TERMS AND CONDITIONS OF SALE
General Terms and Conditions of Sale (“Terms”)
These Terms apply to all purchases of goods and services (“Deliverables”) made by any customer (“Purchaser”) from Infinium Medical, Inc. (“Supplier”). Purchaser’s acceptance of these Terms is an express condition of sale. By submitting a purchase order (“Purchase Order”), accepting delivery, or making payment for Deliverables, Purchaser acknowledges and agrees to be bound by these Terms. Purchaser shall be deemed to have full knowledge of these Terms, which become binding upon Supplier’s acceptance of Purchaser’s Purchase Order.
These Terms constitute the complete contract (“Contract”) between Purchaser and Supplier. In the event of any conflict between these Terms and any purchase order or other document issued by Purchaser, these Terms shall control. No waiver, alteration, or modification is binding unless expressly agreed to in writing by Supplier. Supplier may amend these Terms from time to time (“Modified Terms”) by written notice, email, or posting on its website (www.site_99d86bc1-9f52-4353-b1cf-4e5e15333b21). Modified Terms become effective for all Purchase Orders placed on or after their stated effective date. Purchaser’s placement of an order constitutes acceptance of these Terms and any subsequent Modified Terms.
All Purchase Orders are subject to Supplier’s written acceptance. Any additional or conflicting terms in Purchaser’s documents are void. Supplier will use reasonable efforts to fulfill accepted orders, subject to product availability and other commercial conditions.
Prices are stated in U.S. Dollars unless otherwise noted. All invoices are due upon receipt unless Supplier has approved credit terms in writing. Supplier may conduct credit checks and may modify, suspend, or terminate credit terms at any time without notice. All prices exclude federal, state, and local sales, use, excise, VAT, gross-receipts, and similar taxes, tariffs, duties, and charges (“Taxes”). Purchaser is solely responsible for all Taxes other than those imposed on Supplier’s net income. If Supplier is required to collect or remit any Taxes, such amounts may be invoiced to Purchaser and shall be reimbursed within ten (10) days of demand. Where Supplier is not required to collect sales tax, Purchaser must self-assess and remit all applicable use taxes. Purchaser must provide a valid resale or exemption certificate acceptable to the jurisdiction of delivery before shipment. Failure to do so authorizes Supplier to collect applicable Taxes. Shipment to any third party designated by Purchaser constitutes delivery to Purchaser, who remains responsible for all applicable sales or use taxes and any required documentation. If any taxing authority assesses Taxes, penalties, or interest against Supplier that are Purchaser’s responsibility, Purchaser shall promptly reimburse Supplier and indemnify, defend, and hold Supplier harmless from all related liabilities, penalties, interest, and costs (including attorneys’ fees). Invoices not paid when due accrue interest at 1.5% per month (18% per annum) or the highest lawful rate. Purchaser shall pay all costs and attorneys’ fees incurred by Supplier in collecting past-due amounts, whether or not litigation is filed, including appellate, arbitration, mediation, bankruptcy, and judgment-enforcement costs. Title to Deliverables does not pass to Purchaser until Supplier receives full payment. Supplier retains a purchase-money security interest in the Deliverables and their proceeds and may file financing statements to perfect its interest. All payments shall be made free of any setoff, deduction, or counterclaim.
Unless otherwise agreed in writing, all Deliverables are sold EXW (Ex Works – Incoterms® 2020) Supplier’s facility. Purchaser is responsible for all freight, insurance, and handling costs and shall maintain adequate cargo insurance covering the full invoice value from the point of shipment. Risk of loss or damage and title to Deliverables shall pass to Purchaser upon loading of Deliverables onto Purchaser’s or Purchaser’s designated carrier. Delivery to Purchaser’s carrier or to any consignee or drop-ship location designated by Purchaser constitutes delivery to Purchaser. Thereafter, all risk of loss or damage shall be Purchaser’s responsibility, and any claims for shipping loss or damage must be filed directly with the carrier. Purchaser is responsible for obtaining any required export or import licenses and completing all customs formalities. Supplier may suspend shipments or performance if Purchaser fails to make any payment when due or if Supplier reasonably believes Purchaser’s financial condition may jeopardize performance. Supplier may reclaim or repossess Deliverables for which payment has not been made, consistent with Supplier’s security interest rights under §3. Delivery dates are estimates only. Supplier shall not be liable for any delay or failure in delivery resulting from causes beyond its reasonable control, including acts of God, transportation interruptions, labor disputes, material shortages, or governmental actions. In such cases, delivery dates shall automatically extend for the duration of the delay without liability to Supplier. Title to Deliverables shall remain with Supplier until Supplier has received full payment in accordance with §3 (Payment and Taxes).
