ENTIRE AGREEMENT The entire agreement between Fusion Systems, Inc. d/b/a Fusion OEM (“Fusion OEM”) and Buyer consists of: (a) these Terms and Conditions, (b) Fusion OEM’s proposal (the “Proposal”), (c) the written requirements of Buyer (if any) that are signed by Fusion OEM or attached to the Proposal and, (d) if applicable, Buyer’s later purchase orders to the extent they do not contain any inconsistent or contrary terms or conditions (all of which are expressly rejected by Fusion OEM) to those set forth in the foregoing documents (collectively the “Contract”). The Contract may only be modified by a written Change Order executed by both Buyer and Fusion OEM. To the extent these Terms and Conditions are inconsistent with the Proposal or Buyer’s written requirements (if any) or any of Buyer’s purchase orders, these Terms and Conditions shall take priority. To the extent the Proposal is inconsistent with the Buyer’s written requirements (if any) attached to the Proposal or any of Buyer’s purchase orders, the Proposal shall take priority.
INTELLECTUAL PROPERTY The Buyer shall ensure that it or any third party customer is in possession of valid licenses for all intellectual property not provided by Fusion OEM that is used for the project, and shall defend, indemnify and hold harmless Fusion OEM from and against all costs and losses, including attorneys’ fees, as a result of any and all claims by alleged owners of such intellectual property. Fusion OEM makes no warranty regarding the effect of such intellectual property on the performance of the intellectual property to be developed by Fusion OEM for the project and Fusion OEM shall be released from any warranties given to Buyer to the extent that non-Fusion OEM intellectual property causes or contributes to problems. The intellectual property to be developed by Fusion OEM shall remain the sole intellectual property of Fusion OEM and, following acceptance and final payment to Fusion OEM, Fusion OEM grants to Buyer or its designee, as requested, a non-transferable, non-exclusive license to use the intellectual property for the Buyer’s or Ultimate Owner’s internal purposes.
TAXES Prices stated herein do not include any tax, excise, duty or levy now or hereafter enacted or imposed, by any governmental authority on the manufacture, sale, delivery and/or use of any item delivered. An additional charge will be made therefore and paid by Buyer unless Fusion OEM is furnished with a proper exemption certificate relieving Fusion OEM of paying or collecting the tax, excise, duty or levy in question.
LIABILITY The total liability of Fusion OEM to Buyer for any loss, indemnity, damage or delay of any kind will not under any circumstances exceed the amount paid under this Contract. Under no circumstances will Fusion OEM be liable for any loss, indemnity damage or delay arising out of its failure to perform due to causes beyond its reasonable control, including, without limitation, acts of God, interference by others, delays in receiving approvals or necessary information from Buyer (including a higher-tier party and/or the ultimate owner), fires, strikes, floods, war, terrorism, riots, delays in transportation and adverse weather. Under no circumstances will Fusion OEM be liable for any special, incidental or consequential damages based on breach of warranty, breach of contract, negligence, gross negligence, strict liability, products liability or any other legal theory.
INDEMNITY Buyer agrees to hold harmless, defend and indemnify Fusion OEM and its principals, owners, agents and employees, from and against any loss or damage of any kind, including court costs and attorneys’ fees, arising from any third-party claims against Fusion OEM related to Fusion OEM’s performance of this Contract; provided, however, that such obligation shall not apply if such loss or damage is solely caused by Fusion OEM’s own negligence.
TERMINATION Fusion OEM may terminate this Contract for any of the reasons that Buyer may terminate its contract, if any, with any higher-tier buyer or the ultimate owner. Buyer may terminate Fusion OEM only for persistently or repeatedly failing or neglecting to carry out the Work in accordance with the Contract (and only after failing to take steps to correct such failure following ten (10) days written notice by Buyer). If terminated without cause, Buyer shall notify Fusion OEM ninety (90) days in advance and Fusion OEM shall be entitled to receive payment for the Work executed and products delivered prior to and within the ninety (90) days preceding the termination date. In addition, Fusion OEM shall be entitled to recover all costs incurred by reason of such termination (including any restocking charges), along with a 25% margin on work not yet executed.
NO ASSIGNMENT Buyer may not assign its rights under this contract without the prior express written consent of Fusion OEM.
TITLE It is expressly understood that title to products manufactured by Fusion OEM shall not pass to Buyer, but shall remain vested in and continue to be the property of Fusion OEM or its successors or assigns, until the purchase price, any applicable late charges and any other sums due hereunder have been fully paid.
INSPECTION, TESTING AND ACCEPTANCE Any inspection by Buyer or Ultimate Owner of products on Fusion OEM’s premises shall be scheduled in advance to be performed during normal working hours. If the Contract provides for factory acceptance testing, Fusion OEM shall notify Buyer or Ultimate Owner when Fusion OEM will conduct such testing prior to shipment. Unless Buyer or Ultimate Owner states specific objections in writing within ten (10) days Fusion OEM will assume that the recommended dates have been accepted by Buyer or Ultimate Owner. If the Contract provides for site acceptance testing, testing will be performed by Fusion OEM personnel to verify that the product has arrived at the site complete, without physical damage, and in good operating condition. Completion of all required testing constitutes full and final acceptance of the product. If, through no fault of Fusion OEM, acceptance testing is not completed within thirty (30) days after arrival of the product at the site, the site acceptance test shall be deemed completed and the product shall be deemed accepted.
