General Terms and Conditions of Sale Trescal, INC.

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1. General

These Terms and Conditions of Services (“Terms and Conditions”) form an integral part of any acceptance by Trescal Inc., (“TRESCAL”) of any purchase order placed (“Order”) and services transaction resulting therefrom and shall supersede all printed terms and conditions on any request for proposal or purchase order of a customer of TRESCAL (“Customer”) and any other inconsistent terms submitted by a Customer prior to acceptance by TRESCAL of an Order. These Terms and Conditions may not be varied or supplemented unless agreed to in a signed writing by a duly authorized representative of TRESCAL.  Failure of TRESCAL to object to conflicting or different provisions contained in any Order or other writing of Customer shall not be construed as a waiver of these Terms and Conditions nor an acceptance of any terms and conditions of Customer. Except only as otherwise agreed in a signed writing by a duly authorized representative of TRESCAL, the provision of any of TRESCAL’s services (“Services”) on measuring devices, systems or tools (together the “Equipment”) and / or processes for the benefit of the Customer, shall be governed only by these Terms and Conditions. Customer shall be deemed to have accepted these Terms and Conditions if Customer accepts any provision of Services to which these Terms and Conditions relate. TRESCAL hereby expressly rejects any portion of any Order that attempts to modify these Terms and Conditions.

2. Offer and Acceptance

The Order is an offer to obtain Services upon these Terms and Conditions and shall be considered accepted upon (i) TRESCAL’s receipt of an Order from Customer for the Services and TRESCAL’s written acceptance (“Order Acceptance”) of the Order, (ii) TRESCAL’s receipt of a TRESCAL proposal setting out the services to be provided by TRESCAL signed by the Customer (“Proposal Acceptance”) (such an Order or such a Proposal Acceptance is an “Accepted Order”), or (ii) TRESCAL’s commencement of its performance as requested in the Order. After Order Acceptance, Customer may not cancel any Accepted Order without TRESCAL’s written consent.

3. Provision of Services

3.1. TRESCAL will with reasonable care, skill and diligence provide the Services, any documents, certificates and reports, in relation to the performance of the Services that TRESCAL has to deliver in application of an Accepted Order (“Deliverables”) and in accordance with Customer’s Specifications or, in the absence of such instructions, TRESCAL’s own specifications (“TRESCAL Specifications”). The Customer expressly agrees that any Order Acceptance implies full and unreserved acceptance of the TRESCAL Specifications unless expressly stated otherwise (the actual specifications used hereunder, the “Specifications”). Under no circumstances can TRESCAL be held responsible for the definition of tolerances.

“Customer’s Specifications” means the document from the Customer containing the description, purpose and technical requirements for the Services, or if not provided by the Customer, any specifications formally agreed in writing on by the Customer and TRESCAL in relation to the Services.

3.2. The calibration intervals are in accordance with the Customer’s request. TRESCAL makes no recommendation regarding the accuracy of the intervals determined by the Customer.

3.3. Notwithstanding any other provision of these Terms and Conditions, TRESCAL shall not be obliged to provide Services if it determines, in its sole discretion, that it would be placed (or payment thereof would place it) in breach of any applicable international sanctions or trade restrictions or any sanctions imposed by the United States of America. TRESCAL reserves the right to exercise its right to refuse the acceptance request made under any Accepted Order (or otherwise) at its own discretion and will not be liable for any losses whatsoever the Customer may incur as a result of such refusal.

4. Obligations of Customer

4.1. The Customer shall:

  • co-operate with TRESCAL in all matters relating to the Services;
  • provide TRESCAL, in a timely manner, such information as TRESCAL may require for the proper performance of the Services and ensure that such information is accurate in all material respects;
  • promptly provide the Equipment to be processed;
  • when work is performed at a Customer-designated site, Customer shall:
    • provide TRESCAL with all necessary transportation and equipment, such equipment to be in good working order, for provision of the Services;
    • procure access to, and appropriate preparation and maintenance of the relevant premises where the Services are to be performed;
    • take all necessary steps to remedy any obstructions to or interruptions in the performance of the Services;
    • adopt all necessary measures to ensure safety and security of working conditions on site during performance of the Services;
    • inform TRESCAL of all health and safety risks or hazards and any applicable rules and regulations that apply at any of the operational premises;
    • provide assistance during the performance process for dismantling or assembling of parts/components as where and when required; and
    • then set up the Equipment after the Services performance with the presence of TRESCAL’s representative to verify that it is working properly.

