infinium equipment purchase agreement

05/03/2004 5:51 PM

THIS EQUIPMENT PURCHASE AGREEMENT (THE “AGREEMENT”) IS

FOR THE PURCHASE BY THE USER OF INFINIUM OPTICAL DIGITAL

CONTACT-FREE CONTROLS AND IS A LEGAL AGREEMENT BETWEEN

INFINIUM TECHNOLOGIES LIMITED (“INFINIUM”) AND THE

PURCHASER.

1 Interpretation

In these Conditions the following words have the following

meanings:

“Agent” means any marketing agent from time to time appointed

by Infinium in connection with the sale of the Component;

“Agreement” means any contract between Infinium and the

Purchaser for the sale and purchase of the Component,

incorporating these Conditions;

“Agreement Price” means the sum payable for the Component by

the Purchaser in accordance Clause 7.1 of these Conditions;

“Component” means one or more of the Infinium optical digital

contact-free controls which Infinium is to supply to the Purchaser in

accordance with these Conditions (including any part or parts of

them);

“Conditions” means the terms and conditions of sale set out in this

document and any special terms and conditions agreed in writing by

the Purchaser;

“Infinium” means Infinium Technologies Limited of Evershed Court,

Fairlight Avenue, Telscombe Cliffs, East Sussex, BN10 7BU, United

Kingdom;

“Licence” means a non-transferable and non-exclusive licence

granted to the Purchaser (referred to as the User in the Licence) to

use the Software;

”Purchaser” means the person(s), firm or company whose written

order for the Component is accepted by Infinium;

“Software” means processor or programmable logic readable

information for the control and/or operation of the Component.

1.2 In these Conditions references to any statute or statutory provision

shall unless the context requires otherwise include a reference to

that statute or statutory provision as from time to time amended,

consolidated, modified, extended, re-enacted or replaced.

1.3 In these Conditions references to the masculine include the

feminine and the neuter and to the singular include the plural and

vice versa as the context admits or requires.

1.4 Headings shall not affect the construction of these Conditions.

2 APPLICATION OF TERMS

2.1 Subject to any variation under Clause 2.3 this Agreement shall be

between Infinium and the Purchaser and shall be on the terms and

conditions set out herein to the exclusion of all other terms and

conditions (including any terms and conditions which the Purchaser

purports to apply under any purchase order, confirmation of order,

specification or other document).

2.2 No terms and conditions endorsed upon, delivered (to Infinium or

the Agent), with or contained in the Purchaser's purchase order,

confirmation of order, specification or other document shall form

part of this Agreement as a result of such document being referred

to in this Agreement.

2.3 These Conditions apply to all Infinium's sales and any variation to

these Conditions and any representations about the Component

made by the Agent or otherwise shall have no effect unless

expressly agreed in writing and signed by a director of Infinium.

2.4 Each order for the Component by the Purchaser from Infinium shall

be deemed to be an offer by the Purchaser to purchase the

Component subject to these Conditions.

2.5 No order placed by the Purchaser shall be deemed to be accepted

by Infinium until a written acknowledgement of such order is issued

by Infinium to the Purchaser or the Purchaser’s nominated carrier

collects the Component (if both, whichever is earlier). Collection of

the Component by the Purchaser’s nominated carrier shall be

deemed to be conclusive evidence of the Purchaser's acceptance of

these Conditions.

2.6 The Purchaser shall ensure that the terms of its order and any

applicable specification provided by it and any interpretation of such

specification as provided by Infinium are complete and accurate.

2.7 Any quotation has been calculated using the specification provided

by the Purchaser and is given on the basis that no contract shall

come into existence until Infinium despatches an acknowledgement

of order to the Purchaser or delivers the Component to the

Purchaser (if both, whichever is earlier). Any quotation is valid for

a period of 60 days only from its date, provided that Infinium has

not previously withdrawn it and provided the Purchaser does not

amend the specification agreed with Infinium.

