Fusematic Corporation, (“Fusematic”) Commercial Purchase Order Standard Terms & Conditions
1. Application of Terms and Conditions. Unless otherwise indicated on the front of this purchase order (“Order”), these terms and conditions shall apply to any materials provided and/or services performed by the supplier (“Supplier”) pursuant to this Order.
2. Acceptance. In addition to any acceptance by Supplier in writing or otherwise, Supplier will be deemed to have accepted this Order upon the delivery of any materials and/or the performance of any services specified herein, or Supplier’s invoice to Fusematic. This Order, including any attachments hereto, constitutes an offer to purchase the materials and/or services described herein. Acceptance of this Order by Supplier is expressly limited to the terms of the offer. Fusematic hereby expressly rejects and objects to any additional and/or conflicting terms proposed by Supplier, and any such additional and/or conflicting terms shall not be binding upon Fusematic unless agreed to in writing.
3. Independent Contractor Relationship. Supplier is an independent contractor in all its operations and activities hereunder. The employees used by Supplier to perform work under this Order shall be Supplier’s employees exclusively without any relation whatsoever to Fusematic.
4. Changes. Fusematic reserves the right to make changes to this Order by written notice to Supplier. To the extent that any changes affect the purchase price, delivery date or completion date for the materials provided and/or the services performed hereunder, such changes will not take effect unless and until Fusematic and Supplier have mutually agreed to the changes in writing.
5. Stop Work Notice. Supplier shall stop work for up to ninety days in accordance with any written notice received from Fusematic, or for such longer period of time as the parties may agree and shall take all reasonable steps to minimize the incurrence of costs allocable to the work during the period of work stoppage. Within such period, Fusematic will provide written direction to either terminate or continue the work in accordance with the provisions of this Order. In the event of a continuation, an equitable adjustment will be made in accordance with the ”Changes” clause for any variation in price, delivery schedule, or other provisions(s) affected by the work stoppage. Supplier’s claim for any equitable adjustment must be made within thirty days after the written notice to continue is issued by Fusematic.
6. Termination. Fusematic may terminate this Order, in whole or in part, at any time, for any reason, by notice to Supplier. Such termination shall be without penalty or cancellation fees of any kind. Supplier shall immediately stop all work hereunder and shall immediately cause any and all its suppliers and subcontractors to cease work. The only liability of Fusematic to Supplier upon such termination shall be (a) payment for any materials delivered and/or services performed prior to the termination, (b) reimbursement of all reasonable and verifiable costs Supplier can demonstrate to the satisfaction of Fusematic using its standard record keeping system have resulted from the termination in connection with this Order; and (c) Supplier’s termination claim shall be submitted within thirty days from the effective date of the termination. In no event shall Fusematic’s obligation under this provision exceed the price for this Order including any applicable change orders. In the event of a termination for Fusematic’s convenience or change, no claim will be allowed for any manufacture or procurement in advance of Supplier’s normal flow time unless there has been prior written consent by Fusematic.
7. Time for Performance. Time is of the essence. Supplier should promptly advise Fusematic if it is unable to meet the delivery and/or completion dates set forth herein and the status of performance of this Order when requested. Fusematic may rescind the Order if alternated delivery and/or completion dates proposed by Supplier are not acceptable to Fusematic in its sole discretion. Fusematic shall have no financial obligations to Supplier if contract is terminated for noncompliance with agreed delivery date. Termination for failure to timely deliver shall not release vendor from the Liquidated Damages incurred due to project delays. Neither party will be liable to the other for any failure to fulfill its obligations under this Order (other than payment obligations) caused by circumstances beyond its reasonable control. Such circumstances shall include, without limitation, of God, strikes, lockouts, riots, acts of war, terrorism, disease, fire, and power failures. However, such circumstances shall expressly not include increased costs to Supplier resulting from shortages, adverse market conditions or breaches by Supplier’s suppliers or subcontractors.
8. Liquidated Damages. Fusematic shall be entitled to recover against Supplier any liquidated damages assessed against Fusematic that are attributable to any failure of Supplier to deliver supplies and/or provide service pursuant to this Order according to the applicable schedule for delivery of such supplies and/or performances of such services. Fusematic and Supplier recognize that such damages may include some damages that might otherwise be deemed to be consequential, and those consequential damages may be imposed upon Fusematic through its customer contract.
9. Delivery of Materials. Each delivery of materials shall be governed by this Order, shall be packaged appropriately for shipment to the designated location, must contain a packing slip listing the contents of each package, box or crate and referencing this Order on the outside of the package, box or crate. Fusematic shall not be liable for any minimum order charges or charges for packaging, cartage, insurance or value charges by any mode of transportation, unless expressly agreed to in writing. A copy of the Bill of Lading and actual cost of freight bill must be included to support any prepaid freight charges. Markup on actual prepaid freight charges is limited to 12.5%. Cartage shall be best lowest cost unless agreed to in writing prior to shipping. All shipments shall be delivered duty paid by Supplier to the Fusematic named destination in accordance with Incoterms 2020 DDP.