4.2. If TRESCAL’s performance of its obligations under an Accepted Order is prevented or delayed by any act, omission, default or negligence of the Customer, its agents, subcontractors, or consultants, TRESCAL shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay and Customer shall pay to TRESCAL an amount equal to $250 per hour (or each portion thereof), per technician for the amount of time for which TRESCAL’s technicians are prevented or delayed in completing work due to any act, omission, default or negligence of the Customer, its agents, subcontractors, consultants.

5. Time of Performance, Delays

5.1. Any information with regard to time of performance shall be nonbinding, unless otherwise expressly stated by TRESCAL in writing. Time shall not be of the essence for purposes of delivery of the Deliverables.

5.2. All terms of performance shall be subject (i) Customer’s delivery of sufficient information, instructions and documents in due time, (ii) Customer’s provision of the equipment on time, (iii) if applicable, Customer’s procurement of access to premises, (iv) Customer’s compliance with all payment terms set forth herein below, and (v) Customer’s compliance with all obligations set forth in these Terms and Conditions. The terms of performance shall be extended by, and for so long as, the above conditions have not been met.

5.3. If Customer requests any changes to an Accepted Order, and TRESCAL agrees thereto in writing, then the time of performance with respect to such changed Accepted Order shall be extended by a reasonable period of time to accommodate such changes.

5.4. TRESCAL retains the right to withhold any performance of Services without liability as long as Customer is in default under any obligation of any Accepted Order.

6. Shipment; Risk of Loss; Shipping Schedule; Provision of Services

6.1. Shipments from TRESCAL to Customer shall be made ex works (Incoterms 2020) TRESCAL’s premises in the U.S., unless otherwise specified in writing.

6.2. TRESCAL’s shipments are NOT insured. Customer must request insurance coverage, if required, and the insurance cost will be added to the freight charge. All shipments are the responsibility of Customer. TRESCAL assumes no responsibility for any such loss or damage.

6.3. Each shipment shall be deemed accepted in good and undamaged condition by the carrier, and title to, and the risk of loss or theft, damage or destruction to, the Deliverables shall pass and shift to Customer upon releasing the Deliverables to the carrier and upon that acceptance by the carrier.

6.4. If acceptance by Customer is required, then title to (if applicable), and the risk of loss or theft, damage or destruction to, the Deliverables shall pass and shift to Customer upon such agreed upon date of acceptance or TRESCAL’s request for acceptance by Customer, respectively, unless Customer is entitled to reject the Deliverables under these Terms and Conditions. 

6.5. If there is a delay in shipment or acceptance by Customer due to circumstances not caused by TRESCAL, then title to (if applicable), and the risk of loss or theft, damage or destruction to, the Deliverables shall pass and shift to Customer upon TRESCAL’s notice to Customer of its readiness to ship or present for acceptance, as the case may be.

6.6. Customer acknowledges and agrees that lead time will vary according to availability of supply, delays in transportation and other conditions, and, consequently all performance dates communicated by TRESCAL are estimates only and shall be subject to change without notice. Delay in performance of any Services shall not relieve Customer of its obligations to accept such Services. Under no circumstances shall TRESCAL on account of late provision and/or delivery, or non-provision or non-delivery be liable to Customer, its agents or any other persons for any damages set forth in Section 12 below. Time shall not be of the essence.

6.7. If Customer does not take delivery on the agreed date, Customer is liable for all risks and incidental costs incurred from this date. Customer will automatically be liable for any delay in taking or requesting delivery in comparison to the agreed deadlines; this results in the Customer immediate invoicing for the full amount of the order, and paying the costs of preserving the goods, on receiving standard notification. Invoiced Deliverables that are not collected within six months from invoicing shall be deemed abandoned, shall become property of TRESCAL, and, at Trescal’s option, may be destroyed after formal notice is given to Customer.

