Terms and Conditions of Sale
Effective as of: June 9th, 2022
These General Terms and Conditions of Sale (“Terms”) apply to all deliveries of products and services (collectively, (“Product(s)”) from INFINITUM ELECTRIC INC. (“Infinitum”) to any customer identified specifically (“Customer”) in any Infinitum Order or order form executed by Infinitum and Customer (an “Order”). “Services” as used herein means all labor, supervisory, technical, and engineering, installation, repair, consulting, or other services provided by Infinitum under the Order. Sale of any Products and Services is expressly conditioned upon Customer’s acceptance of these Terms. These Terms apply to the agreement to the exclusion of any other terms, and no other terms shall be binding upon Infinitum and Customer unless otherwise expressly agreed in writing by Infinitum and Customer making express reference to amending these Terms. Authorization by Customer to ship or provide Products, or Customers receipt thereof will constitute acceptance of these Terms.
1. Confirmation of Order / Acceptance of Quotation
An Order constitutes an offer by the Customer to purchase the Products in accordance with these Terms. Infinitum shall not be deemed to have accepted an Order until Customer has received written, including electronic text form, confirmation from Infinitum of the Order, at which point a binding agreement shall be formed (the “Agreement”) and shall be governed by these Terms. Customer and Infinitum acknowledge that no terms or conditions in Customer’s Order shall operate to modify, add to, or otherwise conflict with these Terms, and Infinitum shall not be deemed to have in any way enlarged or modified its obligations or liabilities by filling such Order or by failing to further object to Customer’s terms and conditions.
2. Terms of Delivery
Unless otherwise agreed, the Products are delivered to Customer or its carrier Ex Works (Incoterms 2020) (“EXW”) from any of Infinitum’s United States based factories or places of business and title and risk of loss to each article sold by Infinitum shall pass to Customer upon delivery to the carrier at Infinitum’s location. Failing special instructions, Infinitum has the right to dispatch the Products to Customer at the risk and expense of Customer by a transport method chosen by Infinitum, in its sole discretion. EXW or other agreed delivery term shall be interpreted in accordance with the Incoterms valid at the time a binding agreement is made, as described in Paragraph 1 of these Terms. Customer will accept any tender of Products that substantially conforms to the description of the Products set forth in the agreement. Customer shall conduct any incoming acceptance tests as soon as possible upon receipt of the Products or deliverables provided as part of services, but in no event later than 10 days after the date of receipt. Any Products or deliverables not rejected by Customer by written notice to Infinitum within such period that includes a detailed description of the nonconformance shall be deemed accepted. If Customer demonstrates that such nonconformance existed at the time of delivery of the Products to the carrier or deliverables to Customer, Infinitum shall promptly deliver substitute Products or deliverables, provided however, that infinitum will not be liable for any additional costs, expenses or damages incurred by Customer directly or indirectly as a result of such nonconformance. Customer’s acceptance of Products tendered under the agreement shall be final and irrevocable. No attempted revocation of acceptance will be effective, and Customer will be limited to the remedies specifically provided in the Agreement.
If a firm delivery date is agreed, and Infinitum does not deliver or perform at the agreed time, Customer is entitled to request delivery in writing and fix a final, reasonable time limit for delivery. If delivery or performance is not made within this time limit, Customer is entitled to cancel its Order as its sole and exclusive remedy. No further claims can be made by Customer as a result of the delay.
Prices for Products and Services are exclusive of insurance, transportation costs, VAT, sales tax, other taxes or duties. Infinitum reserves the right to adjust prices for non-delivered Products in the event of change in delivery date, alterations in rates of exchange, variations in costs of materials, sub-suppliers’ price increases, changes in custom duties, assessment of tariffs, variations in transportation costs, changes in wages, governmental requisitions, or similar conditions over which Infinitum has no or limited control.
Disposable packing is included in the Product prices and will not be credited if returned. Returnable packing, as notified by Infinitum, is not included in the Product price, but will be credited if returned without undue delay in undamaged condition at Customer’s expense, and in accordance with Infinitum’s instructions.
