Commercial Terms
1. Applicability; Rejection of Other Terms. These Commercial Terms and Conditions ("Terms") govern all sales of Equipment or Services by FactorUp to Buyer ("Order"). These Terms supersede any prior and contemporaneous written or oral agreements, understandings, representations, and promises, and any pre-printed or standard terms and conditions in Buyer's request for quote, purchase order, or other similar Buyer document, as well as any FactorUp proposal for Equipment or Services. These Terms may not be amended, supplemented, changed, or modified except by a separate written agreement, signed by an authorized representative of Buyer and officer of FactorUp. Factor Up's acknowledgment of Buyer's purchase order or other document, even when signed, will not constitute acceptance of any terms and conditions contained therein (other than quantity and price), regardless of how those terms and conditions may be prefaced or described, and those terms are hereby expressly rejected.
2. Definitions.
"Buyer" means the individual or company identified as the issuing party or signatory on the Order (or, if none, identified as the purchaser or buyer in the communications that, taken together, comprise the Order). "Equipment" means all equipment and parts fabricated and sold by FactorUp.
"FUS" means FactorUp Solutions, LLC.
"Service(s)" means work, direction of work, technical information, or technical consulting and advice or other services furnished by FUS to the Buyer.
"Work" means, separately or collectively (as indicated by the context), the Equipment (including the fabrication thereof) and Services.
3. Delivery. For delivery of Equipment within the United States, unless otherwise agreed in writing between the parties, delivery will be made F.O.B. FUS's fabrication facility, as that term (F.O.B. the place of shipment) is defined in TEX. COMM. & Bus. CooE 2.319 (as amended), or any successor statute. For the delivery of Equipment outside the United States, unless otherwise agreed in writing between the parties, delivery will be made FCA FUS's fabrication facility (lncoterms 2020). Shipping dates are: (a) calculated based on the later of FUS's receipt of (i) Buyer's final written drawing approval, or (ii) all components and other materials specified by, or to be furnished by or on behalf of, Buyer; (b) approximate; and (c) conditioned on prompt receipt of all other necessary information. If FUS provides transport services, these will be quoted as a lump sum price based on destination and shipping mode. FUS has the right to make shipments and/or deliveries in separate lots.
4. Suspension. If, prior to readiness to ship, Buyer requests a delay or suspension in completion of the Work, or any part thereof, for any reason, FUS will accommodate that request under the following conditions: (1) Buyer must give FUS 10 days' advanced notice of any requested suspension; (2) FUS will suspend the Work at the earliest practical point after the requested suspension date (such point to be determined in FUS's sole discretion, taking into consideration the need to protect Work completed prior to Buyer's requested suspension date, the practicalities of resuming suspension from a particular stopping point, and other relevant factors, and which may require FUS to complete additional work such as painting or assembly prior to suspending) (the date on which FUS actually suspends the Work will be referred to herein as the "Suspension Date"); (3) FUS may invoice, and Buyer must pay within 10 days of the Suspension Date, the prorate Order price (as determined by FUS, using any reasonable methodology) of all Work performed through the Suspension Date, plus (to the extent not already included in the prorata amount above) the cost of all materials and components ordered or acquired by FUS through the Suspension Date in connection with the Work; (4} Buyer will, upon receipt of invoice in advance of the Suspension Date and any supplemental invoice made necessary by any extension of the suspension period, promptly pay all direct and indirect costs and expenses incurred (or to be incurred) by FUS as a result of the suspension (e.g., storage costs, restocking fees paid to third parties, demobilization and remobilization costs, etc.); (5) Buyer will, at the time of its suspension request, advise FUS of the anticipated length of the suspension; (6) Buyer must give FUS reasonable (but not less than 30 days') advance notice, in writing, of its request to resume fabrication; (7) provided that Buyer is in full compliance with its payment and other obligations under these Terms, FUS will use commercially reasonable efforts to resume fabrication as soon as reasonably practical, taking into account its existing production schedule and lead times for any required materials or components, and will advise Buyer of its new anticipated delivery date. If any suspension is anticipated to, or does, extend beyond 180 days, FUS, in its sole discretion, may elect to treat the suspension as a Buyer cancellation under Section 10, and Buyer shall compensate FUS in the amount and manner set forth in that section, to the extent such specific charges have not been previously recovered by FUS from Buyer under this Section 4.