7. Prices, Compensation, Payment

7.1. The Services are performed in accordance with the pricing terms set forth in the Accepted Order.  The Customer acknowledges that the pricing terms detailed in the offer of TRESCAL are valid only for the period of validity of such offer as indicated therein. TRESCAL may adjust its prices freely outside the period of validity of the offer.

All prices are valid ex works TRESCAL’ warehouse, unless otherwise agreed upon by TRESCAL in writing. All prices are in US$ and are exclusive of all Taxes, fees, surcharges, applicable transportation costs, expenses, packaging, dispatch and, if applicable, insurance of equipment in transit.

7.2. Prices for Services are based on accurate description of equipment, subject to change only when the equipment arrives at TRESCAL and differs from the original description. TRESCAL reserves the right to modify pricing quoted in error due to limited information, custom gage design, additional Services requirement outside standard procedure, quantity difference.

7.3. The Fees and any additional charges are exclusive of all applicable taxes, assessments, fees and other charges, including, without limitation sales, use, excise or similar taxes (collectively, the “Taxes”) based upon the Services or the delivery, sale, importation, or use of the Deliverables which are imposed by any federal, state, or local governmental agency (collectively, the “Taxing Authorities”).  If the Taxing Authorities collect the Taxes directly from Customer, then Customer shall pay all such Taxes on or before their due dates.  If the Taxing Authorities require that TRESCAL collect the Taxes from Customer at the time of sale, TRESCAL will use its best efforts to include all such Taxes in its invoices to Customer and Customer shall pay all such invoices on or before their due dates.  If Customer is entitled to an exemption from any Taxes which the Taxing Authorities require to be collected by TRESCAL, then, in order to permit TRESCAL not to collect those Taxes, Customer shall obtain and provide to TRESCAL current and valid exemption certificates relating to those Taxes.  If, subsequent to the issuance of any invoice, the Taxing Authorities or TRESCAL advise Customer of additional Taxes payable with respect to the Products covered by that invoice, then Customer shall promptly pay such additional Taxes.  Customer acknowledges that it remains solely responsible for all such Taxes, and will indemnify TRESCAL against any liability for such taxes even if TRESCAL fails for any reason to include any such Taxes in its invoice to Customer.

7.4. The Customer shall pay each valid invoice submitted to it by TRESCAL, in full and in cleared funds, within thirty (30) days of the date of the invoice. If, at any time, the financial responsibility of Customer becomes impaired or unsatisfactory to TRESCAL, in the sole judgment of TRESCAL, TRESCAL, effective immediately upon delivery of notice to Customer, may require the advance cash payment or other security satisfactory to TRESCAL for the provision of Services and if Customer fails to provide advance cash payment or other security satisfactory in accordance with TRESCAL’s notice to the Customer, Trescal may immediately suspend the Services. 

7.5. Upon Customer’s default of payment on the due date, interest will accrue at a rate of the lower of (i) eighteen percent (18%) per annum or (ii) the maximum interest rate which may lawfully be contracted for, charged and received according to applicable law for business purchases at the time of delivery. Notwithstanding anything in these Terms and Conditions to the contrary, Customer shall never be obligated to pay and TRESCAL shall never be entitled to receive any interest upon any indebtedness incurred by Customer pursuant hereto in excess of the maximum contract rate of interest authorized by applicable law for business purposes, and it is expressly understood and agreed that if TRESCAL shall render any charge for the payment of usurious interest, such charge shall be automatically and unconditionally reduced to the maximum non-usurious amount, and the excess, if paid, shall be applied as credit to Customer’s account.  If such application results in a credit balance in Customer’s said account, such balance shall be refunded to Customer or applied to the next due amount in such account as Customer shall direct.   Customer shall pay all costs of collection, including legal fees. If any payment due to TRESCAL from the Customer under an Accepted Order is late, TRESCAL may without liability suspend the provision of some or all of the Services including, but not limited to, the provision of Deliverables until overdue payment is received by it.

7.6. Customer shall not be entitled to retain or defer payment of any sums due to TRESCAL on account of any dispute, counter claim or set off which it may allege against TRESCAL.

8. Inspection; Claims; Return; Acceptance of Services and Deliverables; Rectification of Defects

8.1. Customer shall inspect the Equipment performed immediately upon such performance, and shall give written notice to TRESCAL of any non-compliant Equipment (“Damage” or “Loss”) within ten (10) days from the date of completion of the Services. If Customer does not provide such notice, the Services shall be deemed to conform to their description and the Services and Deliverables shall be deemed accepted by Customer in accordance with the terms of the Accepted Order.

