Trebor nor any other party involved in creating, producing or delivering the Site is liable for any direct, incidental, consequential, indirect or punitive damages arising out of your access to, or use of, the Site. Without limiting the foregoing, everything on the Site is provided to you “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties. Trebor also assumes no responsibility, and shall not be liable for any damages to your computer equipment or other property on account of your access to, use of, or browsing in the Site or your downloading of any materials, data, text, images, video or audio from the Site.
4. Any communication or material you transmit to the Site by electronic mail or otherwise, including any data, questions, comments, suggestions, or the like is, and will be treated as confidential and proprietary.
5. Images of people or places displayed on the Site are either the property of, or used with permission by, Trebor. The use of these images by you, or anyone else authorized by you, is prohibited unless specifically permitted by these General Conditions or specific permission provided elsewhere on the Site. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.
6. The trademarks, logos and service marks (collectively the “Trademarks”) displayed on the Site are registered and common law including Trademarks of Trebor and others. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark displayed on the Site without the written permission of the Trademark owner. Your misuse of the Trademarks displayed on the Site, or any other content on the Site, except as provided in these General Conditions, is strictly prohibited. You are also advised that Trebor will enforce its intellectual property rights to the fullest extent of the law, including the seeking of legal prosecution.
7. Trebor has not reviewed all the sites linked to the Site and is not responsible for the content of any other sites linked to the Site. Your linking to any other off-site pages or other sites is at your own risk.
8. Although Trebor may from time to time monitor or review Site content, Trebor is under no obligation to do so and assumes no responsibility or liability arising from the content nor for any error, defamation, libel, slander, omission, falsehood, danger or inaccuracy contained in any information within such locations on the Site. You are prohibited from posting or transmitting any unlawful, threatening, libelous, defamatory material or any material that could constitute or encourage conduct that would be considered a criminal offence, give rise to civil liability or otherwise violate any law.
9. Software from this Site may be further subject to United States or any other countries export laws, rules and regulations, as amended from time to time. Check your local laws and regulations accordingly before downloading or exporting any software from this Site.
10. Trebor may at any time revise these General Conditions by updating this posting. You are bound by any such revisions and should therefore periodically visit this page to review the then current General Conditions to which you are bound.
At various points in this Site, you may be requested to submit personal information, including, but not limited to, your name, e-mail address, street address, phone number, employer, and occupational title. The Company does not collect personal information about you unless you specifically and knowingly provide such information — no attempt is made to covertly collect personally identifiable information.
Who collects this information?
Information collected at this site is retrieved directly by Trebor International, 8100 South 1300 West, West Jordan, Utah 84088 USA; telephone (800) 669-1303.
Forms may be used on this Site to collect information from you, which will allow us to carry out a number of directed tasks, including, but not limited to, fulfilling product orders and delivering products, fulfilling literature requests, responding to product inquiries or technical questions, and sending requested e-mail newsletters. Any personal information collected is intended to be used only for delivery or follow-up purposes. In order to effectively respond to and support certain user requests, the Company may share your information with its business channel partners such as sister IDEX business units. You may opt out from being contacted or receiving follow-up mailings at any time (See Choice/Opt-Out below).
Occasionally, the Company may invite you to participate in online surveys. These surveys may ask you for contact information (for example, your e-mail address), industry information, and demographic information (like your zip code or the state in which your business is located). Contact information is used to contact you if and when necessary with respect to the survey unless otherwise specifically indicated by you. You may opt out from being contacted or receiving follow-up mailings at any time (See Choice/Opt-Out below). It is not necessary to participate in surveys to use this Site.
Like most standard web site servers, this Site’s web servers generate log files that store non-personal information about your visit to this Site. The information collected includes, but is not limited to, length of time of visit, pages visited, number of visits, IP address, Internet service provider, referring/exit pages, platform type, and search words entered on a search engine (IP addresses, etc., are not tied to personally identifiable information). Information collected in the log files is used solely for internal use by the Company to analyze trends, administer this Site, track user movements in the aggregate, and gather broad demographic information for aggregate reporting and statistical purposes.
This Site may use “cookies” in order to help manage your user session (A “cookie” is a file stored on your computer that contains information about your use of this Site). Cookies can help us recognize return visitors, to personalize and enrich your online visits with us, and to collect site-visitation statistics. Cookies used by this Site may include, but are not limited to, your preferred language, your geographic region, and a unique session ID code that allows this Site to keep track of your user session and distinguish it from all others currently active. It is not necessary to have cookies enabled in your browser to access and use this Site. However, some of the features of this Site may depend on cookies, and you may not be able to use those features by refusing cookies.