5. Bill & Hold. If Buyer requests a delay in shipment of completed Equipment, FUS will, without need for further agreement or documentation, delay the shipment, and the following conditions will apply: (a) FUS will immediately invoice for any completed Equipment, and Buyer must pay such invoice in accordance with Section 8; (b) FUS will deliver the Equipment to storage at one of its facilities, or to such other FUS or third-party facility designated by FUS; (c) Buyer must contact FUS to arrange for pickup or delivery no later than 6 months from the date of invoice; (d) FUS will charge a warehousing fee of $10/month to cover the storage of the units; (e) Buyer accepts title and risk of loss in the Equipment, and title and risk of loss in the Equipment transfers to Buyer, upon delivery to the storage location specified in (b); (f) throughout the storage period, Buyer must insure against loss or damage to the Equipment not due to FUS negligence or willful misconduct; and (g) all other terms and conditions will remain unchanged, including payment and warranty terms. In rare instances, such as when FUS leases storage space from a third party, additional storage fees may apply, and will be agreed upon by the parties.
6. Force FUS will not be liable for delays due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of government, acts or omissions of Buyer (including Buyer delays such as failure to timely approve drawings, furnish information, make progress payments, or provide Buyer-supplied materials or tools), fires, labor disputes, boycotts, floods, pandemics, epidemics, quarantine restrictions, war, insurrection, terrorism, riot, civil or military authority, transportation shortages or delays, unusually severe weather, or inability to obtain necessary labor, materials, components, or fabrication facilities due to such causes. In the event of a delay resulting from such a cause, the date of delivery will be extended by a length of time equal to the period of the delay.
7. Warranty. Subject to the limitations of this Section 7, Section 18, Section 22, and Section 23 herein, for Equipment fabricated by FUS, FUS warrants that its fabrication Services will be free from defects in material, workmanship and title (the "Fabrication Services Warranty") for a period of 5 years from the date of original invoice for the fabrication Service (the "Fabrication Services Warranty Period"). If, during the Fabrication Services Warranty Period, Buyer notifies FUS that the Equipment does not conform to the Fabrication Services Warranty, and FUS's investigation (upon receipt of the applicable parts at FUS's fabrication facility or service center, at Buyer's expense, or, if elected by Seller, at the location of the Equipment) confirms the existence of a warranted defect, then FUS will, within a reasonable time, correct such nonconformity by repair or replacement FUS's fabrication facility or service center. FUS's sole obligation, and Buyer's sole remedy under this warranty, is re-performance of the fabrication Servi All re-performed fabrication Services will be warranted only for the remainder of the original Fabrication Services Warranty Period.
For other Services, subject to the limitations of this Section 7, Section 18, Section 22, and Section 23 herein, FUS warrants, for a period of 12 months from the date of original invoice for the warranted Service (the "General Services Warranty Period"), that the Services are performed in a workmanlike manner, in material accordance with industry standards (the "General Services Warranty"). If, during the General Services Warranty Period, Buyer notifies FUS that a covered Service does not conform to the General Services Warranty, and FUS's investigation confirms Buyer's assertion, then FUS will, within a reasonable time, correct such nonconformity by re-performing the Services. FUS's sole obligation, and Buyer's sole remedy under this warranty, is re-performance of the Services. All re-performed Services will be warranted only for the remainder of the original General Services Warranty Period.
