Terms and Conditions
1. Controlling Provisions. Infrasco Inc. (“Infrasco”) Terms & Conditions of Sale (these “Terms”) will govern all sales of Infrasco’s products, including products, equipment and parts, or services manufactured or sold by Infrasco (together, “Products”) to Buyer (this “Order”). These Terms supersede any prior written or oral agreement, understanding, representation or promise, and any pre-printed or standard terms and conditions contained in Buyer’s request for quote, purchase order, invoice, order acknowledgement or similar document. These Terms may not be amended, supplemented, changed or modified, except by concurrent or subsequent written agreement, signed by an authorized representative of Infrasco and Buyer. Infrasco’s acknowledgement of Buyer’s purchase order will not constitute acceptance of any terms and conditions contained therein, regardless of how such terms and conditions may be prefaced or described.
2. Delivery. For shipments of Products all shipments are F.O.B. Infrasco’s warehouse. Buyer may request that deliveries be made by a particular method, but Infrasco’s determination of the method of shipment will be final and conclusive. In the event Buyer requests a delay or suspension in completion and/or shipment of the Products or any part thereof for any reason, the parties will agree upon any cost and/or scheduling impact of such delay and all such costs will be assessed to Buyer’s account. Any delay period beyond 30 days after the original scheduled shipment date will require Buyer to take title and risk of loss of Products and make arrangements for storage. Infrasco’s invoice will be issued upon Infrasco’s readiness to ship products.
3. Cancellation. Buyer may cancel this Order only with the prior written consent of an authorized representative of Infrasco. Orders that involve special material or that are not normally inventoried by Infrasco will require payment of a reasonable cancellation charge payable by Buyer. Determination of Products that are considered special along with the amount of the charges, if any, will be provided by Infrasco to Buyer prior to the actual cancellation of the Order. Infrasco reserves the right to cancel this Order, in whole or in part, at any time without penalty or further obligation, if Buyer breaches any of these Terms, including but not limited to payment obligations, or if Infrasco determines in its sole discretion that its ability to manufacture or deliver the Products has been substantially impaired.
4. Force Majeure. Infrasco will not be liable for delay in delivery due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of government, acts of Buyer, fires, labor disputes, boycotts, floods, epidemics, quarantine restrictions, war, insurrection, terrorism, riot, civil or military authority, freight embargos, transportation shortages or delays, unusually severe weather or inability to obtain necessary labor, materials or manufacturing facilities due to such causes. In the event of a delay, the date of delivery will be extended for a length of time equal to the period of the delay.
5. Payment. All prices are subject to change, and all Products will be billed at prices in effect on the date of shipment, unless Infrasco otherwise agrees in writing. Terms of payment are as follows, unless otherwise agreed in writing: 30 days from invoice date. Should Buyer fail to pay Infrasco as specified herein, Buyer agrees to pay interest on the overdue amount at a rate of 2% per month (24% per annum), calculated daily and compounded monthly from the date such payment was due until paid in full. The buyer agrees to pay all collection costs, attorney fees and expenses incurred in collecting payment. All transportation, insurance and similar charges incident to delivery of Products will be paid by Buyer. Any taxes and excises levied by any governmental or municipal authority involving the sale of transportation of Products must be borne by the Buyer. Infrasco will issue its invoice upon shipment or upon notice to Buyer that Infrasco is ready to ship, whichever is earlier. Depending on the value of the order, Infrasco may at its sole discretion require progress payments. If Buyer’s financial condition is or becomes unsatisfactory to Infrasco in Infrasco’s sole discretion, Infrasco reserves the right to: (a) require payment from Buyer on a cash-in-advance basis; (b) require a letter of credit or other acceptable security before shipment; or (c) cancel shipment at any time prior to delivery of Products without further obligation or liability.
6. Changes. Buyer may request modifications as to the amount scope and/or nature of Products by a written change request. If, in the sole opinion of Infrasco, any modification will affect the agreed fixed price and/or time of delivery, Infrasco will notify Buyer thereof in writing and will not be obligated to perform any modification unless agreed to by Infrasco. The buyer will confirm that such change is authorized and accepted by issuing an Order revision.
7. Returns. No returns will be accepted by Infrasco without Buyer first obtaining Infrasco’s written consent. Unused standard catalog items, delivered as ordered, may be returned, with proper authorization, for credit. Non-catalog or specially manufactured items, delivered as ordered, may not be returned. All authorized returns are subject to inspection to verify merchantability and will be assessed a minimum 20% restocking charge.
