Effective 11.01.2021
- ACCEPTANCE/ENTIRE AGREEMENT. This document constitutes an offer by Shuttlewagon Inc. (“Shuttlewagon”) to provide the products (“Goods”) and/or services (“Services”) described herein. If this document is deemed an acceptance of a prior offer by Buyer, such acceptance is limited to the express Terms and Conditions herein. No other pre-printed terms and conditions on any form shall modify these Terms and Conditions even if signed by Seller. Acceptance of these Terms and Conditions is evidenced by a) Buyer’s signature; b) Shuttlewagon delivery of Goods and/or Services; or c) payment for the Goods and/or Services. Shuttlewagon rejects any additional or varying terms unless Shuttlewagon expressly assents in writing. For purposes herein, “Contract” shall mean either: (i) a contract agreement signed by both Shuttlewagon and Buyer for the sale by Shuttlewagon of Goods and/or Services; or (ii) the purchase order signed by Buyer and accepted by Shuttlewagon in writing, for the sale of Goods or Services, in either case together with these Terms and Conditions of Sale. Quotes are valid for 30 days.
- PRICES/TAXES. Buyer agrees to pay the prices quoted by Shuttlewagon, including applicable shipping, handling, taxes, and duties. Prices on special order Goods may be subject to change before shipment. Unless otherwise stated, prices are in U.S. Dollars, FCA (Incoterms 2020) Shuttlewagon’s designated facility. Unless otherwise specified by Shuttlewagon in writing, prices do not include domestic or international shipping charges beyond the F.O.B. point of delivery, the cost of insurance during the time Buyer bears the risk of loss, or charges for demurrage, port fees, pier handling, marshaling, or heavy lifts or any other costs. Shuttlewagon shall be responsible for all corporate and individual taxes measured by net income due to performance of or payment for work hereunder (“Shuttlewagon Taxes”). Buyer shall be responsible for all taxes, duties, fees, or other charges of any nature (including, but not limited to, consumption, gross receipts, import, property, sales, stamp, turnover, use, or value-added taxes, and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto, imposed by any governmental authority on Buyer or Shuttlewagon or its subcontractors) in relation to Shuttlewagon’s offering, the resulting Contract or the performance of or payment for work hereunder other than Shuttlewagon Taxes (“Buyer Taxes”). The prices quoted by Shuttlewagon do not include the amount of any Buyer Taxes. If Buyer deducts or withholds Buyer Taxes, Buyer shall pay additional amounts so that Shuttlewagon receives the full quoted price without reduction for Buyer Taxes. Buyer shall provide to Shuttlewagon, within one month of payment, official receipts from the applicable governmental authority for deducted or withheld taxes.
- PAYMENT. Unless otherwise agreed to by Shuttlewagon in writing, payment for Goods shall be as follows: For sales in North America, Invoice will be issued at time of shipment and payment shall be due within thirty (30) days of issuance of Shuttlewagon’s invoice. Payment for Services priced separately shall be 100% within fifteen (15) days of issuance of Shuttlewagon’s invoice. If Buyer fails to make any payment timely, Shuttlewagon reserves the right to suspend performance. Buyer shall not have a right of set off against Shuttlewagon. If Buyer fails to make any payments to Shuttlewagon when due, Buyer shall pay a late payment charge computed at the rate of 1.5% per month on the overdue balance, or the maximum rate permitted by law, whichever is less, for each calendar month, or fraction thereof, that payment is late. All payments by Buyer shall be made by wire transfer to the account identified by Shuttlewagon.
- DELIVERY/TITLE AND RISK OF LOSS. For Goods that are equipment or machinery (“Equipment”), Buyer will be notified no less than 5 days in advance of the shipment date (“Completion Date”). Equipment must be picked up on the Completion Date. For Goods that are repair or replacement parts (“Parts”), delivery shall be as agreed upon and are subject to lead times and availability. Unless otherwise specified by Shuttlewagon in writing, Shuttlewagon shall deliver the Goods to Buyer FCA (Incoterms 2020) Shuttlewagon’s designated facility, place of manufacture, or warehouse. Title and risk of loss to such Goods shall pass to Buyer upon such FCA delivery. For export shipments, Shuttlewagon does not participate in “routed export transactions” as defined in 15 CFR 30.1(c) and will be responsible for Electronic Export Information filing. When Buyer arranges the export or intercommunity shipment, Buyer will provide Shuttlewagon evidence of exportation or intercommunity shipment acceptable to the relevant tax and customs authorities. For units sold through a financing entity or bank, delivery and acceptance paperwork must be returned within five (5) days of delivery, pending any training or other considerations agreed to in writing. Subject to the foregoing exception, if the Buyer does not provide a Certificate of Acceptance within five (5) days of delivery, the Equipment shall be deemed to be accepted by the Buyer. Partial deliveries are permitted, and Shuttlewagon may deliver Goods in advance. Delivery times are approximate and are dependent upon prompt receipt by Shuttlewagon of all information necessary to proceed with the work without interruption. If Goods delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Buyer shall so notify Shuttlewagon within ten (10) days after receipt. Notwithstanding anything in this Section, Shuttlewagon grants only a license (pursuant to Section 13), and does not pass title, for any software provided by Shuttlewagon hereunder. Title to any leased equipment remains with Shuttlewagon, unless leased through a third-party purchaser.
