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.