TREW TERMS AND CONDITIONS OF SALE
1. Applicability.
(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Trew, LLC or its subsidiaries (“Trew”) to the company listed under the “Bill To” section (the “Customer”) on the quotation referencing these Terms, and if no quotation exists, the sales order, sales confirmation, order acknowledgement or other document issued by Trew with respect to the Goods (as applicable, the “Quote”).
(b) The Quote and these Terms (collectively, the “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Customer’s terms and conditions are expressly rejected by Trew and are void in all respects, and fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
2. Delivery.
(a) The Goods will be delivered within the then-current delivery/lead times in effect at the time of Trew’s acceptance of Customer’s purchase order, subject to availability of Goods. Trew shall not be liable for any delays, loss or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Trew shall deliver the Goods to Customer (the “Delivery Point”) using Trew’s standard methods for packaging and shipping such Goods. Customer shall take delivery of the Goods promptly upon delivered to the Delivery Point. Customer shall be responsible for all unloading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
(c) Trew may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s purchase order.
(d) If for any reason Customer fails to accept delivery of any of the Goods on the delivery date, or if Trew or the carrier is unable to deliver the Goods at the Delivery Point on such date because of the acts or omissions of Customer, Trew, at its option, may store or cause the storage of the Goods until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. Shipping Terms. Delivery is F.O.B. origin, freight prepaid and added.
4. Title and Risk of Loss. Title and risk of loss passes to Customer upon tender of the Goods to the carrier. As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Trew a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Ohio Uniform Commercial Code.
5. Inspection and Rejection of Nonconforming Goods.
(a) Customer shall inspect the Goods within 24 hours of receipt (“Inspection Period”). Customer will be deemed to have accepted the Goods unless it notifies Trew in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Trew. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Customer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Customer timely notifies Trew of any Nonconforming Goods, Trew shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the purchase price for such Nonconforming Goods. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to Trew’s facility located at 10045 International Blvd, West Chester, Ohio 45246. If Trew exercises its option to replace Nonconforming Goods, Trew shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Customer acknowledges and agrees that the remedies set forth in Section 5(b) are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 5(b) and Section 8(d), all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under the Agreement to Trew.
6. Price.
(a) Customer shall purchase the Goods from Trew at the prices (the “Prices”) set forth in Trew’s Quote. If the Prices are increased by Trew, or if Trew’s suppliers increase the amounts charged to Trew and such increases relate to the Goods, in each case before delivery by Trew of the Goods to a carrier for shipment to Customer, then Trew may give notice to Customer of the existence of such increases and the new Prices proposed to be charged by Trew. If Trew gives Customer such notice, Customer shall elect to either accept such Prices or cancel the order for the Goods subject to the increase in Prices without penalty. If cancelled, Trew and Customer will have no further liability to each other with respect to such cancelled Goods. After providing Customer with notice of a Price increase, Trew will suspend all performance and delivery with respect to the affected Goods until Customer accepts the Price increase or cancels the order of the affected Goods. Any order not accepted or cancelled within ten (10) business days after notice from Trew of an increase in Prices will automatically be deemed cancelled by Customer. Customer’s cancellation right under this Section 6(a) shall only apply to the Goods that are subject to the Price increase.
(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes. Prices do not include freight, permits, duty, import/export costs or taxes (including, but not limited to, all tariffs imposed on products being imported or exported into the country where the Goods will be shipped). Trew reserves the right to adjust the Prices based on corresponding fluctuations in steel, commodity, or product pricing experienced directly by Trew or indirectly through its suppliers, whether due to increases in commodity costs, tariffs, or otherwise.
7. Payment Terms. All invoices are due within thirty (30) days after the date of invoice. Invoices that are not timely paid shall bear interest equal to the lesser of 1.5% per month or the maximum rate allowed by law. All payments shall be made without setoff. Trew may suspend performance under any agreement with Customer for any payment not made within thirty (30) days after the date of invoice.
8. Limited Warranty.
(a) Trew warrants that the Goods, as delivered by Trew, will: (i) at the time of tender to the carrier by Trew, substantially conform to description in the Quote and be free from all third-party liens and encumbrances; and (ii) be free from defects in material and workmanship for two (2) years after the time of tender to the carrier by Trew (the “Warranty Period”).
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8(A), TREW MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) Products manufactured by a third party (“Buyout Items”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Buyout Items are not covered by the warranty in Section 8(a). For the avoidance of doubt, TREW MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY BUYOUT ITEMS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(d) Trew shall not be liable for a breach of the warranty set forth in Section 8(a) unless: (i) Customer gives written notice of the defect, reasonably described, and proof of purchase (e.g., the PO number) to Trew within five (5) business days after the time when Customer discovers or ought to have discovered the defect; (ii) Trew is given a reasonable opportunity after receiving the notice to examine such Goods and Customer (if requested to do so by Trew) returns such Goods to Trew; and (iii) Trew reasonably verifies Customer’s claim that the Goods are defective. Customer must obtain Trew’s prior approval and a return material authorization number (RMA) prior to returning or modifying the Goods.