- CANCELLATION AND TERMINATION. Order cancellations must be submitted in writing and are subject to restocking/cancellation fees equal to all costs incurred at the time of cancellation (including engineering, labor and overhead), plus a cancellation charge of 15% of the purchase price. Shuttlewagon may suspend or terminate the Contract (or any affected portion thereof) immediately for cause if Buyer: (i) becomes insolvent or bankrupt; or (ii) materially breaches the Contract, including, but not limited to, failure or delay in making any payment when due, or fulfilling any payment conditions. In the event of any such termination by Shuttlewagon, Buyer shall pay to Shuttlewagon the applicable purchase price for any completed or substantially completed Goods and Services performed before the effective date of termination, plus expenses reasonably incurred by Shuttlewagon in connection with the termination. In addition, Buyer shall pay Shuttlewagon a cancellation charge of 15% of the purchase price.
- LIMITED WARRANTY.
- New Equipment/Parts. In the case of the purchase of new Equipment and Parts, and solely for the benefit of the original user, Shuttlewagon warrants, for a period of 12 months or 2,000 hours of use (whichever comes first) from date of Delivery that Equipment and Parts manufactured by Shuttlewagon shall be free from defects in material and workmanship, and shall conform to the material and technical specifications set forth in the relevant scope of work document or purchase order as agreed to in writing by Shuttlewagon and Buyer. Shuttlewagon further certifies that the Equipment and Parts comply with applicable OSHA standards as to their physical characteristics, but this warranty does not extend to the circumstances of use. Warranty for replacement/service Parts extends for ninety (90) days from the date delivered to Buyer.
- Used Equipment. Seller warrants all Seller-assembled/manufactured Goods will be free from material defects in workmanship and materials under normal use and service for a period of 3 months. Buyer agrees that the express warranties in this section are exclusive and in lieu of all other warranties including without limitation any implied warranties of merchantability or fitness for a particular purpose. Seller hereby disclaims and excludes all other warranties.
If any Goods or Services do not meet the above applicable warranties within the applicable period specified, Buyer shall promptly notify Shuttlewagon in writing and, if applicable, make such items available to Shuttlewagon, per Shuttlewagon’s specifications, for inspection. In the event Seller determines that the Goods, or Services performed, failed to meet the foregoing warranties set forth in this Section, Shuttlewagon shall: (i) at its option, repair or replace the defective Goods; and/or (ii) re-perform defective Services. If despite Shuttlewagon’s reasonable efforts, non-conforming Goods cannot be repaired or replaced or non-conforming Services cannot be re-performed, Shuttlewagon shall refund or credit monies paid by Buyer for such non-conforming Goods and/or Services. Warranty repair, replacement or re-performance by Shuttlewagon shall not extend or renew the applicable warranty period. Buyer shall bear the costs of access for Shuttlewagon’s remedial warranty efforts including removal and/or installation costs associated with the repair and replacement of the defective Goods and transportation of such items to Shuttlewagon and back to Buyer.
The warranties and remedies are conditioned upon: (i) proper storage, installation, use, operation, and maintenance of Goods; (ii) Buyer keeping accurate and complete records of operation and maintenance during the applicable warranty period and providing Shuttlewagon access to those records; and (iii) modification of Goods and Services only as authorized by Shuttlewagon in writing. Shuttlewagon’s obligations under this Section 6 shall not apply to: (a) normal wear and tear; (b) any off-the-shelf consumer goods that may be incorporated into the Goods or Services; (c) any Goods (or parts thereof) that are normally consumed in operation; (d) any Goods that have a normal life inherently shorter than the applicable warranty period; e) any Goods that have been subjected to any other kind of misuse or detrimental exposure, has been involved in an accident or has otherwise been damaged or fails as a result of external causes outside the reasonable control of Shuttlewagon. In the event Buyer uses non-Shuttlewagon parts or non-Shuttlewagon approved repairs, then any damage to, failure of, or performance degradation of the Goods or Services indirectly or directly resulting from the use of such parts or repairs, shall not be warranted by Shuttlewagon. Further, if such parts or repairs cause personal injury, death or property damage to third parties, Buyer shall indemnify and hold Shuttlewagon harmless from all claims and liabilities connected therewith. This indemnification shall survive the termination or expiration of the applicable agreement.
