RAILWAY EQUIPMENT COMPANY
STANDARD TERMS AND CONDITIONS
Applicable Terms. Railway Equipment Company (“RECO”) is a manufacturer and supplier of railroad equipment and supplies. These terms and conditions, together with any applicable addenda, RECO’s proposal, price quote, or purchase order form the parties’ entire agreement (“Agreement”) and govern the sale of equipment, components, parts, and materials (“Products”) and services (“Services”) by RECO to any person or entity (“Buyer”). In the event of a conflict between documents, precedence shall apply in accordance with the order listed in the previous sentence. RECO’s proposal, offer, or acceptance is conditioned on Buyer’s acceptance of this Agreement. Any additional or conflicting terms in Buyer’s request for proposal, specifications, purchase order and any other written or oral communication from Buyer is not binding on RECO unless separately signed by the parties.
Pricing & Payment. Prices and payment terms are as stated in RECO’s purchase order, quotation, or proposal. RECO’s prices include the costs of its standard domestic packing only. Any packing deviation, including U.S. Government sealed packing, will be charged to Buyer. Unless stated in writing by RECO, RECO’s prices exclude charges for freight, unloading, storage, insurance, taxes, excises, fees, duties, or other government charges related to the Products. These amounts will be added to Buyer’s invoice. If Buyer claims a tax or other exemption or direct payment permit, Buyer must provide a valid exemption certificate or permit and indemnify, defend, and hold RECO harmless from any taxes, costs and penalties arising from same. Increases, changes (including in application), adjustments or surcharges which may be incurred may be added to or updated on Buyer’s invoice. All payments are due net 30 days from the date an invoice is issued by RECO with all payments made in United States Dollars. Buyer waives the right to assert offsets or counterclaims with respect to invoices. All orders and credit are subject to credit approval by RECO. RECO may modify, suspend, or withdraw the credit amount or payment terms at any time. If there is doubt as to Buyer’s financial condition, RECO may withhold manufacturing or shipment, require cash payments or prepayments, or require other satisfactory security. RECO may recover shipped Products from the carrier pending such assurances. Late payments shall bear interest at a rate equal to 1.5% per month, or the highest rate allowed by law, whichever is lower. Buyer will be responsible for collection costs (including attorneys’ fees whether or not suit is commenced) incurred with respect to invoices not paid when due. RECO may suspend or terminate further performance under a purchase order or other agreements with Buyer upon notice for non-payment of invoices. If Buyer disputes all or any portion of an invoice, it must deliver written notice to RECO of the disputed amount and the basis for the dispute within 21 days of receiving the invoice. Failure of Buyer to timely notify RECO of any dispute constitutes a waiver of Buyer’s claim. Upon resolution of the dispute, Buyer must pay the invoice or the remainder of the invoice, plus any accrued interest on the late payment.
Suspension/Termination Right. RECO may suspend work if an invoice is more than 30 days past due. RECO may terminate this Agreement immediately if an invoice is more than 60 days past due. Unless prohibited by law, RECO may also terminate this Agreement immediately in the event of a material adverse change in Buyer’s financial condition including, but not limited to, bankruptcy, insolvency, liquidation, or similar financial condition.
Delivery; Risk of Loss; Title. Products will be shipped free and clear of liens and encumbrances and delivered F.O.B. RECO’s point of shipment with risk of loss or damage passing to Buyer at that point and freight prepaid and added on to the invoice. Any special or expeditated transportation must be agreed to in writing by RECO. Buyer is responsible for all transportation, insurance, and related expenses. RECO has no obligation to insure shipments unless agreed to in writing by the parties. The related expenses shall include any taxes, duties, or documentation fees. RECO may make partial shipments and Buyer will separately pay for each shipment. Any shipping, delivery and installation dates are estimated dates only. RECO is not liable for any loss or expense incurred by Buyer or Buyer’s customers if RECO fails to meet its delivery schedule. Title to Products will remain with RECO, notwithstanding delivery and regardless of the extent which the Products may be affixed to or used in connection with or incorporated in any realty, until the full purchase price has been paid by Buyer.
Deferment and Cancellation. Buyer has no right to defer shipment or cancel orders, nor the performance of the Services. If a cancellation occurs, Buyer shall pay to RECO cancellation charges for partially completed Services in portion of the price determined to be due by RECO based on its percentage of completion of the Service, and for Products, a 15% restocking fee.
Storage. If Products are not picked up by Buyer within a reasonable time after the delivery date, then Products will be placed into storage, and Buyer will pay all of RECO’s storage expenses, including but not limited to, preparation for and placement into storage, handling, freight, storage, inspection, preservation, and maintenance, upon receipt of an invoice from RECO. When conditions permit and upon payment to RECO of all amounts due, Buyer must arrange, at its expense, to remove the Products from storage. Buyer bears the risk of loss, damage, or destruction to Products in storage.