The Company communicates with this Site’s users on a regular basis in order to fulfill product orders, respond to requests for literature and product information, requests to be added to our e-mail newsletter group, or to answer technical questions. The Company typically communicates via e-mail, regular mail or telephone in accordance with the particular user’s wishes.
INFORMATION SHARING AND DISCLOSURE
The Company will not sell, rent, share or distribute any of your personally identifiable information collected on this Site to any third parties, except that the Company may share or distribute your personal and non-personal information to its business channel partners such as sister IDEX business units.
The Company also reserves the right to use your personal and non-personal information for any lawful purpose, including, but not limited to, improving content and generating statistical and aggregate reports for internal use by the Company and its vendors, suppliers, licensees, consultants, advertisers and advisers. These statistics and reports will typically contain only aggregated information. Your personal identity is kept anonymous.
Although the Company intends to preserve user privacy, the Company may need to disclose personal information when required by law, including, but not limited to, whenever the Company in good-faith believes that such action is necessary or appropriate in connection with a court or administrative proceeding or to comply with a court or administrative subpoena, order, or legal process.
The Company takes precautions to protect your information, including secure servers and firewalls. The Company also strives to maintain the reliability, accuracy and completeness of your personal information in its offline databases. However, the Company cannot guarantee that there will be no loss, misuse, unauthorized disclosure, alteration, or destruction of your personal information.
The Company will remove your personal information from our databases or remove you from any mailing lists upon request. All such requests should be sent to: email@example.com.
The Company will correct or update information collected from you upon request. All such requests should be sent to: firstname.lastname@example.org.
CONTACTING THIS SITE
Terms and Conditions of Sale
Trebor Terms and Conditions of Sale (US)
a. Except as may be expressed stated otherwise the final offer, final quote or other final proposal submitted to Buyer by Seller in writing, by fax or by email (“Final Proposal”), these Terms and Conditions shall apply with respect to the supply of all products and components and parts therefore (“Products”) and/or the provision of all services (“Services”) by or through Trebor (“Seller”) to (i) any person or entity to whom these Terms & Conditions are furnished or made available with an offer, quote or proposal submitted by Seller, through Seller’s website, or otherwise and (ii) any person or entity affiliated with any person or entity to whom these Terms & Conditions are furnished or made available (collectively, “Buyer”). The Final Proposal and these Terms and Conditions together shall constitute the full, complete and final agreement and understanding between Buyer and Seller with respect to the supply of Products and/or the provision of Services by or through Seller. These Terms and Conditions together the Final Proposal constitute the “Agreement”, provided, however, that to the extent there is any conflict between these Terms and Conditions and the Final Proposal, the provisions of the Final Proposal shall control over the provisions of these Terms and Conditions. All Products supplied and all Services provided by or through Seller will be deemed to be supplied and provided solely upon and subject to the provisions of the Agreement, unless Buyer and Seller have negotiated and signed a separate formal written agreement for the supply of Products and/or the provision of Services that specifically refers to the Agreement and expressly states that it controls over the Agreement (an “Other Agreement”), in which event, if there should be any conflict between such Other Agreement and the Agreement, the provisions of such Other Agreement will control, but solely with respect to the particular Products supplied and/or the particular Services provided under such Other Agreement. b. Seller objects to and rejects any provisions of any documentation submitted by or on behalf of Buyer, including but not limited to, any request for proposal, statement of work, purchase order, terms and conditions, release or shipping documents (“Buyer Documentation”), that differ from the provisions of the Agreement. No acknowledgement or acceptance by Seller of any Buyer Documentation shall create an Other Agreement or otherwise constitute acceptance of or agreement to any provisions of any Buyer Documentation that differ from the provisions of the Agreement. Seller’s acknowledgment of Buyer Documentation shall merely constitute an acknowledgement of Seller’s receipt of such Buyer Documentation and Seller’s acceptance of Buyer Documentation shall merely constitute an acknowledgement of the particular Products and/or Services ordered by Buyer, the dates requested by Buyer for shipment or delivery of such Products and/or performance of such Services, the instructions of Buyer for shipment of such Products, and/or the price to be paid for such Products and/or Services, in each case, (i) only to the extent consistent with the provisions of the Agreement and (ii) without constituting acceptance of or agreement to any terms or conditions set forth or referenced in such purchase order that differ from the provisions of the Agreement. c. The Agreement may be amended, modified or superseded only in a written instrument signed by Buyer and Seller that specifically refers to the Agreement and expressly states that it amends the Agreement.