6. Terms of Payment
Unless otherwise agreed, payment is due net 30 days from the date of invoice. All payments shall be made in US Dollars by bank wire transfer or direct debit without deduction of any transfer or debit fees in immediately available funds to the bank account set out in the relevant invoice. Infinitum may at any time limit or cancel the credit of Customer as to time and amounts and demand payment in cash before delivery. Any payment not made when due shall be subject to interest charges at the maximum rate permitted by law. Customer shall pay all of Infinitum’s costs and expenses (including reasonable attorneys’ fees) incurred to enforce and preserve Infinitum’s rights under this section.
7. Security Interest
For the purpose of securing payment of the price of Infinitum Products and all other charges payable to Infinitum hereunder, Customer hereby grants to Infinitum a security interest (including a purchase money security interest) in and agrees that Infinitum shall continue to have a security interest (including a purchase money security interest) in, all Products, unless and until Infinitum receives full payment for such Products. Customer consents and agrees to Infinitum’s use of this agreement as a security agreement for protecting this security interest, and Infinitum may perfect its purchase money security interest by filing uniform commercial code financing statements. Upon request by Infinitum, Customer will cooperate with Infinitum and execute any necessary documents to perfect Infinitum’s security interest granted herein. These interests will be deemed satisfied and deemed released by payment in full of the purchase price and all other charges payable hereunder for each Product.
8. Product Information
Any information, including, but not limited to information on selection of Product, its application or use, Customer product design, weight, dimensions, capacity, or any other technical data in catalogues descriptions, advertisements, etc. and whether made available in writing, orally, electronically, online or via download, shall be considered informative, and is only binding if and to the extent, explicit reference is made in a quotation or order confirmation. Specific demands from the Customer are only binding if and to the extent they have been confirmed by Infinitum in writing. Customer is solely responsible for its products and applications that incorporate or use Infinitum Products. Any Products made available as samples, prototype or similar type identification (whether charged for or not) may only be used for evaluation purposes, may not be resold or be made part of Customer’s products for resale. Infinitum reserves the right to make alterations to the Products, which do not materially affect the agreed upon specifications or the Products’ form, fit or function, without notice.
9. Confidential and Proprietary Information
Any non-public information, including but not limited to, prices, drawings, descriptions and any technical documents which Infinitum has made or may make available to Customer and identified as “confidential” at the time of disclosure or that a reasonable person would expect to be confidential (“Confidential Information”) shall remain the property of Infinitum and shall be treated as confidential by Customer and its representatives and must not, without the written consent of Infinitum, be copied, reproduced, or transferred to third parties or be used for other purposes than those intended when the Confidential Information was made available. Confidential Information shall be returned or destroyed upon Infinitum’s request.
10. Warranty and Disclaimer
(a) Product and Services Warranty. Infinitum warrants that Product (excluding Software, which is warranted as specified in paragraph (d) below) shall be delivered free of defects in material and workmanship and that Services shall be free of defects in workmanship. The Warranty Remedy Period for Product (excluding Software and Spare Parts) shall end twelve (12) months after installation or eighteen (18) months after date of shipment, whichever first occurs. The Warranty Remedy Period for new spare parts shall end twelve (12) months after date of shipment. If the Order includes the sale of refurbished or repaired parts, the Warranty Remedy Period for such parts shall end ninety (90) days after date of shipment. The Warranty Remedy Period for Services shall end ninety (90) days after the date of completion of Services;
