Version 7/1/2020 (effective date)
TRELLEBORG SEALING SOLUTIONS US, INC.
Terms and Conditions
(Incorporating Terms of Use, Master Commercial Terms and Privacy Notice)
I. Terms and Conditions.
1. Please take time to review the Trelleborg Sealing Solutions US, Inc. Terms and Conditions (“Terms and Conditions”).
2. Introduction. The Terms and Conditions are between you and Trelleborg Sealing Solutions US, Inc. (collectively, “Trelleborg,” “we,” “us,” “our”). “You” means you individually. If you are acting for an entity, “you” means you individually and the entity on whose behalf you are acting. In the event you are acting for an entity, you represent and warrant that you are authorized to so act for such entity. The term “Site” means fluidpowersealsshop.com. The term “Site” also means any site or application identified in the Terms of Use as within the definition of “Site.”
3. Overview of the Terms and Conditions. The Terms and Conditions consist of, and incorporates, the following three components:
a. Trelleborg Sealing Solutions US, Inc. Website Terms of Use (“Terms of Use”);
b. Trelleborg Sealing Solutions US, Inc. Master Commercial Terms and Conditions for The Online Sale of Goods (“Master Commercial Terms”); and,
c. Trelleborg Sealing Solutions US, Inc. Privacy Notice (“Privacy Notice”).
4. First Component: Terms of Use. The first component of these Terms and Conditions, the Terms of Use, governs your use of the Site, including your rights and responsibilities with respect to your access to and use of content and functionality available on and through the Site, including but not limited to images, sounds, text, software and other technologies, and other expressive and inventive features. You can access the Terms of Use by clicking this link: Terms of Use. You can also access the Terms of Use by scrolling down. By agreeing to the Terms and Conditions, you agree to the Terms of Use. You understand that the Terms of Use govern use of the Site. Use of the Site may involve an online sale transaction, but the Terms of Use do not govern the online sale transaction itself or the commercial relationship between the parties involving any such sale. The Master Commercial Terms (and other terms referenced expressly therein) governs that relationship and the transaction.
5. Second Component: Master Commercial Terms. The second component of the Terms and Conditions, the Master Commercial Terms, governs your rights and responsibilities with respect to products we may offer and sell on the Site and your rights and responsibilities with respect to us and third parties as related to our offering and/or selling, and your purchasing, any such products through the Site. You can access the Master Commercial Terms by clicking this link: Master Commercial Terms. You can also access the Master Commercial Terms by scrolling down. By agreeing to these Terms and Conditions, you agree to the Master Commercial Terms.
6. Third Component: Privacy Notice. The third component of these Terms and Conditions is our Privacy Notice. Our Privacy Notice states are obligations with respect to the privacy of personally identifiable information about you individually that you share with us. By agreeing to the Terms and Conditions, you consent understand and acknowledge that we will be acting in compliance with the Privacy Notice with respect to all actions taken by us with respect to information we collect from or about you. You can access the Privacy Notice by clicking this link: Privacy Notice.
7. Acceptance of Terms and Conditions. YOUR right to use the SITE and purchase products through the site is subject to your accepting the terms and Conditions, including but not limited to the Terms of Use, the master commercial terms, and privacy NOTICE and doing so electronically. If you do not accept the terms and conditions, YOU may not use the SITE and neither you individually, nor you or any other individual on behalf of any entity you purport to represent, may purchase anything through the site. If you do not wish to accept the terms and Conditions, please cease using the site. If you continue using the site you will be deemed to accept the terms and conditions.
8. To the extent that “you” means you as an entity, you agree at all times to have a single “super” or “administrative” user who is authorized to permit other users to use the Site. Such sub-users must accept the Terms and Conditions and obtain unique log-in credentials to use the Site. You shall be responsible for all acts and omissions of any administrative user, sub-user and any other person who purports to act on your behalf.
9. Modification of the Terms and Conditions. The Terms and Conditions are subject to change by Trelleborg without prior written notice at any time, in Trelleborg’s sole discretion. Any changes to these Terms and Conditions will be in effect as of the effective date noted at the top of the Terms and Conditions. You should review these Terms and Conditions prior to using the Site or purchasing any anything through the Site. To the extent permitted by applicable law, your and any Authorized User’s (as defined in the Master Commercial Terms) continued use of this Site after such effective date will constitute your own, Buyer’s and any Authorized User’s acceptance of and agreement to such changes.
II. Terms of Use Version 7/1/2020 (effective date)
1. Agreement Generally; Acceptance. These “Trelleborg Sealing Solutions US, Inc. Website Terms of Use” (the “Terms of Use”) are between you and Trelleborg Sealing Solutions US, Inc. (collectively, “Trelleborg,” “we,” “us,” “our”). “You” means you individually. If you are acting for an entity, “you” means you individually and the entity on whose behalf you are acting. In the event you are acting for an entity, you represent and warrant that you are authorized to so act for such entity. This Terms of Use sets forth the terms and conditions upon which we make available fluidpowersealsshop.com and its contents and offerings to you (the “Site”). Please note the Terms of Use govern only the Site, not any other Website or application.
2. Incorporation by Reference. These Terms of Use are an integral part of and incorporated into the Trelleborg Sealing Solutions US, Inc. Terms and Conditions (“Terms and Conditions”). By agreeing to the Terms and Conditions, Buyer agrees to these Terms of Use. You agree that our Privacy Notice is hereby incorporated by reference into these Terms of Use.