FUS will investigate reported defects as needed, in FUS's reasonable discretion, to determine whether any defect is within the scope of FUS's Fabrication Services Warranty or General Services Warranty. If, as a result of that investigation, FUS determines that any reported defect is not within the scope of FUS's Fabrication Services Warranty or General Services Warranty, then Buyer will be responsible for all charges related to FUS's or its designated third-party's then-current service call and repair rates applicable to the investigation and any repair or replacement (e.g., drive time, labor hours for removal, repair, replacement, installation, materials and component costs, etc.). Except to the extent that FUS directly engages a third- party as a subcontractor to provide non-fabrication Services to Buyer, FUS does not warrant materials, components, goods, or equipment (including Free-Issue Items) manufactured or provided by, or services provided by, Buyer or third parties, even when incorporated into Equipment fabricated by FUS. FUS will, upon request, pass through to Buyer any warranty received from the applicable third-party, and will, subject to Section 19, use reasonable efforts to assist Buyer in coordinating with that third party. The buyer is solely responsible for diagnosing and obtaining warranty replacement of any Free-Issue Items. The buyer will be responsible for all charges related to FUS's or its designated third party's then-current service call and repair rates applicable to the evaluation, repair or replacement of the third-party material, goods, or equipment or Free-Issue Item.
FUS does not provide engineering services or other matters beyond the scope of its fabrication and other Services. Buyer is solely responsible for verifying the accuracy, feasibility, and advisability of any FUS recommendation with Buyer's engineers. Free-Issue Items, and other matters beyond the scope of fabrication, and is not relying on any recommendation by FUS. FUS will not be responsible for any on-site costs, including removal and reinstallation of the warranted Equipment, or for any travel, transportation, or lodging required to repair or replace Equipment or re- perform Services at the worksite. Buyer agrees to provide FUS free and clear access to any Equipment, which may include removal of materials or structures as well as supplying any equipment, materials, or structures that are necessary to provide free and clear access to the Equipment being repaired or replaced. FUS is not responsible for repairs or alternations made by others without mutual written agreement between FUS and Buyer. FUS does not warrant the Equipment or any repair/replacement part against the effects of erosion, corrosion, abrasion, or normal wear and tear due to operation, the application, or the environment. The warranty and remedies set forth herein are conditioned upon proper storage, installation, use, and maintenance of the Equipment in all material respects, and in accordance with FUS's and any applicable third-party's written recommendations.
The warranties set forth in this Section 7 are valid as to Buyer and its affiliates only, and are non- transferrable, whether by operation of sale of assets, sale of stock, assignment, or other transfer, unless otherwise specifically agreed in writing by an officer of FUS prior to any attempted assignment. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7 ARE THE EXCLUSIVE WARRANTIES OF FUS WITH REGARD TO ANY DEFECT OR NONCONFORMITY IN THE WORK (INCLUDING THE SERVICES AND EQUIPMENT) FURNISHED HEREUNDER, AND NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE, OR NON-INFRINGEMENT WILL APPLY. THE WARRANTIES SET FORTH IN THIS SECTION 7 ARE BUYER'S SOLE AND EXCLUSIVE REMEDY FOR ANY DEFECT OR NONCONFORMITY IN THE WORK AND SERVICES PERFORMED AND EQUIPMENT FURNISHED BY FUS.
WARNING REGARDING ACTIONS THAT MAY VOID OR CANCEL WARRANTIES: ATTEMPTING TO DIAGNOSE AND REPAIR EQUIPMENT MAY VOID ANY FUS OR THIRD-PARTY WARRANTY. FUS IS NOT RESPONSIBLE FOR ACTS OR OMISSIONS OF BUYER THAT RESULT IN A VOIDED OR CANCELLED WARRANTY.
8. Payment. Unless otherwise set forth in these Terms, FUS will issue its invoice upon shipment, or upon notice to Buyer that FUS is ready to ship, whichever is All prices are net cash, U.S. Dollars, 30 days from date of FUS's invoice, unless, otherwise stated in FUS's proposal, quotation, or offer. FUS may, in its sole discretion, require progress or advance payments, regardless of whether required by FUS's proposal to Buyer, depending on Order size, material receipt timeframe, customer creditworthiness, and other factors. All transportation, insurance, and other charges incident to delivery must be paid by Buyer. Should Buyer for any reason fail to timely perform any of its payment obligations, Buyer agrees to pay all collection costs, attorneys' fees, and expenses incurred in collecting payment, including interest on the amount due at the lesser of 1.5% per month or the maximum legal rate. In addition, if any required progress payment is not timely received, FUS reserves the right to suspend fabrication, and Buyer shall be solely responsible for any such delays. All costs resulting from any such suspension, including any necessary transportation, storage, and re-mobilization or resumption costs, must be paid by Buyer within 30 days of invoice (and in all instances before fabrication will be resumed). If Buyer's financial condition is or becomes unsatisfactory to FUS, FUS reserves the right to: (a) require payment from Buyer on a cash in advance (CIA) basis; (b) require a letter of credit or other acceptable security before shipment; and/or (c) cancel shipment at any time prior to delivery of the Equipment without further obligation or liability on FUS's part.