(b) Product and Services Remedy. If a nonconformity to the foregoing warranty is discovered in the Product or Services during the applicable Warranty Remedy Period, as specified above, under normal and proper use and provided the Product has been properly stored, installed, operated and maintained and written notice of such nonconformity is provided to Infinitum promptly after such discovery and within the applicable Warranty Remedy Period, Infinitum shall, at its option, either (i) repair or replace the nonconforming portion of the Product or re- perform the nonconforming Services or (ii) refund the portion of the price applicable to the nonconforming portion of Product or Services. If any portion of the Product or Services so repaired, replaced or re-performed fails to conform to the foregoing warranty, and written notice of such nonconformity is provided to Infinitum promptly after discovery and within the original Warranty Remedy Period applicable to such Product or Services or 30 days from completion of such repair, replacement or re-performance, whichever is later, Infinitum will repair or replace such nonconforming Product or re-perform the nonconforming Services. The original Warranty Remedy Period shall not otherwise be extended;
(c) Exceptions. Infinitum shall not be responsible for providing temporary power, removal, installation, reimbursement for labor costs or working access to the nonconforming Product, including disassembly and re-assembly of non- Infinitum supplied Product, or for providing transportation to or from any repair facility, or for any other expenses incurred in connection with the repair or replacement, all of which shall be at Customer’s risk and expense. Infinitum shall have no obligation hereunder with respect to any Product which (i) has been improperly repaired or altered, including performance of any service on the Product by unauthorized personnel, any; (ii) has been subjected to misuse, negligence or accident, including without limitation, any disassembly of the motor or failure to maintain the grounding rings; (iii) has been used in a manner contrary to Infinitum’s instructions; (iv) is comprised of materials provided by or a design specified by Customer; or (v) has failed as a result of ordinary wear and tear. Product supplied by Infinitum but manufactured by others is warranted only to the extent of the manufacturer’s warranty, and only the remedies, if any, provided by the manufacturer will be allowed;
(d) Software Warranty and Remedies. Infinitum warrants that, except as specified below, the Software will, when properly installed, execute in accordance with Infinitum’s published specification. If a nonconformity to the foregoing warranty is discovered during the period ending one (1) year after the date of shipment and written notice of such nonconformity is provided to Infinitum promptly after such discovery and within that period, including a description of the nonconformity and complete information about the manner of its discovery, Infinitum shall correct the nonconformity by, at its option, either (i) modifying or making available to the Customer instructions for modifying the Software; or (ii) making available at Infinitum’s facility necessary corrected or replacement programs. Infinitum shall have no obligation with respect to any nonconformities resulting from (i) unauthorized modification of the Software or (ii) Customer-supplied software or interfacing. Infinitum does not warrant that the functions contained in the software will operate in combinations which may be selected for use by the Customer, or that the software products are free from errors in the nature of what is commonly categorized by the computer industry as “bugs”; and
(e) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WHETHER WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USAGE OF TRADE ARE HEREBY DISCLAIMED. THE REMEDIES STATED HEREIN CONSTITUTE PURCHASER’S EXCLUSIVE REMEDIES AND INFINITUM’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.
11. Product Liability
Infinitum shall not be liable for any damage to products manufactured by Customer or to products of which Customer’s products form a part. If Infinitum incurs liability towards any third party for claims arising from third party products, Customer shall indemnify, defend, and hold Infinitum harmless from and against such liability. Customer shall indemnify, defend and hold Infinitum harmless from and against all claims arising from damage resulting from the use or operation of the Products or deliverables provided as part of Services because of the improper installation, repair, maintenance or operation of the Products or such deliverables by Customer, the failure of Customer to adequately train personnel in the operation of the Products or such deliverables, or Customer’s failure to comply with applicable laws or regulations or otherwise. If a claim for damage as described in this clause is lodged by a third party against either Infinitum or Customer, the respondent party shall immediately inform the other party thereof in writing. Customer shall be obliged to let itself be summoned to the court or arbitral tribunal examining claims for damages lodged against Infinitum on the basis of damage allegedly caused by the Product or deliverables.