(e) The warranty offered in Section 8(a) shall not apply to any Goods which have been: (i) damaged by any cause beyond ordinary use, including but not limited to, electrical surge or failure, worksite conditions, misuse or neglect, accident, environmental influences (including, but not limited to, dust, dirt, water, high humidity, temperature, chemicals, caustic, explosion or sudden impact), third party interference, replacements or modifications without Trew’s prior approval, or other connected systems not provided by Trew; (ii) not operated or managed in accordance with (A) maintenance, preventative maintenance, operating, or other product or system instructions; (B) widely accepted industry applications or usages; or (C) governmental or industry recognized safety standards; (iii) repaired or modified by anyone other than Trew in a way that adversely affects operation or reliability; (iv) deactivated, stored, not used, used irregularly, or discontinued in use; (v) inadequately or improperly used or applied (subsections (i)-(v) referred to as “Intervening Causes”); or (vi) ordinary wear and tear.
(f) Subject to Section 8(d) and Section 8(e) above, with respect to any such warranted Goods during the Warranty Period, Trew shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata purchase price provided that, if Trew so requests, Customer shall, at Trew’s expense, return such Goods to Trew. If Customer submits a warranty claim that is ultimately determined by Trew to not be covered by the warranties offered in this Section 8 (e.g., parts failure due to lack of Customer maintenance), all parts, labor and other costs and expenses incurred by Trew in responding to and identifying the issue will be Customer’s sole responsibility and payable Net 30 after invoice.
(g) THE REMEDIES SET FORTH IN SECTION 8(f) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND TREW’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(A).
9. Limitation of Liability. IN NO EVENT SHALL TREW’S AGGREGATE LIABILITY UNDER THE AGREEMENT EXCEED THE TOTAL OF THE AMOUNTS PAID TO TREW FOR THE GOODS SOLD THEREUNDER. TREW SHALL NOT BE LIABLE FOR CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES OR LOST EFFICIENCIES), INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES, WHETHER ARISING IN TORT, AGREEMENT, STATUTE OR OTHERWISE, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
10. Compliance with Law. Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Agreement. Customer shall comply with all export and import laws of all countries involved in the sale of the Goods under the Agreement or any resale of the Goods by Customer. Customer assumes all responsibility for shipments of Goods requiring any government import clearance.
11. Termination. In addition to any remedies that may be provided under these Terms, Trew may terminate the Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under the Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
12. Confidential Information. All non-public, confidential or proprietary information of Trew, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Trew to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Agreement is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized in advance by Trew in writing. Upon Trew’s request, Customer shall promptly return all documents and other materials received from Trew. Trew shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
13. Force Majeure. Trew shall not be responsible for delay or failure to perform its obligations due to causes beyond its reasonable control, including, but not limited to, fire, flood, war, riot, freight embargoes, transportation delays, acts of civil or military authority, acts of God, epidemic, pandemic, judicial or governmental action, unavailability or shortages of materials or equipment or workforce, failures or delays in delivery of vendors and suppliers, or labor disputes. Trew will not be liable to Customer for (i) Customer’s failure to comply with applicable law or regulations, or failure to use best efforts to mitigate its damages in all circumstances, or (ii) any delay or failure in providing any of the Goods due to any increase in Trew’s cost of production beyond Trew’s control, including, but not limited to, costs of energy, equipment, raw material (e.g., steel, aluminum or copper), labor, or component parts. In response to any of the foregoing, Trew may, in its sole discretion, cancel or delay any order for the Goods, or modify Prices therefor.
14. Miscellaneous. (a) If any provision of the Agreement is adjudicated to be invalid, illegal, or unenforceable, all other provisions of the Agreement shall remain in full force and effect; (b) the Agreement shall be interpreted, construed and governed in accordance with the laws of the State of Ohio without regard to conflicts of laws principles and Trew and Customer irrevocably and unconditionally consent and submit to the exclusive jurisdiction and venue in the state and federal courts located in Ohio, and waive their right to jury trial; (c) the parties are independent contractors of one another and no agency, partnership, or joint venture is created by the Agreement; (d) any failure to insist upon strict compliance with the Agreement terms shall not operate as a waiver of, or estoppel with respect to, any other failure; (e) the Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing signed on behalf of Trew and Customer; (f) Customer may not assign the Agreement or any of its rights or obligations thereunder without the prior written consent of Trew; (g) the Agreement will be binding upon, inure to the benefit of, and be enforceable by the successors and assigns of the parties; (h) if Trew commences litigation against Customer for non-payment of any amounts due under the Agreement and is the prevailing party in such litigation, Customer shall reimburse Trew for all costs related thereto including reasonable attorneys’ fees; (i) all notices or other communications required to be given by Customer under the Agreement shall be in writing and shall be deemed to have been duly given when delivered in person, or sent by overnight delivery via a national courier service, to the address where the party being notified normally carries on business or as otherwise provided by a party. All notices to Trew will be to Chief Executive Officer, with a copy to its Chief Legal Officer; (j) all notices or other communications given by Trew under the Agreement may be in writing or via e-mail and shall be deemed to have been duly given when delivered in person, sent via e-mail, or sent by overnight delivery via a national courier service; and (k) the Agreement is intended to benefit Trew and Customer – there are no third-party beneficiaries, including, but not limited to, employees, creditors, end users, customers or suppliers.
Rev 5.23.25