2. Orders and Releases.
Once accepted by Seller, an order or release from Buyer for Products or Services may be suspended, delayed or cancelled by Buyer only with the written approval of Seller. Seller may impose cancellation and other charges in connection with the suspension, delay or cancellation of an order or release for Products and Services, and, in addition to any other rights and remedies, may require that Buyer (i) purchase from Seller any and all completed custom or non-standard Products produced for such order or release, and any quantities of other completed Products produced for such order or release that exceed the quantities of such other Products that can be readily sold by Seller to third parties, and (ii) reimburse Seller for its inventory cost of any and all work-in-process, materials, components or parts for such order or release that cannot be readily used or reworked for other products that can be readily sold by Seller to third parties, any reworking costs related to reworking work-in-process, materials, components or parts for such order or release, and any cancellation and other charges payable to suppliers of materials, components or parts for such order or release.
3. Price and Surcharges.
The prices and surcharges for Products and Services shall be the relevant prices and surcharges set forth in or determined in accordance with the Final Proposal. All prices are Free on Board (FOB) or Ex Works (EXW) Seller’s facility, and all prices and surcharges are in United States Dollars (US$). All prices are net prices to Seller and do not include any freight, shipping, special packaging or handling, insurance, or taxes, levies, duties, tariffs, customs or other fees or charges of any nature imposed by any governmental authority, other than United States income taxes of Seller, all of which (including any related withholding) will be the sole responsibility or and be required to be paid by Buyer. In the event Seller pays any freight, shipping, special packaging or handling, insurance, or taxes, levies, duties, tariffs, customs or other fees or charges that are the responsibility of Buyer, Seller may invoice Buyer therefor. Buyer’s refusal or inability to accept or take delivery of Products shall not excuse Buyer from making payment for Products.
4. Payment Terms.
Seller may invoice Buyer for Products upon shipment, and Seller may invoice Buyer for Services upon performance; provided, however, that (i) if Buyer requests a delay in shipment of Products, Seller may invoice Buyer for such Products prior to shipment, and (ii) if Buyer requests a delay in performance of Services, Seller may invoice Buyer for or such Services prior to performance. All payments must be made to Seller in United States Dollars (US$). If payment terms are stated in a Final Proposal, the payment terms for Products and Services shall be the payment terms stated in the Final Proposal. If payment terms are not stated in a Final Proposal, the payment terms for Products and Services shall be net thirty (30) days after date of invoice. Whether or not payment terms are stated in a final Proposal, Seller reserves the right, in its sole discretion, to require payment for Products in advance of production, in advance of shipment (e.g., C.I.A.), or upon delivery (e.g., C.O.D.) and to require payment for Services in advance of performance, if and whenever the account of Buyer or any of its affiliated entities with Seller or any of its affiliated entities is not current or Seller feels insecure concerning its receipt of payment. Payments by wire transfer shall be made in accordance with the wire transfer instructions set forth in Seller’s invoice. Payments by check shall be sent to the payment location specified in Seller’s invoice and otherwise be made in accordance with the payment instructions set forth in Seller’s invoice. Each shipment of Products shall be considered a separate and independent transaction for which Buyer must make payment. If any amount payable to Seller by Buyer is not paid when due, Seller shall be entitled to recover from Buyer all attorneys fees and other costs and expenses it may incur in seeking to collect such past due amount and shall have the right to impose on Buyer a late charge on the past due amount from the date due until paid at the rate of 2% per month or, if less, the highest rate permitted by law. Seller may pursue a collection action against Buyer in any court of competent jurisdiction to collect any past due amount.
5. Security for Payment.
To secure the due and punctual payment of the price for Products and Services and other amounts payable to Seller by Buyer, Seller shall have and retain, and Buyer grants to Seller, a first lien and security interest in all Products, in all Other Products (as defined in Paragraph 9 (Other Products) below), and in all proceeds in respect of Products and Other Products. If the price for any Products or Services or any other amount payable to Seller by Buyer is not paid when due, Seller shall have and may exercise any and all rights and remedies of a secured party under Applicable Law and any and all other rights and remedies it may have by contract, at law or in equity. In addition to the rights and remedies it may have under Applicable Law or otherwise have by contract, at law or in equity, Seller shall have the right to withhold shipment of Products, to recall and retake Products, to repossess Products, to take possession of Other Products, and to direct Buyer’s customers to make payment directly to Seller for Products and Other Products, all without notice to Buyer and without initiating any legal proceedings. Seller shall have the right to execute such documents, make such filings and take such other actions in its own name and/or in the name of Buyer and to require Buyer to make such filings, execute such documents and take such other actions, as Seller may deem necessary or appropriate from time to time to evidence and confirm its first lien and security interest and exercise its rights and remedies as a secured party.
