Fabrisonic Standard Product Terms and Conditions
IMPORTANT — READ THIS ENTIRE DOCUMENT CAREFULLY: These standard product terms and conditions (the “Agreement”), together with the terms set forth in the written proposal (the “Proposal”) between Fabrisonic LLC (“FABRISONIC”) and the customer named in the Proposal (“Buyer” or “Customer”), is a legal agreement and governs the relationship between FABRISONIC and Customer.
In addition to the terms set forth in the Proposal, which include payment and delivery terms for the machine being purchased by Customer (the “Machine”), and may also include any other negotiated terms between the parties (and, if in conflict with the Agreement, would override the conflicting terms in the Agreement), the parties agree as set forth below.
1) MACHINE TESTING, TRAINING, AND OTHER EQUIPMENT – Acceptance testing and training will be conducted as set forth in the Proposal, if any. Any necessary equipment or other supplies (such as data) to be provided by Buyer, if any, is as set forth in the Proposal. Certain Machines are standardized and do not come with acceptance testing, training, or the ability to customize additional equipment or other supplies.
2) CHANGE ORDERS – During the implementation of Machines and related projects of this scope, FABRISONIC understands changes may occur. If any material enhancements or even reconfiguration of the Machine occurs based on Buyer scope changes, part design changes, or changes in throughput requirements, FABRISONIC will discuss the changes with the appropriate Buyer representative, and will negotiate a fair recovery of material, labor and reasonable profit and schedule manufacture/delivery adjustment as necessary. All changes to the price or scope of the project must be in writing and signed by both FABRISONIC and Buyer.
3) SAFETY – FABRISONIC is concerned with the safety and welfare of Buyer and its employees. Careful consideration has been given to the design and integration of the safety hardware and controls supplied in this Machine. The Machine described in the Proposal may contain safety equipment that is intended as a supplement to the Buyer’s complete safety program for this installation. All safety devices and guards offered in the Proposal are recommended for purchase. Should these be inadequate to meet the requirements specified by Buyer, it is incumbent on Buyer to so notify FABRISONIC explicitly and FABRISONIC shall provide, at an additional cost to be quoted, such alternative or additional safety devices and guards in accordance with the instructions of Buyer. These safety precautions are not meant to replace any related Federal, State or municipal laws, regulations or guidelines pertaining to safety.
FABRISONIC believes that safety professionals most familiar with the intended application can best determine the appropriate level of safety for an installation and it is the responsibility of the Buyer to ensure that this level of safety is accomplished. FABRISONIC recommends that each Buyer consult with such professionals in order to provide a workplace that allows for the safe application, use and operation of the Machine. Buyer must at all times use and require its employees to use all safety devices, guards, and proper safe operating procedures. Buyer shall not remove or modify any such devices, guards, or warning signs, and shall insist on safe operating practices on the part of its personnel. FABRISONIC does not assume any liability for, and Buyer expressly agrees to indemnify and defend FABRISONIC against, any loss, injury or damage on account of any failure of Buyer or its agents to follow applicable safety regulations, recommendations or guidelines.
4) CONFIDENTIAL – The content of the Proposal and this Agreement is confidential. FABRISONIC has committed considerable creative resources to advanced engineering in creating the Machine and any other products and services to be sold pursuant to this Agreement. Any advanced engineering layout concepts, sequences of operation, procedure development, cycle time element analyses or preparatory work furnished by FABRISONIC in connection herewith are and shall remain the exclusive property of FABRISONIC. Buyer shall not use, market, sell, transfer or otherwise disclose any such information to any third-party without the express written consent from FABRISONIC. No use of it shall be made, nor any ideas obtained there from used, except upon compensation to be paid by Buyer as determined by FABRISONIC. The parties agree that any damages caused by Buyer’s breach of this provision shall not be readily determinable through monetary damages and FABRISONIC shall be entitled to injunctive relief to enforce this provision.This provision shall survive any termination of this Agreementfor any reason.
