Terms and Conditions

FusionSite Terms and Conditions

October 2025

ACCEPTANCE. You shall be deemed to have accepted these terms and conditions (“Terms”) upon the earlier of: (i) two business days after receipt of a FusionSite invoice; (ii) delivery of FusionSite equipment including, among others, portable restrooms, trailers, fencing, roll-off dumpster, and/or portable storage containers (collectively or individually, the “Equipment”) to Your designated site (“Site”) and use or acceptance thereof; (iii) acknowledgment or other conduct by You (including payment against any invoice); or (iv) FusionSite’s performance of any Services You have requested.
APPLICATION. FusionSite is engaged in the business of providing portable sanitation and temporary site equipment rental and services (collectively, “Services”). These Terms are made a part of each proposal, quote, pricing addendum, price confirmation, work order, work authorization, work acknowledgement, purchase order, or other similar document within which FusionSite provides pricing for Services to You (“Pricing Document”). If the Services are subject to an existing contract between You and FusionSite (“Contract”), these Terms shall supplement the Contract. With respect to any conflicting provisions between the Contract and these Terms, the Contract shall govern. You and FusionSite may be referred to herein as the “Parties” and individually as a “Party”. These Terms along with the applicable Pricing Document and/or Contract are together referred herein as the “Agreement”).
RESPONSIBLE PARTY. All Services are managed, performed, and billed for by individual operating subsidiaries of FusionSite Services LLC. FusionSite Services LLC does not itself perform any Services. The operating entity providing Service and responsible for all obligations to You is identified on Your Pricing Document, Your Contract, and/or Your invoice (“FusionSite”). You acknowledge that any claims You may have relating to the Services may be brought against only the operating entity providing the Service. You agree to waive all claims, losses, causes of action or suits against FusionSite Services LLC relating to or arising out of the Services performed by the individual operating subsidiaries.
PRICING DOCUMENT. FusionSite will have no obligation to perform Services not expressly described in a Pricing Document and/or Contract. Upon acceptance of a Pricing Document and/or Contract, You authorize FusionSite to commence performance of the requested Services as FusionSite deems necessary. You further authorize FusionSite, unless otherwise stated in the Pricing Document and/or Contract, to determine all aspects of the Services in FusionSite’s sole discretion. The Agreement will supersede and replace any document You submit to FusionSite containing contractual terms and conditions (“Customer Terms”), and Your Customer Terms will be of no force or effect.
PAYMENT TERMS. Unless a Pricing Document and/or Contract expressly states otherwise, You shall pay all fees, costs, expenses, and charges due to FusionSite within 10 days from the date on the invoice. You shall be liable to FusionSite for all collection expenses (including reasonable attorneys’ fees), and interest at the rate of 1.5% per month, or such lesser rate as may be the maximum lawful rate, on all overdue accounts. You shall pay all additional fees, costs, expenses, and charges for services separately requested or made necessary by Your breach of this Agreement, including moving/relocation charges, special service charges, and special delivery and removal charges. For payments by check, You authorize FusionSite to use information from Your check to make a one-time electronic fund transfer from Your account or to process and pay for the transaction as a check. Unless otherwise set forth in the Pricing Document and/or Contract, FusionSite’s charges do not include any taxes, excise, fees, duties, or other government charges related to the Equipment or Services provided under the Agreement, and You shall pay all such amounts or reimburse FusionSite for any amount it pays. In the event of a claim by a governmental agency for taxes related to Equipment or Services, You shall pay to FusionSite such taxes on demand. Unless otherwise set forth in the Pricing Document and/or Contract, FusionSite may change the prices stated in the Pricing Document and/or Contract by giving You notice of such change at least 7 days before the effective date thereof. If any change in price is refused by You, FusionSite may terminate the applicable Pricing Document and/or Contract upon notice to You. Payments are not contingent upon Your receipt of funds from any third party including, but not limited to, owner payments, government funding, or insurance payments. You will notify FusionSite of any disputed amounts within 10 days of the invoice date. The portion of any invoice not disputed within such period will be deemed accepted by You and will be paid in accordance with this Section. During the 10 business days following notification of a disputed amount, the Parties will attempt in good faith to resolve said amount and, if resolved, You will immediately pay the agreed-upon amount to FusionSite. If any undisputed invoice amount is not paid within 30 days of its due date, FusionSite may suspend or terminate Services, recover the Equipment, and may pursue any remedies available to it at law or in equity. FusionSite reserves the right to correct any errors that may appear in an invoice including, without limitation, errors in Your name, address, or invoiced amount.
