TERMS AND CONDITIONS OF PURCHASE AND SALE
1. Acceptance. All transactions with PowerRail shall be conducted in accordance with these terms and conditions (at times "Terms") of this website, invoices and/or purchase orders confirming such transaction. PowerRail hereby objects to any different or additional terms and conditions contained in documents confirming any transaction. PowerRail hereby objects to any different or additional terms and conditions contained in any response. PowerRail’s shipment of any materials and/or goods (collectively "Goods") covered hereunder, shall constitute acceptance of and assent to these terms and conditions. No other terms and conditions of sale or service contained in any quotation, acknowledgement, invoice or acceptance of this order shall apply.
2. Termination at PowerRail’s Option. PowerRail retains the right to terminate any transaction upon 30 days written notice.
3. Price and Payment Terms. The price of goods will be as specified on the order accepted by PowerRail, and is on an as-delivered basis. Payment in full must be received by PowerRail without setoff not later than thirty (30) days from the date of invoice, unless specified otherwise on the order accepted by PowerRail. Buyer will reimburse PowerRail for all costs and expenses, including reasonable attorneys’ fees, incurred in the collection of amounts past due. In the event of Buyer’s bankruptcy or insolvency, or any proceeding brought by or against Buyer under bankruptcy or insolvency laws, PowerRail may cancel any order (or portion of any order) then outstanding and Buyer will reimburse PowerRail for its cancellation charges. In addition to all other remedies available under these Terms or at law (which PowerRail does not waive by the exercise of any rights hereunder), PowerRail shall also be entitled to suspend the delivery of any order (or portion of any order) then outstanding if the payment by Buyer of any invoices becomes more than ten (10) days past due, or the credit limit extended by PowerRail to Buyer is exceeded.
4. Prepaid Orders for Export. Payment for orders placed with PowerRail by a Buyer not based in the United States and paid for in advance cannot be cancelled under any circumstances.
5. Taxes, Re-Export. Any federal, state or other governmental tax, fee or charge on or with respect to the sale, purchase, delivery or use of the goods purchased or sold hereunder will be paid by Buyer in addition to the purchase price. In the event PowerRail is required to pay any such tax, fee, or charge, Buyer will promptly reimburse PowerRail. Certain goods are subject to international export control regulations. Buyer will be responsible for compliance with such regulations in connection with the export of goods to end users.
6. Remedies. In no event shall PowerRail or its affiliates be liable for any amount exceeding the aggregate purchase price specified. In no event shall PowerRail or any of its affiliates be liable, whether in contract, tort, negligence, strict liability or otherwise, for any indirect, incidental, consequential or punitive damages (including, without limitation, lost profits or business interruption events) arising out of or pertaining to the subject matter of this order.
7. Delivery, Shipment, and Risk of Loss. All scheduled or quoted delivery dates are approximate and PowerRail will not be liable for failure to deliver goods by any scheduled delivery date. Goods will be packaged in accordance with PowerRail’s standard procedures, except as otherwise provided on the order accepted by PowerRail. The method of shipment will be at Buyer’s election, as specified by Buyer on the order accepted by PowerRail, and any additional expense of the method or route of shipment requested by Buyer will be borne by Buyer. All goods furnished hereunder will be shipped F.O.B. point of shipment (the "Delivery Point"), and possession and risk of loss in such goods will pass to Buyer upon PowerRail’s delivery to the carrier at the Delivery Point. When the risk of loss has passed to Buyer, Buyer must obtain any remedy it seeks for freight losses, shortages or damages from the carrier, and/or applicable insurers, and PowerRail is not responsible for any such freight losses, shortages or damages. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the goods at the Delivery Point. If, for any reason other than Buyer’s exercise of its inspection rights in accordance with these Terms, Buyer fails to accept delivery of any of the goods within ten (10) days after the date that the goods have been delivered at the Delivery Point, or if PowerRail is unable to deliver the goods at the Delivery Point within ten (10) days after Buyer’s order is placed because Buyer has not provided appropriate instructions, documents, licenses or authorizations, then PowerRail may cancel the orders for such goods (or any portion of the orders) and impose reasonable cancellation and restocking charges, and for those orders that PowerRail does not cancel: (a) risk of loss to the goods shall pass to Buyer, (b) the goods shall be deemed to have been delivered, and (c) PowerRail, at its option, may store the goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
8. Inspection, and Acceptance. Buyer must inspect goods delivered or warranty repairs performed within fifteen (15) days from the date of receipt of the goods or completion of the warranty repairs, as the case may be, and within such period of time must send PowerRail a written notice fully specifying any respects in which said goods or repairs are nonconforming. Failure to send said written notice will constitute a waiver of Buyer’s claims for all nonconformities that an inspection, whether or not in fact carried out, should have discovered. Buyer is deemed to have accepted goods delivered hereunder on the Terms set forth herein unless within fifteen (15) days of the date of receipt of said goods Buyer sends PowerRail a written notice of rejection which provides detailed grounds for rejection. No order may be canceled or altered by Buyer except on terms and conditions acceptable to PowerRail, as evidenced by PowerRail’s written consent, and PowerRail may impose reasonable cancellation and restocking charges. Buyer may not reject goods merely on the basis of planned installment shipments. If Buyer timely notifies PowerRail of any nonconforming goods or repairs, PowerRail may, in its sole discretion, (a) replace such nonconforming goods or cure such nonconforming repairs with conforming goods or repairs, or (b) credit or refund the price for such nonconforming goods or the cost for such nonperforming repairs, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer acknowledges and agrees that the remedies set forth in this section are Buyer’s exclusive remedies for the delivery of nonconforming goods or repairs.