Claims for shortages, visible damage, or delivery errors must be made in writing within ten (10) days of receipt. Failure to give timely notice constitutes acceptance of the shipment. Claims for defects not apparent on visual inspection must be made within thirty (30) days of discovery and in no event later than sixty (60) days after delivery. Failure to make such claim constitutes final acceptance.
Purchaser shall comply with all applicable international, federal, state, and local laws, regulations, and ethical standards, including export controls, anti-bribery laws, labor and human-rights requirements, and environmental standards. Purchaser represents that it will not export, resell, or distribute the Deliverables except in compliance with all applicable laws and regulations, including U.S. Export Administration Regulations and all medical-device registration or licensing requirements.
A copy of the Warranty and RMA Policy is available from your sales representative upon request. All Products and Deliverables sold by Supplier are subject to Supplier’s Warranty and RMA Policy, which is hereby incorporated into and made part of these Terms & Conditions by reference as if fully set forth herein. By placing an order, Purchaser acknowledges and agrees that it has reviewed, or had the opportunity to review, the Warranty and RMA Policy and agrees to be bound by it. EXCEPT AS EXPRESSLY PROVIDED IN THE WARRANTY AND RMA POLICY, ALL PRODUCTS ARE PROVIDED “AS IS,” AND MANUFACTURER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, DATA ACCURACY, AND SYSTEM INTEGRATION. NO EMPLOYEE, AGENT, REPRESENTATIVE, OR DISTRIBUTOR OF MANUFACTURER IS AUTHORIZED TO MAKE ANY STATEMENT, PROMISE, OR REPRESENTATION THAT ALTERS OR EXPANDS THE WARRANTY AND RMA POLICY. ANY SUCH STATEMENT OR PROMISE SHALL NOT BIND MANUFACTURER AND SHALL NOT FORM PART OF THE PARTIES’ AGREEMENT. No warranty shall arise from any sample, model, description, quotation, brochure, demonstration, or past practice unless expressly included in the Warranty and RMA Policy.
Purchaser shall indemnify, defend, and hold harmless Supplier, its affiliates, and their respective directors, officers, employees, agents, consultants, and subcontractors from and against any and all claims, losses, damages, costs, expenses, penalties, taxes, or liabilities (including attorneys’ fees and consequential damages) arising out of or relating to: (a) any negligent act, omission, or misconduct of Purchaser or its affiliates, employees, agents, contractors, or representatives; (b) any breach or violation of these Terms or of any applicable law, regulation, or standard; (c) any misuse, alteration, improper maintenance, or incorporation of any Deliverable; or (d) any act, statement, or representation by Purchaser relating to the Deliverables. This indemnity shall survive termination or expiration of this Contract.
EXCEPT AS EXPRESSLY PROVIDED IN SUPPLIER’S WRITTEN WARRANTY OR REQUIRED BY LAW, SUPPLIER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS, REVENUE, BUSINESS, OR GOODWILL, ARISING OUT OF OR RELATING TO THE SALE, DELIVERY, OR USE OF ANY DELIVERABLE, EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUPPLIER’S TOTAL CUMULATIVE LIABILITY FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO ANY DELIVERABLE SHALL NOT EXCEED THE PRICE PAID BY PURCHASER FOR THAT SPECIFIC DELIVERABLE. SUPPLIER SHALL NOT BE LIABLE FOR ANY DEATH OR PERSONAL INJURY EXCEPT TO THE EXTENT THAT SUCH DEATH OR INJURY RESULTS FROM SUPPLIER’S NEGLIGENCE OR OTHER LIABILITY THAT CANNOT LAWFULLY BE LIMITED OR EXCLUDED. THIS LIMITATION SHALL APPLY NOTWITHSTANDING THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE SALE OR USE OF ANY DELIVERABLE MAY BE BROUGHT BY PURCHASER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
“Intellectual Property” means all patents, patent applications, copyrights, trademarks, trade names, trade secrets, know-how, designs, software, documentation, and other proprietary rights owned or licensed by Supplier or its affiliates, whether registered or unregistered, and all applications or registrations relating thereto. All Intellectual Property rights in or relating to Supplier’s Deliverables remain the exclusive property of Supplier or its licensors. No title or license under any Intellectual Property right is transferred or granted to Purchaser by implication, estoppel, or otherwise. Purchaser shall not reproduce, modify, adapt, translate, reverse-engineer, or create derivative works of any Deliverable. Purchaser must promptly notify Supplier of any suspected infringement or unauthorized use of Supplier’s Intellectual Property that comes to its attention.
