Terms & Conditions

Terms & Conditions of Sale

You (“Purchaser”) may place orders for Nfinity™ or Harmony™ products (including any embedded software, the Product or Products”) with Fallbrook Technologies Inc.’s or its operating subsidiaries’ (collectively “Fallbrook,” “We” or “Our”) via telephone, facsimile, online ordering system, electronic mail or by mail. By placing an order for our Products, you consent to these terms and conditions of sale (the “Terms”) and acknowledge that we will only furnish the Products subject to these Terms. All sales are subject to and expressly conditioned upon the Terms, and Purchaser’s acceptance of the Products from Fallbrook shall be deemed to constitute acceptance of the terms and conditions contained herein. Unless expressly agreed to in writing by Fallbrook, any term or condition in any order or other form or correspondence that purports to add to or is in any way inconsistent with these Terms shall be inapplicable and of no force and effect whatsoever. Fallbrook’s right to require strict observance and performance of each of these Terms shall not be affected by concurrent waiver of any other of these Terms or by any previous course of dealing.

All orders placed by Purchaser are subject to acceptance by Fallbrook. An offer to purchase Products shall be made through submission of a purchase order identifying the Products, quantity, price and desired delivery date for Products to be purchased. Fallbrook shall acknowledge its receipt of any purchase order by providing an acknowledgement of receipt to Purchaser confirming the Product to be purchased by Product, quantity, price and scheduled delivery date (the “Acknowledgement”), and in the Acknowledgement, Fallbrook shall provide the shipping port and the associated term of transfer of title and risk of loss for the Product purchased, which are determined by Product type. BY PROVIDING A PURCHASE ORDER AND ACCEPTING DELIVERY OF THE PRODUCTS, PURCHASER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS UNLESS PURCHASER AND FALLBROOK HAVE SIGNED A SEPARATE WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED OFFICER OF EACH COMPANY, IN WHICH CASE THE TERMS OF THE SEPARATE AGREEMENT THAT CONFLICT WITH THESE TERMS SHALL GOVERN

2.1. Prices shall be as provided by Fallbrook in a quotation or pricing sheet (each a “Quotation”). Prices may be changed by Fallbrook at its sole discretion and may escalate. Prices stated in a Quotation do not include taxes, insurance, special packaging, installation, freight, handling or any other shipping charges unless these items are specifically listed and priced in the Quotation. Price Quotations shall automatically expire in thirty (30) days from the date issued, or as otherwise stated in the Quotation.

2.2. Purchaser agrees to report and pay all taxes and assessments imposed on Purchaser or Fallbrook in connection with the distribution and sale of the Products hereunder, including all sales, use, value added, excise and other taxes and duties (collectively, “Taxes”), except for Taxes imposed on Fallbrook’s income. Buyer agrees to indemnify and hold Fallbrook harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. If Fallbrook is required to pay or collect any Tax, an additional charge will be made therefor and paid by Purchaser. If Purchaser is exempt from any such Tax, Purchaser must provide Fallbrook with a valid exemption prior to invoicing.

For purchases on approved credit, Fallbrook will generally invoice for deliverable items on the day of shipment (or delivery) unless payment has been earlier made or invoiced. The amount invoiced will include the price of the Products plus all Taxes, fees, transportation, insurance, and other charges. Unless otherwise agreed to as indicated on the applicable Acknowledgment, payment of an invoice is due within thirty (30) days of the invoice date and shall be made in U.S.A. funds unless otherwise specified on the Quotation. Payment to Fallbrook shall not be contingent on third party payments to Purchaser. Any payment not made when due shall be subject to an interest charge at the rate of the greater of 1.5% per day and the maximum rate permitted by law. Additionally, if any payment is not made when due, Fallbrook reserves the right to refuse to provide any further Products until such payment and the applicable interest charge have been received. Purchaser agrees that it shall not have any rights of setoff for amounts it owes for particular Products against amounts that may be owed to it by Fallbrook. Purchaser shall pay all of Fallbrook’s costs and expenses (including reasonable attorneys’ fees) to enforce and preserve Fallbrook’s rights under this Section 3.