3. Sale Transactions and Master Commercial Terms. YOU UNDERSTAND THAT THE TERMS OF USE GOVERN USE OF THE SITE. USE OF THE SITE MAY INVOVLE A SALE TRANSACTION AS WE OFFER THE OPPORTUNITY TO PURCHASE CERTAIN PRODUCTS THROUGH OUR SITE. PLEASE NOTE, THE TERMS OF USE DO NOT GOVERN THE SALE TRANSACTION ITSELF OR THE COMMERCIAL RELATIONSHIP BETWEEN THE PARTIES INVOLVING ANY SUCH SALE. SUCH OFFER AND ANY RESULTANT PURCHASE AND SALE IS GOVERNED BY OUR TRELLEBORG SEALING SOLUTIONS US, INC. MASTER COMMERCIAL TERMS AND CONDITIONS FOR THE ONLINE SALE OF GOODS.
4. Modifications to Terms of Use. The Terms of Use are subject to change by Trelleborg without prior written notice at any time, in Trelleborg’s sole discretion. Any changes to these Terms of Use will be in effect as of the effective date noted at the top of the Terms of Use. You should review the Terms of Use prior to using the Site. To the extent permitted by applicable law, your continued use of this Site after such effective date will constitute your acceptance of and agreement to such changes.
5. Permission to Use the Site; Limitations on Use of the Site. Subject to your acceptance and while you remain in compliance with the Terms of Use, we grant you a limited, revocable, non-exclusive, non-transferable license to use the Site solely and exclusively for your own personal use (including the internal use of the entity that you represent) and not for any other purpose, such distribution or resale to others or acting as a service bureau or data center for others. If, for the Site’s intended purpose, you need to print a copy of any materials, you may print one copy, again solely for your personal use. If that copy is destroyed, you may print another copy on the same terms. Please understand, the content on the Site is our intellectual property and it is important that you observe the terms under which we are licensing its use.
6. Account Registration, Password, and Security.
a. Your login credentials for the Site may be used only by you and only while the license is in effect. Under no circumstances will you share your login credentials with any other person or entity. You are responsible for all use of the Site that occurs under your credentials, and you agree to notify us of any unauthorized access of which you become aware. We reserve the right to take such action in our discretion to help ensure the security of the Site, including, without limitation, terminating an account. Without limiting the force of any other disclaimers herein, YOU ARE responsible for any person using or entering information in the SITE UNDER YOUR credentials or AUTHORITY and ARE responsible to and for any persons relying on the SITE. you are solely responsible for errors and omissions in the entry of any information and for reviewing and, as necessary, correcting such information and for any actions or consequences resulting from the entry of such information.
b. NOTWITHSTANDING THE ABOVE, WE MAY RELY ON THE AUTHORITY OF ANYONE ACCESSING YOUR ACCOUNT OR USING YOUR PASSWORD, AND IN NO EVENT, AND UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE TO YOU FOR ANY LIABILITIES OR DAMAGES ARISING OUT OF (I) ANY ACTION OR INACTION OF TRELLEBORG UNDER THIS PROVISION OR (II) ANY COMPROMISE OF THE CONFIDENTIALITY OF YOUR ACCOUNT OR PASSWORD OR ANY UNAUTHORIZED ACCESS TO YOUR ACCOUNT OR USE OF YOUR PASSWORD EXCEPT THAT THIS DISCLAIMER, IN THIS PARAGRAPH, SHALL NOT APPLY TO THE EXTENT SUCH COMPROMISE, ACCESS, OR USE IS CAUSED SOLELY BY TRELLEBORG’S BREACH OF THE EXPRESS TERMS OF THIS AGREEMENT OR ITS VIOLATION OF LAW, AS PROVIDED BY CLEAR AND CONVINCNING EVIDENCE. YOU MAY NOT USE ANYONE ELSE’S ACCOUNT AT ANY TIME.
7. Prohibited Activity. You will not: (a) access or attempt to access the Site or any part thereof that you are not authorized to access or through any means that you are not authorized to use; (b) disrupt or interfere with the security of, or otherwise cause harm to the Site, systems, resources, accounts, passwords, servers or networks connected to or accessible through the Site or any affiliated or linked websites or access or use the Site in any manner that could damage, disable, overburden, or impair any server or network used by us in connection with the Site; (c) use the Site to transmit any information of a sensitive nature, such as health information, social security numbers, credit card numbers (other than, as strictly allowed), or any other information that, if generally exposed, could lead to identity theft, financial fraud, embarrassment, or other harm; (d) use the Site in any manner that infringes upon or violates any intellectual property rights or other rights or interest of any party or otherwise constitutes pornography, defamation, harassment, bullying, predatory behavior, false and deceptive advertising, or hate speech; (e) submit any software, programs, or files via the Site that are harmful or disruptive of another’s equipment, software, or other property, including any corrupted files, time bombs, Trojan Horses, viruses, and worms; (f) disrupt, interfere with, or inhibit any other user from using and enjoying the Site or other websites; (g) violate any applicable laws or regulations related to the access to or use of the Site, and/or engage in any activity prohibited by the Terms of Use; (h) compile, use, download, or otherwise copy any materials available on the Site (except as expressly permitted), or transmit, provide, or otherwise distribute (whether or not for a fee) such materials to any third party; (i) use, or allow anyone else to use, any robot, spider, or other such programmatic or automatic device, including but not limited to automated dial-in or inquiry devices, to obtain information from the Site or otherwise monitor or copy any portion of the Site; (j) frame, mirror, or use framing techniques on any part of the Site without our express prior written consent; (k) make any use of, or allow anyone else to make any use of, data extraction, scraping, mining, or other data gathering tools, or create a database by systematically downloading or storing the Site, or any portion thereof, or otherwise scrape, collect, store, or use the Site, except pursuant to the limited license granted by the Terms of Use; (l) modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Site; or (m) remove any copyright, trademark, or other proprietary rights notice from the Site. These examples of prohibited conduct are illustrative and are not exhaustive.
