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Applicability. Each Purchase Order issued by Trystar, LLC (“Buyer”) is an offer for the purchase of the goods and/or services specified on the face of the purchase order (such goods and/or services are referred to individually and collectively as the “Goods”) from the party to which the Purchase Order is addressed (“Seller“; and Buyer and Seller each is sometimes referred to as a “Party” and together as the “Parties”) in accordance with and subject to these terms and conditions (the “Terms”; and together with the terms and conditions in the Purchase Order document, the “Order”). The Order, together with any documents incorporated herein by reference and any master supplier agreement executed and delivered by Buyer and Seller, constitutes the sole and entire agreement of the Parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. In furtherance of the foregoing, notwithstanding any of the Terms, nothing in the Order limits the applicability of any such master supplier agreement to the Order, the Goods or otherwise.
Purchase and Sale. Subject to the Terms, Buyer will purchase the Goods from Seller, and Seller will sell the Goods to Buyer, at the prices set forth in the Order.
Attempts to Modify. Any additional, contrary, or different terms or conditions contained in any of Seller’s Confirmations, invoices, or other communications, and any other attempt to modify, supersede, supplement, or otherwise alter the Order, are expressly rejected by Buyer and will not modify the Order or be binding on Buyer unless such terms or conditions have been approved in a signed writing by Buyer.
Acceptance and Rejection. Seller will confirm to Buyer the receipt of the Order (a “Confirmation”) within one (1) business day following Seller’s receipt thereof. A Section, or otherwise commences performance under the Order, Seller will be deemed to have accepted the Order. Buyer may withdraw the Order prior to Seller’s acceptance (or deemed acceptance) thereof.
Buyer’s Right to Request Amendments to the Order. Buyer may, on notice to Seller, request changes to the Order. On or before one (1) business day after receiving the request, Seller will submit to Buyer its good faith description of the impact of such changes on the Order. Buyer may then submit an amended Order reflecting all Buyer‑accepted changes. Buyer has the right to cancel any Order subject to being obligated to pay Seller’s costs incurred to perform the Order which are unavoidable and unrecoverable by Seller.
Shipment and Delivery Requirements. The time, quantity, and delivery to the Delivery Location are of the essence under the Order. Seller will assemble, pack, mark, and ship Goods strictly in the quantities, by the methods, to the Delivery Locations, and by the Delivery Dates, specified in the Order. Delivery times will be measured to the time that Goods are actually received at the Delivery Location. If Seller does not comply with any of its delivery obligations under this Section, without limiting Buyer’s other rights hereunder or applicable Law, Buyer may, in Buyer’s sole discretion and at Seller’s sole cost and expense: (a) approve a revised Delivery Date; (b) require expedited or premium shipment, or (c) cancel all or any part of the Order. Unless otherwise expressly agreed to by the Parties in writing, Seller will not make partial shipments of Goods to Buyer. “Delivery Location” means the street address(es) for delivery specified in the Order. “Delivery Date” means the delivery date(s) for the Goods stated in the Order.
Packaging and Labeling. Seller will properly pack, mark, and ship the Goods as instructed by Buyer and in accordance with applicable Law and industry standards, and, at or prior to shipment, will provide Buyer with shipment documentation showing the Order number, Seller’s identification number for the subject Goods, the quantity of pieces in shipment, the number of cartons or containers in shipment, Seller’s name, the bill of lading number, and the country of origin.
Acceptance of Goods. If Buyer determines, in its reasonable discretion, that Goods delivered under the Order are Nonconforming Goods or Excess Goods, Buyer may, at its option: (a) if such Goods are Nonconforming Goods, either: (i) reject Excess Goods, reject such Excess Goods for a refund, plus the value of damaged materials supplied by Buyer together with any inspection, test, shipping, handling, and transportation charges paid by Buyer; or (c) in either case, retain such Goods. In each case, the exercise by Buyer of any other rights available to Buyer under this Order or pursuant to applicable Law will not be limited. Buyer will ship from any location, at Seller’s expense and risk of loss, the Nonconforming Goods or Excess Goods to the nearest authorized Seller location. If Buyer exercises its option to replace Nonconforming Goods, Seller will, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Seller’s expense and risk of loss, the replaced Goods to the Delivery Location in a timely manner. “Nonconforming Goods” means any goods received by Buyer from Seller that: (A) do not conform to the make/model number/UPC/SKU/other identifier listed in the Order; (B) do not fully conform to the applicable specifications; or (C) on inspection, Buyer determines are otherwise Defective (where the context requires, Nonconforming Goods are deemed to be Goods for the purposes of the Order). “Defective Goods” means goods shipped by Seller to Buyer that are Defective. “Defective” means defective under or otherwise not in conformance with any term or condition applicable to the Order (including any applicable specifications), including in any such master supplier agreement. “Excess Goods” means Goods that, when counted together with all other Goods having the same make/model number/UPC/SKU/other identifier and received by Buyer under the Order, are in excess of the quantities of the Goods ordered under the Order.