9. Changes. Buyers may request modifications as to the amount, scope, and/or nature of the Equipment via a written or oral request. If, in the opinion of FUS, any modification will affect the agreed fixed price and/or delivery date, FUS will notify Buyer of the pricing and/or delivery impact, and FUS will not be obligated to perform any modification unless and until Buyer confirms that the change, including the pricing and/or delivery impact, is authorized and accepted by Buyer. FUS may, in its sole discretion, require that Buyer issue a written Order revision.
10. Buyer Cancellation. The buyer may cancel this Order only upon prior written notice and receipt by FUS of reasonable and proper cancellation charges, calculated in the manner set forth in this Section 10. Upon receipt of Buyer's notice of cancellation of any portion or all of this Order, FUS will identify the earliest practical stopping point after the requested cancellation date (such point to be determined in FUS's sole discretion, taking into consideration the need to protect Work completed prior to Buyer's requested cancellation date and other relevant factors, and which may require FUS to complete additional work such as painting or assembly prior to stopping the Work) (the date on which FUS stops the Work will be referred to herein as the "Cancellation Date"), and the parties will agree upon reasonable and proper cancellation, which charges must, in all instances, protect FUS's profit expectation with regard to Work performed (or to be performed) prior to the Cancellation Date, and must be paid prior to FUS stopping the If the parties are unable to timely mutually agree upon reasonable and proper cancellation charges, then Buyer must pay FUS, with respect to the cancelled portion, as a reasonable estimation of FUS's damages and not as a penalty, the following: (a) the unit price of all Work completed prior to cancellation; (b) the cost of Work in the process of being fabricated or performed, plus reasonable overhead and profit on the completed portion of that Work; (c) the cost of unused materials and components purchased by FUS in connection with the cancelled portion of the Work that cannot, in FUS's sole discretion, be readily reused or returned (or, to the extent such materials or components can be readily returned, any related restocking fees, transportation/shipping costs, and other similar costs and expenses to be incurred by FUS); and (d) any other reasonable and necessary direct and indirect costs or losses incurred by FUS due to terminating the Work (including any costs of disassembly or other necessary work, at FUS's then-current list rates). Buyer's liability under this section will not exceed the Order price of the cancelled Equipment or Services. All payments owed by the Customer under this Section 10 must be made prior to FUS stopping the Work. Failure to do so will render any cancellation request void, and Buyer will remain responsible for, among other amounts, the Order price of the Work.
11. Set All amounts that Buyer owes FUS under an Order are due and payable according to the terms of that Order and these Terms. Buyer is prohibited from setting off, and must not set off, such amounts or any portions thereof, whether or not liquidated, against sums that Buyer asserts are due to Buyer, its parents, affiliates, subsidiaries, or other divisions or units under other transactions with FUS, its parents, affiliates, subsidiaries, or other divisions or units
12. Inspection & Acceptance. Buyer will be deemed to have inspected and accepted the Equipment if Buyer has not objected to or rejected the Equipment by written notice to FUS within 10 days of delivery or performance, as applicable. Buyer shall have no right of rejection or revocation of acceptance regarding any Services, mechanical pump seals, diaphragm-based back pressure valves, or sample regulators, but shall have the exclusive remedies set forth in Section 7 regarding those goods and Services.