8. TO THE MAXIMUM EXTENT AUTHORIZED BY LAW WE RESERVE THE RIGHT, BUT DISCLAIM ANY OBLIGATION WHATSOEVER, TO MONITOR OUR SITE AND YOUR COMPLIANCE WITH THIS SECTION AND WITH THE TERMS OF USE AS A WHOLE.
9. Intellectual Property.
a. You acknowledge that we own all right, title and interest, including all intellectual property rights, in and to the Site. For the avoidance of doubt, our intellectual property includes our trademarks. We expressly reserve all rights not explicitly granted.
b. Our trademarks may not be used in any manner (including in “meta-tags” or “hidden text”) without our prior written approval. All content included on the Site, such as text, graphics, images, audio clips, video, data, music, software, and other material is owned by us or our suppliers or licensors and is protected by copyright or other proprietary rights. Any unauthorized use of these materials may violate trademark, copyright or other laws and is prohibited.
10. Representations and Warranties; Disclaimer.
a. YOU AGREE AND ACKNOWLEDGE FOR TRELLEBORG’S AND OUR SUPPLIERS’ AND LICENSORS’ BENEFIT THAT USE OF THE SITE, INCLUDING BUT NOT LIMITED TO ANY AND ALL TECHNOLOGIES AND TOOLS, IS WITHOUT WARRANTY OF ANY KIND AND THAT THE ACCESS TO AND USE OF THE SITE, AS PROVIDED UNDER THE TERMS OF USE, IS PROVIDED “AS IS AND WHERE IS.” ALL WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES BASED ON CUSTOM AND PRACTICE. APPLICABLE LAW MAY NOT ALLOW THE ABOVE EXCLUSION OF IMPLIED WARRANTIES, SO THE EXCLUSION MAY NOT APPLY TO YOU AND SHALL APPLY ONLY TO THE MAXIMUM EXTENT ALLOWED BY LAW.
b. WE DO NOT WARRANT THAT THE SITE WILL MEET YOUR REQUIREMENTS, THAT IT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
c. WE DO NOT MAKE ANY REPRESENTATIONS, AND AFFIRMATIVELY DISCLAIM ANY SUCH WARRANTIES AND REPRESENTATIONS, REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TRELLEBORG DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR THE ACCURACY OF ANY RECORD OR DOCUMENT GENERATED BY THE SITE.
d. YOU UNDERSTAND AND AGREE THAT THE ALL DISCLAIMERS ARE MADE FOR OUR BENEFIT AND THE BENEFIT OF OUR SUPPLIERS AND LICENORS.
e. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, TRELLEBORG, ITS SUPPLIERS AND LICENSORS, AND TRELLEBORG’S AND ITS SUPPLIERS’ AND LICENORS’ AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, AGENTS REPRESENTATIVES, SERVICE PROVIDERS, DIRECTORS, LICENSORS AND SUPPLIERS ( TRELLEBORG AND SUCH OTHER INDIVIDUALS AND ENTITIES INDIVIDUALLY AND COLLECTIVELY REFERRED TO AS “TRELLEBORG-RELATED PARTIES” ) WILL NOT BE RESPONSIBLE OR LIABLE TO YOU OR ANY OTHER PARTY UNDER OR IN CONNECTION WITH THIS TERMS OF USE OR FOR ANY ACTIVITY RELATED TO THE SITE, WHETHER UNDER CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, FOR ANY AMOUNT IN EXCESS OF THE LESSER OF $150 OR THE ACTUAL, DIRECT DAMAGES INCURRED IN CONNECTION WITH THE ACTIVITY GIVING RISE TO THE CLAIM. ADDITIONALLY, TRELLEBORG-RELATED PARTIES WILL NOT BE LIABLE FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, OR LOST PROFITS UNDER OR IN CONNECTION WITH THIS TERMS OF USE OR FOR ANY ACTIVITY RELATED TO THE SITE. TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT THIS LIMITATION ON LIABILITY AND DAMAGES, DAMAGES AND LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT ALLOWED BY LAW. Any legal inability to limit or restrict your or a third party’s right to such damages shall not affect our right to indemnification hereunder.
f. ANY LINKS TO THIRD-PARTY WEBSITES FOUND WITHIN THE SITE ARE PROVIDED SOLELY AS AN ADDED CONVENIENCE TO YOU. YOU SHOULD ASSUME THAT TRELLEBORG HAS NOT REVIEWED THE CONTENTS OF THESE THIRD-PARTY WEBSITES. TRELLEBORG DISCLCLAIMS ANY RESPONSIBILITY FOR THE CONTENT OR SUITABILITY OF THESE THIRD-PARTY WEBSITES. TRELLEBORG MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, OF THE ACCURACY, QUALITY, RELIABILITY OR ETHICALITY OF ANY INFORMATION CONTAINED AT THE OTHER SITES TO WHICH TRELLEBORG LINKS AND ASSUMES NO RESPONSIBILITY FOR ANY INFORMATION, ADVICE, OR SERVICES PROVIDED BY ANY OTHER WEBSITE.