THIS SECTION 6 PROVIDES BUYER’S SOLE REMEDY AND SHUTTLEWAGON’S EXCLUSIVE OBLIGATION FOR ALL CLAIMS BASED ON FAILURE OF OR DEFECT IN GOODS OR SERVICES, REGARDLESS OF WHEN THE FAILURE OR DEFECT ARISES, AND WHETHER A CLAIM, HOWEVER DESCRIBED, IS BASED ON CONTRACT, WARRANTY, INDEMNITY, TORT/EXTRA-CONTRACTUAL LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THE WARRANTIES PROVIDED IN THIS SECTION 6 ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS AND GUARANTEES WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTY, OR WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES.
- CHANGES/UPGRADES Shuttlewagon expressly reserves the right to change, discontinue, upgrade or modify the design and manufacture of its products without obligation to furnish, retrofit or install Goods that were previously or subsequently sold.
In the event of any engineering or specification change required due to a change in applicable laws, rules and/or regulation that results in increased cost, expense, liability or risk to Shuttlewagon, Shuttlewagon shall be entitled to reasonable adjustments in price and delivery timing of the affected Goods and/or Services to compensate and accommodate Shuttlewagon for such increased obligations. In the event the parties fail to mutually agree to such reasonable adjustments, either party may pursue resolution pursuant to the dispute resolution process set forth in Section 15. - INDEMNITY. Each of Buyer and Seller (as an “indemnifying Party”) shall indemnify the other party, its employees/officers (as an “Indemnified Party”) from and against claims brought by a third party, on account of bodily injury or death or damage to the third party’s tangible property to the extent caused by the negligence or willful misconduct of the Indemnifying Party or its employees/officers in connection with this Contract. In the event the injury or damage is caused by joint or concurrent negligence of Buyer and Shuttlewagon, the loss or expense shall be borne by each party in proportion to its degree of negligence. Notwithstanding the foregoing, neither party will indemnify the other for any claim to the extent it is caused by the acts or omissions of any third party, including a manufacturer of any Shuttlewagon-purchased parts/equipment. Shuttlewagon Equipment (software and hardware) is not autonomous. It relies on inputs from a trained operator. No rail testing system is infallible. Variables such as track conditions, operator skill and experience can result in missed or false detections. In such case, Shuttlewagon disclaims any liability for a missed defect, including as a result of faulty set-up and/or faulty programming by Buyer personnel.
- PATENT INFRINGEMENT. Shuttlewagon warrants that any Goods or Services furnished hereunder that have been manufactured or performed by Shuttlewagon shall, without any alteration or further combination, be free of any rightful claim of any third party for infringement of any valid United States patent. If Buyer notifies Shuttlewagon within fifteen (15) days of the receipt of any claim that such Goods or Services infringes a patent and gives Shuttlewagon information, assistance and exclusive authority to settle and defend such claim, Shuttlewagon shall, at its own expense and in its sole discretion: (i) settle or defend such claim or proceeding arising therefrom and pay all damages and costs awarded therein against Buyer; (ii) procure for Buyer the right to continue using such Goods or Services; (iii) modify the Goods or Services so that it becomes non-infringing; (iv) replace the Goods with an equivalent non-infringing item or re-perform the Service with a non-infringing Service; or (v) remove the Goods or reverse the Service performed and refund the applicable price paid (less reasonable depreciation) and any transportation or installation costs that have been separately paid by Buyer.
This Section 9 shall not apply to and Shuttlewagon shall have no obligation or liability with respect to any patent infringement claim based upon: (i) any Goods that are manufactured, or Services performed, that are customized to Buyer’s design or specification; (ii) the combined use of any Goods with any other apparatus or material not manufactured by Shuttlewagon; (iii) the use of any Goods or Services furnished hereunder to the extent that the infringement claim is based upon a modification to the Goods or Services that was made by the Buyer (or Buyer’s employees, agents, contractors or subcontractors); or (iv) the failure of Buyer to implement any update provided by Shuttlewagon that would have prevented the claim. As to any Goods or Services or use described in the preceding sentence, Seller assumed no liability whatsoever for patent infringement or the unauthorized use of Goods or Services, including, without limitation, a breach of the provisions herein.