EQUIPMENT. Equipment provided by FusionSite for Your use or operation is rented to You at the rates and applicable surcharges specified in the Pricing Document and/or Contract and pursuant to any terms included in FusionSite provided documents, including these Terms. FusionSite will direct delivery and pick up of the Equipment, at Your expense. You acknowledge that additional fees will apply: (i) for surcharges and taxes, (ii) if FusionSite provides or directs delivery, pick up, repair, maintenance, cleaning, or any other related service, (iii) if any agency assesses a fee related to the Equipment, (iv) to all accessories, attachments, replacement units or parts, substitutions, additions, upgrades, and exchanges, (v) for excessive wear that reduces the life of the Equipment, and (vi) as otherwise directed by FusionSite.
1. As Is Condition. You accept the Equipment in “as is” condition and certify that You will inspect the Equipment before use to confirm it is clean, compatible with Your intended use, and in proper working condition. You agree that Your receipt and acceptance of the Equipment confirms the Equipment in good, safe and serviceable condition. FusionSite makes no guarantees, warranties, or other representations, express or implied, regarding the Equipment as to merchantability, fitness for a particular purpose, or otherwise. You agree that You will use the Equipment at Your own risk.
2. Your Responsibilities. You represent and warrant that You are familiar with the safe and proper use of the Equipment and agree to return the Equipment to FusionSite in as good condition as received, excluding reasonable wear and tear. You shall not sell, rent, lease or otherwise lose possession of the Equipment, nor shall You permit any lien to be placed on the Equipment. You acknowledge that FusionSite has no control over the use of the Equipment while in Your possession, and You agree to comply, at Your sole expense, with all applicable statutes, ordinances, orders, rules, and regulations of all federal, state, and local governments (“Applicable Law”), in Your operation and management of the Equipment, and will ensure that only trained, qualified, and licensed operators use the Equipment. You will maintain the Equipment in good repair and working order at Your sole cost. You shall have the care, custody, and control of the Equipment and assume all risks of loss, damage, destruction, or interference with use of, and accept responsibility for, the Equipment while it is in Your possession. You shall notify FusionSite immediately of any theft, damage, or destruction of the Equipment while in Your possession. You will not alter the Equipment without FusionSite’s prior written consent, which consent shall be at FusionSite’s sole discretion. Any approved alterations will become FusionSite’s property. Title to all Equipment remains with FusionSite. You shall not acquire any right, title, or interest in the Equipment by virtue of the Agreement.
3. Insurance. You assume all risk of and liability for injury (including death) or damage to any person or property and for all other risks and liabilities arising from the rental, delivery, condition, possession, maintenance, use or operation of the Equipment while in Your possession. As such, You agree, at Your own expense and at all times during the term of the Agreement, to maintain the following types of insurance and minimum limits: (i) Commercial General Liability (“CGL”) insurance written on an CG 00 01 “occurrence” form with limits of not less than $1,000,000 per occurrence and $2,000,000 general aggregate covering bodily injury or property damage arising out of the condition, possession, maintenance, use, operation, erection, dismantling, servicing or transportation of the Equipment and shall include coverage for contractual assumed tort liability and shall have no exclusions for third party actions over suits; (ii) Workers’ Compensation Insurance covering employees engaged in operations hereunder as required by law and Employer’s Liability Insurance with minimum limits of $1,000,000 each employee, $1,000,000 each employee/disease, and $1,000,000 policy limit; (iii) Automobile Liability Insurance covering all owned, leased and non-owned vehicles used in connection with Your operations with minimum limits of $1,000,000 combined single limit; and (iv) Property Insurance in an amount greater than or equal to the Equipment’s full replacement value. Such insurance shall name FusionSite as an additional insured and loss payee. Such insurance shall provide coverage for equipment that is leased, borrowed, or rented by You. You and Your agents will cooperate with FusionSite and Your insurers in any claim or suit arising therefrom and will do nothing to impair or invalidate the applicable insurance coverage. You agree to add FusionSite as an additional insured on all liability policies capable of responding to a claim whether or not required under this Agreement. All of Your insurance must be primary and non-contributory with any insurance maintained by FusionSite and must include a waiver of subrogation in favor of FusionSite. The amount, terms and conditions of the insurance maintained by You must be reasonably acceptable to FusionSite. You agree to abide by all terms and conditions of all such insurance. You agree to provide FusionSite with Certificates of Insurance (“COI”) evidencing the insurance required by the Agreement. FusionSite’s acceptance of Your COI will not be deemed a waiver or modification of Your insurance, indemnity, or any other obligations under the Agreement. The provisions of this Section are in addition to, and do not limit, qualify, or waive any obligations of You under this Agreement, including but not limited to Your indemnity obligations. Your fulfillment of these insurance obligations does not limit Your liability under the Agreement.
