This document serves as General Terms and Conditions between Fidelity Manufacturing LLC (“Fidelity”) and its customer (“Customer”).  These Terms and Conditions supersede any agreed upon, or implied Terms and Conditions agreed to by both parties. 

Definitions

1. “Confidential Information” means non-public information that is identified as or would be reasonably understood to be confidential and/or proprietary. Confidential Information of Fidelity includes, without limitation, Documentation, designs and drawings, any and all technical information discussed and developed.  Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach of the Recipient; (ii) the Discloser regularly discloses to third parties without restriction on disclosure; (iii) the Recipient obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation known to Recipient; or (iv) is independently developed by the Recipient without use of Confidential Information.  .
2. “Discloser” means the party providing Confidential Information to the Recipient. 
3. “Documentation”means Fidelity and Customer documentation relating to the features, functions, and use of the product designed and built.    
4. “Recipient” means the party receiving Confidential Information of the Discloser.
5. “Completion Date”: Is defined as order completion date, when product is ready to be collected and not pick up or delivery date.  Title/ownership for the product transfers to the customer at the completion date. 

Sale

1. Agreement. Fidelity Manufacturing and its Customer, in consideration of each party’s undertakings and covenants, agree to all of the terms of this agreement.  Any changes must be mutually agreed upon in writing. 
2. Build
   • Signed approved Submittal drawings are required seven (7) months prior to the completion date of the first package, to ensure on-time completion of the project. In the event that signed approved submittal drawings arrive past the required date to meet Fidelity’s production schedule; Customer understands that the original completion date may be impacted. Additional charges will apply for production schedule adjustments.
   • In the event that Customer supplied items, including generators, arrive past the required date to meet Fidelity’s production schedule, Customer understands that the original completion date may be impacted. Additional charges will apply for production schedule adjustments. Fidelity reserves the right to manufacture our Products according to the original schedule and partial invoice the Customer for the partially completed project. A Change Order with the new delivery dates will be required from Customer, with specific language allowing for partial invoicing. Our Storage Policy will be in effect for all partially completed and invoiced products.
3. Invoicing, Customer understands the invoice for their product(s) will be dated based on the Actual Completion Date of their product(s).     
4. Cancellation.  Customer may terminate the Agreement or cancel any outstanding sales order by providing Fidelity with written notice of termination specifically referencing the Agreement, and Fidelity’s Work Order number. Customer’s termination of the Agreement shall in no way relieve Customer from their obligation to make full payment to Fidelity for any outstanding balances owed to Fidelity, orders already fulfilled, any Goods already shipped, or any reasonable costs incurred prior to Fidelity’s actual receipt of such notice and related to a fully executed quote/estimate. If Customer cancels an order after Customer executes the related quote or estimate, Customer must pay all engineering, labor and material costs, as used or committed by Fidelity, plus a cancellation of fee equal to 20% of the full purchase price of the applicable order. At no time may Customer return shipped Goods for a refund or credit.  Fidelity has the right to cancel any outstanding sales order for convenience without penalty or liability to Customer upon giving Customer (30) days’ prior written notice. In the event of cancellation, Fidelity shall promptly refund any amount paid by Customer for Goods that have not been shipped to Customer, however, Fidelity shall be relieved of all further obligations and shall not be liable to Customer for any incidental or consequential damages. Notwithstanding the foregoing provision, in no event shall Fidelity’s liability arising out of or relating to the sale of Goods exceed the purchase price Customer paid to Fidelity for such Goods. 