11. Submissions. By submitting any comment, idea, suggestion, response to questionnaires, or other material to the Site, you grant Trelleborg a perpetual, non-exclusive, fully-paid, royalty-free, irrevocable, sub-licensable, worldwide license and right to display, use, perform, reproduce, modify, distribute, and create derivative works of such material or information submitted in any media, software, or technology of any kind now existing or developed in the future. By providing any such material or information, you represent and warrant that public posting and use of such material or information by Trelleborg will not infringe on or violate the rights of any third party.
12. Indemnification. YOU agree to defend, indemnify, and hold us harmless from and against any claims arising from YOUR use of the SITE (except for claims resulting directly And exclusively from our violation of law or tortious conduct), including but not limited to any claim arising from any breach by YOU of any representation, warranty, or other term of the Terms of Use, or from your violation of law.
13. Force Majeure . Trelleborg shall not be in default because of its delay or failure to deliver or perform resulting, in whole or in part, from: (i) any embargoes, seizures, acts of God, fire, flood, insurrections, war, terrorist threats, riots, civil unrest, national emergencies, invasions, revolution, or the adoption or enactment of any law, ordinance, regulation, ruling or order, or (ii) the lack of usual means or transportation, fires, floods, explosions, pandemics, epidemics, quarantines, shelter-in-place orders or policies imposed by any governmental unit or any employer, strikes, lockouts, other labor disputes, telecommunications or power outages, or any other accidents, contingencies, or events, at Trelleborg’s or its supplier’s plant or elsewhere (whether or not beyond Trelleborg’s control) which interfere with, or render substantially more burdensome, Trelleborg’s production, delivery, or performance.
14. Governing Law and Jurisdiction/Disputes.
a. Choice of Law. The Terms of Use and any dispute between the parties arising under or relating thereto shall be governed, construed and enforced under the laws of the State of Indiana including, except as provided herein.
b. Jurisdiction. THE COURTS OF INDIANA SHALL HAVE EXCLUSIVE JURISDICTION OVER THE PARTIES AND THE CLAIMS ARISING UNDER OR RELATED TO THE TERMS OF USE. The parties stipulate to the convenience of Indiana courts as to all litigation. Any declaration of unenforceability of a provision shall be as narrow as possible and shall not affect the enforceability of the other provisions of the Terms of Use.
c. Limitations of Actions. Any proceeding by you for breach of the Terms of Use or any other right against Trelleborg arising from or in connection with the payment cannot be filed nor maintained unless: it is commenced within one year after the cause for action has accrued.
d. Waiver of Jury Trial. TO THE MAXIMUM EXTENT AUTHORIZED BY LAW, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY FOR ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE TERMS OF USE.
e. Class Actions and Other Representative Proceedings. TO THE MAXIMUM EXTENT AUTHORIZED BY LAW, WE EACH IRREVOCABLY AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, MASS ACTION OR REPRESENTATIVE ACTION, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.
f. Injunctions/Equitable Relief. Notwithstanding anything to the contrary, it is agreed that your breach of this Terms of Use with respect to our and our suppliers’ and licensors’ tangible property and/or intellectual property rights or with respect to the safety, integrity and operation of the site and/or your account may result in immediate and irreparable harm and continuing damage to us and our remedy at law for any such breach or threatened breach, may be inadequate and, accordingly, in addition to such other remedies as may be available to us at law or in equity in such event, we shall be entitled to seek (and any court of competent jurisdiction may issue) a decree of specific performance and a temporary and permanent injunction without posting bond or furnishing other security.
15. Assignment. You shall not and may not assign your right or delegate your duties hereunder or any interest herein without the prior written consent of Trelleborg, and any such assignment, delegation, without such consent, shall be void. Trelleborg may assign the Terms of Use and all of its rights and obligations thereunder.
16. No Waivers. The failure by us to enforce any right or provision of the Terms of Use will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Trelleborg.
17. Beneficiaries. The Terms of Use are only for the benefit of the parties and not third parties, except all disclaimers and limitations applicable to Trelleborg shall be for the benefit of Trelleborg’s agents, employees, contractors, licensors, and suppliers. If any provisions are determined to apply to third parties, all other provisions shall also apply.
18. Notices .
a. To You . We may provide any notice to you under these Terms of Use by: (i) sending a message to the e-mail address you provide or (ii) posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.
b. To Us . To give us notice under these Terms of Use, you must contact us as follows: by personal delivery, overnight courier or registered or certified mail to Trelleborg at: Trelleborg Sealing Solutions US, Inc., 2509 Bremer Road, Fort Wayne, IN 46845. We may update the address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
19. Electronic Version . It is agreed that a printed version of this Terms of Use and/or any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
20. Severability . If any provision of these Terms of Use is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms of Use and will not affect the validity or enforceability of the remaining provisions of these Terms of Use.
21. Entire Agreement . These Terms of Use will be deemed the final and integrated agreement between Buyer and us on the matters contained in these Terms of Use.
22. Electronic Version. It is agreed that a printed version of this Terms of Use and/or any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
23. Miscellaneous. The invalidity or unenforceability of any provision of the Terms of Use shall not affect the validity or enforceability of any other provision. In the event that any provision of the Terms of Use is found to be invalid or unenforceable, the Terms of Use shall be construed in accordance with its terms as if the invalid or unenforceable provision was not contained therein. No delay or failure by Trelleborg to enforce any provision of the Terms of Use shall be a waiver of any of our rights.
