1.    Scope of Services.  triMar, from time to time, shall provide services (“Services”) to Client.  All services to be provided shall be specified in a Statement of Work that expressly references the triMar terms and is signed by duly authorized officials of both parties.  Each Statement of Work shall describe, without limitation, the specific Services to be provided, the compensation to be paid to triMar for the Services, and the timetable within which the Services are to be performed.  Notwithstanding the foregoing, if triMar performs any Services without first entering into a Statement of Work as set forth above, the terms and conditions of the triMar terms shall still govern any such Services.  

 

2.    Term.  The triMar terms shall commence on the first date of engagement following a signed SOW and shall continue through the provision of any Services thereunder.

 

3.    Payment Terms and Invoicing

 

A.    Fees and Expenses.  Fees and expenses for triMar’ Services are set forth in the Statement of Work.

 

B.    Invoicing.  Unless otherwise specified in the Statement of Work, triMar shall present an invoice to Client monthly.  The invoice shall indicate the nature of the work performed and any reasonable expenses incurred by triMar with appropriate receipts and/or documentation, as well as the total amount due.  Payment terms are Net 15 Days.

 

C.    Taxes.  Any taxes or similar liabilities however denominated that may now or hereafter be levied on the Services provided or payments made, chargeable to or against triMar by any applicable government authority, shall be passed through to and payable by the Client in addition to the other charges.  Should triMar be required to pay or pays these taxes, fees or assessments or similar liabilities, Client shall promptly reimburse triMar for such payments upon receipt of an invoice from triMar.  Taxes chargeable against the income or gross receipts of triMar shall be paid by triMar.

 

4.    Confidential Information.  The parties shall subscribe to the Mutual Non-Disclosure agreement set forth in Exhibit A, which is incorporated herein, unless already executed earlier separately.

 

5.    Type of Services and warranty

 

1. triMar solely provides advice and assistance on a time & materials basis to its Clients. There are no specific deliverables other than set forth in the pertaining SOW. triMar provides said advice and assistance in a professional and workmanlike manner consistent with generally accepted industry standards and using a wealth of combined knowledge and expertise. Such advice is provided as is and it is up to Client to determine to completely, partially or not implement or follow any advice as these are recommendations or suggested changes and always dependent on how they are actually followed up or implemented, if at all. 

 

6.    Limitation On Damages

 

A.    triMar’s Indemnity.  triMar agrees to indemnify, defend, and hold Client harmless from and against any and all liability, expense (including reasonable legal fees), and claims for damages, in each case solely for third party claims arising from bodily injury, death, or damage to real or tangible personal property to the extent directly and proximately caused by the gross negligence or willful misconduct of triMar in the performance of the Services under the triMar terms and a pertaining SOW; provided, however, that if there also is fault on the part of Client, the third party, or any individual, entity, or governmental body  acting on Client's behalf, the foregoing indemnification under this Section shall be on a comparative fault basis

 

1. In no event shall either party be liable to the other party for any indirect or consequential damages. The maximum liability of either party will be limited to the amount charged or chargeable in the pertaining SOW. Parties acknowledge that the Fees set forth herein reflect the allocation of risk set forth in the pertaining SOW and that they would not have entered into the SOW without the limitations of liability set forth in the triMar terms and the SOW.

 

C.    In no event shall triMar be liable for loss of data or records of Client, it being understood that Client shall be responsible for ensuring proper and adequate back-up and storage procedures.

 

7.    Termination

 

A.    Breach.  If (i) either party breaches or threatens to breach its obligations under Section 4 regarding confidential information and such breach shall remain uncured for a period of five (5) days after the receipt by the breaching party of written notice from the other party of such breach, (ii) Client fails to pay any fees or other amount invoiced by triMar and such failure continues for twenty (20) days after receipt by Client of written notification from triMar, or (iii) either party fails to comply in material respects with all covenants, agreements or conditions herein and such failure continues for thirty (30) days after written notification from the non-breaching party, the non-breaching party may then, at its sole discretion, upon twenty-four (24) hours notice to the breaching party, terminate the pertaining SOW.