6. Shipment, Delivery and Performance.
Seller will ship Products to the address and endeavor to use the carrier specified by Buyer in the relevant Buyer Documentation. If the relevant Buyer Documentation specifies “common carrier” or no carrier is specified, the Products will be shipped via such means as Seller selects in its sole discretion. All quoted, proposed, agreed and scheduled shipment, delivery and performance dates are merely estimates, and Seller shall have no liability or responsibility for any penalties or damages in connection with late shipment or delivery of Products or late performance of Services. Shipments and deliveries of Products and performance of Services may be made in installments in Seller’s sole discretion. Title and all risk of loss or damage to each Product shall pass to Buyer upon deposit of such Product with the carrier for shipment, and Seller shall have no liability or responsibility for any loss or damage to a Product after such Product is deposited with the carrier for shipment. If Buyer requests a delay in shipment of Products, Seller may impose storage and handling charges in connection with the delay. Any claim that the wrong Product or the wrong quantity of Product was shipped must be asserted within 30 days of the date of shipment, and, unless written notice of a wrong Product or a wrong quantity of Product is received by Seller within 30 days after the date of shipment, Buyer shall be barred from asserting any claim for wrong Product or wrong quantity of Product in connection with a shipment.
To the extent that any Product or Service includes software in any form, including firmware (“Software”), such software is not sold to Buyer or its customers, but is only licensed on a limited, non-exclusive basis in the form delivered by Seller for use by Buyer and its customers with such Products or Services. In the case of Software, all references in these Terms and Conditions or any offer, quote or other proposal to “sell,” “purchase” or the like will be deemed to mean a license to use such Software as provided in this Paragraph 7. Buyer shall not, and Buyer shall take reasonable measures to ensure that its customers do not, duplicate, distribute, modify, reverse-engineer or derive the source code for any Software, remove any copyright or other notices from any Software, or use any Software in any way except as authorized by Seller.
8. Prototypes, Drawings, Etc.
As between Buyer and its customers, Seller and/or Trebor shall own and retain all right, title and interest in and to all prototypes, drawings, schematics, designs, specifications, samples, molds and other tooling, and technical documentation that may be prepared, created or provided wholly or partially by Seller and/or Trebor in connection with any Products or Services (“Prototypes, Drawings, Etc.”), notwithstanding any suggestion or other contribution that Buyer or any of its customers may make relative to improvements in, or changes with respect to, such Prototypes, Drawings, Etc. Prototypes, Drawings, Etc, may be used only for Products supplied by Seller and/or Trebor and Services provided by Seller and/or Trebor and only as authorized by Seller and/or Trebor, and Buyer shall not, and Buyer shall take reasonable measures to ensure that its customers do not, attempt to use Prototypes, Drawings, Etc. other than for Products supplied by Seller and/or Trebor and Services provided by Seller and/or Trebor or in any other manner attempt to misuse or misappropriate any Prototypes, Drawings, Etc.
9. Other Products.
In the event that any Product is incorporated or installed in, or combined with, another product, component or part (“Other Product”): (i) Seller shall have no risk, liability, obligation or responsibility of any kind with respect to such Other Product, and (ii) Buyer shall be solely liable, obligated and responsible for all Other Products in which it may incorporate or install, have a third party incorporate or install, or authorize a third party to incorporate or install any Products and/or with which it may combine, have a third party combine, or authorize a third party to combine any Products.