12. Limitation of Liability
INFINITUM SHALL NOT BE LIABLE TO CUSTOMER FOR ANY OF THE FOLLOWING TYPES OF LOSS OR DAMAGE ARISING UNDER OR IN RELATION TO THIS AGREEMENT: 1) ANY LOSS OF PROFITS, BUSINESS, USE, CONTRACTS, ANTICIPATED SAVINGS, GOODWILL, OR REVENUE; 2) ANY LOSS OR CORRUPTION OF DATA; OR 3) ANY INDIRECT, SPECIAL, CONTINGENT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER; EVEN IF INFINITUM WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND WHETHER ARISING OUT OF BREACH OF WARRANTY, TORT, STATUTE, DELAY, FAULTY PRODUCTS OR SERVICE, PRODUCT LIABILITY, RECALL OR OTHERWISE, AND EVEN IF ANY EXPRESS WARRANTIES FAILS ITS ESSENTIAL PURPOSE. INFINITUM’S TOTAL LIABILITY ARISING UNDER OR IN RELATION TO AN AGREEMENT GOVERNED BY THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT INVOICED FOR THE PRODUCT OR SERVICES BY INFINITUM TO CUSTOMER THEREUNDER. CUSTOMER ACKNOWLEDGES AND AGREES, THAT INFINITUM HAS SET ITS PRICES AND ENTERED INTO THE TRANSACTION IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, AND THAT THE SAME REFLECT A RISK ALLOCATION BETWEEN THE PARTIES FORMING AN ESSENTIAL BASIS FOR THE BARGAIN BETWEEN THEM.
13. Intellectual Property Rights and Use of Software
If the Product is delivered with embedded software, Customer obtains a non- exclusive software license in form of a right of use to the software solely for the purposes set out in applicable specification of the Product, and in accordance with any applicable license conditions made available. Customer shall not obtain any rights to source codes to such software. Aside from the foregoing rights in embedded software, Customer obtains no rights in form of license, patent, copyright, trademark, or other proprietary right connected to the Products. Any invention or other information, whether patentable or not, developed by Infinitum in the performance of this Agreement shall remain the property of Infinitum. In the event that Customer acquires any rights in or to any intellectual property rights or improvement covering or embodied in the Products or any derivatives thereof, by operation of law or otherwise, Customer shall assign, and hereby assigns, all right, title and interest in such intellectual property rights to Infinitum. In any event, Infinitum shall have the right, and Customer grants Infinitum such right, to integrate and use all associated intellectual property rights in Infinitum’s Products or any derivatives thereof, without restriction; provided that Infinitum acknowledges that nothing herein is deemed to grant Infinitum any rights to Customer intellectual property rights that are not related to the Products. Customer understands and acknowledges that any and all works of authorship created by Infinitum in connection with this Agreement, whether paid for in whole or in part by Customer, are not works-made-for-hire and shall remain the property of Infinitum unless separately agreed to in writing by Customer and Infinitum. Except as specifically set forth herein, Infinitum reserves all other rights with respect to its intellectual property.
Infinitum, at its election, shall defend any suit or proceeding brought against Customer as far as the same is based on a claim that any Product or part thereof delivered by Infinitum, constitutes an infringement of any third party intellectual property rights in the country of delivery, if notified promptly in writing and given sole authority, information and assistance for the defense of the same and provided such alleged infringement is not the result of the design or other special requirements specified by Customer or the application or use to which such Product is put to use by Customer or others. If Infinitum elects to defend such suit or proceeding, Infinitum will pay all damages and costs awarded under such suit or proceeding against Customer. If such Product or part thereof is held to infringe any such third party intellectual property rights and use thereof is enjoined, Infinitum will, at its option, (a) procure Customer the right to continue use of such Product, (b) replace same with non-infringing Product(s) or parts thereof, (c) modify the same so that it becomes non-infringing, or (d) remove said Product or part thereof and refund the purchase price, exclusive of additional charges as set forth in Paragraph 4 of these Terms. The foregoing states the entire liability of Infinitum to Customer for infringement of intellectual property rights.
Customer will not engage in any transaction with respect to the Products that violates any local, state, or federal laws of the United States. Infinitum shall be entitled to cancel any delivery, Order or terminate an agreement without incurring any liability if Infinitum has reason to believe that Customer acts in a manner contrary to applicable laws and regulations, including without limitation any export or import laws, the Foreign Corrupt Practices Act and other laws regarding bribery and corruption.