 

B.    Return of Materials.  Upon termination or other expiration of an SOW, triMar and Client shall forthwith return to the other party all papers, materials, and other properties of such other party held by each for purposes of performance of this Agreement.  In addition, each party will assist the other party in orderly termination of the SOW as may be necessary for the orderly, non-disrupted business continuation of each party.

 

8.    General Terms

 

A.    Independent Contractor.  It is understood and agreed that each of the parties hereto is an independent contractor and that neither party is, nor shall be considered to be, an agent, distributor, or representative of the other.  Neither party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.

 

    B.    Force Majeure.  triMar shall not be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, act of God, strike or labor dispute, war or other violence, any law, order or requirement of any governmental agency or authority, or any act or omission of  employees or agents of Client.  In this event and to the extent of any period of such delay, nonperformance shall not be deemed a breach of the triMar terms and the work schedule and the due dates of shall be adjusted accordingly.

 

C.    Severability.  If any provision of the triMar terms is declared or found to be illegal, unenforceable or void, then such provision shall be null and void but each other provision hereof not so affected shall be enforced to the full extent permitted by applicable law.

 

D.    Waiver.  No waiver or retraction of a waiver under the triMar terms shall be valid or binding unless set forth in writing and duly executed by the party against whom such waiver is sought.  The failure of either party to exercise any right granted herein, or to require the performance by the other party hereto of any provision if the triMar terms, or the waiver by either party of any breach of the triMar terms, will not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of the triMar terms.

 

E.    Governing Law.  If Client is a UK company, then the triMar terms will be governed by and construed in accordance with the laws of England and Wales, without giving effect to its conflicts-of-laws provisions. In such event the Courts of London, United Kingdom shall have exclusive jurisdiction over any dispute arising out of and in connection with the triMar terms. If Client is a company registered in any country other than the UK, then the triMar terms will be governed by and construed in accordance with the laws of The Netherlands, without giving effect to its conflicts-of-laws provisions. In such event the Courts of Amsterdam, The Netherlands shall have exclusive jurisdiction over any dispute arising out of and in connection with the triMar terms.

 

F.    Priority.  In the event of any conflict or inconsistency in the definition or interpretation of any term or provision set forth in the triMar terms and a Statement of Work, such conflict or inconsistency shall be resolved by giving precedence to the triMar terms, unless and to the extent the Statement of Work expressly states that a particular term or condition provided therein takes precedence.  Any contrary or additional terms and conditions attached to or part of any purchase order or similar document related to the triMar terms shall be invalid and non-binding on the parties. 

 

G.    Modifications In Writing.  Any modification or amendment of any provision of the triMar terms or Statement of Work must be in writing and bear the signature of the duly authorized representatives of both parties.

 

EXHIBIT A

 

Mutual Non-Disclosure Undertaking

 

1.  In connection with discussions and information regarding potential future business arrangements and transactions (hereinafter "Subject Matter"), each party to the triMar terms may wish to disclose its (or its affiliates’) proprietary information (hereinafter "Information") to the other party on a confidential basis.  The Disclosing Party may consider such Information proprietary under the triMar terms either because it has developed the Information internally, or because it has received the Information subject to a continuing obligation to maintain the confidentiality of the Information, or because of other reasons.

 

2.  When information deemed to be proprietary is furnished in a tangible form, the Disclosing Party shall mark the Information in a manner to indicate that it is considered proprietary or confidential or otherwise subject to limited distribution as provided herein.  When Information is provided orally, the Disclosing Party shall, at the time of disclosure, clearly identify the information as being proprietary or confidential or otherwise subject to limited distribution as provided herein.  In addition, the existence and terms of the triMar terms, and the fact and substance of discussions and correspondence between the parties concerning the Subject Matter, shall be deemed Information.