2.8 Subject to Clause 4.8 no order which has been accepted by

Infinium may be cancelled by the Purchaser except with the written

consent of Infinium and on terms that the Purchaser shall indemnify

Infinium in full against all losses (including loss of profit) costs

(including the costs of all labour and material used), damages,

charges and expenses suffered or incurred by Infinium as a result

of such cancellation.

3 SOFTWARE LICENCE

Where the Component as supplied in accordance with these

Conditions includes any Software the provisions of the Licence shall

govern the use by the Purchaser of the Software. A copy of the

Licence is appended to this Agreement and shall form part hereof.

A copy of the Licence is also available for inspection on the Infinium

website.

4 DESCRIPTION AND SPECIFICATIONS

4.1 The description of the Component shall be as set out in Infinium's

quotation.

4.2 All drawings, descriptive matter, specifications and advertising

issued by Infinium or posted on Infinium’s website and any

descriptions or illustrations contained in Infinium's catalogues or

brochures are issued, posted or published for the sole purpose of

giving an approximate idea of the Component described in them

and shall not form part of this Agreement.

4.3 In addition to the provisions of Clause 2.6 if the Component is to be

manufactured or any process is to be applied to the Component by

Infinium in accordance with a specification submitted by the

Purchaser, the Purchaser shall indemnify Infinium against all loss,

damages, costs and expenses awarded against or incurred by

Infinium in connection with, or paid or agreed to be paid by

Infinium in settlement of, any claim for infringement of any patent,

copyright, design, trade mark or other industrial or intellectual

property rights of any other person which results from Infinium's

use of the Purchaser's specification.

5 COLLECTION

5.1 Unless otherwise agreed by Infinium in writing delivery of the

Component shall be made by a carrier nominated by the Purchaser

for such purpose. Infinium shall make all arrangements necessary

to have the Purchaser’s nominated carrier to collect the Component

on behalf of the Purchaser whenever they are tendered for

collection.

5.2 The carrier nominated by the Purchaser pursuant to Clause 5.1

shall be deemed to be the Purchaser's agent except for the

purposes of section 44, 45 and 46 of the Sale of Goods Act 1979

and risk in the Component shall pass to the Purchaser upon

collection by the carrier.

5.3 Any date specified by Infinium for collection of the Component by

the Purchaser’s nominated carrier is intended to be an estimate and

time for collection shall not be made of the essence by notice. If no

dates are so specified, collection shall be within a reasonable time.

5.4 Subject to the other provisions of these Conditions Infinium shall

not be liable for any loss (including loss of profit), costs, damages,

charges or expenses caused directly or indirectly by any delay in

the availability of the Component for collection (even if caused by

Infinium's negligence), nor shall any delay entitle the Purchaser to

terminate or rescind this Agreement unless such delay exceeds 60

days.

5.5 If the carrier nominated by the Purchaser has not collected the

Component after a period of 3 months from the date upon which it

was made available for collection Infinium reserves the right to sell

the Component at the best price readily obtainable and (after

deducting all storage, insurance and selling costs) shall account to

the Purchaser for the Agreement Price previously received from the

Purchaser or charge the Purchaser for any short fall below the

Agreement Price.

5.6 Where the Component is to be collected by the Purchaser’s

nominated carrier in instalments, each collection shall constitute a

separate contract and failure by Infinium to make available any one

or more of the instalments in accordance with these Clauses or any

claim by the Purchaser in respect of any one or more instalments

shall not entitle the Purchaser to treat the whole contract as

repudiated.

5.7 The quantity of any consignment of the Component as recorded by

Infinium in Infinium's delivery note upon collection from Infinium's

place of business shall be prima facie evidence of the quantity

received by the Purchaser on delivery by the Purchaser’s nominated

carrier.

5.8 Infinium shall not be liable for any non-delivery of the Component

by the Purchaser’s nominated carrier.

6 RISK/TITLE

6.1 Risk of damage to or loss of the Component shall pass to the

Purchaser as set out in Clause 5.

6.2 Ownership of the Component shall not pass to the Purchaser until

Infinium has received in full (in cash or cleared funds) all sums due

to it in respect of:

6.2.1 the Component; and

6.2.2 all other sums which are or which become due to

Infinium from the Purchaser on any account.