4. Site Access. Your Site must be accessible for the size and type of Equipment rented. If any vehicle or other Equipment provided by FusionSite arrives at Your site and cannot be delivered or picked up as intended due to inaccessibility, You will be responsible to pay the full initial transportation charge as well as any charges associated with rescheduling and redelivery, any applicable additional charges, and any applicable technician fees.
5. Rental Termination. Upon termination of any Equipment rental, FusionSite will arrange to pick up the Equipment at Your cost, and You will ensure the Equipment is in the same or better condition as when initially received by You (ordinary wear and tear excepted), with the interior and exterior clean and free of any foreign matter. FusionSite may perform, in its sole discretion, any additional cleaning, at Your expense. If You fail to provide access to the Equipment, FusionSite is authorized to proceed by any lawful means to recover the Equipment, and You will pay all costs related to FusionSite’s repossession, repair, and cleaning.
ON SITE SERVICES. FusionSite will deliver the Equipment to the location at the Site selected by You. You acknowledge that You are solely responsible for and have exercised due diligence and care in selecting a safe location at the Site for placement of any Equipment. You shall ensure unobstructed access to Your Site and/or area to be serviced. You shall inform FusionSite of any known hazards or risks associated with the Site, and You represent and warrant that You maintain and shall maintain a safe working environment for FusionSite’s personnel. If, in its sole discretion, FusionSite discovers any hazardous or unsafe working condition, You shall immediately remedy such condition. If you fail to remedy such condition, FusionSite shall have the right, but not the obligation, to take immediate action to remedy such condition. FusionSite shall be under no obligation to continue performing any of the Services until the Site is safe. You shall promptly notify FusionSite in writing of any Site-specific condition or requirement that may impact the performance of the Services prior to the commencement of Services. You shall not modify or move the Equipment from or within the Site absent FusionSite’s prior written consent which shall be at FusionSite’s sole discretion. If You modify or move the Equipment without FusionSite’s prior written consent, You immediately assume all responsibility and liability for all losses and costs incurred by FusionSite.
MALFUNCTIONING EQUIPMENT. Should the Equipment be involved in an accident, become unsafe, malfunction or require repair, You shall immediately cease using the Equipment and immediately notify FusionSite. If such condition is the result of normal operation, FusionSite will repair or replace the Equipment with reasonably similar Equipment in working order, if such replacement Equipment is available. FusionSite has no obligation to repair or replace Equipment rendered inoperable by misuse, abuse or neglect and You shall be responsible to pay FusionSite for the full replacement cost of the Equipment.
YOUR PERSONAL PROPERTY. With respect to any personal property left in or on the Equipment upon expiration of the rental period, FusionSite is not a bailee or warehouseman of Your, or any other person’s, personal property. FusionSite expressly disclaims any custody, control, or responsibility for the care of Your, or any other person’s, personal property. FusionSite or its agents may remove the personal property from the Equipment. Under no circumstances are FusionSite or its agents responsible for any personal property that may be lost, stolen, or damaged. Your personal property left in or on the Equipment upon expiration of the rental period may be considered abandoned, unclaimed property in accordance with applicable state law.