13. Special Tooling & Unless otherwise agreed in writing, all material, software, data processes, equipment, facilities, and special tooling, which term includes but is not limited to jigs, dies, fixtures, molds, patterns, special taps, special gauges, the Equipment covered by an Order, will be and remains the property of FUS. FUS retains all right, title and interest in the drawings, instructions, specifications, performance tests, NOT reports, parts lists, QA/QC checklists, and all other written data, if any, furnished and/or specified to be supplied with the Work, except that FUS grants Buyer a limited right (which right is not a license) to use and disclose the drawings, instructions, specifications, and other written data internally only, solely to the extent needed for the use, maintenance, and repair the Equipment.
14. Service Upon the cancellation, termination, or conclusion of the Order for any reason, FUS, at its option and without waiving any available remedies, may enter the premises where FUS's equipment or property is located and remove its service equipment without notice or demand, and without any liability for such action. Title to any equipment furnished by FUS for Services (and not for sale) remains the exclusive property of FUS. BUYER AGREES NOTTO TAKE ANY ACTION OR PERMIT OTHERS TO TAKE ANY ACTION THAT WOULD SUBJECT CONTRACTOR'S SERVICE EQUIPMENT TO ANY CLAIM, LIEN OR ENCUMBRANCE, AND FURTHER AGREES TO INDEMNIFY FUS FROM ANY CLAIMS OR LOSSES RELATED THERETO.
15. Permissible Variations, Standard & All Equipment is subject to tolerances and variations in dimensions, weight, straightness, section, composition, mechanical properties, surface, internal conditions and quality consistent with usages of the trade, regular mill practices, and practical testing and inspection methods.
16. Export/Import. Buyer agrees that it will comply with all applicable import and export control laws and regulations, including without limitation those of the United States and/or other jurisdictions from which the Equipment (including the technology associated with the Equipment) may be supplied or to which the Equipment or technology may be shipped. In no event will Buyer use, transfer, release, import, export, or re-export the Equipment or technology in violation of applicable laws and regulations.
17. Price & Taxes. Subject to the remainder of this Section 17, unless otherwise agreed, FUS will honor the price set forth in its written quote or proposal for a period of 10 days from issuance (thereafter, a new quote must be obtained). That price does not include, and FUS is not responsible for: (a) 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; (b) any increase in import duties, tariffs, surcharges, or other governmental charges, fees, or taxes imposed on the Work, any raw materials, any components, or other items incorporated into or used in connection with the Work, which will be Buyer's responsibility; (c) increases in costs or pricing resulting from delays in receipt of components or materials to be furnished by or on behalf of Buyer; or (d) shipping or transportation costs beyond the cost of FUS delivering the Equipment into the possession of the FUS is responsible only for any tax imposed on FUS, by taxing authorities in FUS's jurisdiction, that are based on FUS's revenue, income, net income, net assets, net worth, or capital, or any taxes imposed in lieu thereof. Buyers must pay all other governmental taxes, charges, and fees. If FUS is required to pay any taxes or other charges that are the responsibility of the Buyer, then Buyer must promptly reimburse FUS for those amounts. All quoted prices assume continuous and free entry to and exit from Buyer's worksite by FUS personnel and delivery vehicles on all-weather roads. Any additional Services not included in FUS's quote will be invoiced to Buyer at FUS's then-prevailing rate. Due to market conditions related to tariffs, alloys, and component materials, if FUS's material (including component) pricing materially increases prior to finalization of IFC drawings, FUS reserves the right to provide Buyer with a revised quote, which Buyer may accept or reject (in which case the Order will be deemed void). FUS reserves the right to apply a fuel surcharge, in addition to quoted prices, for services rendered during periods of time when the average price of unleaded gasoline in the United States exceeds $3.50/gallon, as determined by the Oil Price Information Service (OPIS). Due to market conditions, it is essential that the parties work expeditiously to finalize drawings in order to minimize the impact of price fluctuations in materials and component parts. FUS will use best efforts to provide Buyer with drawings within 7 days of quote acceptance. The buyer must approve drawings