Products shall be delivered to Purchaser or its carrier under the shipping terms provided in the Acknowledgement by Fallbrook. The terms provided by Fallbrook in the Acknowledgement shall be understood and defined in accordance with Incoterms 2010, unless otherwise indicated in the Acknowledgement, which shall control. Title and risk of loss for each Product shall pass to Purchaser upon the delivery of such Product to the carrier under the terms of the Acknowledgment. Special shipping instructions must be received from the Purchaser substantially before the shipment date; otherwise, Fallbrook reserves the right to use its reasonable judgment in selecting the means of shipment, considering the quantity, the shipping origination and destination locations, the urgency of the order, and any other applicable considerations. Any additional shipping cost incurred at the request of the Purchaser will be charged to the Purchaser. Where Fallbrook arranges transportation and shipping for Products, the title and risk of loss remain with Buyer per the shipping terms in the Acknowledgment and Fallbrook shall merely act as Buyer’s agent.

Unless otherwise agreed in writing, Fallbrook’s standard packaging will be used. If the Purchaser cannot accept delivery of an order, Purchaser will arrange for storage, and shall bear all costs for such storage. Fallbrook shall not be liable for any delays in transit of Products. Fallbrook shall not be liable to or responsible for any damages or loss for delay or default in delivery due to any cause beyond Fallbrook’s reasonable control, nor shall Purchaser cancel or have the right to cancel Its Purchase Order because of delays or default in delivery due to such causes. The carrier shall not be deemed an agent of Fallbrook.

For direct shipment of bulk quantities, the minimum order quantity and multiples of Products to be shipped shall be as provided in the Quotation.

Purchaser is deemed to have accepted Products unless notice of rejection is given within a reasonable time, which shall in any case be within ten (10) days after delivery. Purchaser shall provide immediate notice of any discrepancy in the Products ordered and delivered. Purchaser’s payment shall constitute final acceptance of the Products and shall act as a waiver of the Purchaser’s rights to inspect or reject the Products unless otherwise agreed. Any return of Product as non-conforming or for any other reason where, in each case, there is no actual non-conformity will incur a restocking fee of 15%.

Orders may not be cancelled within thirty (30) days of the scheduled delivery date without written permission of Fallbrook, except in the case of orders delivered under DDP terms in which cases such orders may not be cancelled within sixty (60) days of the scheduled delivery date without written permission of Fallbrook (each the “Cancellation Deadline”). Purchaser will be charged in full for Product unless written cancellation of order is received before the applicable Cancellation Deadline for the expected delivery date(s) specified in the purchase order acknowledgment or unless written permission is provided by Fallbrook for cancellation after the applicable Cancellation Deadline. Any permitted cancellations after the applicable Cancellation Deadline for the scheduled delivery date will incur a service fee of twenty percent (20%) of the total value of the cancelled quantity.

Fallbrook warrants that the Products will conform to the specifications set forth on the owners manual and technical manual provided for the specific Product purchased, which are available at http://www.nuvincicycling.com/en/service/downloads.html. The limited warranty, the warranty disclaimers and the limitations of liability set forth for each Product shall apply to all sales of such Products. PURCHASER UNDERSTANDS AND AGREES THAT THE WARRANTY AND LIABILITY LIMITATIONS SET FORTH THEREWITH ARE ESSENTIAL ELEMENTS OF THIS CONTRACT FOR FALLBROOK AND THAT IN THE ABSENCE OF SUCH ELEMENTS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.

Purchaser certifies that it will be the recipient of the Products to be delivered by Fallbrook. Purchaser understands that the Products include items that are governed by the U.S. Export Administration Regulations (“EAR”), and by the U.S. Foreign Assets Control Regulations, and Purchaser warrants that it shall comply with EAR any other applicable laws and regulations governing exports and any and all import regulations that may apply to the Products from any governmental authority in effect and applicable to the Product from time to time and that it will indemnify Fallbrook for any failure by Purchaser or its customers to do so. Purchaser agrees to cooperate with Fallbrook in order to obtain export licenses or exemptions therefrom by, among other things, providing required documentation, to the extent requested by Fallbrook.