Right of Return. Without limiting its other rights, Buyer may return Goods purchased under the Order to Seller for any or no reason; provided that: (a) Buyer returns the Goods unused and undamaged within 30 days of receipt; and (b) returns are made at Seller’s expense and risk of loss. For each returned Good under this Section, once Seller verifies its quantity and quality, subject to the other applicable Terms, Seller will refund the Price in cash or by return credit at Buyer’s discretion.
Title. Title to the Goods passes to Buyer upon the earliest to occur of (a) proper delivery of the Goods, (b) payment of any portion of the Price for such Goods by Buyer, or (c) Buyer’s acceptance of the Goods. Title will transfer to Buyer even if Seller has not been paid for such Goods, provided that Buyer will not be relieved of its obligation to pay for Goods in accordance with the Terms. Title to materials supplied by Buyer to Seller for production or performance of services remains with Buyer at all times.
Risk of Loss. Notwithstanding any agreement between Buyer and Seller concerning transfer of title or responsibility for shipping costs, risk of loss to Goods passes to Buyer upon receipt and acceptance by Buyer at the Delivery Location, and Seller will bear all risk of loss or damage regarding Goods until Buyer’s receipt and acceptance of such Goods in accordance with the Terms. With respect to materials supplied by Buyer to Seller for performance or production of Goods, Seller is liable for the risk of loss with respect thereto from the time Seller or Seller’s agents receive custody or control of such materials until the materials or Goods produced therefrom are actually received by Buyer at the Delivery Location. Seller agree to maintain insurance on such materials on terms acceptable to Buyer, name Buyer as an additional insured and provide evidence of such insurance from time to time upon request of Buyer.
Price. Except as expressly agreed by the Parties in writing, Seller will provide Goods to Buyer for the prices set forth in the Order. All prices include, and Seller is solely responsible for, all costs and expenses relating to packing, crating, boxing, transporting, loading and unloading, customs, Taxes, tariffs and duties, insurance, and any other similar financial contributions or obligations relating to the production, manufacture, sale, or delivery of the Goods. All prices are firm and are not subject to increase for any reason, including changes in market conditions, increases in raw material, component, labor, or overhead costs, or because of labor disruptions, or fluctuations in production volumes. “Taxes” means any and all sales, use, gross receipts, registration, import, export, value added, environmental, ad valorem, or excise tax or any other similar taxes, fees, duties, or charges of any kind imposed by any governmental authority.
Invoices. Seller will issue invoices to Buyer for all Goods ordered by Buyer and supplied by Seller. Each invoice for Goods must set forth in reasonable detail the amounts payable by Buyer and contain the following information, as applicable: a reference to the Order; Order number, amendment number, and line-item number; Seller’s name; Seller’s identification number; carrier name; ship-to address; weight of shipment; quantity of Goods shipped; number of cartons or containers in shipment; bill of lading number; country of origin and any other information necessary for identification and control of the Goods. Buyer reserves the right to return and withhold payment for any invoices or related documents that are inaccurate or incorrectly submitted to Buyer.
Payment Terms. Except for any amounts disputed by Buyer in good faith, Buyer will pay all invoiced amounts due to Seller within 45 business days following the later of (a) Buyer’s receipt of Seller’s invoice or (b) Buyer’s receipt of the applicable Goods. Buyer may withhold payment pending receipt of evidence, in such form and detail as Buyer may reasonably direct, of the absence of any Encumbrances on the Goods. Payment of invoices will not be deemed acceptance of the Goods or waive Buyer’s right to inspect, but rather such Goods will be subject to acceptance under the Terms. Buyer is entitled to any discounts allowable by Seller if Buyer’s failure to make timely payment is due to Seller’s actions or other circumstances or events beyond Buyer’s reasonable control. “Encumbrance” means any charge, claim, interest, pledge, condition, lien (statutory or other), security interest, or restriction of any kind, including any restriction on use, transfer, receipt of income, or exercise of any other attribute of ownership.
General Compliance with Laws. Seller will at all times comply in all material respects with all Laws and high industry standards, including with respect to Seller’s performance and production of the Goods. Without limiting the generality of the foregoing, Seller will: (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the sale of the Goods; and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any Law. “Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order, or other requirement or rule of law of any governmental authority.
Import- and Export-Related Information. On Buyer’s request Seller will promptly provide all information necessary to properly export and import the Goods.