“Confidential Information” means all non-public business, financial, technical, design, and commercial information, data, drawings, specifications, software, reports, methods, and other materials disclosed by Supplier to Purchaser, whether in written, oral, electronic, or any other form, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. All Confidential Information and all intellectual property embodied therein shall remain the exclusive property of Supplier, even if developed jointly with Purchaser. Purchaser shall not disclose, reproduce, or use any Confidential Information except as necessary to perform its obligations under this Contract. Upon termination or completion of this Contract, or upon Supplier’s written request, Purchaser shall promptly return or permanently destroy all Confidential Information (including all copies, notes, or derivatives thereof) and certify such destruction upon request. Purchaser’s obligations of confidentiality and non-use shall survive termination or expiration of this Contract for a period of five (5) years, or indefinitely with respect to trade secrets or technical information that by its nature should remain confidential.
Supplier may modify product design, materials, or pricing without prior notice, unless otherwise agreed in writing. Supplier may discontinue products or parts at any time.
Supplier shall not be liable for any delay or failure in performance resulting from causes beyond its reasonable control, including acts of God, war, terrorism, epidemic, fire, flood, labor disputes, transportation interruptions, cybersecurity incidents, component shortages, or governmental restrictions. Performance shall be suspended during such period without liability, and delivery dates shall automatically extend for the duration of the event. Purchaser remains obligated to pay for Deliverables shipped prior to or during such event.
This Contract shall be governed by the laws of the State of Florida, excluding its conflict-of-laws principles and the U.N. Convention on Contracts for the International Sale of Goods. All actions arising hereunder shall be brought exclusively in a state or federal court located in Pinellas County, Florida, and the parties consent to such jurisdiction. The prevailing party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs. BOTH PARTIES WAIVE ANY RIGHT TO A JURY TRIAL.
The parties are independent contractors. Nothing herein creates an agency, partnership, or joint venture relationship. Neither party has authority to bind the other.
All notices must be in writing and delivered by certified mail, courier, or email to the addresses specified on the applicable Purchase Order. Notice is effective upon receipt.
Orders may be canceled or changed only with Supplier’s written consent. No Deliverable may be returned without a Returned Merchandise Authorization (RMA) number issued by Supplier. Authorized non-warranty returns are subject to a minimum 25% restocking fee and must be in full case quantities, unexpired, in original unopened packaging, and saleable condition. Discontinued or custom products are non-returnable. Purchaser bears all return-freight costs. Credit for authorized returns will be issued only after Supplier’s inspection and acceptance of returned goods.
Purchaser may not assign this Contract without Supplier’s written consent. Supplier may assign to affiliates or successors. Failure to enforce any provision shall not constitute a waiver. If any term is held invalid, the remaining provisions remain in effect. Sections 3, 4, 6–11, 13, 14, and 18 survive termination. Acceptance of a quote or invoice constitutes agreement to these Terms.
Supplier collects, uses, and protects personal information in accordance with its Privacy Policy available at www.site_99d86bc1-9f52-4353-b1cf-4e5e15333b21/privacy. Personal data may be used to fulfill orders, communicate with Purchaser, and comply with legal obligations. Purchaser may contact Supplier to exercise data-protection rights under applicable law, including GDPR and CCPA.
This Contract, together with any written quotations or order confirmations issued by Supplier, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous representations or agreements, whether oral or written. Purchaser acknowledges that it has not relied on any representation not expressly set forth herein. The version of these Terms and Conditions in effect as of the date of Purchaser’s order governs that transaction. Supplier maintains archived versions of all prior Terms for audit and compliance purposes.
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