10. Limited Warranty – Products
a. Seller warrants to Buyer that (i) each Product will be free of defects in workmanship and material, and (ii) if the Final Proposal states that a Product is to conform to specified drawings or be made of specified materials, such Product will conform within any specified or customary tolerances to the specified drawings and be made of the specified materials. b. In the event of a breach of the warranty set forth in subparagraph a above, Buyer must notify Seller thereof within the warranty period for such Product. Unless Buyer notifies Seller of a breach of the warranty set forth in subparagraph a above within the warranty period for a Product, Seller shall have no liability or obligation with respect to a breach of the warranty set forth in subparagraph a above.c. If a warranty period is stated in a Final Proposal, the warranty period for a Product shall be the warranty period stated in the Final Proposal. If a warranty period is not stated in a Final Proposal, the warranty period for a Product shall be as follows:
|Optical Filters||5 years|
|Medical Products||30 days|
|All other Products||12 months|
The warranty period for all Products commences on the date the Product is deposited by Seller with the carrier for shipment. d. Buyer’s sole and exclusive right and remedy, and Seller’s sole and exclusive liability and obligation, for a breach of the warranty set forth in subparagraph a above shall be that Seller will either repair or replace the relevant Product or refund or credit to Buyer the price Buyer paid therefor. Seller reserves the right to use reconditioned parts for warranty repairs and to use reconditioned Products for warranty replacements. The decision whether to repair, replace, refund or credit or to use reconditioned parts or Products shall be made by Seller in its sole discretion. Repaired Product and replacement Product shall be warranted only for the remainder of the original warranty period. e. Seller shall have the right to require that a Product that is the subject of a warranty claim be returned to Seller for inspection and evaluation. In returning Products, Buyer shall comply with Seller’s Return Goods Policy (See Paragraph 15 (Returns) below). f. The warranty set forth in subparagraph a above will not apply, and Buyer shall have no right or remedy and Seller shall have no liability or obligation under the warranty set forth in subparagraph a above, if: (i) a Product is altered, changed, modified or tampered with in any way, other than an alteration, change or modification made by or with the authorization of Seller, (ii) a Product is damaged after deposit with the carrier for shipment, (iii) a Product is not used and maintained in accordance with Seller’s recommended operating and maintenance manuals, instructions and procedures, if any, (iv) a Product is not properly incorporated or installed in, or not properly combined with, an Other Product, (v) the failure or substandard performance of a Product is directly or indirectly attributable to, or directly or indirectly results from or arises out of, the failure or substandard performance of another product, component or part not supplied by Seller, (vi) the failure or substandard performance of a Product is directly or indirectly attributable to, or directly or indirectly results from or arises out of, compliance with any design, specification or requirement of Buyer, (vii) a Product is used in a manner, with a substance or for a purpose other than the normal manner, substance and purpose for which it is intended or is otherwise subjected to abnormal use or service, (viii) a Product is subjected to a power surge, brown out or other similar occurrence, or (ix) the failure or substandard performance of a Product is directly or indirectly attributable to, or directly or indirectly results from or arises out of, normal wear and tear of the Product (including, without limitation, things such as worn seals, clogged passages or values, damage due to corrosive or insoluble substances, breakage of syringe needles, etc., if applicable).
11. Limited Warranty – Services
a. Seller warrants to Buyer that Services will be performed by qualified personnel in a workmanlike and professional manner. b. In the event of a breach of the warranty set forth in subparagraph a above, Buyer must notify Seller thereof within a period of 30 days after the relevant Services are performed. Unless Buyer notifies Seller of a breach of the warranty set forth in subparagraph a above within the period set forth in this subparagraph b, Seller shall have no liability or obligation with respect to such breach. c. Buyer’s sole and exclusive right and remedy, and Seller’s sole and exclusive liability and obligation, for a breach of the warranty set forth in subparagraph a above shall be that Seller will either reperform the relevant Services to the extent not properly performed or refund or credit to Buyer the price Buyer paid therefor. The decision whether to reperform, refund or credit shall be made by Seller in its sole discretion. Any reperformed Services shall be warranted as set forth above. d. The warranty set forth in subparagraph a above will not apply, and Buyer shall have no right or remedy and Seller shall have no liability or obligation under the warranty set forth in subparagraph a above, if a failure to properly perform Services is directly or indirectly attributable to, or directly or indirectly results from or arises out of (i) compliance with any directions, instructions or requirements of Buyer, or (ii) any action, inaction, error or omission of Buyer or any other person or entity other than Seller and its employees and agents.