within 7 days of drawing receipt (whether original or redlined) from FUS. FUS reserves the right to issue a revised quote, if (1) Buyer does not timely approve drawings, and (2) FUS's cost of materials or components materially increases between the date of the original quote and the date of the customer's approval of IFC drawings. If Buyer does not accept any revised quote issued pursuant to these Terms, then Buyer FUS's then-current rates for services (e.g., design, drafting, project management, engineering, and/or administrative hourly rate charges) performed to date. Alternately, if such long-lead items or key components are returnable, Buyer shall pay any restocking fees assessed by the applicable vendor(s). The buyer must fully cooperate with FUS with respect to any audit of FUS's books and records by governmental or taxing authorities. Buyer must indemnify, defend, and hold harmless FUS from and against all claims, demands and causes of action based on any actual or alleged failure by Buyer to (a) make timely payment of any taxes or duties for which they are liable under these Terms or applicable law; or (b) comply with applicable reporting, return or other procedural requirements with respect to the transactions between the parties. This indemnity shall include, without limitation, all penalties, awards, judgments, and costs, and all reasonable expenses (including attorneys' and other professional fees) arising from, associated with, or relating to such claims, demands and causes of action. Unless quoted as a separate line item in FUS's proposal and Buyer's Order, prices do not include Equipment programming. All programming: (a) requires a Buyer-attended factory acceptance test, to be performed on a time and materials basis (or at FUS's pre-defined and agreed-upon rates, if applicable) at an additional cost; and (b) is performed based on Buyer-supplied or Buyer-approved cause and effect and/or control narrative, on a time and materials basis (or FUS's pre-defined and agreed-upon rates, if applicable) at an additional cost.
18. Assignment/Subcontracting. Buyer must not assign an Order or any portion thereof without the advance written consent of FUS, which consent may be withheld or otherwise subjected to conditions in FUS's sole discretion (taking into account, among other factors, the potential assignee's creditworthiness and performance history). Any such assignment must be in writing (and, at FUS's sole discretion, may be required to take the form of a novation), and signed by FUS, Buyer, and the assignee. Unless otherwise expressly agreed in writing by an FUS officer at the time of assignment, any assignment, regardless of form, of an Order or portion thereof does not result in assignment of any warranties with regard to Equipment delivered or Services performed prior to the effective date of the assignment. FUS may subcontract any portion of the Work, provided that FUS will remain responsible for the acts or omissions of its subcontractor to the same extent as if they were the acts or omissions of FUS hereunder.
19. Reliance on Buyer. FUS has relied on Buyer's representations as to worksite conditions. If any variance from such conditions is determined by FUS to be substantial or hazardous, FUS may terminate the Order without penalty. FUS reserves the right to refuse any Buyer-supplied materials, components, or tools (each, a "Free-Issue Item") unless FUS has, at the time of submitting its bid, agreed to use specific Free-Issue Items. If Buyer has stated that it will provide Free-Issue Items, then: (a) those items are excluded from any pricing quoted by FUS; (b) Buyer represents and warrants that it has inspected those Free-Issue Items for nonconformity and defects, that Buyer accepts the Free-Issue Items in their then- present condition, and that FUS may rely upon that inspection and acceptance; and (c) Buyer is solely responsible for any matters regarding the Free-Issue Items that are beyond the scope of FUS Technologies' fabrication services, including Databook additions related to those items, and shipping and logistics. Buyer is responsible for all maintenance and repair on Free-Issue Items (including coordinating any warranty returns/repairs related to the items, and resolving any other disputes with the applicable supplier), except to the extent necessitated by FUS's gross negligence or willful misconduct. Failure by Buyer to timely deliver to FUS all Free-Issue Items will negatively impact delivery schedule and, in some instances, pricing, and, without the need for further action by the parties, will automatically void all penalties, fees, liquidated damages, and other charges that might otherwise be assessed or assessable against FUS as a result of failure to meet any milestones and/or delivery targets.