This Section 9 states Seller’s exclusive and entire liability for indemnification for patent, trademark, copyright and trade secret infringement for products and services. Each party shall retain ownership of all Confidential Information and Intellectual property it had prior to the Contract. All new intellectual property conceived or created by Seller in the performance of this Contract, whether alone or with any contribution from Buyer, shall be owned exclusively by Seller. - TRADEMARKS. Buyer acknowledges that all trademarks, designs and specifications used by Shuttlewagon, both are and remain the exclusive property of Shuttlewagon.
- SOFTWARE. For any Shuttlewagon Equipment containing software, Shuttlewagon hereby grants to Buyer a non-exclusive, non-transferable license to use, solely in connection with the operation of the Shuttlewagon work equipment, embedded or application software developed for use on Shuttlewagon equipment, and any upgrade, enhancement or fix thereto (collectively, the “Software”). Buyer may not copy, reproduce, reverse engineer, modify, adapt or create any derivative work based on the Software. Any attempt to modify the Software or install it on any other equipment will void all warranties. Buyer will indemnify Shuttlewagon against any claims, including but not limited to, personal injury, death or property damage relating to any unauthorized use.
- DATA. All operational data collected by the Software or the Goods shall be Buyer’s property, however, Buyer agrees that Shuttlewagon will have real-time access to all data, files and reports created or generated by the Software. With respect to any data or information that Shuttlewagon receives from Buyer that is generated, collected or recorded by any Equipment or embedded software provided hereunder, Shuttlewagon is granted a non-exclusive limited license to use any such Buyer data for Shuttlewagon’s internal business purposes, which include maintenance, development, upgrade or improvement of Equipment, software and related product and service offerings. Shuttlewagon may aggregate such data with data from other sources for purposes of analysis, evaluation, training, instruction or promotion. In any such case, individual Buyers will not be identifiable as a source of data, unless specific permission is granted.
- INSURANCE. Buyer shall maintain and have in effect at all times during the Contract, and for a period of three (3) years thereafter, Commercial General Liability insurance that includes (without limitation) coverage for business automobile, transit/transportation liability, medical payments, bodily injury, personal injury, property damage, products liability and products-completed and completed operations liability coverage, and contractual liability for defense and indemnification obligations of Buyer hereunder. Buyer’s insurance coverage will be primary over any other applicable insurance.
- LIMITATION OF LIABILITY. The total liability of Shuttlewagon for all claims of any kind arising from or related to the formation, performance or breach of this contract, or the sale, purchase or use of any Goods or Services provided hereunder, shall not exceed: (i) the total price quoted by Shuttlewagon and set forth in the applicable purchase order, or (ii) if Buyer will place multiple order(s) hereunder, the total price of each particular purchaser order for all claims arising from or related to that order.
SHUTTLEWAGON SHALL NOT BE LIABLE FOR LOSS OF PROFIT OR REVENUES, LOSS OF USE OF EQUIPMENT OR SYSTEMS, INTERRUPTION OF BUSINESS, COST OF REPLACEMENT POWER, COST OF CAPITAL, DOWNTIME COSTS, INCREASED OPERATING COSTS, ANY SPECIAL CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES, OR CLAIMS OF BUYER’S CUSTOMERS FOR ANY OF THE FOREGOING TYPES OF DAMAGES. SHUTTLEWAGON SHALL NOT BE LIABLE FOR ADVICE OR ASSISTANCE THAT IS NOT REQUIRED FOR THE WORK SCOPE AGREED HEREUNDER.
For purposes of this Section 14, the term “Shuttlewagon” means Shuttlewagon, its affiliates, subcontractors and suppliers of any tier, and their respective employees. The limitations in this Section 14 shall apply regardless of whether a claim is based in contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise, and shall prevail over any conflicting terms, except to the extent that such terms further restrict Shuttlewagon’s liability.
- DISPUTE RESOLUTION. Any dispute, controversy or claim arising out of or relating in any way to the Contract, whether in contract, tort, common law, statutory law, equity, or otherwise, including any question regarding its existence, validity, or scope, shall be resolved in accordance with this Section 15. If a dispute is not resolved by negotiations, either party shall, by giving written notice that summarizes the nature of the dispute, refer the dispute to a meeting of appropriate higher management, to be held within thirty (30) business days after the giving of notice, or such later date as may be mutually agreed. If the dispute is not resolved at the senior management level, the parties shall, within thirty (30) days of the management meeting, or such later date as may be mutually agreed, mediate the dispute in Milwaukee, Wisconsin. If the dispute is not resolved at the mediation, either party may commence legal action which shall exclusively be brought and resolved in the United States District Court for the District of Delaware (where federal jurisdiction exists) or the Courts of the State of Delaware (where federal jurisdiction does not exist), and the appellate courts having jurisdiction of appeals in such courts. Buyer agrees that jurisdiction and venue in these Delaware courts is appropriate, and irrevocably submits with respect to any action or proceeding brought pursuant to this Section 15 for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the courts of Delaware, and irrevocably waives any objection that it may now or hereafter have that any such court is an improper or inconvenient forum for any proceeding brought pursuant to this Section 15.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY DISPUTE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE.