9. Warranties, and Limitations. PowerRail warrants that (a) with regards to hardware components, the goods sold hereunder will be free from defects in materials and workmanship under normal installation, use, and service, for a period of eighteen (18) months from the date of shipment, or twelve (12) months from the date the parts are placed into service, whichever occurs first, and (b) with regards to Software components, the Software is configured to function substantially in conformance with the written specifications and instructions provided by PowerRail to Buyer (if any) for a period of ninety (90) days from the date of delivery to Buyer; provided, that this warranty is void if the goods are damaged as a result of: (i) misuse, abuse, neglect, accident, improper handling or use, or improper electrical voltages or currents; (ii) unauthorized repair, alteration or maintenance or other repair made without the prior written consent of PowerRail; (iii) any use in violation of PowerRail’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the goods; (iv) Buyer’s use of the goods after Buyer’s claim or notice of a claim on the foregoing limited warranty; or (v) the destruction or alteration of the serial number located on or connected to the goods. If there is a valid and timely warranty claim under this Section 8, PowerRail may, in its sole discretion, (A) replace such nonconforming goods or cure such nonconforming repairs with conforming goods or repairs, or (B) credit or refund the price for such nonconforming goods or the cost for such nonperforming repairs, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer acknowledges and agrees that the remedies set forth in this section are Buyer’s exclusive remedies for the delivery of nonconforming goods or repairs.
All other express warranties are hereby excluded and disclaimed. All implied warranties regarding the product, including without limitation, implied warranties of merchantability, non-infringement, title, and fitness for a particular purpose, are hereby expressly excluded and disclaimed. No action, regardless of form, may be brought against PowerRail more than twelve (12) months after a cause of action has accrued. The limited warranty specified above will constitute the exclusive remedy with respect to any and all claims, losses or damages relating to or arising from the purchase, distribution and/or use of the goods. In no event will PowerRail or any other entity affiliated therewith be liable for (a) any special, incidental or consequential damages of any kind arising out of the purchase, distribution and/or use of the goods, or (b) damages or losses, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, that exceed the total of the amounts paid to PowerRail by buyer for the goods sold hereunder.
10. Custom and Usage. No course of performance or any course of dealing or usage of trade will vary the express Terms hereof.
11. Confidential and Proprietary Information. All non-public, confidential or proprietary information of PowerRail, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, software (including without limitation source code, object, code, and markup language) business operations, customer lists, pricing, discounts or rebates, disclosed by PowerRail to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by PowerRail in writing. Buyer understands and agrees that all copyright, trademark, patent, trade secret and other intellectual or proprietary rights in and to the goods are owned by PowerRail or its licensors and/or suppliers; and Buyer agrees not to infringe upon any of PowerRail’s rights in or to the foregoing.
12. Force Majeure. PowerRail will not be liable for any nonperformance or delay in performance in connection with the sale of goods or services hereunder, or for any damage, loss or expense suffered by Buyer by reason thereof, when such nonperformance or delay is, directly or indirectly, caused by, or in any manner arises from, fires, floods, accidents, riots, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, materials or supplies, transportation delays, acts by third parties (including terrorism), acts by Buyer, delay or nonperformance by PowerRail’s suppliers or contractors or any other cause or causes (whether or not similar in nature to any of those listed above) beyond PowerRail’s control.
13. Non-Waiver. Waiver by PowerRail of a breach of any provision of this document will not be deemed a waiver of future compliance therewith, and such provision will remain in full force and effect.
14. Modification. These terms are intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms and conditions of their agreement which can be modified or rescinded only by a writing signed by both parties and their duly authorized agents.
15. Assignment. The order accepted by PowerRail may not be assigned by Buyer without the written consent to PowerRail, provided, that PowerRail may, without Buyer’s consent, assign such order to any entity controlled by, controlling or under common control with PowerRail, or to an entity that acquires all, or substantially all, of PowerRail’s assets.
16. No Third-Party Beneficiaries. None of the rights or obligations of the parties under these Terms are intended by the parties to benefit any third parties.
17. Governing Law. All questions relating to the legality, validity, enforceability, interpretation and performance of the order accepted by PowerRail, and this document, will be governed by the laws of the Commonwealth of Pennsylvania, U.S.A. without regard to its conflict of laws principles; and the parties irrevocably consent to the exclusive jurisdiction of any federal district or state court in the Middle District of Pennsylvania having subject matter jurisdiction in any suit, action, proceeding or other dispute arising under this document.
18. Termination. In addition to any remedies that may be provided under these Terms, PowerRail may terminate pending orders with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under these Terms, (b) has not otherwise performed or complied with any of these Terms, in whole or in part, or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
19. Compliance with Laws. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms. Buyer shall comply with all export and import laws of all countries involved in the sale of the goods under these Terms or any resale of the goods by Buyer. Buyer assumes all responsibility for shipments of goods requiring any government import clearance. PowerRail may terminate any transaction if any governmental authority imposes antidumping or countervailing duties or any other penalties on goods.
20. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms or the orders covered by these Terms.
21. Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
22. Relationship of Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
23. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the sales confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.