CHANGES. FusionSite’s fees represent its best estimate considering the costs, effort, and time it expects to expend in performing the Services based on its reasonable assumptions of the conditions and circumstances under which the Services will be performed. As the Services are performed, conditions may change or circumstances outside of FusionSite’s reasonable control may develop which would require FusionSite to expend additional costs, effort, or time to complete the Services, in which case FusionSite will notify You and an equitable adjustment will be made to FusionSite’s fees and the time for performance. If hazardous conditions of any type or quantity not originally anticipated are discovered at the Site, FusionSite in its sole discretion may suspend and amend the scope of Service or terminate the Services and FusionSite shall be paid for Services performed and for costs reasonably incurred in connection with the suspension or termination.
FENCING. If you have selected fence rental and installation, You shall establish all property line stakes and grade stakes. Unless otherwise agreed, fences shall follow ground lines/level. Prior to install, You shall provide FusionSite with the location and character of any underground pipes, sewers, wires, conduits, obstructions, conditions, or restrictions which may interfere with or be damaged at install or thereafter. You shall notify any and all underground service entities in advance of install. You shall cooperate fully in FusionSite’s installation by (a) clearing a sufficient working area of all obstructions and removable hazards, including clearing all trees and brush for six feet on either side of fence location, (b) surveying, grading, locating, and staking fence line and identifying/verifying all property and utility lines, (c) notifying and safeguarding FusionSite of all potential hazards, and (d) coordinating FusionSite’s work with all others on the Site. FusionSite may extend install deadlines and You shall pay for any expenses resulting from Your failure to comply with these terms. You are responsible for all relocation/re-installation costs. You shall inspect and accept the fence within twenty-four (24) hours of installation.
RESTROOM TRAILERS. If You have selected to rent a restroom trailer (“Trailer”) You shall use reasonable care and perform necessary daily maintenance to ensure that the Trailer is in proper working condition before each start-up or use of the Trailer. Daily maintenance includes checking the general condition of the Trailer (tires, cooling system, water supply and batteries), recharging batteries, ensuring an adequate supply of fresh water, properly disposing of waste disposal, and daily housekeeping. You agree to use the Trailer in accordance with its guidelines and specifications (including depositing only human waste and toilet tissue into the Trailer), within its rated capacity, to restrict Trailer use to Your authorized personnel and/or invitees, and to prohibit anyone other than Your or FusionSite’s authorized personnel to maintain and repair the Trailer. You will provide FusionSite with immediate written notification in the event of an accident or problem involving the Trailer. If applicable, Your notification will also include any correspondence with insurance carriers and any police reports. In the event the Trailer is damaged or not operational while in Your custody and control, all payments due to FusionSite shall continue to be due and payable by You to FusionSite and all amounts previously paid will be nonrefundable. FusionSite shall not be liable or responsible for (but You shall be liable and responsible for) any of the following: (a) loss or damage resulting from overloading, overusing or exceeding rated capacity of the Trailer; (b) loss or damage to motors, pumps, or other electrical appliances or devices caused by incorrect current; (c) loss or damage to tires, tubes wheels caused by blowout, bruises, cuts and other causes inherent in the use of the Trailer; (d) loss due to disappearance, theft or wrongful conversion of the Trailer; (e) loss or damage to the Trailer caused by You, Your customers, Your employees, contractors and/or by persons to whom the Trailer is entrusted or made available; (f) loss or damage to the Trailer resulting from failure to maintain, cleanliness, proper fluids or pressure levels, lack of lubrication, proper disposal of waste water and/or other normal servicing of Trailer; (g) all damage or loss resulting from the use of Trailer in violation of any recommended guidelines, provision of this Agreement, Applicable Laws, or operation in an improper or negligent manner; (h) loss or damage caused by any excess wear and tear, misuse and/or abuse of the Trailer and/or by any casualty or accident; and/or (i) damage to or defacing the Trailer by paint, mud, plaster, concrete, resin, solvents, stickers or any other material.
WASTE MATERIAL REMOVAL SERVICES. If You have selected waste material (“Waste Material”) removal services, You represent and warrant that the Waste Material to be collected and disposed of by FusionSite does not include any radioactive, volatile, highly flammable, explosive, toxic, or hazardous material or categorical waste. The term “hazardous material” shall include, but not be limited to, any material listed or characterized by the United States Environmental Protection Agency or any similar state agency or any Applicable Laws as hazardous. FusionSite shall not acquire title to the Waste Material when such Waste Material is loaded into FusionSite’s trucks or containers. Title to and liability for the Waste Material shall remain with You and You expressly agree to defend, indemnify and hold FusionSite harmless from and against any and all damages, penalties, fines, and liabilities (including legal fees and other costs of defense) resulting from or arising out of the Waste Material.
