Terms & Conditions
MIDAS GENERAL TERMS AND CONDITIONS OF SALES AND DELIVERIES
PERIMETER OF APPLICATION
These General Terms and Conditions of Sales and Deliveries (“GTC”) for MIDAS Immersion Cooling a Texas Company (“MIDAS”) supplied worldwide are to be read jointly with any Midas quotation or proposals that may be entered into between MIDAS and a Buyer of Immersion Cooling Technology herein (the “Buyer”) for the supply of the Immersion Cooling Technology to the Buyer’s directed location
The terms contained herein shall supersede the terms of Buyer’s order in the event of contradiction or inconsistency herewith. No understanding, Agreement, term, condition, or trade custom at variance with or contradictory to the terms and conditions herein shall be binding on MIDAS. No course of conduct or any delay of MIDAS in exercising any rights hereunder nor MIDAS’s acceptance of payment or delivery of goods with knowledge of a default or breach, shall waive any rights of MIDAS or modify this Agreement. No waiver of any provision of this Agreement shall be deemed a waiver of any other provision nor shall one waiver of a provision be deemed a continuing waiver of such provision. This writing constitutes the final expression of the parties’ Agreement and it is a complete and exclusive statement of the terms of that Agreement. No modifications of these terms and conditions shall be of any force or effect unless in writing and signed by the party claimed to be bound hereby.
Any term used but not defined herein shall have the meaning attributed in the applicable Sales Agreement.
As used in these GTC
(i) the term MIDAS shall include and be deemed to apply to MIDAS’s affiliates, agents, and authorized representatives engaged in delivering Immersion Cooling Technology hereunder; and
(ii) the term “Buyer” shall be deemed to include (and this GTC shall be binding upon) Buyer’s agents, principals, and affiliated companies who are engaged in purchasing, ordering, receiving, or facilitating the delivery of Immersion Cooling Technology under this Agreement.
These GTC as applicable and in the form as published on each considered Delivery Date shall apply to all orders, purchases, sales, and deliveries of Immersion Cooling Technology under any Sales Agreement.
In the event of any conflict between the terms and conditions in these GTC and the terms and conditions in a Sales Agreement, as between MIDAS and the applicable Buyer, the terms and conditions of the Sales Agreement shall prevail.
All Net Prices in the Sales Agreement are generally quoted in USD.
Local Taxes and Duties – Duty Paid Charges: Prices are always quoted Duty Free which means exclusive of any local taxes or duties of whatever nature that may apply according to the local laws and regulations of each considered country where the delivery of Immersion Cooling Technology occurs, MIDAS will always endeavor to deliver Duty Free Immersion Cooling Technology. However, in duty paid ports or areas wherever duties and taxes are imposed on the
delivery of Immersion Cooling Technology duty and taxes (including any goods and services taxes, Sales taxes or value added taxes) shall be borne by Buyer.
Buyer shall pay any additional charges applicable to each Immersion Cooling Technology delivery in the concerned port and MIDAS shall endeavor to notify such charges in advance to the Buyer.
o Packaging and Additional Charges: Packaging and additional charges are applicable and detailed either in the Sales Agreement or at the time of
quotation if the delivery is made based on a “Spot” order.
o Working Hours and Port Limits: Extra charges may apply for deliveries on public holidays or on other non-working days as per local conditions, at
night that incurs overtime, outside of normal local office hours, as well as for deliveries made outside of port limits. MIDAS shall endeavor to notify the Buyer in advance of such charges for approval. Buyer failing approve shall result in MIDAS canceling the delivery without incurring any liability for such.
o Other Charges: MIDAS will use its reasonable efforts to provide the Buyer with an estimate of all Delivery Charges applicable to the order. Buyer acknowledges that it is not always practical or possible for MIDAS to do so and that Buyer will nonetheless be responsible for all Delivery Charges incurred.