III. Master Commercial Terms Version 7/1/2020 (effective date)
1. THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING BUYER’S RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO BUYER. PLEASE READ IT CAREFULLY.
2. Introduction. This Master Commercial Terms and Conditions for the Online Sale of goods (“Master Commercial Terms”), is between Buyer and Seller. “Master Commercial Terms” also refers to the Master Commercial Terms as may be amended from time to time. “Buyer” means the entity on whose behalf Authorized User is accepting the Master Commercial Terms and/or a particular Goods Contract. “You” means you individually. You represent and warrant that you are an Authorized User.” “Authorized User” means the person authorized to accept the Master Commercial Terms for the Buyer. Authorized User also means any individual acting for Buyer in purchasing such products as may be sold by Seller through the Site (“Goods”). “Seller” means Trelleborg Sealing Solutions US, Inc. (also referred to, as the case may be, “Trelleborg,” “we,” “our,” “us”).
3. Goods Contracts. The Master Commercial Terms apply to the purchase and sale of Goods through the Site. The “Site” means fluidpowersealsshop.com. Each such purchase and sale transaction is referred to as a “Goods Contract.” The Goods Contract consists only of the Master Commercial Terms and the fields as completed on the Site for purposes of consummating the purchase and sale (e.g., quantity, price) (“Site Terms”). Site Terms also include the terms as may exist on your Dashboard/Account page relating to any special payment terms or credit limits.
4. Master Commercial Terms Incorporated in Goods Contracts; Authorized Users . The Master Commercial Terms, as may be amended or modified, apply to and are incorporated into each Goods Contract. When you or another Authorized User makes such a purchase, that purchase will be subject to the version of the Master Commercial Terms then in effect at the time of purchase. Buyer agrees that any person purchasing Goods on or through Buyer’s Account is an Authorized User, and that such Authorized User, in the act of such use of the Site and/or in making any purchase, further confirms and agrees to the Master Commercial Terms, as may be amended. With respect to a Goods Contract, the most current version of the Master Commercial Terms as made available on the Site at the time of Authorized User’s placement of the order supersedes all previous versions of the Master Commercial Terms with respect to that order and future orders, until such time as the Master Commercial Terms may be modified again.
5. Modification of Master Commercial Terms. The Master Commercial Terms are subject to change by Seller without prior written notice at any time, in Seller’s sole discretion. Any changes to the Master Commercial Terms will be in effect as of the effective date noted at the top of the Master Commercial Terms. Buyer should review the Master Commercial Terms prior to purchasing any Goods. To the extent permitted by applicable law, Buyer’s and any Authorized User’s continued use of this Site after such effective date will constitute Buyer’s acceptance of and agreement to such changes.
6. Compliance with Terms. Buyer will comply with all terms and conditions of the Master Commercial Terms and the applicable Goods Contract, including, but not limited to, all confidentiality obligations and other obligations and restrictions. You will not cause, induce or permit others' noncompliance with the terms and conditions of the Master Commercial Terms or any Goods Contract.
7. Legal Capacity and Authority. By entering into the Master Commercial Terms and/or placing an order for Goods, Authorized User affirms that Authorized User is of legal age to enter into the Master Commercial Terms and any applicable Goods Contract on Buyer’s behalf and that Buyer hereby accepts, confirms and is bound by the Master Commercial Terms and such applicable Goods Contract. Authorized User affirms Authorized User has the legal authority to bind Buyer to the Master Commercial Terms. You may not order or obtain Goods from the Site if you (i) do not agree to the Master Commercial Terms and Site Terms, (ii) are not the older of (a) at least 18 years of age or (b) legal age to form a binding contract with Seller, or (iii) are prohibited from accessing or using Site or the Goods by applicable law.
8. Incorporation by Reference. The Master Commercial Terms are an integral part of and incorporated into the Trelleborg Sealing Solutions US, Inc. Terms and Conditions (“Terms and Conditions”). By agreeing to the Terms and Conditions, Buyer agrees to the Master Commercial Terms.
9. Formation, Integration and Modification .
a. Buyer agrees that by placing the order through our check-out process, Buyer is entering into a Goods Contract under Master Commercial Terms, as may be then modified, and Site Terms.
b. Obligations arising through purchases on the Site and the liabilities or obligations of Buyer and Seller arising in connection therewith shall be determined solely by the Master Commercial Terms and Site Terms, and notice is hereby given that Seller objects to any such additional terms or conditions offered by Buyer whether or not in writing. Seller shall not be deemed to have enlarged or modified its liabilities or obligations under the Master Commercial Terms and Site Terms by filling such order or by failing to further object to Buyer’s terms or conditions.
c. Each Goods Contract under the Master Commercial Terms is a final, complete and exclusive statement of the parties’ agreement. No modifications, limitations, waivers or discharge of the Goods Contract any of its terms shall bind Seller unless in writing and signed by Seller’s authorized representative. Seller may correct unilaterally any mathematical and typographical errors in the Goods Contract. A course of performance, course of dealing, or customs in the trade shall not constitute a modification or waiver by Seller of any right by Seller.
10. Beneficiaries . The Master Commercial Terms and any Goods Contract are only for the benefit of the parties and not third parties, except all disclaimers and limitations applicable to Seller shall be for the benefit of Seller’s agents, employees, contractors, licensors, and suppliers. If any provisions are determined to apply to third parties, all other provisions shall also apply.