HAND WASH STATIONS. If You have selected to rent a hand wash station, You acknowledge and agree to use such stations only for hand washing and that the water used in such stations is non-potable water, not safe for human consumption, and may contain contaminants that could pose a health risk if ingested. If accidentally swallowed, seek medical attention immediately.
ROLL OFF DUMPSTERS. If You have selected to rent Roll Off Dumpsters, You agree to dispose of Non-General Waste and general waste in separate Roll Off Dumpsters. “Non-General Waste” shall include concrete/asphalt, tires, wire, hazardous materials (including paint), and appliances containing Freon. If You are disposing of Non-General Waste, You will be charged a hazardous/hard-to-dispose of fee per cubic yard. All Roll Off Dumpsters must be loaded evenly and must not be loaded above the top of the Roll Off Dumpster. Failing to do so can cause a dangerous weight imbalance during transport and will result in an additional overfill fee. In addition, if You exceed the stated weight limits, You will be charged an additional overweight fee. All weight is determined at the time of dumping by the appropriate landfill scales. If the Roll Off Dumpster is overloaded such that FusionSite is not able to transport Your load, You will be responsible for reloading the Roll Off Dumpster within the weight limit and an additional trip charge will be assessed. You are solely responsible for the proper loading of the Roll Off Dumpster as well as for any damages that may occur from failing to comply with the recommended guidelines. You are also responsible for determining the placement of the Roll Off Dumpster within Your Site so as not to cause damage to the property where the Roll Off Dumpster will be located.
STORAGE CONTAINERS. If you have selected to rent a storage container (“Storage Container”), You shall store only Your personal property within the Storage Container, and You will not store property which is the property of another or in which another has right, title or ownership interest. You shall not store perishable goods, flammable materials, explosives, fuel, improperly contained food products, hazardous materials, or other dangerous materials within Storage Containers. You shall not use the Storage Container to store any item that would violate any Applicable Laws. You acknowledge and agree that the Storage Container is not intended for or suited to the storage of irreplaceable property (including works of art, heirlooms, and precious archives), or for objects having sentimental value. You acknowledge that Storage Container is for storage of personal property only and may not be used for human or animal habitation. You hereby acknowledge that You have assigned a parking location for the Storage Container that is permitted by Applicable Laws and located on Your property or property owned by someone who has given You permission to use it for that purpose. The parking area must have adequate height, depth, width and maneuvering space. You hereby relieve FusionSite from any responsibility for property damage that might occur due to the selection of the parking location. You acknowledge that FusionSite may refuse to place Storage Container at Your designated parking location and charge You additional fees if FusionSite reasonably determines that the parking location is unsafe or unsuitable. You hereby acknowledge that damage could occur from maneuvering the vehicle delivering or picking up the Storage Container or from the parking, loading and unloading of the Storage Container due to the selection of the parking location. You hereby accept full responsibility for any damage that could occur and agree to indemnify and hold FusionSite harmless from any claim resulting from the selection of the parking location. You assume full responsibility and liability for packing, loading, and unloading Your property into and from the Storage Container. You assume responsibility for securing and tying down property for road transportation. You agree not to exceed the maximum weight limits of the Storage Container. You further acknowledge that FusionSite shall not be responsible or liable for any damage to Your property for any reason, whether damage occurs while the Storage Container is located at Your designated location, or while the Storage Container is in transit. ALL PROPERTY STORED BY YOU IS STORED AT YOUR SOLE RISK AND RESPONSIBILITY. You assume all risk of loss, including damage or loss by burglary, fire, vandalism, vermin or moisture of any kind. You understand and agree that FusionSite does not list, review or inspect the contents of the Storage Container, nor have any interest in the value, quality or type of goods stored therein. Should any law enforcement or government authority require access to the Storage Container, You agree to allow such access. Should You refuse or fail to provide such access FusionSite, FusionSite’s agents or the applicable law enforcement or government authority shall have the right to enter the Storage Container. You hereby grant to FusionSite a lien upon all property stored within the Storage Container to secure the payment of all rents or other charges payable by You. If fail to pay amounts due hereunder, FusionSite may seize and dispose of Your property against which a lien is attached. The proceeds from any sale, less any expenses incurred by FusionSite including reasonable attorney fees, shall be applied as credit against the indebtedness secured by the lien.