12. Disclaimers and Limitations
a. THE WARRANTIES, RIGHTS AND REMEDIES SET FORTH IN PARAGRAPHS 10 (LIMITED WARRANTY – PRODUCTS) AND 11 (LIMITED WARRANTY – SERVICES) ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES, RIGHTS AND REMEDIES PROVIDED TO BUYER WITH RESPECT TO PRODUCTS AND SERVICES AND ARE IN LIEU OF ALL OTHER WARRANTIES, RIGHTS AND REMEDIES, EXPRESS, STATUTORY OR IMPLIED, AND SELLER DISCLAIMS ALL OTHER WARRANTIES, RIGHTS AND REMEDIES, EXPRESS, STATUTORY OR IMPLIED, IN RELATION TO ANY PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, COMPATIBILITY OR INTEROPERABILITY WITH OTHER PRODUCTS, ACCURACY, PERFORMANCE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE. EXCEPT FOR THE LIABILITIES AND OBLIGATIONS IMPOSED ON SELLER UNDER PARAGRAPHS 10 (LIMITED WARRANTY – PRODUCTS) AND 11 (LIMITED WARRANTY – SERVICES) ABOVE, NEITHER SELLER NOR ANY OTHER TREBOR COMPANY SHALL HAVE ANY LIABILITY OR OBLIGATION TO BUYER IN CONNECTION WITH THE FAILURE, IMPROPER PERFORMANCE, MALFUNCTION, INACCURACY OR NON-CONFORMANCE OF, OR ANY DEFECT OR DEFICIENCY IN, ANY PRODUCT OR SERVICE. b. Seller does not make, agree to or undertake, and does not authorize Buyer or any other person or entity to make, agree to or undertake in the name or on behalf of Seller and/or another Trebor, any warranty, liability, obligation, right or remedy with respect to any Product or Service other than the express warranties, liabilities, obligations, rights and remedies set forth in Paragraphs 10 (Limited Warranty – Products) and 11 (Limited Warranty – Services) above. c. Statements and data relating to Products and Services on website and in promotional, marketing and technical literature and materials of Seller and/or another Trebor are not warranties. Statements and data that Seller and/or another Trebor may provide concerning performance of Products are not intended to define the performance of any Product under actual conditions or for specific uses and applications, and should not be relied upon by Buyer and its customers in determining the suitability of Products for specific uses and applications. Neither Seller nor any other Trebor warrants the suitability of any Product for any specific use or application, and neither Seller nor any other Trebor shall have any liability or obligation if a Product is used for an application for which it is not suited. Buyer and its customers will have the sole responsibility for determining the suitability of Products for specific uses and applications. Without in any way limiting the forgoing, Buyer and its customers assume all risks associated with the use of Products and Other Products for applications that carry the risk of death, personal injury, illness, damage to property or environmental harm, including, but not limited to, medical applications and applications involving hazardous, corrosive, or radioactive substances or systems or processes involving such substances (“High Risk Applications”). d. The warranties, rights and remedies set forth in Paragraphs 10 (Limited Warranty – Products) and 11 (Limited Warranty – Services) above extend solely to Buyer and to no other person or entity, including, without limitation, any customer of Buyer. e. Under no circumstances shall Seller, another Trebor, and/or any director, officer, partner, manager, employee, attorney, agent or representative of Seller and/or another Trebor be liable for any penalties or any indirect, consequential, incidental, special, punitive or reliance damages, including, without limitation, lost or unrealized sales, revenues, profits, income, cost savings or business, lost or unrealized contracts, loss of goodwill, damage to reputation, loss of property, loss of material being processed, loss of information or data, loss of production, downtime, or increased costs, in connection with any Product or Service or otherwise in connection with the Agreement or any Other Agreement, even if Seller and/or another Trebor is advised or placed on notice of the possibility of such damages and notwithstanding the failure of any essential purpose of any Product or Service. f. In no event shall the total liability of Seller and the other Trebor in connection with any particular Product or Service collectively exceed the amount paid to Seller for such particular Product or Service.
13. Intellectual Property Rights.
As between Buyer and its customers, on the one hand, and Seller and the other Trebor shall own and retain all right, title and interest in and to all ideas, concepts, inventions, patents, copyrights, trademarks, trade secrets and other intellectual property and proprietary rights in connection with the Products and Services (“Intellectual Property”), notwithstanding any suggestion or other contribution that Buyer or any of its customers may make relative to improvements in, or changes with respect to, the Products or Services. Intellectual Property may be used only as authorized by Seller and/or Trebor, and Buyer shall not, and Buyer shall take reasonable measures to ensure that its customers do not, attempt to duplicate or reverse-engineer the Products or in any other manner attempt to misuse or misappropriate any Intellectual Property.
Products may contain one or more trademarks of Seller and/or another Trebor (“Trademarks”). Buyer shall a non-exclusive, revocable license to use Trademarks in referring to Products in manuals, instructions, procedures and other related documents and materials and in promotional and marketing documents and materials pertaining to such Products and/or to Other Products in which such Products are incorporated or installed, or with which such Products are combined; provided, however, that Buyer shall (i) not alter or modify any Trademark, (ii) affix the appropriate trademark symbol (™ or ®) to the most prominent usage of each Trademark in all documents and materials, (iii) attribute ownership of each Trademark to Seller and/or Trebor as directed by Seller in all documents and materials, (iv) notify Seller in advance of each proposed use of a Trademark, and (v) if requested by Seller, allow Seller to review and approve in advance each proposed specific use of a Trademark. As between Buyer and its customers, on the one hand, and Seller and Trebor, on the other hand, all use of Trademarks shall insure solely to the benefit of Seller and/or Trebor. Buyer and its customers shall use Trademarks only as authorized by Seller and/or Trebor, and Buyer shall not, and Buyer shall take reasonable measures to ensure that its customers do not, do any thing or take any action that could reduce, diminish or impair the right, title and interest of Seller or Trebor in and to any Trademark.
