The goods and services furnished by RailComm (“Seller”), under any quotations, order acceptance or sales by such Seller, shall be conditioned on acceptance of these Standard Terms and Conditions, which cannot be varied or waived except by express written agreement, signed by an officer or authorized person of the Seller.
1. Export Licenses and Export Control.
If an export clearance or license is required for any part of the goods or services to be furnished by the Seller, a contract between Seller and Buyer will not enter into force until all such export clearances and/or licenses have been granted. If export clearance or license are revoked or expire before completion or performance under a contract between Seller and Buyer, the Seller shall not be held accountable for failure to perform the remainder of the contract for any unfulfilled performance. If Buyer intends to export (or re-export), directly or indirectly, the products, services or technical information relating thereto supplied here under or ant portion thereof, it is the responsibility of the Buyer to assure compliance with U.S. export control regulations and, if appropriate, to secure any required export license in its own name. At Seller’s request, Buyer shall provide to Seller a Letter of Assurance and/or End-User Statement in form reasonably satisfactory to Seller.
2. Formation of Contract.
Upon Buyer’s acceptance in writing of a quotation from Seller, within any time period stated in the quotation, a contract subject to these Standard Terms and Conditions shall be formed. Purchase orders offered by Buyer shall be accepted by Seller subject to these same Standard Terms and Conditions.
Prices shall be specified in accompanying documents and are subject to adjustment except as provided for in a valid quotation or purchase order, or as mutually agreed to in writing by Seller and Buyer. Prices include delivery EX-WORKS (INCOTERMS 2000) from the point of initial shipment, as identified in the quotation or purchase order. Prices also include packing, marking, and loading from Seller’s shipping facility. Prices do not include sales, customs, use, or other taxes or fees, and Buyer must indemnify Seller against any claim or liability for such taxes or fees and any expenses associated therewith.
Delivery dates are approximate only and assume timely receipt of all necessary information, financial arrangements, and assistance that Buyer is required to provide. Shared activities of Buyer must be met on time to assure delivery dates. Seller may make partial shipment and invoice for same at Seller’s reasonable discretion.
5. Risk of Loss.
Risk of loss shall pass to Buyer on delivery to the first carrier. All shipping, loading and storage costs subsequent to such delivery shall be Buyer’s responsibility.
6. Passage of Title.
Title to goods shall pass to Buyer upon initial delivery of the goods EX-WORKS (INCOTERMS 2000) RailComm facility.
Systems Projects: Payment terms are 50% due at time of order, 40% due at time of shipment and 10% due upon completion of installation. All payments shall be net 30 days from date of Seller’s invoice. Late payment charges are 2% per month of overdue amounts. Parts Orders: Payment terms are 100% due at time of shipment. All payments shall be net 30 days from date of Seller’s invoice.
8. Limited Warranty.
Seller warrants that all new and unused goods furnished pursuant to this contract will be free from defective material and workmanship for a period of one year measured from the date all new and unused goods are shipped from the Seller’s facility. Additional warranty periods can be provided as an option to the contract. All warranties are contingent upon (a) normal and proper usage in applications for which the goods were intended, (b) installation, use and maintenance of the goods according to the Seller’s instructions, and (c) the goods still being in the possession of the original Buyer with no changes having being made in the design or function of the goods without prior authorization by Seller. SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Specifically, but not in limitation of the above, Seller makes to warranty with respect to equipment, software, or other goods or components, if persons other than Seller have performed any repair, modifications, or rebuild work or have made any alterations thereto. Performance and production specifications with respect to all equipment and software are estimates only and are not warranted by the Seller.
9. Limited Remedies.
In the case of any claim based on Seller’s breach of warranty or breach of any other duty with respect to the quality or performance of any goods or services supplied hereunder, Buyer’s sole and exclusive remedy, upon return of goods freight prepaid to point of manufacture, shall be, at Seller’s opinion, repair or replacement, Ex-works point of manufacture, of any part or parts that Seller determines to be of defective material or workmanship. Warranty claims must be made in writing within the warranty period. SELLER SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR UNDER ANY CIRCUMSTANCES WHATSOEVER, including, but not limited to , loss of production, lost profits, or loss of goodwill.
10. Safety Features.
Although Seller does not and shall not assume liability for any governmental or local safety and health standards that apply to Buyer’s use of goods purchased hereunder, Seller does assure that due care will be taken that goods of Seller’s own design or manufacture shall not create unreasonable hazards to safety or health if operated in a proper manner by trained personnel with all furnished safety features maintained in a functional condition.
This contract shall not be cancelled by Buyer without written consent by Seller. No consent shall be given where the design and manufacture of goods ordered hereunder are 90% completed or are scheduled to be completed within 30 days. In all other cases, consent will be granted, if at all, only on the condition that Seller is fully compensated for all costs for work completed and for commitments that have been made to suppliers and contractors.
12. Design Changes.
Because of its policy of constant product improvement, Seller may make changes from time to time in equipment and software of the type included in this contract. Seller is not obliged to make similar changes to products and software which have already been delivered or for which Seller has received orders prior to the date such changes are made effective.
13. Force Majeure.
Seller shall not be liable for failure to perform under this contract if such failure is caused by impediments to performance, which are beyond control of Seller. Such impediments include, but are not limited to, fire, flood, natural disaster, war, national emergencies, governmental actions, strikes or other labor disputes, or any other circumstances beyond the control of the Seller. Buyer shall not be entitled to collect damages for any delay in delivery resulting from force majeure. In the event Seller is required to terminate the contract because of force majeure, any advance payments made by Buyer shall be reimbursed to Buyer by Seller with no additional payment of interest or fees of any kind.
14. Dispute Resolution.
Buyer and seller will attempt to settle any disagreements through amiable negotiations. Disagreements that cannot be settled through negotiation shall be resolved through application of the law of the place from where the goods or services originate.
15. Use of RailComm Software.
All RailComm software is subject to our Standard Software License Agreement and must comply with our RailComm Software Policy and Requirements.
Last updated: 11/01/2014