CONTAINER TRANSPORTATION SERVICES. If You have selected storage container (“Container”) transportation services, You acknowledge and agree that the Container and any contents inside may be damaged during FusionSite’s performance of the Services. Despite the foregoing, You acknowledge and agree that, except to the extent caused by FusionSite’s gross negligence or willful misconduct, FusionSite shall not be liable for any loss, damage, theft, or other injury to the Container, or any contents therein, arising out of or relating to the Services. To the greatest extend allowable under Applicable Law, You hereby waive, release, and discharge FusionSite from any and all liability and any claims known and unknown arising out of or related to FusionSite’s performance of the Services, except for those arising out of or related to FusionSite’s gross negligence or willful misconduct. You represent and warrant You have no knowledge of any conditions, vices, or defects in the Container or the contents thereof. You further represent and warrant that the Container does not contain any contents that are living, dangerous, unlawful or illegal, or that would be considered a hazardous substance under any Applicable Laws, ordinances, regulations, or rules. Moreover, You represent and warrant that You are the owner of the Container and its contents or otherwise have legal possession of the Container and its contents.
FUSIONSITE REPRESENTATIONS AND WARRANTIES. FusionSite represents and warrants that it: (a) is engaged in the business of performing the Services and has appropriate expertise, facilities, and ability to perform the Services; and (b) will provide the Services in a professional and workmanlike manner consistent with applicable industry standards.
YOUR ADDITIONAL REPRESENTATION, WARRANTIES & RESPONSIBILITIES. You acknowledge, warrant, and represent to FusionSite: (a) prior to any Services, You will advise FusionSite of all known and potential health, safety, and environmental issues associated with the Site and Services, (b) You will provide full and complete information regarding Your requirements for the Services and will immediately transmit to FusionSite any new information which becomes available or any change in plans after providing such information, (c) You will comply with all Applicable Laws and Your legal responsibilities, including providing all required notices regarding the Services to the appropriate government authorities, and (d) it is Your responsibility to secure and pay for all necessary approvals, easements, assessments, permits, and charges required and to ensure FusionSite’s legal access to the Site and to perform the Services.
DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, FUSIONSITE MAKES NO WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE EQUIPMENT OR SERVICES AND MAKES NO WARRANTIES AS TO THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. THERE IS NO WARRANTY THAT THE EQUIPMENT IS SUITED FOR YOUR INTENDED USE, OR THAT IT IS FREE FROM DEFECTS OR CONTAMINANTS. EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THE AGREEMENT, FUSIONSITE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, MADE IN CONNECTION WITH THIS RENTAL TRANSACTION OR PROVISION OF SERVICES. IN THE EVENT OF A BREACH OF THE ABOVE EQUIPMENT WARRANTY, FUSIONSITE SHALL, AT ITS SOLE COST AND EXPENSE, REPAIR OR REPLACE THE EQUIPMENT. IN THE EVENT OF A BREACH OF THE ABOVE SERVICE WARRANTY, FUSIONSITE SHALL, AT ITS SOLE COST AND EXPENSE, RE-PERFORM THE SERVICE.
DEFAULT/BREACH. You shall be deemed in default should You: (a) fail to pay any amount when due hereunder; (b) fail to perform, observe or keep any provision of the Agreement; (c) place a lien, or propose a lien to be placed, on any Equipment; (d) cause loss of or damage to the Equipment; (e) become “Insolvent” (as defined herein), or should FusionSite anticipate that You may become Insolvent; or (f) otherwise be in breach of this Agreement. If You are in default, FusionSite may do any one or more of the following: (i) terminate the Agreement or the rental period; (ii) declare the entire amounts due hereunder immediately due and payable and commence legal action therefor; (iii) cause FusionSite’s employees or agents, with notice but without legal process, to enter upon Your property and take all action necessary to retake and repossess the Equipment, and You hereby consent to such entry, re-taking and repossession and hereby waive all claims for damages and losses, physical and pecuniary, caused thereby and shall pay all costs and expenses incurred by FusionSite in retaking and repossessing the Equipment; or (iv) pursue any other remedies available at law or in equity. FusionSite shall not be responsible for losses due to removal of FusionSite’s Equipment pursuant to this Section. You shall be considered “Insolvent” if You are unable to pay, or admit Your inability or anticipated inability to pay Your debts as such debts become due; make an assignment for the benefit of creditors, or petition or apply to any court or tribunal for the appointment of a custodian, receiver, or trustee for it or a substantial part of its assets; commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; have had any such petition or application filed or any such proceeding commenced against You in which an order for relief is entered or an adjudication or appointment is made; or take any action indicating Your consent to, approval of or acquiescence in any such petition, application, proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its properties.