Notwithstanding the foregoing, each party shall have the right at any time to immediately commence an action or proceeding in a court of competent jurisdiction, to seek a restraining order, injunction, or similar order to enforce the confidentiality provisions set forth in Section 16 and/or for Seller to protect or enforce any patent, trademark, copyright or other intellectual property right, Confidential Information or trade secrets, or to seek interim or conservatory measures.
- CONFIDENTIALITY. Shuttlewagon and Buyer (as to information disclosed, the “Disclosing Party”) may each provide the other party (as to information received, the “Receiving Party”) with Confidential Information in connection with this Contract. Shuttlewagon and Buyer agree that the prices for Goods and Services shall be considered Shuttlewagon’s Confidential Information. Except as set forth below, Shuttlewagon and Buyer shall keep confidential, and not disclose or use for any purpose other than performance of the Contract and use of Products and Services, any Confidential Information. Despite the foregoing restriction, Shuttlewagon may disclose Confidential Information to tits affiliates and subcontractors in connection with performance of the Contract, and a receiving Party may disclose Confidential Information to its auditors and tax advisors provided such third parties agree to protect the Confidential Information in a manner consistent with this Section 16. The obligations under this Section 16 shall not apply to any portion of the Confidential Information that: (i) is or becomes generally available to the public other than as a result of disclosure by Receiving Party, its representatives or its affiliates; (ii) is or becomes available to Receiving Party on a non-confidential basis from a source other than Disclosing Party when the source is not, to the best of Receiving Party’s knowledge, subject to a confidentiality obligation to Disclosing Party; or (iii) is independently developed by Receiving Party, its representatives or affiliates, without reference to the Confidential Information. The restrictions of this Section 16 shall expire the earlier of ten (10) years after the date of disclosure or five (5) years after termination or expiration of the Contract. This Section does not supersede any separate confidentiality or nondisclosure agreement signed by the parties.
- GOVERNING LAW. This contract shall be governed by the internal laws of the State of Delaware, including the Uniform Commercial Code as adopted in Wisconsin. Neither this Contract nor sales hereunder shall be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
- FORCE MAJEURE. Shuttlewagon shall not be responsible for delay in delivery or failure to fill orders where such has been caused by an act of God, war, major disaster, terrorism, third-party criminal acts, insurrection, riot, flood, fire, strike or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, or to any cause beyond Shuttlewagon’s control. If any such event occurs, the schedule for Shuttlewagon’s performance shall be extended by the amount of time lost by reason of the event plus such additional time as may be needed to overcome the effect of the event. In the event any such occurrence causes a delay that extends more than thirty (30) days, Shuttlewagon may cancel all or any portion of the contract.
- SURVIVAL PROVISIONS. All rights and obligations, including without limitation Confidentiality, Intellectual Property, Indemnification, and Warranties, which by their nature continue beyond expiration or termination of the Contract shall survive until each such right expires or is terminated.
- ASSIGNMENT. Shuttlewagon may assign or novate its rights and obligations under the Contract, in whole or in part, without Buyer’s consent, to any of Shuttlewagon’s subsidiaries or affiliates, or to any purchaser or other successor in interest of Wabtec Corporation (or portion there of to which the Contract relates), and may assign any of its accounts receivable under the Contract to any party for factoring purposes. Buyer agrees to execute any documents that may be necessary to complete Shuttlewagon’s assignment or novation. Shuttlewagon may subcontract portions of the work, so long as Shuttlewagon remains responsible for the subcontracted work. The delegation or assignment by Buyer of any or all of its rights or obligations under the Contract without Shuttlewagon’s prior written consent (which consent shall not be unreasonably withheld) shall be void.
- ENTIRE AGREEMENT; SEVERABILITY. This Contract constitutes the entire agreement of the parties. No oral statements may be used to supplement, modify, or affect the provisions of the Contract. Any additional or different terms are expressly rejected unless accepted in writing by Shuttlewagon. If any part of the Contract is found to be unenforceable, illegal or invalid, the remainder of the Contract shall not be affected by such finding. Failure to insist on performance of any term or condition shall not be construed as a waiver or relinquishment of the right or future performance of the right.