6.3 Until ownership of the Component has passed to the Purchaser, the

Purchaser shall:

6.3.1 hold the Component on a fiduciary basis as Infinium's

bailee;

6.3.2 store the Component (at no cost to Infinium)

separately from all other goods of the Purchaser or any

third party in such a way that they remain readily

identifiable as Infinium's property;

6.3.3 not destroy, deface or obscure any identifying mark or

packaging on or relating to the Component;

6.3.4 maintain the Component in satisfactory condition

insured on Infinium's behalf for their full price against

all risks to the reasonable satisfaction of Infinium. On

request the Purchaser shall produce the policy of

insurance to Infinium; and

6.3.5 hold any proceeds of the insurance referred to in

Clause 6.3.4 on trust for Infinium and not mix them

with any other money, nor pay the proceeds into an

overdrawn bank account.

6.4 The Purchaser's right to possession of the Component shall

terminate immediately if prior to Infinium receiving payment in

accordance with Clause 6.2:

6.4.1 the Purchaser has a bankruptcy order made against

him or makes an arrangement or composition with his

creditors, or otherwise takes the benefit of any Act for

the time being in force for the relief of insolvent

debtors, or (being a body corporate) convenes a

meeting of creditors (whether formal or informal), or

enters into liquidation (whether voluntary or

compulsory) except a solvent voluntary liquidation for

the purpose only of reconstruction or amalgamation,

or has a receiver and/or manager, administrator or

administrative receiver appointed of its undertaking or

any part thereof, or a resolution is passed or a petition

presented to any court for the winding up of the

Purchaser, or for the granting of an administration

order in respect of the Purchaser, or any proceedings

are commenced relating to the insolvency or possible

insolvency of the Purchaser; or

6.4.2 the Purchaser suffers or allows any execution, whether

legal or equitable, to be levied on his/its property or

obtained against him/it, or fails to observe/perform

any of his/its obligations under this Agreement or any

other contract between Infinium and the Purchaser, or

is unable to pay its debts within the meaning of section

123 of the Insolvency Act 1986 or the Purchaser

ceases to trade; or

6.4.3 the Purchaser encumbers or in any way changes any

of the Component.

6.5 Infinium shall be entitled to recover payment for the Component

notwithstanding that ownership of any of the Component has not

passed from Infinium.

6.6 The Purchaser grants Infinium, its agents and employees an

irrevocable licence at any time to enter any premises where the

Component is or may be stored in order to inspect it, or, where the

Purchaser's right to possession has terminated, to recover it.

7 PRICE

7.1 Unless otherwise agreed by Infinium in writing the price for the

Component shall be the price quoted to the Purchaser by Infinium

or by the Agent.

7.2 The price for the Component shall be exclusive of any value added

tax or any other applicable tax which the Purchaser shall pay in

addition when it is due to pay for the Component.

8 PAYMENT

8.1 Unless otherwise agreed by Infinium in writing and subject to the

provisions of Clause 7.2, Infinium may invoice the Purchaser for the

price of the Component on or at any time after collection of the

Component by the Purchaser’s nominated carrier.

8.2 Without prejudice to the Purchaser's rights as provided in Clauses

5, and 9 Infinium reserves the right, in its absolute discretion, to

require payment in cash or cleared funds by the Purchaser for any

instalment of the Component prior to the date of collection of the

Component by the Purchaser’s nominated carrier and any failure to

pay on the due date provided by Infinium pursuant to this Clause 8,

may result in a delay in collection of the Component or termination

of this Agreement by Infinium. Such termination shall be without

any liability on the part of Infinium.

8.3 Unless otherwise agreed by Infinium in writing payment of the price

for the Component is due 7 days following the issue of the invoice.

Time for payment shall be of the essence.

8.4 No payment shall be deemed to have been received until Infinium

has received cleared funds.

8.5 Any discounts shown on invoices shall only apply if Infinium's

payment terms are met.

8.6 Notwithstanding any other provision of this Agreement all payments

payable to Infinium shall become due immediately upon termination

of this Agreement for any reason.