o Cancellation of orders: the cancellation of scheduled delivery or the rescheduling of delivery, and any special requests by the Buyer, may be subject to additional charges which are not set out specifically in these GTC and which are not able to be fully determined by the parties at the time an order is placed by Buyer or confirmed by MIDAS. MIDAS will use its reasonable efforts and act in good faith to provide Buyer with a quotation or estimate regarding any costs associated with any such Delivery cancellation, rescheduling, or other requests, but Buyer acknowledges that it is not always practical or possible for MIDAS to determine accurately in advance all of the charges that will apply and that any costs arising in such particular circumstances are outside the reasonable control of MIDAS. Buyer will nonetheless be responsible for all costs and expenses actually incurred by MIDAS (including any payments MIDAS has made to third party delivery service providers or any fees payable to third parties due to local port conditions at the time of the Delivery in making, canceling, or rescheduling such, even where such charges exceed any quotation or estimate provided by MIDAS).
o Changes in deliveries due to Buyer: Buyer shall be responsible for the consequences, costs, and expenses arising from a decision, act, or omission of Buyer or their agents and representatives. Any costs incurred by MIDAS (in particular overtime charges from physical delivery suppliers and barge demurrage) resulting from any such decision act or omission shall be borne by the Buyer and reimbursed to MIDAS.
o Changes in order Quantity: Whenever a Purchase Order Confirmation is issued for a determined quantity of any Immersion Cooling Technology,
but the quantity actually required by the vessel is less than that set Forth in such Purchase Order Confirmation, Buyer shall be liable for all costs actually incurred by MIDAS in relation to the return of Immersion Cooling Technology to storage or warehouse.
o All Deliveries: MIDAS will use its best efforts to make delivery of the goods ordered on the date or dates specified by Buyer, but MIDAS does not guarantee delivery on any date or dates so specified and shall be subject to no liability for any damage caused by delayed delivery.
o Regular Delivery: Any delivery of Immersion Cooling Technology under the present conditions shall qualify as a “Regular delivery” for the purposes of these GTC and the Sales Agreement.
o Special Delivery: Any delivery or Immersion Cooling Technology made or requested to be made under the following conditions shall qualify as a
“Special Delivery” for the purposes of these GTC and the Sales Agreement (and special or additional charges may apply to any such delivery):
• During public holidays or other local non-working days
• At night or where delivery extends into the night at the request of Buyer or their agents or representatives
TRANSFER OF TITLE TRANSFER OF RISK
Transfer of risk for the Immersion Cooling Technology delivered shall pass when the Immersion Cooling Technology are placed inside shipping vehicle Transfer of title and ownership of the Immersion Cooling Technology shall be effective when such Immersion Cooling Technology have been paid in full to MIDAS by the Buyer in accordance with the terms and conditions of the applicable Sales Agreement or “Spot” quotation agreed (provided that risk for such Immersion Cooling Technology shall have passed to Buyer at the time of Delivery)
CLAIMS FOR QUALITY AND QUANTITY
o Any legal action proceeding from claim arising from or in connection with the delivery of Immersion Cooling Technology hereunder must be initiated within 90 days from the date when such delivery of Immersion Cooling Technology was implemented. Unless any legal action occurs within such 90 day period, the considered claim shall be discharged automatically and in full of any and all liability in respect of such claim (including but not limited to counterclaims, offset or any other legal remedies).
o MIDAS shall not be liable for any non-conformity of the Immersion Cooling Technology with the specification caused by any action, omission or negligence of Buyer.
o MIDAS makes no other warranties regarding the Immersion Cooling Technology or as to their quality, merchantability or fitness for any particular purpose, and MIDAS hereby disclaims any and all implied warranties, with respect to Immersion Cooling Technology or the delivery hereunder thereof.
o MIDAS shall have no liability for the quality of Immersion Cooling Technology delivered hereunder unless the specifications of the Immersion Cooling Technology are not met and unless a relevant claim has been made to MIDAS in writing within 30 days of the date of delivery of the Immersion Cooling Technology (and for which legal action if any has been initiated within 90 days, if the parties have not otherwise settled the dispute).
o MIDAS’s liability to Buyer for any claim in relation to the quantity or quality of the Immersion Cooling Technology delivered shall always be limited
solely to the value of the Immersion Cooling Technology delivered and fully paid for by the Buyer.