Seller may from time to time, in its sole discretion, authorize or require that Products be returned to it. All such returns shall be subject to such conditions as Seller may specify. All such returns shall be subject to and must be in compliance with Seller’s Return Goods Policy as in effect at the time of the return. Among other conditions for return of Products for any reason, Seller may require that (i) a Return Goods Authorization (RGA) be obtained from Seller prior to the return, (ii) Buyer or its customer pay all freight and shipping in connection with the return, (iii) Buyer or its customer bear all risk of loss or damage during shipment, (iv) no Product be returned unless and until it has been flushed clean of chemicals, solvents and buffers, (v) no Product be returned if such Product or any Other Product in which it is incorporated or installed or with which it is combined has been used in connection with any hazardous, corrosive or radioactive substances, and (vi) Buyer and/or its customer certify compliance with the requirements of clauses (iv) and (v) above. Among other conditions for the return of Products for credit, Seller may require that (i) the returned Products be products that Seller currently offers for sale as a standard Product, be in new, unused and undamaged condition, be returned in the original packaging, and be returned in a complete condition with all accessories, manuals and other documentation, and (ii) Buyer pay a restocking charge. Custom and non-standard Products may not be returned for credit.
16. Employees, Agents, Etc.
No employee, agent, distributor or representative of Seller or Trebor has the right or power to modify or expand any of the warranties, liabilities, obligations, rights or remedies set forth in Paragraphs 10 (Limited Warranty – Products) and 11 (Limited Warranty – Services) above or to make or enter into any other warranty, representation, agreement or commitment in the name or on behalf of Seller and/or Trebor with respect to any Products or Services, beyond or in addition to the express warranties, representations, agreements and commitments set forth in the Agreement. Any such modification, expansion, warranty, representation, agreement or warranty, if made, should not be relied upon by Buyer or its customers and shall not be binding upon or enforceable against Seller or Trebor.
17. Relationship of the Parties.
Buyer and Seller shall be independent contractors with respect to all Products and Services, and nothing contained in the Agreement is intended to or shall be deemed to create any partnership, joint venture, principal agent, employer-employee or other similar arrangement or relationship between Buyer and Seller. Neither Buyer nor Seller shall be responsible for any act or omission of the other party, and neither Buyer nor Seller shall have any power or authority to speak for, represent or obligate the other party in any way.
No failure to exercise and no delay in exercising any right, remedy, or power under or in respect of the Agreement shall operate as a waiver thereof, and no single or partial exercise of any right, remedy or power under or in respect of the Agreement shall limit or preclude any other or further exercise thereof or the exercise of any other right, remedy, or power under or in respect of the Agreement.
19. Applicable Law
a. The Agreement shall be governed by and construed in accordance with laws of the United States and the State of Delaware, including the Delaware Uniform Commercial Code (“Applicable Law”), and the rights, liabilities and obligations of the parties thereunder and in connection therewith shall be determined under Applicable Law. b. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Buyer shall be solely responsible for obtaining all approvals, authorizations licenses and permits, complying with all laws, rules and regulations, and making all arrangements related to the export of Products from the country in which Seller’s facility is located and/or the import of Products into another country. If and to the extent Products and related technical information, data, documents and materials are subject to export controls under U.S. Export Administration Regulations and U.S. Department of the Treasury embargo regulations, Buyer shall strictly comply with all such export controls, shall fully cooperate with Seller and Trebor in any official or unofficial investigation, audit or inspection that relates to any of such controls, and shall not export, re-export, divert or transfer, directly or indirectly, any Products or related technical information, data, documents or materials to any party on any U.S. denied party list or destination subject to an embargo or for any use that is otherwise prohibited pursuant to such controls, unless and until Buyer obtains any and all required U.S. governmental and regulatory approvals, authorizations, licenses and permits. If requested by Buyer, Seller shall provide Buyer with the following information relating to Products: (i) the appropriate ECCN numbers appearing in the Export Administration Regulations administered by the U.S. Department of Commerce, and (ii) the appropriate commodity numbers appearing in the current edition of the Bureau of the Census publication, Schedule B, Statistical Classification of Domestic and Foreign Commodities Exported from the United States (Schedule B numbers).