The Products sold hereunder are to be used only in the rear wheel of a bicycle for usual and customary rear hub purposes and in accordance with the accompanying instructions. Purchaser agrees not to use the Products for any other use or purpose. If Purchaser uses the Products for any other purpose or uses the Products in any manner that is not in compliance with all legal, regulatory and safety-related requirements concerning the Products: (a) Purchaser acknowledges that such use or sale is at Purchaser’s sole risk; (b) Purchaser agrees that Fallbrook is not liable, in whole or in part, for any claim or damage arising from such use; and (c) Purchaser agrees to indemnify, defend and hold Fallbrook harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.

The Intellectual Property notice accompanying each Product in the applicable owner’s manual and technical manual shall apply to each sale of Products. All trademarks, trade names, patents, copyrights, design, drawings, formulas or other data, photographs, samples, literature, and sales aids of every kind related to the Products shall remain the property of Fallbrook and/or its licensors. Purchaser agrees not to do anything inconsistent with that ownership or to contest ownership of such items. Purchaser also agrees that all use of Fallbrook trademarks by Purchaser will inure to the benefit of Fallbrook. Purchaser acknowledges that any software included in the Products is proprietary to Fallbrook or its licensers and is subject to copyrights and trade secrets owned by Fallbrook or its licensors. All references in these Terms to “purchases,” “sales,” or words of similar import, with respect to any such software, signifies only the acquisition of a license for such software for use with the Products in accordance with the terms of this Agreement. Purchaser shall have no access to or rights in, the source codes of any software included in the Products. Purchaser shall have no right to copy, modify or remanufacture any Product or part thereof, nor reproduce any written material supplied by Fallbrook without the explicit written consent of Fallbrook. Purchaser agrees to cooperate, at Fallbrook’s expense, with any actions Fallbrook may bring against any third party infringer of Fallbrook’s intellectual property rights.

Any materials and information provided by Fallbrook to Purchaser that are not rightfully publicly available, whether orally, in writing, or by inspection of tangible objects, including without limitation technical data, research, product plans, or know-how constitute and contain proprietary and confidential information of Fallbrook (“Confidential Information”). Purchaser may not disclose Confidential Information to any person other than its employees with a need to know such information or consultants under contract to Purchaser who have agreed in writing to be bound by confidentiality restrictions at least as protective of the Confidential Information as these Terms without Fallbrook’s written permission. Purchaser may not use the Confidential Information for any purpose other than to exercise its rights under these Terms. Purchaser shall take reasonable measures to protect the secrecy of and to avoid the unauthorized use and disclosure of the Confidential Information. Purchaser shall immediately notify Fallbrook in the event it becomes aware of any unauthorized or suspected unauthorized use or disclosure of Confidential Information.

If technical assistance or advice are offered or given to Purchaser, such assistance or advice is given free of charge and only as an accommodation to Purchaser. Fallbrook shall not be held liable for the content or Purchaser’s use of such technical assistance or advice nor shall any statement made by any of Fallbrook’s representatives in connection with the Products constitute a representation or warranty, express or implied.

These Terms shall continue in force for so long as each term by its nature is intended to endure, which may include beyond the date of delivery.

Any notice required or permitted by these Terms shall be in writing and shall be sent by express courier, facsimile or registered or certified mail, return receipt requested, to the address or facsimile number shown on the Purchase Order, in the case of Purchaser, or the order acknowledgment, in the case of Fallbrook. Such notice shall be deemed to have been given upon delivery by courier or registered or certified mail, and upon successful transmission confirmation if by facsimile.

Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, natural disaster, governmental acts or orders or restrictions, failure of suppliers, acts of terrorism, energy shortage, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the nonperforming party.

If any provision in these Terms is found or held to be invalid or unenforceable in any respect, such unenforceability will not affect any other provisions of these Terms.

These Terms & Conditions of Sale and any sale of Products made hereunder shall be governed by and construed in accordance with the laws of The Netherlands.

ENTIRE AGREEMENT. The Quotation, Acknowledgement and these Terms shall constitute the entire agreement between Purchaser and Fallbrook with respect to an particular purchase of Product and shall supersede all other proposals by Fallbrook.

North American Office
505 Cypress Creek Road, Suite L
Cedar Park, TX 78613
1-888-NuVinci (688-4624)
Tel: +1 (512) 519-5300
Fax: +1 (512) 267-0159
support@nuvincicycling.com

European Office
Amsterdam, Holland
europe@nuvincicycling.com
+31 (0)55-5994 449
www.nuvincicycling.com