5) PRICE – The Machine covered by the Proposal and the prices quoted are based upon the specifications described in the Proposal, and any change in such specifications may necessitate a price revision. Unless otherwise provided in the Proposal, prices quoted are F.O.B. Point of Origin for the Machine and any other related components and are firm for 60 days from the date of the Proposal, provided Buyer’s order is received within such period. Prices for any order received thereafter are subject to change without notice.
Any order resulting from the Proposal shall be subject to change in price attributable to any revisions in the Machine, or any related changes in specifications requested by the Buyer and agreed to by FABRISONIC upon acceptance of such order.No failure or delay by FABRISONIC in exercising such pricing changes shall constitute a waiver of any such charges.
Subsequent to the placement of an order, Buyer may make changes, additions, or alterations with respect to the Machine including, but not limited to changes, additions, or alterations in the specifications, final plans, design, components, and/or schedule of delivery of the Machine. If any such change affects the cost/delivery schedule of the Machine or service to be rendered, the amount to be added to the Purchase Price by reason of any such change shall be determined by actual cost plus a percentage. All such changes shall be made in writing and executed by the parties.
Prices do not include any sales, use, or other excise taxes or duties. Any such taxes or duties that FABRISONIC is required to pay or collect will be invoiced to Buyer. All licenses and permits, whether Federal, State, local, or those of a foreign government, are the responsibility of Buyer and will be secured at Buyer’s expense.
6) DELIVERY – The delivery date in the Proposal is approximate and a more specific date will be established upon FABRISONIC’s acceptance of Buyer’s order. If noted in the Proposal, delivery of certain special or custom Machines will depend upon prompt receipt by FABRISONIC from Buyer of all engineering data, technical data, and other information necessary for the design and manufacture of such special Machines and upon the availability of purchased materials which may be required for production. Delivery to a common or licensed carrier shall constitute delivery to the Buyer, and all risk of loss or damage in transit shall be borne by the Buyer.Buyer is responsible for obtaining any insurance covering the products being sold hereby while such products are in transit.
7) TERMS OF PAYMENT – Unless otherwise specified in the Proposal, the terms of payment are net 30 calendar days for all payments and/or any progress payments required by the Proposal. Interest at the annual rate of two percent (2%) in excess of the “Prime Rate” as quoted in the Wall Street Journal shall be charged on overdue accounts; such Prime Rate shall be determined as of the first calendar day of each month.
8) PRODUCTION ESTIMATES – Unless otherwise stated in the Proposal, production estimates are not warranted, nor shall such estimates be used as acceptance criteria for delivery or payment. For certain special or custom machines, the operating capability of the Machine is contingent upon the Buyer’s part designs, condition of materials, supervision, labor and plant condition, maintenance of the Machine and other production factors which are beyond FABRISONIC’s control. FABRISONIC shall not be liable for any operating deficiencies that are attributable to any such causes or conditions outside of FABRISONIC’s control.
9) NO LICENSE CONSTRUED – Other than as expressly set forth in the Proposal or this Agreement, nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any license or right under any patent or trademark of FABRISONIC or any third party. All materials transmitted from FABRISONIC to Recipient and containing proprietary information remain the property of FABRISONIC and must be returned to FABRISONIC upon request unless previously destroyed. Recipient is prohibited from keeping any copies or electronic entries of said materials.
10) LIMITED WARRANTY, WARRANTY DISCLAIMER, LIMITATION OF LIABILITY AND REMEDY – For a period of one (1) year after shipment, FABRISONIC agrees to repair or refurbish any parts or equipment in the Machine: a) that are manufactured by FABRISONIC, or furnished under this Agreement, b) that are still the property and in the possession of the original Buyer, and c) that prove to have been defective in workmanship or material when furnished. Such repair or refurbishing will be without charge, F.O.B. Point of Origin. Buyer shall pay freight charges on the returned components covered under this warranty. The warranties set forth herein are non-assignable and non-transferrable.