10. Payment. Fusematic will pay all correct invoices thirty days from date of receipt.
11. Warranty of Materials. Supplier warrants to Fusematic for a period of two years from the date of first productive use, that any materials delivered under this Order (a) are free from all defects in design, workmanship and materials, (b) consist of new materials, not used, or reconditioned, remanufactured, or of such age as to impair its usefulness or safety (c) are merchantable, and are fit for use for their ordinary intended purpose as well as any special purpose specified in this Order, (d) do not infringe on any patent, trademark, copyright or trade secret, and (e) strictly conform to all applicable specifications, drawings, samples, descriptions, and other requirements of this Order. If any materials delivered fail to conform to these warranties or otherwise with this Order, then the Supplier shall, at the Fusematic's option, promptly repair or replace the materials or reperform the work free of charge. The remedies stated herein are cumulative and are not intended to limit any remedies available to Fusematic at law or in equity. All warranties shall run to Fusematic and its customers.
12. Performance of Services. Supplier shall perform any services (a) with minimum interference to the operations of Fusematic and other (b) in accordance with all necessary precautions (including applicable safety regulations of Fusematic, site or customer) to protect all persons and property from damage and/or injury. Supplier shall remove all its equipment, materials and dunnage upon completion of the services.
13. Warranty of Services. Supplier warrants to Fusematic (a) that Supplier will perform any services expeditiously, in a good and workmanlike matter, in accordance with the highest standards of Supplier’s profession, and in strict conformance with this Order; (b) that Supplier, its subcontractors and agents will furnish only competent and skilled workers to perform any services; (c) that the product of any services performed under this Order will be free from defects in design, material, and workmanship; and (d) that Supplier shall remain responsible for the acts and omissions of all its affiliates and suppliers. These warranties shall remain in effect for twenty four months following completion of any services, including any services performed to correct any prior services that did not conform to these warranties.
14. Root Cause Analysis. At the request of Fusematic, the Supplier agrees to provide at no cost to Fusematic, a full and detailed Root
Cause Analysis on any failed component, system failure or Warranty Service performed by the Supplier.
15. Inspection of Materials and/or Services. Fusematic reserves the right to inspect any materials delivered and/or services performed by Supplier. However, any such inspection and/or the failure of Fusematic to so inspect shall not relieve Supplier of any obligation hereunder.
16. Intellectual Property. All materials and/or services performed under this Order shall constitute “work made for hire” by Fusematic, and Fusematic and/or owner of the project will own all right, title and interest in and to all reports, documents, techniques, know-how, algorithms, software, specification, plans, notes, drawings, (including those generated or modified by Supplier), designs, pictures, inventions, data, information and other items authorized, produced, created, collected, developed, discovered or made by Supplier in connection with the materials and services, together with any and all patent, copyright, trade secret, trademark and other intellectual property rights in any such material. Supplier may have or may hereafter acquire in any such materials and intellectual property rights. Supplier will take such action as may be reasonably requested by Fusematic (including without limitation, the execution, acknowledgment and delivery of documents) to effect, evidence or perfect Fusematic’s ownership right in such materials and associated intellectual property rights. Supplier will not contest the validity of Fusematic’s rights therein. Supplier warrants that the services and materials performed or delivered under this Order will not infringe or otherwise violate the intellectual property rights of any third party in the United States or any foreign country and shall indemnify and hold Fusematic and its officers, directors, employees, consultants, agents, affiliates, successors, permitted assigns and customers harmless from and against all losses, costs, claims, causes of action, damages liabilities and expenses, including attorney’s fees, all expenses of litigation and/or settlement, and court costs, arising out of any action by a third party that is based upon a claim that the services performed or materials delivered under this Order infringe or otherwise violate the intellectual property rights of any person or entity.
17. Indemnity. Supplier shall release, indemnify, defend and hold Fusematic (including without limitation its parents, subsidiaries, affiliates, partners, co-ventures, and the respective directors, officers, employees and agents of each) harmless from any and all claims, liabilities, costs and expenses (including without limitation court costs, litigation expenses, and attorneys’ fees), and causes of action for injury, death or property damage that arise out of, are related to or are connected with any materials delivered and/or services performed by Supplier. IT IS THE INTENT OF THE PARTIES THAT THE INDEMNITY AND RELEASE PROVIDED FOR HEREIN SHALL BE BROADLY CONSTRUED AND SHALL APPLY REGARDLESS OF FUSEMATIC’S STRICT OR STATUTORY LIABILITY OR ACTUAL OR ALLEGED NEGLIGENCE, INCLUDING, WITHOUT LIMITATION, FUSEMATIC’S OWN NEGLIGENCE THAT IS A CONCURRING OR CONTRIBUTING CAUSE OF THE INJURY, DEATH OR DAMAGE. SUCH INDEMNITY AND RELEASE SHALL NOT APPLY TO ANY CLAIM, LIABILITY OR CAUSE OF ACTION RESULTING FROM THE SOLE NEGLIGENCE OF FUSEMATIC.