Payment and Taxes

1. Currency. All payments must be in $USD. 
2. Payment terms. Normal payment terms, for customers in good standing, are Net 30.  These terms are not extended to all customers and are not guaranteed.  New customers and customers with late payment history will be required to make payment in advance of build or shipment.   
3. Prices. DUE TO THE VOLATILITY IN THE SUPPLY CHAIN AND MATERIAL MARKET, FIDELITY RESERVES THE RIGHT TO CONDUCT PRICING REVIEWS AND REVISIONS ON ORDERS UNTIL TIME OF PRODUCTION.   
4. Late Payments.  Payment terms are as set forth in the Credit Application and Agreement and may be amended only by Fidelity’s authorized representative. Federal, state or local taxes are not included in Fidelity’s prices and are the sole responsibility of Customer. A late fee will be charged on amounts not paid according to the payment terms.  The prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement and related transactions. 
5. Storage Fee. Completed/Invoiced projects stored over 30 days are subject to storage fees as noted on Fidelity’s Storage Policy. Generators delivered to Fidelity and stored over 90 days before Packaging are subject to our Storage Policy. Partially completed and invoiced products are subject to the Storage Policy.
6. Offset. Payment to Fidelity of any amount owed by Customer may not be withheld, setoff against, or reduced by any amount owed, or claimed to be owed, to Customer by Fidelity for any reason whatsoever.
7. Down Payments. Projects over $1.5 Million require a down payment and signing of Fidelity’s “Partnership Capacity Agreement”, before full execution of Purchase Order will take place.

Warranty

1. Limited Warranty. Unless stated elsewhere, Fidelity offers a limited warranty on all products.  The warranty only applies to Fidelity product and does not apply to any primary or secondary devises attached. Please see Limited Statement of Warranty document.
2. Limitations. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FIDELITY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES, BUSINESS INTERRUPTION, LOST PROFITS, OR LOSSES RESULTING FROM THE INSTALLATION, USE, MISUSE, OR INABILITY TO USE THE GOODS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE           OF ESSENTIAL PURPOSE, OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. 
3. Customizations.  Customizations or modifications to Fidelity Products waive any and all warranties   
4. Restrictions. Fidelity shall have no obligation to correct a problem caused by Customer’s negligence. Failure to maintain Product, according to Fidelity’s “Manufacturer’s Recommendations for Inspection and Maintenance of Fuel Tanks”, will result in a waiver of any form of Warranty.  
5. Prior to collection.  Fidelity warrants that during the time between completion date and collection date that they will do their best to protect Product.  Customer understands that during this time they are responsible to maintain insurance on this product while it is located on Fidelity’s property. 
6. Installing Non-Fidelity Products.  Fidelity accepts no responsibility or liability for the workmanship or manufacturer error of non-Fidelity products.  

Penalties

 Fidelity specifically rejects any purchase order containing a “time is of the essence” clause or “liquidated damage” penalties for late shipments.

Returns

All Sales are final.  Products may not be returned for credit. 

Transportation

With the exception of Fidelity managed freight, all Fidelity Products are FOB Origin. The Customer takes full responsibility for the Product as soon as Fidelity personnel load it on the truck at our site.

Product Damaged in Transit

When the Customer is responsible for shipment of the product and it is damaged in transit, full responsibility falls to the customer.  Fidelity “Damage Product in Transit” Policy is applied at that point, to include prompt direction from customer to Fidelity and timeline for removal of damaged product from Fidelity property.  

Abandonment

Should a customer not collect their finished product within 365 days from Completion, and have not paid all of the storage fees, Customer surrenders the rights to any product of theirs stored on Fidelity property.

Force Majeure

If Fidelity’s performance of any obligation is delayed due to unavailability of Product(s) or any other cause beyond our reasonable control by reason of fire, strike, lock-out, labor trouble, war, epidemic, embargo, flood, delay in transportation, lack or unavailability of trailers and/or railway cars, failure of carriers or subtrades, shortage of manpower, restrictive governmental laws or regulations (including any trade actions, export controls, tariffs, customs or duties) or to any other cause or reason beyond Fidelity’s commercially reasonable control (a “Force Majeure”), notwithstanding that such Force Majeure may have existed at the time of submission or acceptance of an Accepted Order, we shall not be liable and any portion of an Accepted Order not filled or shipped will be retained as an Accepted Order and delivered as soon as possible. However, Fidelity may elect to cancel the Accepted Order, without liability, if we believe that the Product(s) will not become available within a reasonable period of time as we so determine. Fidelity also reserves the right to apportion Product(s) among our customers in such manner as we consider equitable, and our determination shall be conclusive and binding without liability to us.