INDEMNIFICATION. YOU WILL, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INDEMNIFY, DEFEND, AND HOLD HARMLESS FUSIONSITE SERVICES LLC, ITS PARENTS, AFFILIATES, AND SUBSIDIARIES (INCLUDING FUSIONSITE), AS WELL AS THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OWNERS, EMPLOYEES, AND AGENTS (“FUSIONSITE INDEMNITEES”) FROM ANY CIVIL PENALTIES, COSTS, DAMAGES, LOSSES, CLAIMS, AND CAUSES OF ACTION, INCLUDING COURT COSTS AND REASONABLE ATTORNEY FEES (“LOSSES”) ARISING OUT OF OR RELATED TO YOUR ACTS, OMISSIONS, NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF THIS AGREEMENT. EXCEPT TO THE EXTENT CAUSED BY FUSIONSITE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, YOU ALSO AGREE TO INDEMNIFY, DEFEND, AND HOLDS HARMLESS, FUSIONSITE INDEMNITEES FROM ANY LOSSES RELATED TO YOUR USE OR OPERATION OF THE EQUIPMENT REGARDLESS OF CAUSE EVEN IF CAUSED BY PRE-EXISTING CONDITIONS, DEFECT, OR RUIN OF PREMISES OR EQUIPMENT, STRICT LIABILITY, REGULATORY OR STATUTORY LIABILITY, PRODUCTS LIABILITY, BREACH OF REPRESENTATION OR WARRANTY (EXPRESS OR IMPLIED), BREACH OF DUTY (LEGAL, STATUTORY, CONTRACTUAL, EQUITABLE, OR OTHERWISE), ANY THEORY OF TORT, BREACH OF CONTRACT, FAULT, THE NEGLIGENCE OF ANY DEGREE OR CHARACTER (WHETHER SOLE, JOINT, OR CONCURRENT; ACTIVE, OR PASSIVE) OF ANY PARTY OR PARTIES, INCLUDING FUSIONSITE INDEMNITEES.
LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THE TOTAL LIABILITY OF FUSIONSITE INDEMNITEES TO YOU FOR ANY AND ALL LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL COMPENSATION YOU PAID TO FUSIONSITE DURING THE 12 MONTHS PRECEDING YOUR CLAIM. IN NO EVENT SHALL FUSIONSITE INDEMNITEES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS INTERRUPTION, OR REPUTATIONAL HARM, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALL RIGHTS AND LIMITATIONS HEREIN SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
INDEPENDENT CONTRACTOR. Neither FusionSite nor any of its employees, agents, or subcontractors will ever be considered Your employee, agent, or representative under this Agreement. FusionSite is an independent contractor for purposes of the Agreement and will exercise exclusive control of the operation and activities of its employees, agents, and subcontractors. Neither Party will have any authority to employ any person as an employee, agent, or subcontractor on behalf of the other.
CONFIDENTIALITY. FusionSite and You will treat as confidential and not disclose to others, except as required by Applicable Law or legal process or necessary to perform the Services, any non-public information regarding the other Party’s plans, business, facilities, processes, products, prices, costs, Equipment, operations, or customers which it may learn during the Agreement.
FORCE MAJEURE. Any delay or failure of FusionSite under the Agreement will be excused to the extent caused by acts of God, strikes, action of regulatory agencies, fire, flood, windstorm, explosion, riot, war, sabotage, epidemics, pandemics, or other reasons beyond FusionSite’s reasonable control. FusionSite will also be excused from performance if it loses, or has suspended, any license, permit, or other authorization necessary for its performance. FusionSite will work diligently to remove the cause of the delay.