8.2. For any Damage not immediately apparent, Customer shall notify TRESCAL within ten (10) days of discovery of such Damage or Loss. If Damage or loss is ascertainable by Customer upon delivery of the equipment, Customer must immediately file a claim with the carrier and notify TRESCAL in writing as set forth above within two (2) business days after delivery. Notations regarding any such claim shall be made on all copies of carrier’s waybill and the driver must sign all copies to acknowledge notification of the claim. Upon TRESCAL’s request, Customer shall furnish to TRESCAL all original delivery records so as to assist TRESCAL in assessing the validity of the claim.

8.3. Customer shall not refuse acceptance of shipment because of transit damage pursuant to ex works Incoterms, if applicable.

8.4. Customer hereby agrees to grant TRESCAL a reasonable time period, as determined in TRESCAL’s sole discretion, to remedy any non-compliant Services. Otherwise, TRESCAL shall not be liable to Customer for any such non-compliance or defect.

9. Force Majeure

TRESCAL shall not be liable for damages as a result of any delay or failure of performance and/or delivery due to any cause beyond TRESCAL’s control, including, without limitation, acts of nature or God, act of Customer or any of its representatives, any statute, ordinance, regulation, order or other governmental agency or judicial action, fire, storm, flood, earthquake, explosion, accident, war or rebellion, sabotage, epidemic, pandemic, quarantine restrictions, strike, riot, terrorism, war, transportation embargoes, failure or delay in transportation or inability to obtain or delay in obtaining necessary labor, products, fuel or manufacturing locations or failures of manufacturing machinery. In the event of any such delay, the date of performance and/or delivery shall be extended for a period equal to the time loss by reason of such delay and, if such delay is caused by act of Customer or any of its representatives, TRESCAL shall be reimbursed for any additional costs arising from such delay.

10. Warranty

    10.1. Subject to the terms of this Section 10, TRESCAL provides for a limited warranty for any Services performed hereunder for any material non-compliance of such performance with the Specifications applicable to the Accepted Order for twelve (12) months from completion of the Services or as otherwise agreed upon by the parties, consumable items including, without limitation, fuses and test leads not being warranted. TRESCAL will attempt to correct any material non-compliance that it has confirmed in any Deliverable that is found to be materially non-compliant with the Specifications resulting from deficiencies in workmanship or materials.  Customer shall be responsible for payment of shipping to and from TRESCAL’s designated facility.  TRESCAL’s obligation to remedy any material non-compliance is TRESCAL’s sole obligation to Customer and Customer’s sole remedy for breach of warranty.

    Notwithstanding the foregoing, calibration services provided by TRESCAL are expressly excluded from this warranty.  Calibration services do not benefit from any warranty because a multiplicity of factors can lead to a drift out of tolerance at any time after the calibration of an Equipment.

    10.2. TRESCAL shall have no liability of any kind for breach of its warranty in this Section or otherwise under these Terms and Conditions in circumstances where:

    • the Customer has changed the Specifications – whatever the nature of the modification – after the Service has been carried out; or
    • the Customer fails to give written notice of the alleged breach to TRESCAL within ten (10) days of the time when the Customer discovers or ought to have discovered it and, in any event, no later than ten (10) days after the expiry of the warranty period stated in Section 10.1, or having given such notice:
    • fails to give TRESCAL a reasonable opportunity to examine the Deliverables concerned; or
    • fails (having been asked to do so by TRESCAL) to return, at the Customer’s cost, such Deliverables for examination at TRESCAL’s place of business; or
    • continues to make full or substantially full use of such Deliverables; or
    • the defect arises as a result of:
    • the Customer failing to follow (i) TRESCAL’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Deliverables or (if there are none) good trade practice, or (ii) manufacturer’s recommendations; or
    • damage by accidents or bad weather; or
    • wear and tear or misuse.

    10.3. Customer must immediately (but in no event later than ten (10) days following discovery or the date when Customer should have discovered) notify TRESCAL in writing with respect to any warranty claim upon which notification TRESCAL shall determine the validity of such claim.