Ingredients and Materials Disclosure. On Buyer’s request, Seller will promptly provide to Buyer, in such form and detail as Buyer requests, a list of all ingredients and materials incorporated in the Goods, the amount of such ingredients and materials, and information concerning any changes in or additions to such ingredients and materials.
Product Warranties. Seller warrants to Buyer that: (a) for a period of one (1) year from the date of shipment of any Goods (the “Warranty Period”), such Goods will be fit and safe for use consistent with, and will conform to, the applicable specifications and will be free from defects in material and workmanship; (b) such Goods will be free of defects in design (except for written designs provided by Buyer, unless the defects in Buyer’s designs are based on Seller’s specifications); (c) no Encumbrance or action will exist or be threatened against Seller that would interfere with Buyer’s use or sale of such Goods; (d) such Goods will not infringe any third-party’s intellectual property rights; (e) Buyer will receive good and valid title to such Goods, free and clear of all Encumbrances; (f) such Goods will be new and will not contain used or reconditioned parts, unless otherwise specified in the applicable specifications; (g) such Goods and all parts of such Goods, including, but not limited to parts that may be identified as replacement units or spare parts, will not experience data integrity, undetected data loss, or related issues, and will conform with any other related requirements specified in the applicable specifications; (h) to the extent such Goods include software code, such Goods will contain no harmful code, virus, malware, or similar items; (i) it has disclosed to Buyer in writing the existence of any third-party code, including open source code, that will be included in or will be provided in connection with such Goods and that Seller and such Goods will be in compliance with all licensing agreements applicable to such third-party code; and (j) all authors have agreed not to assert their moral rights (personal rights associated with authorship of a work under applicable Law) in such Goods, to the extent permitted by Law.
Remedies for Breach of Warranties. During the Warranty Period, if Goods do not comply with the applicable warranties, in addition to other remedies available at Law or in the Order, Seller will, at Buyer’s discretion: (a) repair or replace such Defective Goods; or (b) credit or refund the Price of such Defective Goods plus the value of damaged materials supplied by Buyer together with any inspection, test and transportation charges paid by Buyer, less any applicable discounts, rebates, or credits. For such Goods, Buyer will ship, at Seller’s expense and risk of loss, such allegedly Defective Goods to the nearest authorized Seller location and Seller will, at Seller’s expense and risk of loss, return any repaired or replaced Good to the Delivery Location in a timely manner. If Seller fails to repair or replace Goods in a timely manner, Buyer may do so, and Seller will reimburse Buyer for actual and reasonable expenses. Buyer may return Defective Goods from any Buyer location to the nearest authorized Seller location at Seller’s cost.
Indemnification. Seller agrees to indemnify, defend, and hold harmless Buyer and its Representatives, successors, and permitted assigns, against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees, and the costs of enforcing any right to indemnification under the Order and the cost of pursuing any insurance providers (collectively, “Losses”), relating to or arising out of or resulting from, directly or indirectly, any: (a) breach or non-fulfillment of any representation, warranty, covenant or agreement in the Order by Seller or Seller’s agents, employees, or subcontractors; (b) any negligent or more culpable act or omission of Seller or its agents, employees, or subcontractors (including any recklessness or willful misconduct) in connection with the performance of its obligations under the Order; (c) any bodily injury, death of any Person, or damage to real or tangible personal property caused by any acts or omissions of Seller or its agents, employees, or subcontractors; or (d) any failure by Seller or its Personnel to materially comply with any applicable Laws. “Representatives” means a Party’s affiliates, and each of such Party’s and their respective personnel, officers, directors, governors, managers, partners, shareholders, agents, attorneys, third-party advisors, successors, and permitted assigns. “Person” means any individual, partnership, corporation, trustee or trust, limited liability entity, unincorporated organization, association, governmental authority, or any other entity.
Certain Other Terms. The headings in the Order are for reference only and do not affect the interpretation of the Order. No waiver under the Order is effective unless it is in writing, identified as a waiver to the Order and signed by the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from the Order: (a) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under the Order; or (b) any act, omission, or course of dealing between the Parties. All rights and remedies provided in the Order are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. Seller may not assign any of its rights or delegate any of its obligations under the Order without Buyer’s prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under the Order. Nothing in the Order creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Seller is an independent contractor under the Order. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party. The Order, and all matters relating to or arising out of or resulting from, directly or indirectly, the Order, are governed by, and construed in accordance with, the Laws of the State of Minnesota, United States of America, without regard to the conflict of law’s provisions thereof to the extent such principles or rules would require or permit the application of the Laws of any jurisdiction other than those of the State of Minnesota. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Order.
Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way relating to the Order or the relationship between the Parties in any forum other than a federal or state court sitting in Minneapolis or Saint Paul Minnesota, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in such a court. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise relating to the Order or the relationship between the Parties is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action relating to the Order or the relationship between the Parties.