11. Order Acceptance and Cancellation; Termination; Inspection, Testing and Rejection .
a. Goods are deemed accepted upon receipt.
b. In the event of default under a Goods Contract by Buyer which is not cured within thirty (30) days after notice by Seller, Buyer will pay to Seller on demand all direct and indirect costs (including without limitation all applicable restocking or cancellation charges) incurred directly or indirectly by Seller in connection with the contract, all as reasonably determined by Seller, plus any profit to be negotiated with Buyer. The foregoing is without prejudice to other rights and remedies.
12. Prices and Payment Terms.
a. Prices contained in Seller’s published price lists, including, but not limited to, catalogs, brochures and websites, are subject to change without notice. The price charged for the Goods will be the price contained in the Goods Contract.
b. Prices do not include, and Buyer will pay all taxes or fees of any kind which may be levied or imposed on either party by federal, state, municipal, or other governmental authorities in connection with the sale or delivery of Goods by Seller. Buyer will cooperate with respect to all matters pertaining to taxes, including by submitting promptly a pdf (or such other format as requested by Seller) version of Buyer’s tax-exempt certificate.
c. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
d. Terms of payment are within our sole discretion and, subject to express Site Terms, payment must be received by us before our acceptance of an order. We accept such methods of payment as are specified in the Goods Contract. You represent and warrant that (i) the credit card and other information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card or other method of payment, as may be expressly allowed, for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) subject to express Site Terms, you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of you order.
e. All amounts not paid to Seller when due shall incur a carrying charge of 1.5% per month to the extent allowed by law and otherwise at the highest written contract rate allowed by law. The accrual of payment of any interest as provided above will not constitute a waiver by Seller of any rights and remedies in connection with a default by Buyer. Buyer will pay all court costs, attorney fees, and other costs incurred by Seller in collecting past due amounts, including interest. As security for payment of all accounts due to Seller, Buyer grants to Seller a security interest in all Goods sold by Seller to Buyer, and Seller will have all rights of a secured party under the Uniform Commercial Code with respect to such Goods. Buyer appoints Seller as its attorney-in-fact to do, at Seller’s option, all acts and things Seller may require to perfect the above security interest in any one or more jurisdictions, and Buyer agrees to pay all applicable filing fees.
13. Shipments; Delivery; Title and Risk of Loss.
a. Goods shall be delivered EXW Seller’s dock. Whether or not Seller prepays shipping charges, risk of loss passes to Buyer upon tender of the Goods to a carrier. Seller’s breach of the Goods Contract shall not affect the passing of the risk of loss to Buyer notwithstanding any provision of law to the contrary.
b. Shipping dates are estimates based in part on Seller’s present engineering and manufacturing capacity and scheduling and dates may be revised by Seller.
c. If shipment of any item or other performance by Seller is delayed at the request of or due to the fault of Buyer, Seller may at its option hold the item at the place of manufacture at the risk and expense of Buyer from the time it is ready for shipment.
d. Seller shall not be in default because of its delay or failure to deliver or perform resulting, in whole or in part, from: (i) any embargoes, seizures, acts of God, fire, flood, insurrections, war, terrorist threats, riots, civil unrest, national emergencies, invasions, revolution, or the adoption or enactment of any law, ordinance, regulation, ruling or order, or (ii) the lack of usual means or transportation, fires, floods, explosions, pandemics, epidemics, quarantines, shelter-in-place orders or policies imposed by any governmental unit or any employer, strikes, lockouts, other labor disputes, telecommunications or power outages, or any other accidents, contingencies, or events, at Seller’s or its supplier’s plant or elsewhere (whether or not beyond Seller’s control) which interfere with, or render substantially more burdensome, Seller’s production, delivery, or performance.
14. Returns. Buyer may return Goods purchased under a Goods Contract to Seller, provided that: (i) Buyer contacts Seller at www.fluidpowersealsshop.com/return-request within thirty (30) days of shipment of Goods to Buyer and obtains a return authorization number and other instructions; (ii) Buyer properly tags, identifies, and packs returned Goods; (iii) Buyer returns the Goods unused, undamaged, and in their original, unopened packaging within thirty (30) days of receipt of the return authorization number and in accordance with Seller’s instructions; (iv) Buyer provides Seller, along with the return Goods, an itemized inventory of all Goods returned under this Section; (v) returns are made at Buyer's expense and risk of loss; (vi) Buyer pays Seller all applicable restocking fees; and (vi) the Goods are not obsolete or discontinued. All returns are subject to compliance with the foregoing. Because Buyers bears the risk of loss during shipment and is responsible for all shipping and handling charges on returned items, we strongly recommend that Buyer fully insure its return shipment against loss or damage and that Buyer use a carrier that can provide proof of delivery for your protection. Subject to compliance with the foregoing, for each returned Good under this Section, Seller shall provide a refund and Seller shall use reasonable efforts to credit back such refund to the same payment method used to make the original purchase.