    10.4. EXCEPT AS SET FORTH IN THIS SECTION 10, TRESCAL MAKES NO EXPRESS OR IMPLIED WARRANTY, STATUTORY OR OTHERWISE, CONCERNING ANY SERVICES OR DELIVERABLES.  TRESCAL DISCLAIMERS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF MERCHANTABILITY.

    11. Confidentiality

      11.1. The parties agree to consider as strictly confidential and to treat as such the content of any Accepted Order and, more generally, of the contractual documents as well as all information and documents of any kind, including, without limitation, technical, commercial, financial, pricing, etc., exchanged between them with a view to, within the framework of or on the occasion of the Accepted Order, regardless of their nature and medium (“Confidential Information”).

      11.2. Information of each of the parties shall be deemed to be non-confidential:

      • lawfully known to the public or to the receiving party prior to its disclosure to such receiving party;
      • disclosed to the public other than in violation of a legal or contractual obligation of the receiving party,
      • disclosed by a third party not subject to an obligation of confidentiality and without breach of an agreement with the party to which the information belongs.

      11.3. Each party agrees, except with the express written consent of the party to which the Confidential Information belongs, not to disclose or allow to be disclosed to any third party, directly or through an intermediary, in whole or in part, any Confidential Information belonging to the other Party of which it may become aware. Each party may nevertheless communicate to its employees, subcontractors or other third parties Confidential Information belonging to the other party if the communication of such Confidential Information is strictly necessary for the performance of the Agreement.

      11.4. The party concerned shall in all cases take appropriate measures to ensure that employees, subcontractors and third parties to whom Confidential Information has been lawfully disclosed undertake to comply with the provisions of this Section.

      11.5. The parties agree not to use the Confidential Information thus exchanged for any purpose other than the performance of the Agreement.

      11.6. Each party may disclose Confidential Information if ordered to do so by a competent authority or court and such party is legally required to follow such order.

      11.7. This confidentiality obligation does not prohibit TRESCAL from naming the Customer in its reference lists.

      12. Indemnification, Damages Disclaimer and Limitation

        Except as otherwise provided in these Terms and Conditions, each party (as such the “Indemnifying Party”) agrees to indemnify and to hold harmless the other party and its officers, directors, employees, subcontractors and agents (the “Indemnified Parties”) from and against any and all claims, demands, losses, liabilities, causes of action, costs or expenses (including attorney’s fees) of whatsoever nature (collectively, “Losses”) which are asserted against or incurred by any Indemnified Party as a result of the breach by the Indemnifying Party of its obligations under any Accepted Order or these Terms and Conditions or as a result of any wrongful act or omission of the Indemnifying Party or of any officers, directors, employees or agents of the Indemnifying Party except to the extent that such Losses arise out of or result from the negligent or intentional acts or omissions of the Indemnified Party. Any amount payable by Customer under this Section 12 shall be due within ten (10) days after written demand and any such amount which is not paid when due shall bear interest from the due date to the date of payment at the rate of 18% per annum (or, if less, at the maximum rate of interest permitted under the laws of the State in which Customer has its principal place of business). Without limiting the above provisions, the obligation of Customer under this Section 12 shall include any reasonable attorney’s fees or other costs incurred by the Indemnified Parties in enforcing the obligation of indemnity under this Section 12.  Customer’s obligation to indemnify shall remain in full force and effect until the lapse of all applicable statutes of limitations or similar time periods within which an action for indemnity or contribution must be brought.

        IN NO EVENT SHALL TRESCAL BE LIABLE TO ANY CUSTOMER OR ANY OTHER PERSON FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING LOSS OF PROFIT OR GOODWILL OR (B) DIRECT DAMAGES TO PROPERTY FOR ANY MATTER ARISING OUT OF OR RELATING TO THE SERVICES, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF TRESCAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL TRESCAL’S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR DAMAGES EXCEED THE LESSER OF: (A) TOTAL COMPENSATION PAID BY CUSTOMER TO TRESCAL FOR THE SERVICES OVER THE PRECEDING THREE MONTHS; OR (B) $10,000.