8.7 The Purchaser shall make all payments due under this Agreement

without any deduction whether by way of set-off, counterclaim,

discount, abatement or otherwise unless the Purchaser has a valid

court order requiring an amount equal to such deduction to be paid

by Infinium to the Purchaser.

8.8 Infinium may appropriate any payment made by the Purchaser to

Infinium to such of the Component as Infinium thinks fit despite

any purported appropriation by the Purchaser.

8.9 If the Purchaser fails to pay Infinium any sum due pursuant to this

Agreement Infinium reserves the right to claim interest under the

Late Payment of Commercial Debts (Interest) Act 1998.

9 QUALITY

9.1 Where Infinium is not the manufacturer of the Component, Infinium

shall endeavour to transfer to the Purchaser the benefit of any

warranty or guarantee given to Infinium.

9.2 Infinium warrants that (subject to the other provisions of these

Clauses) upon delivery to the Purchaser by the Purchaser’s

nominated carrier, and for a period of 12 months from the date of

collection by the Purchaser’s nominated carrier, the Component

shall be of satisfactory quality within the meaning of the Sale of

Goods Act 1994.

9.3 Infinium shall not be liable for a breach of the warranty in Clause

9.2 unless:

9.3.1 the Purchaser gives written notice of the defect to

Infinium within 3 days of:

(a) the date of delivery to the Purchaser by the

Purchaser’s nominated carrier (where the defect

would be apparent to the Purchaser upon a

reasonable inspection); or

(b) the date when the Purchaser discovers or ought

reasonably to have discovered the defect (where

the defect would not be apparent to the

Purchaser upon reasonable inspection); and

9.3.2 Infinium is given a reasonable opportunity after

receiving the notice of examining such Component and

the Purchaser (if requested to do so by Infinium)

returns such Component to Infinium's place of

business at the Purchaser's cost for the examination to

take place there.

9.4 Infinium shall not be liable for a breach of the warranty in Clause

9.2:

9.4.1 if the Purchaser makes any further use of such

Component after giving notice under Clause 9.3.1; or

9.4.2 if the defect arises because the Purchaser failed to

follow Infinium's oral or written instructions as to the

storage, installation, commissioning, use or

maintenance of the Component or (if there are none)

good trade practice; or

9.4.3 if the Purchaser alters or repairs such Component

without the written consent of Infinium; or

9.4.4 if the defect in such Component arises from any design

defect in any drawing design or specification supplied

or approved by the Purchaser; or

9.4.5 the Component is damaged during transit; or

9.4.6 the Component is examined by the Purchaser upon

delivery by the Purchaser’s nominated carrier and the

Purchaser subsequently signs the delivery note of

Infinium confirming the Component is of the correct

quantity and complies with the provisions of Clause

9.2.

9.5 Subject to Clauses 9.3 and 9.4, if the Component does not conform

with the warranty in Clause 9.2 Infinium shall at its option repair or

replace such Component (or the defective part) or refund the price

of such Component at the pro rata Agreement rate provided that, if

Infinium so requests, the Purchaser shall, (at Infinium's expense),

return the Component or the part of such Component which is

defective to Infinium.

9.6 If Infinium complies with Clause 9.5 it shall have no further liability

for a breach of the warranty in Clause 9.2 in respect of the quality

of such Component.

9.7 Any Component replaced shall belong to Infinium and any repaired

or replacement Component shall be guaranteed on these terms for

the unexpired portion of the 12 month period.

10 LIMITATION OF LIABILITY

10.1 The following provisions and the provisions of Clause 9, set out the

entire liability of Infinium (including any liability for the acts or

omissions of its employees, agents and sub-contractors) to the

Purchaser in respect of:

10.1.1 any breach of these Conditions; and

10.1.2 any representation, statement or tortious act or

omission including negligence arising under or in

connection with this Agreement.

10.2 All warranties, conditions and other terms implied by statute or

common law (save for the conditions implied by section 12 of the

Sale of Component Act 1979) are, to the fullest extent permitted by

law, excluded from this Agreement.