18. Insurance. Supplier shall maintain, and shall require its subcontractors to maintain, at no cost to Fusematic, the following insurance coverage with financially sound insurers: (a) Commercial General Liability Insurance with limits of not less than $1,000,000 per occurrence and $1,000,000 in the annual aggregate with respect to products and completed operations liability, and if subject to a general aggregate, an annual general aggregate of not less than $2,000,000; (b) Business Automobile Liability Insurance with limits of not less than $1,000,000 per occurrence and $5,000,000 per occurrence if Supplier is subject to Department of Transportation regulations as a carrier of Hazardous Materials; and (c) Worker’s Compensation Insurance covering all employees of Supplier in compliance with the authority having jurisdiction over each employee. All such insurance policies shall name Fusematic as an additional insured (except for the Workers’ Compensation Insurance), shall provide a waiver of subrogation in favor of Fusematic, and shall give Fusematic thirty day’s written notice of any cancellation or material change, provided however such notice shall not relieve Supplier of its obligations to maintain the required insurance. If requested, Supplier shall provide a “Certificate of Insurance” evidencing Suppliers compliance with these requirements. Fusematic may require that Supplier provide such certificate prior to commencing any services specified in this Order. Insurance maintained pursuant to this clause shall be considered primary as respects the interest of Fusematic and is not contributory with any insurance which Fusematic may carry.
19. Limitation of Liability. TO THE FULLEST EXTENT OF THE LAW AND NOTWITHSTANDING ANYTHING IN THIS ORDER TO THE CONTRARY, UNDER NO CIRCUMSTANCES, SHALL FUSEMATIC BE LIABLE TO SUPPLIER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, ARISING OUT OF THIS ORDER EVEN IF FUSEMATIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED IN CONTRACT, TORT, STATUE, NEGLIGENCE OR OTHERWISE. THE AGGREGATE LIABILITY OF FUSEMATIC UNDER THIS ORDER SHALL NOT EXCEED THE AMOUNT OF THE ORDER. The limitations of liability set forth above, shall not apply to: (i) willful misconduct or fraud; (ii) death or personal injury resulting from the negligence of Fusematic, nor to Fusmatic’s payment obligations under this Order.
20. Audit Rights. Throughout its performance under this Order and for not less than three years thereafter, Supplier shall maintain a true and correct set of records pertaining to all activities relating to its performance and all transactions related to this Order. Authorized representatives of Fusematic may audit any and all such records at any time during the term of this Order and during the three-year period after completion of performance. This includes all Quality Control documentation, Manufacturing Record Books, vendor/supplier records and Root Cause Analysis reports, financial, proposal, procurement, specifications, quality, shipping, export, and certification records.
21. Compliance with Laws; Taxes. Supplier shall comply with all Federal, State and Local laws, ordinances, rules and regulations applicable to
its performance under this Order and shall indemnify Fusematic against any liability by reason of Supplier’s failure to comply with such laws ,rules, regulations or pay taxes.
22. Assignment; Survival. Supplier may not assign this Order without the prior written consent of Fusematic, which may be withheld in Fusematic’s sole discretion. The terms and conditions of this Order regarding warranties, liquidated damages, indemnities, audit right, confidentiality, and liability incurred upon or prior to termination are continuing obligations and shall survive the completion or termination of this Order.
23. Severability. If any provision in this Order shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
24. Confidential Information. All information, technical data, or know-how, including, but not limited to that which is a ‘trade secret’ under the Uniform Trade Secrets Act or which relates to research, products, operations, services, customers, markets, developments, inventions, processes designs, drawings, engineering, marketing or finances disclosed orally or in written or electronic form delivered from Fusematic to Supplier shall be considered the “Confidential Information” of Fusematic and shall not be disclosed by Supplier to any third party without the prior written consent of Fusematic. All files shall be properly labeled, organized and formatted to meet the needs of the site service personnel. In the event Supplier is required to disclose Fusematic Confidential Information by law, by any court of competent jurisdiction or by any regulatory or administrative body, Supplier shall notify Fusematic prior to making any such disclosure, in order to provide Fusematic with an opportunity to seek an appropriate order or other relief to prevent such disclosure unless prohibited from doing so by applicable laws.
25. Import/Export Trade Compliance. Each party acknowledges that certain information or technology provided by the other party under this Order may be subject to United States export and import control laws and regulations (collectively, “Export Control Laws”) which include without limitation, the International Traffic in Arms Regulations (ITAR), Export Administration Regulations (EAR) and regulations and orders administered by the Office of Foreign Assets Control (OFAC). Each party agrees to comply with all Export Control Laws.
26. Governing Law & Venue. The validity, performance and all matters relating to the interpretation and effect of this agreement and any amendments thereto shall be governed by the laws of the State of Florida, without giving effect to choice of law principles thereof.
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