        Nothing in an Accepted Order or these Terms and Conditions limits or excludes the liability of either party:

        • for the gross negligence or willful misconduct of that party; or 
        • for any damage or liability incurred as a result of fraud, fraudulent misrepresentation or fraudulent concealment by that party; or
        • for any other loss which by law cannot be excluded or limited. 

        13. Intellectual Property

        13.1. Each party exclusively owns all rights to Intellectual Property it has created whether before or after the commencement date of the Accepted Order and whether or not associated with any agreement between the parties.

        13.2. The names, service marks, trademarks and copyrights of TRESCAL shall not be used by the Customer except solely to the extent that the Customer obtains the prior written approval of TRESCAL and then only in the manner prescribed by TRESCAL.  

        13.3. Customer hereby acknowledges the full ownership by TRESCAL of the know-how (in particular processes, methods, operating procedures, etc.) that it has developed and implemented for the performance of the Services.

        13.4. The results of the execution of the Services of all types using the Customer’s data, including the resulting studies, whether or not they are protected by intellectual property rights, will become the exclusive property of the Customer as and when the Services are executed. TRESCAL will hand them over to the Customer.

        13.5. If the results include copyrights, TRESCAL transfers to the Customer exclusively and definitively, for the legal duration of the copyrights and for the whole world, all the economic rights of the author attached to the said results. These rights include the rights of reproduction, representation, modification, adaptation, translation and commercialization in all forms, in whole or in part, by any means and on all known or future media.

        13.6. Notwithstanding the above provisions, TRESCAL retains the right to re-use the experience and know-how acquired during the performance of the Services and to integrate this experience and know-how.

        “Intellectual Property” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, logos, service marks, trade dress, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets), methods and protocols for Services, and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals, reversions or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

        14. Default

          TRESCAL reserves the right to cancel all or any part of a current Accepted Order and any other Accepted Orders outstanding, without liability to Customer, if Customer fails to perform under any applicable provision of these Terms and Conditions or of any applicable Accepted Order and the failure is not cured within ten (10) days after notice to Customer by TRESCAL. The provisions of this Section 14 to the contrary notwithstanding, if the breach is of the Customer’s obligation to make a payment to TRESCAL when due, then TRESCAL may declare all amounts owed to it under this Agreement immediately due and payable, and TRESCAL, in addition to all other rights hereunder, may suspend its performance or terminate this Agreement forthwith and without giving Customer notice or the opportunity to cure.  TRESCAL shall also have the right to offset any amount that TRESCAL then or thereafter owes to Customer, to any guarantor of the Customer’s obligations under this Agreement or to any affiliate entity that owns, is owned by or is under common ownership with the Customer against any amounts owed by Customer to TRESCAL.  The waiver of any breach shall not constitute a waiver of any subsequent breach of the same or any other term or condition.  Any failure of TRESCAL to enforce rights or seek remedies arising out of any breach by Customer shall not prejudice or affect the rights and remedies of TRESCAL in the event of any subsequent breach by the Customer.  In the event of termination, TRESCAL may exercise all rights and remedies available to it hereunder and under the laws of the state of Michigan. In any action related to the enforcement of this Agreement against Customer, TRESCAL shall have the right to recover its reasonable attorney’s fees and costs actually incurred.

          15. Non-Solicitation

            TRESCAL may hire employees to provide the Services.  Customer agrees not to hire or contract with any employee of TRESCAL while such employee is working for TRESCAL and agrees not to hire or contract with any employee of TRESCAL for twelve months after the later to occur of : (i) the employee of TRESCAL ceases to be employed by or perform services for TRESCAL ; or (ii) TRESCAL ceasing to provide services for Customer; provided however, that this provision shall not apply to individuals who respond to a general solicitation of employment through an advertisement not targeted at TRESCAL or its employees.  Customer acknowledges and agrees that money damages would not be a sufficient remedy for any breach of this Section 15 and that TRESCAL shall be entitled to injunctive or other equitable relief as a remedy for any such breach or threatened breach, and Customer further agrees to waive any requirement for the securing or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive remedy for a breach of this Section 15, but shall be in addition to all other remedies available at law or equity to TRESCAL.  TRESCAL shall be entitled to recover its reasonable expenses, attorneys’ fees and costs incurred in enforcing this Section 15 or in the enforcement or collection of any judgment or award rendered pursuant thereto.