20. Indemnity. “Buyer Group" means Buyer and Buyer's parent, subsidiary, affiliated companies, and subcontractors of all tiers, and its and their officers, directors, employees, agents, and assigns, and its and their invitees, representatives, spouses, relatives, dependents, or estates (but specifically excluding all members of FUS Group)"FUS Group" means FUS and FUS's parent, subsidiary, affiliated companies, and subcontractors of all tiers, and its and their officers, directors, employees, agents, and assigns, and its and their invitees, representatives, spouses, relatives, dependents, or estates (but specifically excluding all members of Buyer Group).
TO THE MAXIMUM EXTENT PERMITTED BY LAW, BUYER MUST HOLD HARMLESS, DEFEND, AND INDEMNIFY FUS GROUP AGAINST ANY DAMAGES, INCLUDING DAMAGES RESULTING FROM PERSONAL OR BODILY INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE, TO ANY MEMBER OF BUYER GROUP, EVEN IF SUCH DAMAGES ARE CAUSED BY THE NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF A MEMBER (OR MEMBERS) OF FUS GROUP.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, FUS MUST HOLD HARMLESS, DEFEND, AND INDEMNIFY BUYER GROUP AGAINST ANY DAMAGES, INCLUDING DAMAGES RESULTING FROM PERSONAL OR BODILY INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE, TO ANY MEMBER OF FUS GROUP, EVEN IF SUCH DAMAGES ARE CAUSED BY THE NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF A MEMBER (OR MEMBERS) OF BUYER GROUP.
WITH REGARD TO DAMAGES TO UNRELATED THIRD PARTIES (I.E., THIRD PARTIES THAT ARE NOT MEMBERS OF FUS GROUP OR BUYER GROUP), FUS MUST INDEMNIFY BUYER GROUP AGAINST ANY UNRELATED THIRD-PARTY CLAIMS FOR BODILY INJURY OR PROPERTY DAMAGE, BUT SOLELY TO THE EXTENT CAUSED BY THE NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF FUS IN THE PERFORMANCE OF THE ORDER.
WITH REGARD TO DAMAGES TO UNRELATED THIRD PARTIES (I.E., THIRD PARTIES THAT ARE NOT MEMBERS OF FUS GROUP OR BUYER GROUP), BUYER MUST INDEMNIFY FUS GROUP AGAINST ANY UNRELATED THIRD-PARTY CLAIMS FOR BODILYINJURYORPROPERTYDAMAGE,BUTSOLELYTOTHEEXTENTCAUSEDBYTHENEGLIGENCE, GROSSNEGLIGENCE,OR WILLFUL MISCONDUCT OF BUYER IN THE PERFORMANCE OF THE ORDER (INCLUDING IN CONNECTION WITH ANY FREE- ISSUE ITEMS}.
Buyer must hold harmless, defend, and indemnify FUS Group from all claims that the Work infringes the intellectual property rights of any third party, if such alleged infringement arises out of, or relates to: (a) FUS Group's compliance with Buyer Group's instructions, specifications, or designs; (b) Buyer Group's use of the Work in combination with equipment or services not fabricated by FUS.
If Buyer has reason to believe the Equipment or Services could form part of the basis for a claim for damages (including personal or bodily injury, including death, or IP infringement), Buyer must immediately provide FUS with written notice of that claim, must protect the Work that is the subject of the claim, and must provide FUS with a full opportunity to inspect the Work and/or investigate the basis of that claim.
21. Pollution. FUS is not responsible for any environmental contamination. The buyer is solely responsible for the proper disposal of hazardous materials in accordance with all applicable rules, regulations and laws. Buyer will maintain pollution insurance to protect against such contamination in amounts reasonably acceptable to FUS (but in no event less than industry standard amounts for a company in Buyer's line of business).
22. Limitation of Liability. The buyer's remedies set forth in these Terms are exclusive. THE AGGREGATE LIABILITY OF FUS WITH RESPECT TO THIS ORDER, OR ANY BREACH THEREOF, WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE ORDER PRICE OF THE SPECIFIC UNIT OF EQUIPMENT OR SERVICE GIVING RISE TO THE CLAIM.