15. Limited Warranty.
a. Seller warrants to Buyer only, that Goods (or portions thereof manufactured by Seller) shall be free from material defects in materials and workmanship which are identified to Seller in writing within the thirty (30) days warranty period following shipment of the Goods to Buyer, subject to the disclaimers and limitations of the Master Commercial Terms. Absence of such written claims during this period will constitute a waiver of all claims with respect to the Goods.
b. Seller retains the right to change the dimensions, composition, design, performance, color and appearance of the Goods without liability if, in its judgment, the change is non-material.
c. Seller’s warranties shall apply only if the Goods: (i) have been installed, maintained, and used in conformity with instructions and recommendations furnished by Seller from time to time, if any; (ii) have not been subjected to misuse, movement of the structure, physical abuse, installation error, negligence or accident; and, (iii) have not been altered or repaired by persons other than Seller in a manner, which, in the judgment of Seller, adversely affects the condition of the Goods. It is Buyer’s responsibility to determine suitability of the Goods for Buyer’s use and Buyer assumes all risk and liability associated therewith.
d. THERE ARE NO EXPRESS WARRANTIES OTHER THAN THOSE CONTAINED IN SECTION 15(a) OF THE MASTER COMMERCIAL TERMS AND SELLER MAKES NO SUCH OTHER EXPRESS WARRANTIES. WHETHER OR NOT THE GOODS ARE TO BE USED EXCLUSIVELY BY BUYER, THERE SHALL BE NO THIRD-PARTY BENEFICIARIES TO THE EXPRESS WARRANTIES CONTAINED HEREIN. SELLER DOES NOT WARRANT THAT IT OR THE GOODS ARE IN COMPLIANCE WITH ANY ENTITY, ORGANIZATION OR INDUSTRY STANDARDS, GUIDELINES, OR PROCEDURES UNLESS SPECIFICALLY CONTAINED IN THE MASTER COMMERCIAL TERMS. SELLER DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT AND ALL WARRANTIES BASED ON COURSE OF DEALING, COURSE OF PERFORAMNCE OR USAGE OF TRADE OR OTHERWISE. Seller does not warrant the Goods will comply with the requirements of any safety or environmental code or regulation of any federal, state, municipality or other jurisdiction beyond the specific express warranties in the Master Commercial Terms.
e. Defective Goods or parts thereof properly claimed and asserted during the thirty (30) day warranty period shall be repaired or replaced by Seller without any additional charge and shipped to Buyer, EXW Seller’s plant, subject to the terms hereof. The warranty obligation of Seller is limited to the repair or replacement at Seller’s plant of any part of the Goods which Buyer shall, in accordance with the next paragraph, return to Seller, with transportation charges prepaid by Buyer, and which Seller determines to be not in conformity with the express warranties contained herein. If Seller elects, Seller may, upon return of such Goods and making a determination of non-conformity or defect, keep the Goods and refund the purchase price. Buyer’s remedies shall be limited exclusively to those provided in this Section. Buyer waives any causes of action or theories of liability including, but not limited to, those arising under contract, tort, strict liability, product liability, statutes, or otherwise, except as specifically provided by the UCC as modified and limited herein. The replacement or repair of Goods by Seller does not give rise to any new warranty except the warranty period provided for herein shall be extended by the length of any period from the date the defective or non-conforming Goods are received by Seller until the date repaired or replacement Goods are delivered to Buyer.
f. Buyer must, within the warranty period, contact Seller in writing at 2509 Bremer Road, Fort Wayne, IN 46845 requesting warranty coverage plus a return authorization number and other instructions for the return of Goods to Seller or other instructions. In the written request, Buyer shall identify with specificity the alleged defect. If requested by Seller, Buyer shall issue a new purchase order or amendment to Seller for replacement Goods, subject to Seller issuing a credit memo if Buyer’s claim for warranty coverage is approved. Buyer must comply with Seller’s return instructions (including return of the Goods) within thirty (30) days or the claim shall be deemed conclusively to have been abandoned. Subject to the claimed defect, Buyer must return the Goods undamaged and in accordance with Seller’s instructions. Buyer is responsible for properly tagging, identifying, and packing returned Goods. Goods returned without compliance with the above procedures shall be returned to the Buyer at Buyer’s cost.
g. THE REMEDIES SET FORTH IN SECTION 15 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SUCH SECTION.
16. Limitation of Liability/Indemnification.
a. IN NO EVENT SHALL SELLER OR ITS SUPPLIERS AND LICENSORS OR ITS AND THEIR AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, REPRESENTATIVES, AGENTS, AND SERVICE PROVIDERS (TRELLEBORG AND SUCH OTHER INDIVIDUALS AND ENTITIES INDIVIDUALLY AND COLLECTIVELY REFERRED TO AS “TRELLEBORG-RELATED PARTIES”) BE LIABLE BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER OR ANY TRELLEBORG-RELATED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL TRELLEBORG-RELATED PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO A GOODS CONTRACT AND/OR MASTER COMMERCIAL TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID BY BUYER FOR THE GOODS UNDER THE APPLICABLE GOODS CONTRACT. TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT THE LIMITATIONS ON DAMAGES AND LIABILITIES SET FORTH IN THIS PARAGRAPH, DAMAGES AND LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT ALLOWED BY LAW. The limitations in this Section shall be enforced regardless of whether Seller has defaulted in its warranty or other obligations. Any legal inability to limit or restrict the right of Buyer or a third party to such damages shall not affect the right of Seller to indemnification hereunder.
b. Buyer shall defend, indemnify and hold Seller harmless from and against all third-party claims, damages, and expenses (including reasonable attorney fees) under theories of tort, product liability, negligence (ordinary or, to the maximum extent allowed by law, gross), warranty, contract, statute, or otherwise arising out of the use, storage, sale, or other disposition of the Goods and supplies or materials used in connection with the Goods if the action or inaction of Buyer or its employees, customers or agents, or Buyer’s design specifications, were a material or proximate cause of injuries or damages giving rise to claims against Seller.