SEVERABILITY; WAIVER. If any part of the Agreement becomes invalid for any reason, the validity of the remaining Agreement will not be affected. No failure or delay by FusionSite to enforce any provision of or right under the Agreement will operate as a waiver of any other right hereunder, and a waiver of any right on one occasion shall not constitute a waiver of any such right on any future occasion.
ASSIGNMENT. You may not, without FusionSite’s prior written consent (which consent shall be at FusionSite’s sole discretion), assign any of Your rights or obligations in the Agreement. FusionSite may assign its rights and obligations hereunder, to any parent, affiliate, subsidiary, or in connection with any sale, transfer, or other disposition of all, or substantially all, of its business, provided, that any assignee assumes FusionSite’s obligations hereunder. FusionSite may subcontract its obligations to qualified third parties and affiliates. The Agreement will be binding upon, and inure to the benefit of, the Parties and their respective successors and permitted assigns.
GOVERNING LAW. The Agreement will be governed by and construed in accordance with the laws of the State of Tennessee, without giving effect to applicable principles of conflicts of law to the extent that the laws of another jurisdiction would be applicable thereby. Each Party submits to the jurisdiction of any state or federal court sitting in Davidson County Tennessee for any action or proceeding arising out of or relating to this Agreement that is not subject to arbitration as set forth below. All modifications to this Agreement must be in a writing signed by both parties
NOTICE. Any notice or communication required hereunder to be in writing will be deemed to have been given when delivered by overnight courier or by registered or certified mail, postage prepaid, return receipt requested. Notices to FusionSite must be sent to 1610 54^th Ave. N. Suite 111, Nashville, Tennessee 37209 Attn: Legal Department. Notwithstanding the foregoing, day-to-day written communications that are operational in nature may be provided via email between the Parties’ business contacts.
DISPUTE RESOLUTION-ARBITRATION; CLASS ACTION WAIVER. Except for Excluded Claims (defined below), all disputes arising from or related to this Agreement shall be resolved by binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules. Arbitration will take place in Davidson County, Tennessee, and judgment may be entered in any court with valid jurisdiction. The arbitration shall be confidential and conducted by a single arbitrator unless otherwise agreed to in writing by the Parties. The arbitrator will be selected according to the rules of the AAA or, alternatively; may be selected by agreement of the Parties, who shall cooperate in good faith to select the arbitrator. Each Party shall bear its own costs and share arbitration fees equally, unless the arbitrator decides otherwise. The arbitration shall be governed by the laws of the State of Tennessee, excluding its conflict of law rules. Arbitration will proceed on an individual basis only. Class, collective, or representative actions are waived. The Parties also waive any right to a jury trial in any dispute related to this Agreement. Notwithstanding the foregoing, FusionSite may elect not to bring Excluded Claims to binding arbitration and instead file such Excluded Claims in a court of competent jurisdiction. The following claims constitute “Excluded Claims”: (a) FusionSite’s claims for indemnity pursuant to this Agreement; and (b) FusionSite’s claims against You for unpaid past due charges, fees, costs, or amounts. This provision survives termination of the Agreement.
ENTIRE AGREEMENT; AMENDMENT. The Agreement contains the entire agreement between the Parties and supersedes any prior agreement between the Parties regarding any Equipment or Services performed. Under no circumstances will FusionSite’s acknowledgement (including a signature) upon any Customer Terms amend this Agreement. No modifications or amendments hereto will be effective unless they are in writing and signed by both Parties.
SURVIVAL. All rights, duties, and responsibilities of any Party that either expressly or by their nature extend into the future, including warranties and indemnification, shall extend beyond and survive the termination or expiration of this Agreement.
NON-EXCLUSIVE REMEDIES. The rights and remedies provided FusionSite in this Agreement are cumulative and not exclusive of any rights or remedies provided by law or equity. No exercise or enforcement of any specific remedy shall preclude the exercise of any other remedy available under this Agreement, at law, or in equity. FusionSite shall be entitled to pursue any and all remedies available to it, including but not limited to injunctive relief, specific performance, and monetary damages, without limitation or waiver of any other rights.