23. EXCLUSION OF CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT, WHETHER ARISING BEFORE OR AFTER COMPLETION OF ITS OBLIGATIONS UNDER THE ORDER AND THESE TERMS, WILL FUS BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SIMILAR DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUE, OR PROFITS, INVENTORY OR USE CHARGES, COSTS OF CAPITAL, OR CLAIMS OF BUYER'S CUSTOMERS) INCURRED BY THE BUYER OR ANY THIRD PARTY, REGARDLESS OF WHETHER REASONABLY FORESEEABLE TO EITHER OR BOTH OF THE PARTIES.
24. Waiver. Failure by FUS to assert all or any of its rights upon any breach of an Order or these Terms will not be deemed a waiver of those rights or any other rights, either with respect to that breach or any subsequent breach, whether similar or dissimilar. Acceptance of payment will not constitute a waiver. FUS's rights and remedies under these Terms are cumulative, and in addition to any rights at law, equity, or in contract. Any exercise of (or failure to exercise) a right by FUS does not act as an election of remedies.
25. Severability. If any portion of these Terms are determined to be illegal, invalid, or unenforceable, for any reason, then that provision must be deemed stricken for purposes of the dispute in question only, and all other provisions shall remain in full force and effect.
26. Applicable Law. The laws of the State of Texas govern the Order and these Terms (including the application and interpretation thereof), without regard to conflict of laws principles. The United Nations Convention on Contracts for the Sale of Goods, 1980, and any successor thereto, as well as the Contracts (Right of Third Parties) Act of 1999 do not apply to this Order or the Terms.
27. Forum. Jurisdiction with respect to any suit arising out of these Terms or any Order will be exclusively in the state courts of Wood County, Texas, and federal courts of the Northern District of Texas. The buyer hereby waives any objection to, and submits to, the personal jurisdiction of the state courts of Wood County, Texas, and the federal courts of the Northern District of Texas, including any objection based on forum non convenience.
28. Compliance with Laws. Buyers must comply with all applicable laws. The buyer represents and warrants that it has not offered, promised, authorized, or made, and will not offer, promise, authorize or make, directly or indirectly, any payments (in money or any other item of value), contributions or gifts to any non-US. Governmental agency, department, official, or government owned or controlled entity to obtain or retain business, or secure any other improper business advantage, which would violate the U.S. Foreign Corrupt Practices Act and/or any other applicable anti- bribery laws.
29. Limitation of Time to Bring Claims. No action, regardless of form, arising out of the transactions under this Order, may be brought by the Buyer more than one year after the cause of action has accrued.
30. Change of Owner or Operator. Buyers must immediately notify FUS of any change in the operator or ownership of the worksite where Services are being or are to be performed. FUS's obligation to perform will be suspended for such a period of time until FUS and the new owner or operator are able to reach and execute mutually agreeable terms and conditions related to the assignment or novation of any Order in process or on which payments are outstanding. In the absence of such agreed-upon terms and conditions, Buyer remains responsible for performance under the applicable Order, including all payments in connection the Order.
31. Seller's Lien. FUS will have a lien against the Equipment until such time that Buyer has paid for the Equipment in full. BUYER AGREES NOT TO TAKE ANY ACTION OR PERMIT OTHERS TO TAKE ANY ACTION THAT WOULD SUBJECT THE EQUIPMENT TO ANY CLAIM, LIEN OR ENCUMBRANCE UNTIL SUCH TIME AS PAYMENT HAS BEEN MADE IN FULL.
32. Modification. Any modification to these Terms must be set forth in a written instrument signed by a duly authorized representative of the Buyer and an officer of FUS.
33. Notices. All notices to FUS under these Terms or the Order must be in writing, and sent to FUS via certified mail, return receipt requested, or nationally recognized overnight courier (e.g., FedEx or UPS), to the address set forth in this Section 34. All notices will be effective upon the later of receipt of the (a) hard copy notice, or (b) required email notice.
Hard Copies to:
Factor Up Solutions, LLC
421 E. Broad St. Unit 2
Mineola, TX. 75773
Attn: Troy Carroll
With electronic copies to:
- tcarroll@factorupsolutions.com