17. Proprietary Information.
a. All proposals, plans and other information furnished by Seller in bidding, negotiating and performing the Master Commercial Terms and any Goods Contract, are confidential and the property of Seller and shall not be shown or disclosed to any third party or used by Buyer except as may be necessary for the selection or use of the Goods.
b. Any invention, works of authorship, or other information developed or disclosed by Seller in the performance of the Master Commercial Terms and any Goods Contract shall remain the property of Seller and Buyer agrees to execute such documents and do such further acts as may be in Seller’s judgment reasonably necessary to assure, protect and perfect such ownership and control of such inventions, works, and information.
18. Compliance with Laws. Buyer shall not engage in any transaction with respect to the Goods which violates any statute or regulation of the United States of America or of any other jurisdiction, including without limitation any export laws. Buyer will be responsible for compliance with any and all applicable laws, including but not limited to federal, state or local laws or regulations respecting safety or respecting use of the Goods, and shall indemnify and hold Seller harmless from and against any and all claims of violations of such laws or regulations or other claims of personal injury or property damage directly or indirectly related to the installation, maintenance or operation of the Goods.
19. Governing Law and Jurisdiction/Disputes.
a. Choice of Law. The Master Commercial Terms and any dispute between the parties arising under or relating thereto shall be governed, construed and enforced under the laws of the State of Indiana including the Uniform Commercial Code in force on the initial date of the Master Commercial Terms (“UCC”), except as provided herein. The U.N. Convention on the International Sale of Goods shall not apply. Any services to be provided hereunder, whether or not they are otherwise ancillary to and part of a sale of goods (as separate units), shall be considered ancillary to a sale of goods and the UCC shall apply to all goods and services to be provided hereunder (“Goods”).
b. Jurisdiction. THE COURTS OF INDIANA SHALL HAVE EXCLUSIVE JURISDICTION OVER THE PARTIES AND THE CLAIMS ARISING UNDER OR RELATED TO THE MASTER COMMERCIAL TERMS AND ANY GOODS CONTRACT. The parties stipulate to the convenience of Indiana courts as to all litigation. Any declaration of unenforceability of a provision shall be as narrow as possible and shall not affect the enforceability of the other provisions of the Master Commercial Terms.
c. Limitations of Actions. Any proceeding by Buyer for breach of the Master Commercial Terms or any other right against Seller arising from or in connection with the payment cannot be filed nor maintained unless: (i) it is commenced within one year after the cause for action has accrued; and (ii) Buyer has given timely written notice to Seller of its claim as may be required herein. An action shall accrue no later than shipment of the Goods.
d. Waiver of Jury Trial. TO THE MAXIMUM EXTENT AUTHORIZED BY LAW, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY FOR ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE MASTER COMMERCIAL TERMS AND/OR ANY GOODS CONTRACT CONTEMPLATED HEREBY.
e. Class Actions and Other Representative Proceedings. TO THE MAXIMUM EXTENT AUTHORIZED BY LAW, WE EACH IRREVOCABLY AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, MASS ACTION OR REPRESENTATIVE ACTION, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.
f. Injunctions/Equitable Relief. Notwithstanding anything to the contrary, it is agreed that Buyer’s breach of the Master with respect to our and our suppliers’ and licensors’ tangible property and/or intellectual property rights or with respect to the safety, integrity and operation of the site and/or your account may result in immediate and irreparable harm and continuing damage to us and our remedy at law for any such breach or threatened breach, may be inadequate and, accordingly, in addition to such other remedies as may be available to us at law or in equity in such event, we shall be entitled to seek (and any court of competent jurisdiction may issue) a decree of specific performance and a temporary and permanent injunction without posting bond or furnishing other security.
20. Assignment. Buyer shall not and may not assign its right or delegate its duties hereunder or any interest herein without the prior written consent of Seller, and any such assignment, delegation, without such consent, shall be void. Seller may assign any Goods Contract and the Master Commercial Terms and all of its rights and obligations thereunder.
21. No Waivers. The failure by us to enforce any right or provision of the Master Commercial Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Seller.
22. Notices.
a. To You. We may provide any notice to Buyer under these Master Commercial Terms by: (i) sending a message to the e-mail address Buyer provides or (ii) posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is Buyer’s responsibility to keep Buyer’s e-mail address current.
b. To Us. To give us notice under these Master Commercial Terms, Buyer must contact us as follows: by personal delivery or overnight courier or registered or certified mail to Trelleborg at: Trelleborg Sealing Solutions US, Inc., 2509 Bremer Road, Fort Wayne, IN 46845. We may update the address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
23. Electronic Version. It is agreed that a printed version of the Master Commercial Terms and/or any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Master Commercial Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
24. Severability. If any provision of these Master Commercial Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Master Commercial Terms and will not affect the validity or enforceability of the remaining provisions of these Master Commercial Terms.
25. Entire Agreement. The Goods Contract will be deemed the final and integrated agreement between Buyer and us with respect to the purchase and sale of the applicable Goods.
26. Miscellaneous. The invalidity or unenforceability of any provision of the Master Commercial Terms shall not affect the validity or enforceability of any other provision. In the event that any provision of a Good Contract or the Master Commercial Terms is found to be invalid or unenforceable, the Master Commercial Terms and/or such Goods Contract shall be construed in accordance with its terms as if the invalid or unenforceable provision was not contained therein. No delay or failure by Trelleborg to enforce any provision of a Goods Contract and/or the Master Commercial Terms shall be a waiver of any of our rights.