FABRISONIC SHALL BE WITHOUT LIABILITY, NOR SHALL FABRISONIC ACCEPT CHARGES, FOR ANY REPAIRS OR ALTERATIONS OF THE MACHINE UNLESS MADE BY FABRISONIC OR WITH FABRISONIC’S PRIOR WRITTEN PERMISSION. ROUTINE REPLACEMENT AND MAINTENANCE ITEMS ARE NOT COVERED UNDER THIS WARRANTY. WARRANTY CLAIMS THAT RESULT FROM THE ACTIONS OF BUYER, INCLUDING FAILURE TO FOLLOW STATED OPERATIONAL PROCEDURES OR INADEQUATE MAINTENANCE, ARE EXCLUDED FROM WARRANTY COVERAGE.
THE WARRANTY EXPRESSED HEREIN IS IN LIEU OF ANY OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND IS IN LIEU OF ANY AND ALL OTHER OBLIGATIONS OR LIABILITY ON FABRISONIC’S PART. UNDER NO CIRCUMSTANCES WILL FABRISONIC BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER LOSS, DAMAGE OR EXPENSE OF ANY KIND, INCLUDING LOSS OF PROFITS, ARISING IN CONNECTION WITH THIS AGREEMENT OR WITH THE USE OF OR INABILITY TO USE FABRISONIC’S PRODUCTS FURNISHED UNDER THIS AGREEMENT.NOTWITHSTANDING ANY APPLICABLE LAW TO THE CONTRARY, THE PARTIES EXPRESSLY AGREE THAT FABRISONIC’S MAXIMUM LIABILITY SHALL NOT EXCEED, AND BUYER’S REMEDY IS EXPRESSLY LIMITED TO, EITHER: (i) REPAIR OR REPLACEMENT OF THE DEFECTIVE PART OR PRODUCT, OR (ii) AT FABRISONIC’S SOLE OPTION, RETURN OF THE MACHINE AND REFUND OF THE PURCHSE PRICE; AND SUCH REMEDY SHALL BE BUYER’S ENTIRE AND EXCLUSIVE REMEDY.
11) CANCELLATION – An order, once placed and accepted by FABRISONIC, can be canceled only with FABRISONIC’s written consent and upon terms that will compensate and indemnify FABRISONIC against loss and costs incurred, and providing a fair profit to FABRISONIC for work FABRISONIC has performed under the Proposal and this Agreement. In the event of early termination or cancellation by Buyer, FABRISONIC retains all rights to and shall not be required to deliver any partially completed Machines or any part thereof, notwithstanding the fact that Buyer shall be required to compensate and indemnify FABRISONIC as set forth above.
FABRISONIC shall have the right to require that the Buyer post adequate security for any and all payments due if a good faith doubt arises as to Buyer’s ability to make prompt payment.
FABRISONIC shall have the absolute right to cancel and refuse to complete an order if: (1) Buyer fails to comply with any term or condition governing the order (including any requirement of progress payments) or (2) Buyer fails to post security as may be required by FABRISONIC as provided above within 15 days after FABRISONIC has requested the same. In the event that FABRISONIC terminates this Agreement, FABRISONIC shall have no responsibility or liability to the Buyer except for the return of any excess of the Buyer’s partial payments on the order less incurred costs and loss of profit.
In the event of such a cancellation, FABRISONIC shall have the right to reimbursement for any or all costs incurred to the date of cancellation in performing the order (including the costs of any engineering studies and/or special matters), typical general and administrative costs and for the loss of profit resulting from such cancellation. FABRISONIC shall have the right, at its option, to waive its rights to reimbursement with regard to any item scheduled for completion within 30 days following the date of cancellation and to complete such items and request full payment for same.
This Section 11 is expressly intended to abrogate and supersede any applicable laws or provisions of the Uniform Commercial Code to the contrary.
12) INTERRUPTION – In the event of an interruption or suspension of manufacture at the Buyer’s direction, or caused by an inability or refusal of the Buyer to furnish required items including but not limited to progress payments, final part designs and parts, the order shall be deemed to be automatically cancelled after a period of thirty (30) days from the date of interruption unless other remedies are mutually agreed upon. Upon such cancellation, FABRISONIC will have the rights enumerated in Section 11.