Force Majeure Delays. If RECO’s performance is delayed by any cause beyond its reasonable control (regardless of whether the cause was foreseeable), including without limitation acts of God, strikes, labor shortage or disturbance, fire, accident, war or civil disturbance, delays of carriers, cyber-attacks, terrorist attacks, failure of normal sources of supply, pandemic or endemic, or acts or inaction of government, RECO’s time of performance will be extended by a period equal to the length of the delay plus any consequences of the delay. RECO will notify Buyer within a reasonable time after becoming aware of any such delay.
Buyer’s Obligations. RECO’s performance is contingent upon Buyer timely fulfilling all its obligations under this Agreement. These obligations include the Buyer supplying all documents and approvals needed for RECO to perform, including but not limited to technical information and data, drawing and document approvals, and necessary commercial documentation. RECO may request a change order for an equitable adjustment in prices and times for performance, as well as for any additional costs or any delay resulting from the failure of Buyer or Buyer’s contractors, successors or assigns to meet these obligations.
Indemnity. Buyer agrees to indemnify RECO from and against all third-party claims, damages, expenses, liabilities, and losses occurring from this Agreement, including without limitation attorney’s fees and costs, whether or not a lawsuit or other action is filed, alleging bodily injury, death, or damage to a third party’s tangible property except to the extent such damages or losses are directly caused by the gross negligence or willful misconduct of RECO. No part of the Product(s) or Buyer’s site is considered third-party property. Buyer shall provide RECO with prompt written notice of any third-party claims covered by this Section 9. RECO has the unrestricted right to select and hire counsel and the exclusive right to conduct the legal defense and/or settle the claim on the Buyer’s behalf. Buyer shall not make any admission(s) which might be prejudicial to RECO and shall not enter a settlement without the express permission of RECO.
Limited Warranty.
RECO warrants that each Product is free from defects in material and workmanship and conforms to manufacturer’s published specifications (the “Limited Warranty”) beginning from the initial use of the Product continuing for a period of 24 months for electrical Products and 12 months for mechanical Products. RECO also warrants that it will perform the Services in a workmanlike manner and in accordance with industry standards. RECO will pass through all available original equipment manufacturers’ warranties. Absent written notice to RECO of a Limited Warranty claim within the Limited Warranty period, any use or possession of the Product after expiration of the Limited Warranty period is conclusive evidence that the Limited Warranty has been satisfied. The Limited Warranty is conditioned on: (i) no repairs, modifications or alterations being made to the Product other than by RECO or its authorized representatives; (ii) Buyer handling, using, storing, installing, operating and maintaining the Product in compliance with any parameters or instructions in any specifications provided with the Product or attached to or incorporated into this Agreement; (iii) compliance with all generally accepted industry standards; (iv) Buyer discontinuing use of the Product after it has, or should have had, knowledge of any defect; (v) Buyer providing prompt written notice to RECO of any Limited Warranty claims within the Limited Warranty period described below; (vi) at RECO’s discretion, Buyer either removing and shipping the Product or non-conforming part thereof to RECO, with shipping prepaid by Buyer and reimbursed after Limited Warranty claim approved by RECO, or granting RECO reasonable access to the Products to assess the Limited Warranty claims; (vii) Product not having been subjected to accident (including force majeure), alteration, abuse or misuse; and (viii) Buyer not being in default of any obligation owed to RECO. The Limited Warranty is only transferable during the Limited Warranty period and only to the Product’s initial end-user. Any Product that is experimental, developmental, prototype, or pilot is specifically excluded from the Limited Warranty and is provided to Buyer “AS IS” with no warranties of any kind. Normal wear and tear are excluded, including any expendable items that comprise part of the Product (such as fuses, light bulbs and lamps). RECO does not warrant or guarantee that any Product will be secure from cyber threats, hacking or similar malicious activity. Products that are networked, connected to the internet, or otherwise connected to computers or other devices must be appropriately protected by Buyer and/or end user against unauthorized access. All out of warranty Products will be charged additional fees for any repairs.
Remedies. Buyer’s sole and exclusive remedies for breach of the Limited Warranty are limited, at RECO discretion, to repair or replacement of the Product, or its non-conforming parts, within a reasonable time period, or refund of all or part of the purchase price. The Limited Warranty on repaired or replaced parts is limited to the remainder of the original Limited Warranty period. Unless RECO agrees otherwise in writing, Buyer will be responsible for any costs associated with: (i) gaining access to the Product; (ii) removal, disassembly, replacement, installation, or reinstallation of any equipment, materials or structures to permit RECO to perform its Limited Warranty obligations; (iii) transportation to and from the RECO factory or repair facility; (iv) inspection and repair of Product for invalid Limited Warranty claims; and (v) damage to Product components or parts resulting in whole or in part from non-compliance by the Buyer with Section 10 or from their deteriorated condition. All exchanged Products and parts replaced under this Limited Warranty will become the property of RECO.
THE WARRANTIES IN THIS SECTION 10 ARE RECO’S SOLE AND EXCLUSIVE WARRANTIES AND ARE SUBJECT TO THE LIMIT OF LIABILITY IN SECTION 12 BELOW. RECO MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, DESIGN, NONINFRINGEMENT, COURSE OF DEALING AND USAGE OF TRADE.