 

3.  With respect to Information disclosed under the triMar terms, the party to whom the Information is disclosed, its employees, and employees of its affiliated companies (the “Receiving Party”) shall:

 

a.    hold the Information in confidence, exercising a degree of care not less than the care it uses to protect its own proprietary or confidential information, but in any event, not less than a reasonable standard of care;

b.    restrict disclosure of the Information solely to those directors, officers, employees and/or agents/consultants with a need to know and not disclose it to any other person;

c.    advise those persons to whom the Information was disclosed of their obligations with respect to the Information; and

d.    use the Information only in connection with continuing correspondence and discussions by the parties concerning the Subject Matter, except as may otherwise be mutually agreed upon in writing.

 

4.  The Information shall be deemed the property of the Disclosing Party and, upon request, the Receiving Party will return all Information received in tangible form to the Disclosing Party or will destroy all such Information at the Disclosing Party's direction.  If either party loses or makes an unauthorized disclosure of the other party's Information, it shall notify such other party immediately and use reasonable efforts to retrieve the lost or wrongfully disclosed Information.

 

5.  The Receiving Party shall have no obligation to preserve the proprietary nature of any Information which:

 

a.    was previously known to such party free of any obligation to keep it confidential; or

b.    is or becomes generally available to the public by other than unauthorized disclosure; or

c.    is developed by or on behalf of such party independent of any information furnished under the triMar terms; or

d.    is received from a third party whose disclosure does not violate any confidentiality obligation; or

e.    is required to be disclosed by law or by any governmental agency having jurisdiction pursuant to an order to produce or in the course of a legal proceeding pursuant to a lawful request for discovery, provided, however, that if a party is so required to disclose the Information such party shall promptly notify the other party of the order or request in discovery and reasonably cooperate with such other party if it elects (at its expense) to seek to limit or avoid such disclosure by any lawful means.

 

6.  Neither the triMar terms, nor the disclosure of Information under the triMar terms, nor the ongoing discussions and correspondence between the parties, shall constitute or imply a commitment or binding obligation between the parties or their respective affiliated companies, if any, regarding the Subject Matter.  If, in the future, the parties elect to enter into binding commitments regarding the Subject Matter, such commitments will be explicitly stated in a separate written agreement executed by both parties, and the parties hereby affirm that they do not intend their discussions, correspondence, and other activities to be construed as forming a contract regarding the Subject Matter or any other transaction between them without execution of such separate written agreement.

 

7.  Neither party is responsible or liable for any business decisions made or inferences drawn by the other party in reliance on the triMar terms or in reliance on actions taken or disclosures made pursuant to the triMar terms.  Neither party makes any warranty, express or implied, with respect to the Information.  Neither party shall be liable to the other hereunder for amounts representing loss of profits, loss of business, or indirect, consequential, or punitive damages of the other party in connection with the provision or use of the Information hereunder.

 

8.  The triMar terms shall be governed by and be binding upon the parties hereto and their respective successors and assigns.

 

9.  The triMar terms shall be governed by and construed in accordance with the local laws of The Netherlands

 

10.  The triMar terms shall become effective as of the date set forth below ("Effective Date").  The period of time following the Effective Date during which Disclosures of Information may take place under the triMar terms shall be referred to as the "Information Disclosure Period".  The obligations of the parties regarding disclosure of Information shall survive and continue beyond the expiration of the Information Disclosure Period for a period of three (3) years.

 

11.  The parties acknowledge that in the event of an unauthorized disclosure of a party’s Information, the damages incurred by such party may be difficult if not impossible to ascertain, and that such party may seek injunctive relief as well as monetary damages against a party that breaches this Agreement.

 

12.  The parties acknowledge and understand that the triMar terms do not limit or restrict the ability of either party to engage in its respective business, nor does it limit either party's use or application of any information or knowledge acquired independently of the other without breach of this Agreement in the course of such business.