16. Import and Export Controls
Customer warrants that it will comply with the Export Administration Regulations of the U.S. Department of Commerce and any other applicable laws and regulations governing exports in effect from time to time, including without limitation US laws and regulations prohibiting the export of product to denied parties and embargoed countries and that it will indemnify Infinitum for any failure by Customer or its customers to do so. Customer agrees to cooperate with Infinitum in order to obtain export licenses or exemptions therefrom.
17. Restraint on Resale and Use for Certain Purposes
Infinitum is entitled to cancel orders or suspend delivery of Products and shall not be liable for any non-delivery, faulty or delayed delivery, which partly or wholly is caused by circumstances beyond Infinitum’s reasonable control, including, but not limited to, riots, civil unrest, war, terrorism, fire, insurrection, pandemic, government regulation, requisition, seizure, embargo or defects or delays in deliveries by sub-suppliers, strikes, lockouts, slowdowns or shut downs, lack of transportation, scarcity of materials, supply chain issues, and insufficient supplies of energy. Any of Customer’s contractual rights are suspended or become void in any such circumstances referred to in this clause. Customer is not entitled to any kind of damages or to make a claim whatsoever in case of cancellation or delayed delivery due to such circumstances.
18. Partial Invalidity and Entire Agreement
If one or more of the terms and conditions in these Terms or any part of a term is deemed invalid, unenforceable, illegal, or inoperable, the validity, enforceability, legality or operability of all further terms and conditions shall not be affected or diminished thereby. Any notice hereunder shall be served by registered or certified mail, return receipt requested. This Agreement contains the entire understanding of the parties relative to the subject matter hereof and any pervious or collateral understanding whether oral or written is expressly superseded. Any representation, warranty, promise or condition which does not form a part of the writing of the Agreement shall not be binding on either party. No subsequent waiver, alteration or modification of this Agreement shall be binding unless in writing and signed by a duly authorized representative of both parties.
Neither party may assign or transfer any of its obligations under this Agreement without the prior written consent of the other party, provided that Infinitum may assign this Agreement in its entirety to a successor in interest in the event of a change of control.
20. Data Protection
(a) The parties agree that the protection of personal data is very important. If Customer discloses personal data to Infinitum, Infinitum shall comply with all applicable data protection laws and regulations. Customer shall comply with all applicable data protection laws and regulations in respect of any personal data it receives from Infinitum in the course of receiving the Products or Services;
(b) The parties agree that neither will withhold or delay its consent to any changes to this clause which are required to be made in order to comply with applicable data protection laws and regulations and/or with guide- lines and order from any competent supervisory authority, and their application to the Products or Services from time to time, and agrees to implement any such changes at no additional cost to the other party;
(c) The parties acknowledge that the processing of personal data in accordance with this purchase order may require the conclusion of additional data processing agreements or additional data protection agreements. If and to the extent such additional data processing agreements or additional data protection agreements are not initially concluded as part of the purchase order, the parties shall, and shall ensure that their relevant affiliates or subcontractors shall, upon the other’s request promptly enter into any such agreement with an affiliate, as designated by the other party and as required by mandatory law or a competent data protection or other competent authority.
21. Governing law and Disputes
Any dispute between the parties arising from or in connection with this Agreement shall be governed by the laws of the State of Texas, notwithstanding any conflict of law rules. Any dispute arising from or in connection with this Agreement and that the parties themselves are unable to resolve shall be referred to and finally settled by binding arbitration under the Rules of Arbitration of the International Chamber of Commerce, (“Rules”) by a single mutually agreed upon arbitrator appointed in accordance with said Rules, or otherwise by agreement between the parties. Either party shall be entitled to seek injunctive or interim relief or any other temporary measures. The parties may refer the enforcement of any arbitral award to any competent court. The seat of arbitration shall be the Austin, Texas. English shall be the language to be used in the arbitration proceedings unless otherwise agreed between the parties. The arbitration proceedings and the arbitral award shall be confidential and involved persons on both sides are pledged to secrecy.