            16. Bankruptcy or Insolvency

              If Customer files any petition under any bankruptcy reorganization, composition or insolvency law, or if any other person or entity files such petition with regard to Customer, or if a receiver has been appointed to manage Customer’s affairs or property, TRESCAL, in its sole discretion, may terminate any Accepted Order by written notice to Customer. TRESCAL’s termination shall not prejudice its rights to the amounts then due under this Proposal or to any other remedies available. In the event an action is brought by TRESCAL to collect the monies due hereunder, Customer shall pay all cost of collection, including reasonable attorney’s fees, and interest allowed by law.

              17. Anti-Bribery

                17.1. Customer undertakes to comply with the national and international legal and regulatory provisions relating to the fight against corruption and influence peddling, which are applicable to it in the conduct of its activities related to the performance of any Accepted Order (“Provisions”).

                17.2. This undertaking requires that Customer:

                • adopts appropriate and effective anti-bribery measures, for which TRESCAL reserves the right, at any time during the term of the Accepted Order, to monitor their existence and effective application and, if necessary, to require corrective measures to comply with the provisions;
                • conducts its business in a way that does not favor or place any of TRESCAL’s employees and/or managers in a situation of conflict of interest with TRESCAL, and informs TRESCAL, if such a situation arises.

                In the event of changes to the Provisions, including those resulting from case law, the Accepted Order may be adapted as required.

                17.3. Customer is hereby informed that failure to comply with the provisions of this Section may, in particular, damage TRESCAL’s image and may lead to the application of appropriate measures, depending on the seriousness of the breach, which may include the termination of all of the current Accepted Order and any other Accepted Order outstanding, without liability to Customer.

                18. Compliance with Laws

                Each party shall, at all times and in all respects, comply with all applicable international, federal, state, county or municipal laws, ordinances, rules and regulations.  Further, each of the parties agree to use its reasonable best efforts to assist the other party in complying with such laws, ordinances, rules and regulations which the other party may be required to observe in the performance of its obligations under any Accepted Order or these Terms and Conditions.  For avoidance of doubt, “federal laws” include, without limitation, all applicable export control and international sanctions laws and regulations.  Each party shall properly instruct its employees, agents and contractors with regard to compliance with all applicable laws, ordinance, rules, regulations.  Each party represents and warrants that it is a duly formed, validly existing entity with full authority to enter into and fulfill its obligations pursuant to each Accepted Order and these Terms and Conditions.

                19. Data Protection

                19.1. Customer is informed that personal data of the Customer’s employees are collected by TRESCAL in the context of these Terms and Conditions (the “Data”). Where applicable, the Data which must be provided are identified in the Order. If the Data is not provided, TRESCAL will not be able to perform the Services.

                19.2. TRESCAL, as data controller, undertakes to comply with the obligations resulting from the application of any applicable legislation relating to the protection of personal data, the European Regulation 2016/679 of the Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

                19.3. The Data is used for the negotiation, conclusion and performance of the Services with the Customer and the management of the commercial relationship with the Customer.

                19.4. The Data is kept for the duration of the Terms and Conditions and for a maximum of three (3) years.

                19.5. Customer and its employees have the right to access, rectify, delete or port their data, as well as the right to oppose or request the limitation of the processing, and to withdraw their consent, under the conditions and within the limits provided for by the regulations.

                19.6. Customer and its employees also have the right to send special instructions concerning the fate of their data after their death.

                19.7. Customer and its employees may also object to any processing of their Data for commercial prospecting purposes.

                19.8. In order to exercise their rights, the Customer and its employees should send a request by post or e-mail to the following addresses:

                • by post: TRESCAL, DPO, 1200 Old US 23, Howell, MI 48843, or
                • by e-mail: dpo@trescal.com.

                19.9. TRESCAL will send a reply to the Customer and its employees within one (1) month, which may be extended by two (2) months depending on the complexity and number of requests. The Customer and its employees will then be informed of the extension of the deadline and the reasons for the postponement within one (1) month of his request.

                19.10. The Customer and its employees may lodge a complaint with the relevant authorities.

                19.11. TRESCAL undertakes to inform the Customer’s employees who has not been made aware of these terms and conditions within a maximum of one month from the collection of his or her Data by e-mail if TRESCAL has it. In all other cases, the Customer undertakes to inform its employees of the content of this clause by any means.