Recalls. If any governmental authority seizes or orders a recall of any Products or if RECO deems it necessary to recall any Products, RECO will, at RECO’s option, either: (a) provide replacement parts or Products, at no cost to Buyer, the seized or recalled Products with an equal quantity of complying Products; or (b) refund the purchase price paid by Buyer for such Products.
LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, RECO IS NOT LIABLE, WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY TYPE OF INDIRECT, SPECIAL, LIQUIDATED, PUNITIVE, EXEMPLARY, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, REVENUE, SAVINGS, PROFIT, INTEREST, GOODWILL OR OPPORTUNITY, COSTS OF CAPITAL, COSTS OF REPLACEMENT OR SUBSTITUTE USE OR PERFORMANCE, LOSS OF INFORMATION AND DATA, LOSS OF POWER, VOLTAGE IRREGULARITIES OR FREQUENCY FLUCTUATION, CLAIMS ARISING FROM BUYER’S THIRD PARTY CONTRACTS, OR FOR ANY OTHER LOSS OR COST OF A SIMILAR TYPE. BUYER AGREES THAT THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 12 WILL PREVAIL OVER ANY CONFLICTING TERMS AND CONDITIONS IN THIS AGREEMENT AND MUST BE GIVEN FULL FORCE AND EFFECT, WHETHER OR NOT ANY OR ALL SUCH REMEDIES ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ARE EFFECTIVE EVEN IF RECO HAS BEEN ADVISED BY BUYER OF THE POSSIBILITY OF SUCH DAMAGES. THE WAIVERS AND DISCLAIMERS OF LIABILITY, RELEASES FROM LIABILITY AND LIMITATIONS ON LIABILITY EXPRESSED IN THIS SECTION 12 EXTEND TO RECO’S AFFILIATES, PARTNERS, PRINCIPALS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS, AGENTS, AND SUCCESSORS AND ASSIGNS. UNDER NO CIRCUMSTANCES SHALL RECO’S LIABILITY HEREUNDER FOR ANY CAUSE EXCEED THE PURCHASE PRICE OR THE FEE PAID TO RECO BY BUYER FOR THE PRODUCT OR SERVICE IN RESPECT OF WHICH THE CLAIM IS MADE.
Confidentiality. All information provided to Buyer relating to price, design, performance, size and type of Product is considered confidential information and is not to be shown or disclosed or made available to others without the prior, written consent of RECO.
Intellectual Property. RECO claims ownership rights to all inventions, patents, copyrights, trademarks, trade secrets and know-how, including proprietary design and manufacturing technology, (“Intellectual Property”) which have been previously developed by RECO at RECO’s expense and which will be used as a basis for the Services or as part of any Product, as applicable. All Intellectual Property developed as a result of Services provided hereunder shall be owned by RECO.
Compliance With Laws. The parties agree to comply with all applicable laws and regulations, including but not limited to those relating to the manufacture, purchase, resale, exportation, transfer, assignment, or use of the Products.
Modification, Waiver, and Rescission. This Agreement cannot be modified or rescinded and no provision of it shall be waived except by a writing signed by RECO. A waiver or repeated waivers of any provision or provisions hereof shall not constitute a waiver of the same provision or provisions or any other provisions in any other instance end shall not impair the rights of RECO to enforce any provision of this Agreement subsequent to such waiver. If any change to any law, rule, regulation, order, code, standard or requirement impacts RECO’s obligations or performance under this Agreement, RECO will be allowed a change order for an equitable adjustment in the price and time of performance.
Assignment. Buyer may not assign all or part of this Agreement, or any rights or obligations under this Agreement, without the prior written consent of RECO; however, Buyer may assign its rights and obligations, without recourse or consent, to any parent, wholly owned subsidiary, or affiliate or affiliate’s successor organization (whether as a result of reorganization, restructuring or sale of substantially all a party’s assets). Buyer shall not assign this Agreement to a competitor of RECO, an entity in litigation with RECO, or an entity lacking the financial capability to satisfy Buyer’s obligations. Any assignee expressly assumes the performance of any obligation under this Agreement. RECO may grant a security interest in this Agreement and/or assign proceeds of this Agreement without Buyer’s consent.
Additional Terms. RECO’s failure to object to the provisions contained in a purchase order or other communications shall not be deemed a waiver of this Agreement nor acceptance of such Buyer provisions. If one or more of these provisions in this Agreement is found to be unlawful, invalid or otherwise unenforceable, that those provisions shall be deemed severed from the remainder of this Agreement, which will remain valid and enforceable. All matters relating to or arising from dealings between RECO and Buyer will be governed and controlled by the laws of the State of Minnesota, notwithstanding conflict of law provisions, whether based in contract or tort, including statutes of limitations. Buyer agrees to bring any claim, cause of action, suit or demand allegedly arising out of or related to the transactions between RECO and Buyer exclusively in the state or federal courts located in Hennepin County, Minnesota. Buyer irrevocably consents to jurisdiction in, and venue of such courts. BUYER IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH DEALINGS WITH RECO.