8. Indemnity. Buyer agrees to indemnify, hold harmless and defend Infrasco, including its affiliates, officers, employees, agents, subcontractors, suppliers and representatives, against any and all judgments, losses, damages, expenses, costs, including defense costs and legal fees, arising from any and all lawsuits, demands, or claims for personal injury, death, property damage, or other liability arising or claimed to arise from any act or omission of the Buyer or Infrasco in any way related to this Order or Products, whether such claims are based upon contract, warranty, tort (including but not limited to active or passive negligence), strict liability, failure to comply with any applicable law, or other allegation of fault. To the extent the aforesaid obligation of the Buyer to so indemnify Infrasco is prohibited by the laws and statutes of the state(s) where this Agreement is in effect, then the obligation created under this provision will, but only to the extent of such prohibition, be null and void. The remainder of the Buyer’s indemnity obligations will remain in effect and be binding upon the parties.
9. Insurance. Buyer agrees to look exclusively to Buyer’s insurer to recover for injuries or damage in the event of any loss or injury and Buyer releases and waives all right of recovery against Infrasco arising by way of subrogation.
10. Limitation of Liability. The remedies set forth herein are exclusive, and the total liability of Infrasco, including its affiliates, officers, employees, agents, subcontractors, suppliers and representatives with respect to this Order or any breach thereof, whether based on contract warranty, tort, indemnity, strict liability or otherwise, will not exceed the Order price of the specific Products which gives rise to the claim. In all cases where Buyer claims damages allegedly arising out of defective or nonconforming Products, Buyers exclusive remedies and Infrasco’s sole liability will be those specifically provided for under the Warranty Section. IN NO EVENT, WHETHER ARISING BEFORE OR AFTER COMPLETION OF ITS OBLIGATIONS UNDER THE CONTRACT, WILL INFRASCO BE LIABLE FOR SPECIAL INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUE OR PROFITS, INVENTORY OR USE CHARGES, COST OF CAPITAL OR CLAIMS OF CUSTOMERS) INCURRED BY BUYER OR ANY THIRD PARTY.
11. Warranty. Subject to the limitations in the Limitation of Liability section of these Terms, Infrasco warrants the Products as outlined in the attached pages detailing the specific terms of its Warranties.
12. Set-Off. All amounts that Buyer owes Infrasco under an Order will be due and payable according to the terms of the Order. Buyer may not set-off such amounts or any portion thereof, whether or not liquidated, against sums that Buyer asserts are due it or any of its affiliates under other transactions with Infrasco or any of its affiliates.
13. Non-Disclosure and Non-Use of Infrasco’s Information. Buyer agrees that it will not disclose or make available to any third party any of Infrasco’s data or other information pertaining to this Order without obtaining Infrasco’s prior written consent.
14. Export/Import. Buyer agrees that it will comply with all applicable import and export control laws and/or regulations, including without limitation those of Canada and/or other jurisdictions from which Products may be supplied or to which Products may be shipped. In no event will Buyer use, transfer, release, import, export or re-export Products in violation of such applicable laws and/or regulations.
15. Taxes. Infrasco’s price, unless otherwise agreed, will be fixed and does not include, and Infrasco is not responsible for, payment of any tax levied for sales, use, excise, value-added, goods and services, business (franchise or privilege) or any duties, charges or other such taxes.
16. Assignment. Buyer will not assign an Order or any portion thereof without the advance, written consent of Infrasco.
17. Waiver. Failure by Infrasco to assert all or any of its rights upon any breach of an Order will not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor will any waiver be implied from the acceptance of any payment of service. No waiver of any right will extend to or affect any other right Infrasco may possess, nor will such waver extend to any subsequent similar or dissimilar breach.
18. Severability. If any portion of these Terms is determined to be illegal, invalid or unenforceable for any reason, then such provision will be deemed stricken for purposes of the dispute in question and all other provisions will remain in full force and effect.
19. Time Limitation to Bring Action. It is agreed that no suit or cause of action or other proceeding will be brought against either party more than 1 year after accrual of the cause of action or 1 year after the claim arises, whichever is shorter, whether known or unknown when the claim arises or whether based on tort, contract or any other legal theory.
20. Choice of Law. These terms will be governed by and construed in accordance with the laws of Quebec (without giving effect to conflict of law principles) as to all matters. The parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the Province of Quebec, sitting in the judicial district of Beauharnois, for the adjudication of any dispute arising out of or in connection with these Terms or any Order.
21. Compliance with Laws/Ethical Practices. Infrasco and Buyer agree to comply with all applicable laws, regulations, codes and standards, including but not limited to those of Canada and other jurisdictions where the parties conduct business. In the event Infrasco has reason to believe that a breach of any of the covenants listed above has occurred or will occur, (a) Infrasco may withhold further delivery of Products to Buyer until such time as it has received confirmation to its satisfaction that no breach has occurred or will occur, and Infrasco will not be liable to the undersigned for any claim, losses or damages whatsoever related to its decision to withhold delivery under this provision, and (b) Infrasco will have the right to audit Buyer in order to satisfy itself that no breach has occurred, and Buyer will cooperate in such audit.