                20. Jurisdiction; Venue

                In any legal action relating to the performance of Services, supply of Deliverables, or any matter arising out of or resulting from the foregoing, Customer irrevocably agrees and consents to the exercise of jurisdiction over it by the courts of the State of Michigan. These Terms and Conditions, Accepted Orders, and all other matters arising from or relating to the foregoing shall be construed as having been made and entered into in the State of Michigan.  Each party submits and consents to personal jurisdiction in Michigan, and agrees that it is a convenient forum to resolve any such disputes and enforce any such rights, each party hereby waiving to the fullest extent possible the defense of an inconvenient forum.  Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in any jurisdiction anywhere in the world.

                21. Governing Law

                  The Accepted Order, these Terms and Conditions, and all other matters arising from or relating to the foregoing shall be governed by and construed in accordance with the laws of the State of Michigan.

                  22. Miscellaneous

                  22.1. A waiver of any right under an Accepted Order or these Terms and Conditions is only effective if it is in writing and it applies only to the circumstances for which it is given.  No failure or delay by a party in exercising any right or remedy under an Accepted Order or these Terms and Conditions or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.

                  22.2. If any provision of an Accepted Order or these Terms and Conditions is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable in any respect, that provision or part-provision shall, to the extent required, be deemed not to form part of the Accepted Order or these Terms and Conditions, and the validity and enforceability of the other provisions of the Accepted Order or these Terms and Conditions shall not be affected.

                  22.3. Nothing in any Order Acceptance or Accepted Order is intended to confer any rights or remedies on any persons other than Customer, TRESCAL, and their respective successors and permitted assigns

                  23. Assignment

                  Customer shall not delegate any duties or assign any rights under any Accepted Order without the prior written consent of TRESCAL. Any such attempted delegation or assignment shall be void.

                  24. Amendment

                  Notwithstanding Section 1, Customer agrees TRESCAL has the right to change, modify, add, or delete portions of these Terms and Conditions from time to time without further notice. Any such changes to these Terms and Conditions will be either (i) posted at www.trescal.com or (ii) timely communicated in writing to Customer, and will indicate at the top of that page the date that these Terms and Conditions were last revised (“Effective Date”). Any and all Services shall be performed, pursuant to, and in accordance with, the Terms and Conditions as of the Effective Date which is contemporaneous with, or in effect as of, the date of the applicable Order.

                  25. Notices

                  All notices permitted or required under these Terms and Conditions or any Accepted Order shall be in writing.  Notices by facsimile shall be deemed “delivered” on the date of confirmed transmission, without error, to the fax number of the addressee.  Notices by email shall be deemed “delivered” on the date of confirmed transmission to the email address of the addressee.  Notices by mail shall be deemed delivered three (3) business days following the date deposited with the United States Postal Service, certified mail, return receipt requested, postage prepaid, addressed to the party at the address of the principal office.  Notices sent by overnight courier shall be effective on the next business day following deposit with the overnight courier for overnight delivery with the delivery fee prepaid, addressed to the party at the address of the principal office, and with instructions to obtain the signature of the addressee.

                  26. Entire Agreement

                  These Terms and Conditions and each Accepted Order set forth the entire agreement between TRESCAL and Customer with respect to the provision of Services and Deliverables by TRESCAL and there are no other terms or conditions, oral or written, express or implied, relating to or otherwise affecting such Services or Deliverables.  If there is any conflict between these Terms and Conditions and any Accepted Order, the Accepted Order shall prevail.  If TRESCAL and Customer have, prior to the effective date, been parties to any other agreement relating directly to the provision of Services or Deliverables (a “Prior Agreement”), such Prior Agreement, except for guarantees, shall be superseded as of the effective date and all rights and obligations between TRESCAL and Customer with respect the provision of Services and Deliverables from and after the effective date shall be governed by these Terms and Conditions. The terms and conditions of such Prior Agreement, however, shall remain in full force and effect with respect to rights and obligations relating to the provision of Services or Deliverables prior to the effective date and nothing contained in these Terms and Conditions shall be construed as terminating or otherwise affecting any such rights or obligations.

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