Each Buyer warrants in respect of each delivery of Immersion Cooling Technology that:
(i) the Immersion Cooling Technology being delivered are for the operation of the receiving location and that location only;
(ii) the location receiving deliveries of Immersion Cooling Technology will be at the time of delivery in compliance with all local, national and international laws, regulations and requirements applicable to it and hold all necessary permits and licenses to operate the ship and receive deliveries of Immersion Cooling Technology hereunder;
(iii) it has sole responsibility or the selection of Immersion Cooling Technology suitable for use in the location being supplied and is familiar with the requirements and specifications for their ordinary and proper use at the location; and
(iv) the execution and performance of the Sales Agreement and these GTC, and the receipt of Immersion Cooling Technology delivered hereunder, do not violate or conflict with any applicable law or regulation as the case may be and that it has full power and authority to enter into and perform its obligations under the Sales Agreement and these GTC and to bind the owner to which Immersion Cooling Technology are delivered.
These GTC shall be construed in accordance with and governed by the laws of the State of Texas, U.S.A., regardless of where any order was placed or filled, the place of delivery of the goods, or where any other act or performance occurred, except that the United Nations Convention on the International Sale of Goods shall not apply. The dispute resolution provisions of the applicable Sales Agreement if any shall prevail over the GTC in case of conflict.
LIABILITY AND INDEMNIFICATION
Buyer shall indemnify, hold harmless, defend and release, MIDAS together with its Affiliates and their officers, directors, employees, agents, representatives and servants from any and all judgments, orders, direct or indirect damages, decrees, claims, costs or expenses, including Attorney fees (together “Claims”) including third Parties claims arising from or in connection with:
(i) the performance, failure to perform or breach by any member of the Buyer’s organization of the Sales Agreement terms or of these GTC or any consequence resulting from the Buyer’s representative or organization Member’s action, inaction, omission or negligence during the delivery;
(ii) any wrongful or negligent acts or omissions of any member of the Buyer’s organization or of the receiving vessel in connection with the delivery of Immersion Cooling Technology;
(iii) any breach by the Buyer or any member of the Buyer’s organization of any law or regulation applicable to such;
(iv) the use or misuse by the Buyer or any member of Buyer’s organization of the Immersion Cooling Technology delivered totally or partially or the failure by the same to comply with health and safety requirements or recommendations in respect of such Immersion Cooling Technology; or For the purposes of this clause “Buyer’s organization” MEANS Buyer and its agents, employees, representatives and servants, including in respect of a vessel receiving deliveries of Immersion Cooling Technology.
Without prejudice of any remedy of the parties specifically set forth in these GTC or a Sales Agreement as the case may by, no party hereto will be liable to the other party for any indirect, punitive, speculative or consequential loss, damage, costs or expenses of any nature whatsoever including without limitation, any economic loss or loss of turnover profits, business or goodwill whether arising from a breach of contract, tort, negligence, breach of statutory duty or otherwise.
AMENDMENTS AND MODIFICATIONS
MIDAS reserves the right in its sole discretion to amend or modify these GTC at any time provided that such amendments or modifications shall only apply to
deliveries of Immersion Cooling Technology made after the date of such amendments or modifications.
MIDAS shall use reasonable efforts to provide Buyers with 30 days minimum notice of any amendment or modification of these GTC by publishing such notification on its website. Such publication shall be deemed to constitute sufficient notice to Buyers of such amendments or modifications.
NOTICES AND CONTRACTS
All notices and communications shall be considered as made on the date at which they should have been received according to the normal times of delivery of postal, email, or fax services.
Unless otherwise stipulated in writing and in advance to the Buyer MIDAS’s address to which communications should be sent by postal mail shall be:
MIDAS Immersion Cooling
8107 Springdale Road Suite 103
Austin TX 7824
Attention: President & CEO
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