Default

In the event Customer defaults or breaches any term or condition of the Agreement, Customer agrees to pay on demand all costs and expenses of Fidelity in connection with said default or breach by Customer, including without limitation, all attorneys’ fees, costs, and expenses incurred by Fidelity in enforcing any term or provision of the Agreement or in collecting payments due pursuant to the Agreement, whether through litigation or other dispute resolution or otherwise. Such fees, costs and other expenses shall include without limitation all costs and disbursements, all costs associated with discovery, depositions and expert witness fees, and all out-of-pocket costs incurred by Fidelity in the prosecution or defense of any action. For purposes of this paragraph, the phrase “litigation or other dispute resolution” shall be deemed to include any proceeding commenced in any court of general or limited jurisdiction, any arbitration or mediation, any proceeding commenced in the bankruptcy courts of the United States, and any appeal from any of the foregoing.

Governing Law

This agreement and any prior, and any following, shall be governed by the laws of Florida, and CUSTOMER agrees to submit exclusively to the jurisdiction and venue of the Courts of Marion County Florida with respect to any dispute arising out of any transaction between CUSTOMER and FIDELITY. CUSTOMER AND FIDELITY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF ANY SUCH DISPUTE.  

Indemnity

To the fullest extent allowed by law, Customer agrees to indemnify, defend and hold harmless Fidelity and its past, present, and future shareholders, directors, officers, employees, and agents from any claims, demands, liabilities, damages, causes of action, expenses, including attorney’s and expert’s fees arising out of or in connection with any of the Goods purchased by Customer. Customer’s indemnification obligations shall not apply to the extent claims are the direct result of Fidelity’s negligence or willful misconduct.

Non-Disclosure

All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party.  The Recipient shall honor any written request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information, except in cases where the Recipient is required by process of law, rules or regulations to maintain copies of such Information.  The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.

Insurance

The Customer acknowledges and agrees to maintain insurance coverage for all their assets, owned or managed by, while in transit to and from the property, or properties managed by the Fidelity.  It is expressly understood and agreed that Fidelity shall not be liable for claims or any assumption of liability for any assets, owned or managed by the Customer.  Fidelity agrees to provide a secure location, to the best of their ability, and will provide prompt notice to the Customer should there be an issue with any assets, owned or managed by the Customer.    

Notices

All notices of claims or disputes given by either Customer or Fidelity with respect to any Communication shall be in writing and sent by overnight delivery service, charges prepaid, and addressed as follows: (i) if intended for us, to our address at 1900 NE 25th Avenue Ocala, FL 34470.  Notice will be effective the first business day after notice is sent. 

Assignment

No right or interest under the Agreement may be assigned by Customer, nor may any obligation or performance under the Agreement be delegated by Customer without Fidelity’s prior written consent. Any attempted assignment or delegation shall be void and ineffective for all purposes. 

Change of Ownership

Customer must provide prior written notice of any direct or indirect change in ownership of 25% or more of the equity ownership of Customer.  

Detention or Wait Time Charges

Due to the size and complexity of our products, and the limited loading space, Fidelity does not accept detention or wait time charges from freight carriers.

Liquidated Damages

Fidelity will not accept liquidated damages for delays out of our control. 

Government Projects

Explicit written notification to Fidelity Manufacturing is required at the time of Request for Quote (RFQ), for any government project that has a “DPAS”.  If customer fails to notify Fidelity of the “DPAS” rating before the quote, Fidelity reserves the right to withdraw from the project. 

Supersedes All Others

Fidelity Manufacturing “Terms and Conditions” supersedes all other Terms and Conditions in case of conflict.