13) FORCE MAJEURE, DELAYS, WAIVER – FABRISONIC is not liable for delay due to causes beyond FABRISONIC’s reasonable control. Fulfillment of all orders is contingent upon and subject to accidents, breakdowns, strikes, riots, sabotage, insurrection and war, and delay and interruptions in and failure of sources of materials, supplies, equipment, labor and transportation, and to acts of God or the public enemy, and to other causes and conditions, whether of like or different nature affecting FABRISONIC and to orders, contracts, priorities, directives, requisitions, or request of federal or state government whether or not voluntarily assumed.
Buyer’s acceptance of delivery of the Machine shall constitute a waiver of any delay in delivery beyond the specified delivery date and of any terms and provisions of Buyer’s order which are in conflict with or which materially change or add to the terms and conditions of the Proposal, this Agreement, or FABRISONIC’s acknowledgement of Buyer’s order, and FABRISONIC shall have no liability whatsoever for loss of use by Buyer or for any indirect or consequential damages.
14) CORRECTIONS – All Proposals are subject to subsequent correction in case of clerical or stenographic error.
15) MODIFICATIONS – No change or waiver or modification of any of the provisions of this Agreement or the Proposal will be acceptable or binding upon FABRISONIC unless in writing and signed by an authorized representative of FABRISONIC.
16) STORAGE – The Machine or any part thereof shall be stored at Buyer’s risk and expense in the event of delay, inability or refusal of Buyer to accept delivery thereof.
17) DRAWINGS – Any drawings furnished with a Proposal indicate only the general style, arrangement and approximate dimensions of the Machine. SUCH DRAWINGS DO NOT CONSTITUTE A WARRANTY THAT THE MACHINE OR ITS INSTALLATION WILL CONFORM EXACTLY TO SUCH DRAWINGS. The Buyer agrees for itself and its legal successors not to give, loan, exhibit, or sell to any third party or interest outside of its own company any drawing, photograph, specification or technical data furnished by FABRISONIC or reproductions of them, and the Buyer shall not use them in any way except in connection with the installation or for making spares and repairs to the Machine in its own foundries and shops. FABRISONIC ASSUMES NO RESPONSIBILITY WHATSOEVER AND SHALL NOT BE HELD LIABLE FOR ANY DAMAGES THAT MAY BE INCURRED BY BUYER THROUGH THE USE OF ANY DRAWING OF FABRISONIC.FABRISONIC shall furnish prints of any equipment manufactured by others and purchased by FABRISONIC only when such prints are readily available and FABRISONIC has the legal right to do so. This Section 17 does not apply to drawings created exclusively by FABRISONIC for tooling and components created exclusively by FABRISONIC.
18) INSTALLATION – Should the Buyer request the use of FABRISONIC’s installation or service personnel not specifically included in the Proposal, additional charges shall be payable to FABRISONIC at its prevailing standard commercial rates for such services plus necessary travel and other incidental expenses.
19) GOVERNMENT AUTHORIZATIONS – Buyer shall be responsible for obtaining any required authorizations including, but not limited to, an export license, import license, or exchange permit, except that if FABRISONIC is to make the export shipment, FABRISONIC will apply for any required export license. Whoever is the proper party under the applicable regulations shall make prompt application for and preference rating or other USA Government authorization that may be required to permit the manufacture of the Machine. The parties shall assist each other in every manner reasonably possible in securing such authorizations as may be required.FABRISONIC shall not be responsible if any authorization is delayed, revoked, restricted or not renewed and the Buyer shall not be relieved of its obligation to accept delivery of and pay FABRISONIC for the Machine or any parts thereof so affected.
20) WEIGHT – Where weights of equipment and/or material are specified, it is understood that said weights are estimated weights and therefore may vary.
21) SEVERABILITY – Any provision of this Agreement that is prohibited, unenforceable, or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition, unenforceability, or non-authorization without invalidating or affecting the remaining provisions.
22) OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA) 1971 – OSHA relates to the use and operation of equipment in the United States. FABRISONIC shall work with Buyer in the installation of equipment to maximize compliance with OSHA as generally interpreted.
As of the date of the Proposal, FABRISONIC believes there are three (3) basic areas where the Machine is affected by existing OSHA laws:
a. Air Quality Control. Any equipment FABRISONIC includes as a part of the Proposal which may involve air quality standards will be furnished only as set forth in FABRISONIC specifications. Site or working conditions after installation of the proposed equipment may require further engineering, equipment, material or modification to improve or meet air quality control standards. The cost of any alterations resulting therefrom shall be at Buyer’s expense.
b. Guarding. The guarding of transmission members as supplied by FABRISONIC for the Machine will meet OSHA standards at the time of production as generally interpreted.Operating area guarding and/or guarding platforms for maintenance purposes may require personnel barriers, which are to be supplied by Buyer as a part of the installation.
c. Noise. FABRISONIC will continue its engineering practice of analyzing the design of the Machine to minimize the noise produced by the Machine as it may affect the point of operation noise level. It must be accepted, however, that certain components by their very nature produce a substantial amount of noise. Furthermore, the material being processed by the Machine, the handling of this material and even the environment surrounding the installation can be contributing factors to the noise level. If, after the Machine is installed, the noise level appears to be in excess of OSHA standards, as interpreted, the Buyer shall conduct a noise level analysis or FABRISONIC will study the noise level data at the Buyer’s expense. FABRISONIC will study the noise level data and determine what noise abatement devices may be recommended, required, or attainable. Any additional cost for engineering service, material or equipment to reduce the noise level shall be Buyer’s responsibility.
23) TRADEMARKS OR TRADE NAMES – Buyer may not use any name, logo, or trademark of FABRISONIC, or its subsidiaries or affiliates, nor shall Buyer obliterate, remove, or modify any such name, logo or trademark printed on the Machine or related documentation, without the express prior written permission of FABRISONIC.
24) RELATIONSHIP OF THE PARTIES – Nothing in this Agreementand no conduct, communication, trade practice, or course of dealing, shall be interpreted or deemed to create any partnership, joint venture, association, agency, syndicate, or fiduciary relationship between the parties or their subsidiaries or affiliates. Nothing in this Agreement gives either party the right, power, or authority to make any statements, commitments, or Agreements that bind the other party.
25) PATENTS – No responsibility whatsoever is assumed for violation of patents covering the Machine nor for any infringement arising from a combined use of the Machine with other machinery, software, or intellectual property and, in the event that FABRISONIC is involved in or is alleged to be a contributory infringer in any suit or proceeding arising from the infringing of any patent or by reason of such combined use, Buyer shall assume and indemnify FABRISONIC from all damages and costs, if any, assessed against FABRISONIC. In case the use of the Machine is enjoined because of the direct infringement of any patent, FABRISONIC shall, at its own option and expense, either redesign and reconstruct the Machine to avoid the infringements; or replace the Machine with non-infringing machinery; or produce a license for the continued use of the Machine; and in the event the foregoing options are impossible or not commercially reasonable, FABRISONIC shall repossess the Machine and refund to Buyer a prorated portion of the Machine’s purchase price (based on a straight-line 5 year depreciation model). The foregoing shall be Buyer’s sole remedy for the Machine’s intellectual property infringement. FABRISONIC assumes no liability, other than that expressly stated herein.
26) OUTSIDE PURCHASES – FABRISONIC’s Proposals may include equipment which is not of FABRISONIC’s design. While FABRISONIC has undertaken certain efforts to assure compliance of that equipment with OSHA requirements, FABRISONIC can only extend to its Buyers the same degree of OSHA compliance that it receives from its suppliers of such equipment.
27) CONSTRUCTION – The parties arrived at the provisions in this Agreement after negotiation. If anything in this Agreementproves to be unclear or capable of being interpreted in different ways, the disputed term or conditions shall not be construed against a party merely because that party drafted it.