21. Indemnity by Buyer.
Buyer shall defend, indemnify, and hold Seller and/or Trebor harmless from and against any and all liability, judgment, loss, damages, costs, and expenses (including but not limited to attorneys’ and experts’ fees) which any of them may hereafter suffer or pay out to a third party by reason of any claim, action, or right of action of a third party, at law or in equity, to the extent that any such claim, action, or right of action arises out of or relates to (i) Buyer’s breach of Paragraph 13 (Intellectual Property Rights), 14 (Trademarks) or 20 (Export) above, (ii) Other Products, (iii) High Risk Applications, or (iv) compliance with any design, specification or requirement of Buyer.
22. Patent Infringement
Buyer and each of its customers shall permit Seller and/or Trebor Companies to take any or all of the following actions, at their option, in connection with any Product that is claimed to infringe or misappropriate any patent, copyright, trade secret or other proprietary right: a. Direct and control the defense and settlement of such claim of infringement or misappropriation and select and retain the legal counsel who shall represent Buyer and/or its customer in connection therewith; provided, however, that, in the event Seller or Trebor elects to direct and control the defense of such claim of infringement or misappropriation, Seller or Trebor shall (i) pay the fees and expenses of any such legal counsel that it selects and retains to represent Buyer and/or its customer and any local counsel and experts retained by such legal counsel, and (ii) indemnify and hold harmless Buyer and its customer from and against any and all judgments and settlements based upon such claim of infringement or misappropriation, unless and except to the extent such judgment or settlement is based upon or arises out of (A) compliance with any design, specification or requirement of Buyer or any of its customers, (B) any alteration, change or modification to such Product, other than an alteration, change or modification made by or with the written authorization of Seller, (C) the use of such Product with another product, component or part not supplied by Seller or Trebor, or (D) use of such Product is a manner, with a substance or for a purpose other than the normal manner, substance and purpose for which it is intended. b. Replace such Product with another product that is non-infringing and non-misappropriating or modify such Product to make it non-infringing or non-misappropriating; or c. Require Buyer and/or its customer to cease using such Product, provided that Seller refunds to Buyer the price paid to Seller by Buyer for such Product (less a reasonable allowance for the period of use).
23. Interim Relief.
Seller shall have the right to seek and obtain from any court of competent jurisdiction a temporary restraining order and/or preliminary injunction to enjoin Buyer from violating or breaching Paragraph 7 (Software), 13 (Intellectual Property Rights), 14 (Trademarks) or 20 (Export) above.
24. Force Majeure.
Seller shall have no liability for any failure to perform, or for any delay in performance, to the extent caused by circumstances beyond its reasonable control, including but not limited to, the elements, acts of God, acts of nature, acts of Buyer or third parties, floods, fire, energy shortages or interruptions, communication delays and interruptions, earthquakes, explosions, war or military mobilization, armed hostilities, riots, terrorism, governmental action or inaction, request of governmental authority, shortages of, delays in obtaining, or inability to obtain materials, components or parts, transportation shortages, delays and interruptions, interruption in electricity or other utilities, epidemic or widespread illness or disease, and strikes, lockouts, labor disturbances or other differences with workers.
If any provision of the Agreement is held to be illegal, invalid, void or in any way unenforceable, such provision will be limited or eliminated to the extent, and only to the extent necessary, for the Agreement to otherwise remain in full force and effect, legal, valid and enforceable.
Neither the Agreement nor any right, liability or obligation under or in respect of the Agreement may be assigned by Buyer or Seller, whether voluntarily, by operation of law or otherwise, without the other party’s written consent, and any such assignment that is attempted without such consent shall be null and void; provided, however, that no such consent shall be required for (i) any assignment by Buyer or Seller to a successor to all or substantially all of the business and assets of such party or (ii) any assignment by Seller to Trebor.
27. Parties Bound.
The Agreement shall be binding upon and enforceable against, and insure to the benefit of and be enforceable by, Buyer and Seller and, subject to Paragraph 26 (Assignment) above, their respective successors and assigns.
The liabilities and obligations of Trebor are several and not joint, and Trebor shall have any liability or obligation with respect to any act, omission, breach, default or non-performance of any other IDEX Corporation Company. Only the specific IDEX Corporation Company that is Seller shall have any liability or obligation in connection with any Agreement or any Products supplied or Services provided by or through such IDEX Corporation Company.
Trebor (effective Jan 1 2009)