WARRANTY AND LIMITATIONS Fusion OEM warrants to Ultimate Owner that all products manufactured by Fusion OEM will materially conform to specifications, drawings, samples and other written descriptions that are a part of this Contract. No warranty is given as to the final use or application of such products. These warranties shall remain in effect for a period of ninety (90) days after acceptance of Fusion OEM’s work under the Contract by either Buyer or Ultimate Owner (or their legal representatives). Parts replaced or repaired during the warranty period shall carry the unexpired portion of the original warranty. Components manufactured or supplied by others are warranted only to the extent of the underlying manufacturer’s warranty.
The liability of Fusion OEM hereunder is limited to replacing or repairing at Fusion OEM’s factory or on the job site, at Fusion OEM’s option, any part or parts which have been returned to Fusion OEM and which are defective due to a gross oversight in Fusion OEM’s craftsmanship or which materially do not conform to such specifications, drawings or other written descriptions that are a part of the Contract; provided that such part or parts are returned within ninety (90) days after such defect is discovered at Buyer’s cost (which shall be reimbursed by Fusion OEM if, within Fusion OEM’s discretion, the gross oversight or material nonconformity is confirmed). Fusion OEM shall have the sole right to determine if the parts are to be repaired at the facility or whether they are to be returned to Fusion OEM’s factory for repair or replacement. Fusion OEM shall not be liable for any damage done by unauthorized repair work, unauthorized replacement parts, from any misapplication or misuse of the item, or for damage due to accident, abuse, or Act of God. Fusion OEM shall not be liable for any labor, subcontracted or performed, by Buyer for preparation of any warranted item for return to Fusion OEM’s factory or for preparation work for field repair or replacement. Non-compliance with the terms of payment by the Buyer shall result in a failure of consideration under this contract and shall relieve Fusion OEM of any duties or obligations with respect to any warranties stated herein.
EXCEPT AS SET FORTH IN THESE TERMS AND CONDITIONS, FUSION OEM MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF FREEDOM FROM PATENT INFRINGEMENT, OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE OR OTHER EXPRESS OR IMPLIED WARRANTIES. BUYER ON BEHALF OF ITSELF AND ULTIMATE OWNER WAIVES ANY RIGHT OF ACTION IT HAS OR MAY HAVE AGAINST FUSION OEM FOR ANY CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF ANY BREACH OR WARRANTY AND FOR ANY DAMAGES BUYER OR ULTIMATE OWNER MAY CLAIM FOR DAMAGE TO ANY PROPERTY OR INJURY OR DEATH TO ANY PERSON ARISING OUT OF ITS PURCHASE OR THE USE, OPERATION OR MAINTENANCE OF THE PRODUCT.
CHOICE OF LAW This contract shall be construed under and governed by the laws of the State of Illinois, USA.
COVENANT NOT TO SOLICIT EMPLOYEES Commencing immediately, and continuing until a date one (1) year after the date of final completion of all obligations under this Contract, Buyer agrees not to directly or indirectly employ, solicit for employment, or advise or recommend to any other person that such other person employ or solicit for employment, any person employed by or under contract to Fusion OEM. In the event of a breach of this covenant, the parties agree that the damage to Fusion shall be difficult to assess. Accordingly, Buyer shall pay to Fusion OEM as liquidated damages and not a penalty a cash amount equal to one (1) year’s salary of the solicited employee, which the parties agree is a reasonable and proportionate estimate of the actual damages to be suffered by Fusion OEM as a result of such breach.
LOSS OR DAMAGE Any product manufactured or assembled by Fusion OEM shall be shipped FOB Burr Ridge, Illinois, either to Buyer or the purchaser that buys for use, and not for resale (the “Ultimate Owner”). Any components shipped by Buyer or Ultimate Owner to Fusion OEM shall be shipped FOB the place of origin. Start-up service, operator orientation and installation is not included unless specifically offered in the Proposal.
FAILURE TO MAKE PAYMENT If, after seven (7) days’ notice by Fusion OEM, the Buyer does not make payment for the Work in conformity with this Contract (or, with or without such notice if the Buyer has repeatedly failed to make payment in conformity with this Contract), Fusion OEM may suspend its work under this Contract until it receives all payments then due, and the amount due shall be increased by Fusion OEM’s reasonable demobilization and remobilization costs and reasonable finance charges. In the event collection of any amounts due to Fusion OEM is referred to an attorney, Buyer shall bear all costs of collection, including, but not limited to Fusion OEM’s reasonable attorney fees. Fusion OEM may require prepayment of any or all amounts due if the financial condition of Buyer, a higher-tier buyer or the Ultimate Owner reasonably justifies it. In the event of non-payment, Buyer agrees that Fusion OEM shall owe no further obligations under any related confidentiality, non-disclosure and non-competition agreements and Fusion OEM shall have the right to go to market with any and all parts or finished products without restriction, including to any Ultimate Owner or other customer(s) of Buyer.
ARBITRATION All claims arising out of this Contract shall be subject to arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The place of the arbitration will be Chicago, Illinois.