28) BINDING AGREEMENT – This Agreement will become binding when Buyer executes the Proposal or (if earlier) FABRISONIC begin manufacturing the Machine. An electronic signature of the Proposal will be considered an original for all purposes, including, but not limited to, execution and enforcement of this Agreement.
29) CAPTIONS – The captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
30) CONTRACT FOR GOODS AND SERVICES – This Agreementis for the provision of services and of goods or products.Except as expressly provided in this Agreement, neither the United Nations Convention for the International Sale of Goods, nor the International Institute for the Unification of Private Law will apply to this Agreement or to such goods or products.
31) TESTIMONY – If FABRISONIC is required to participate as a fact or expert witness during any litigation, mediation or legal action regarding the Agreement, then Customer is liable to FABRISONIC for all legal and administrative costs incurred as a result.
32) BREACH OF AGREEMENT – Neither party will be deemed to be in breach of this Agreement unless the other party has given written notice specifying such breach and the party receiving such notice has failed to correct such breach within 30 days of receiving such notice.
33) PREVAILING PARTY EXPENSES – The prevailing party in any legal action between the parties will be entitled to its cost and expenses incurred therein, including its reasonable attorney fees.
34) EQUIPMENT AND MATERIALS – FABRISONIC will store Buyer-supplied equipment and materials for 30 days after conclusion of the project. If Buyer intends to obtain possession of such equipment or materials, then Buyer must provide to FABRISONIC written notice of such intent prior to the expiration of the 30-day period. In such case, Buyer will be responsible for the cost of removing and transporting the items.Unless FABRISONIC receives such prior written notice, FABRISONIC may dispose of or obtain ownership of the equipment or materials without any liability or responsibility therefor.
35) APPLICABLE LAW AND JURISDICTION – Any dispute arising out of this Agreement or otherwise between the parties is to be governed by the laws of the State of Ohio, without regard to any conflict of laws provision that would make Ohio law inapplicable. Each party hereto irrevocably consents to the exclusive jurisdiction of the state and federal courts located in or serving Franklin County, Ohio, for the resolution of any disputes arising out of this Agreement, the Proposal, or otherwise between the parties.
36) ENGLISH LANGUAGE – The parties agree that they will contract in the English language and that there shall be no requirement to translate this Agreement, the Proposal or any of the documents incorporated herein into any other language. If this Agreement or the Proposal is translated into any other language, the terms of the English version of such document shall control.
37) TERMS APPLICABLE TO RESEARCH INSTITUTIONS; RESTRICTION ON USE – As a condition of FABRISONIC providing the Proposal and the Machine to a research focused organization at a discount, the Customer agrees that it shall use the Machine only: (a) to conduct research for third party customers; and (b) for its own internal research and development projects. Customer shall not, without the prior written consent of FABRISONIC, use the Machine to make or modify production or prototype parts, products or other goods for resale at wholesale or retail. The foregoing restrictions are important to the success of FABRISONIC’s business and are not to be circumvented by sale or lease of the Machine to any other person or entity). Accordingly, Customer agrees that it shall not lease or sell the Machine to any other party without the prior written consent of FABRISONIC. CUSTOMER ACKNOWLEDGES THAT THE FOREGOING IS A MATERIAL CONDITION TO FABRISONIC SELLING THE MACHINE TO CUSTOMER HEREUNDER, AND THAT FABRISONIC WOULD NOT HAVE SOLD THE MACHINE TO CUSTOMER WITHOUT CUSTOMER AGREEING TO THESE RESTRICTIONS.
38) ENTIRE AGREEMENT – This Agreement and the Proposal are the entire contract between the parties and supersede any other prior or contemporaneous proposals, communications or agreements, oral or written, with respect to its subject matter.
Buyer’s execution of the Proposal or (if earlier) FABRISONIC’S commencement of manufacturing the Machine causes this Agreement to be binding on the parties to the same extent as if each party executed this Agreement.