10.3 Nothing in these Conditions shall exclude or limit the liability of

Infinium for death or personal injury caused by Infinium's

negligence or for fraudulent misrepresentation. The Purchaser's

attention is in particular drawn to the provisions of Clause 10.4

10.4 Subject to Clauses 10.2 and 10.3:

10.4.1 Infinium's total liability in contract, tort (including

negligence or breach of statutory duty),

misrepresentation or otherwise, arising in connection

with the performance or contemplated performance of

this Agreement shall be limited to the Agreement

Price; and

10.4.2 Infinium shall not be liable to the Purchaser for any

loss of goodwill or reputation, loss of profit of loss of

sales (whether direct or indirect) or any consequential

or indirect loss, damage or expense whatsoever

(howsoever caused) which arises out of or in

connection with this Agreement.

11 FORCE MAJEURE

11.1 Infinium shall not be deemed to be in breach of this Agreement or

otherwise liable to the Purchaser in any manner whatsoever for any

failure or delay in performing its obligations under this Agreement

due to Force Majeure.

11.2 For the purpose of this Clause 11 "Force Majeure" means, any

cause preventing Infinium from performing any or all of its

obligations which arises from or is attributable to acts, events,

omissions or accidents beyond the reasonable control of Infinium

including without limitation, strikes, lockouts or other industrial

disputes (whether involving the workforce of Infinium or any other

party) act of God, war, riot, civil commotion, malicious damage,

compliance with any law or governmental order, rule, regulation or

direction, accident, breakdown of plant or machinery, fire, flood,

storm or default of supplies or sub-contractors.

12 COMMUNICATIONS

12.1 All communications between the parties about this Agreement shall

be in writing and delivered by hand or sent by pre-paid first class

post or sent by email or facsimile transmission:

12.1.1 (in case of communications to Infinium) to its

registered office or such changed address or email

address or facsimile as shall be notified to the

Purchaser by Infinium; and

12.1.2 (in case of communications to the Purchaser) to the

registered office of the addressee (if it is a company)

or (in any other case) to any address, email or

facsimile of the Purchaser set out in any document

which forms part of this Agreement or such other

address, email or facsimile as shall be notified to

Infinium by the Purchaser.

12.2 Communications shall be deemed to have been received:

12.2.1 if sent by pre-paid first class post, 2 days (excluding

Saturdays, Sundays and Bank and public holidays)

after posting (exclusive of the day of posting);

12.2.2 if delivered by hand, on the day of delivery;

12.2.3 if sent by facsimile transmission or email on a working

day prior to 5.00pm GMT, at the time of transmission

and otherwise on the next working day.

13 GENERAL

13.1 The Purchaser shall not be entitled to assign this Agreement or any

part of it without the prior written consent of Infinium.

13.2 Time for performance of all obligations of the Purchaser under this

Agreement is of the essence.

13.3 The termination of this Agreement howsoever arising shall be

without prejudice to the rights and duties of either the Purchaser or

Infinium accrued prior to termination.

13.4 If any provision of this Agreement is found by any court, tribunal or

administrative body of competent jurisdiction to be wholly or partly

illegal, invalid, void, voidable, unenforceable or unreasonable it

shall to the extent of such illegality, invalidity, voidness, voidability,

unenforceability or unreasonableness be deemed severable and the

remaining provisions of this Agreement and the remainder of such

provision shall continue in full force and effect.

13.5 Failure or delay by Infinium in enforcing or partially enforcing any

provision of this Agreement shall not be construed as a waiver of

any of its rights under this Agreement.

13.6 Any waiver by Infinium of any breach of, or any default under, any

provision of this Agreement by the Purchaser shall not be deemed a

waiver of any subsequent breach or default and shall in no way

affect the other terms of this Agreement.

13.7 The parties to this Agreement do not intend that any of its terms

shall be enforceable by virtue of the Contracts (Rights of Third

Parties) Act 1999 by any person not a party to it.

14 Governing Law

The construction and performance of this Agreement shall be

governed by English law and the parties submit to the exclusive

jurisdiction of the English courts.