Miller Felpax Terms and Conditions of Sale
Locomotive & Freight Car Components / Traction
Motor & Combo ProductsBUYER’S ORDER IS
EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED
IN THIS DOCUMENT. ANY TERM OR CONDITION STATED BY BUYER
IN ANY PRIOR PROPOSAL, ON BUYER’S ORDER FORM, OR IN
OTHERWISE ACKNOWLEDGING OR PLACING THIS ORDER IS DEEMED
BY SELLER TO BE A MATERIAL ALTERATION OF THIS DOCUMENT
AND IS HEREBY REJECTED BY SELLER, AND SUCH TERM OR
CONDITION SHALL BE INAPPLICABLE TO BUYER’S ORDER UNLESS
SPECIFICALLY AGREED TO IN WRITING SIGNED BY AN
AUTHORIZED REPRESENTATIVE OF SELLER.
- Orders, Price, and Payment Terms. All
purchase orders issued by Buyer are subject to
acceptance by Seller, and Seller reserves the right to
reject orders at its sole discretion. The price of goods will be as
specified on the order accepted by Seller, and is on an
as-delivered basis. Payment must be received by Seller
prior to shipment of goods, or as otherwise provided on
the order accepted by Seller. Buyer will reimburse
Seller 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, Seller may
cancel any order then outstanding and Buyer will
reimburse Seller for its cancellation charges.
Taxes, Exports and Re-Exports. Any federal, state or other governmental tax, fee or charge on or with respect to the sale, purchase, delivery or use of the goods and/or services sold hereunder will be paid by Buyer in addition to the purchase price. In the event Seller is required to pay any such tax, fee, or charge, Buyer will promptly reimburse Seller. The goods furnished hereunder are subject to United States export control regulations. Should Buyer elect to export the goods from the United States or re-export the goods from a second country, Buyer is responsible for complying with any applicable export licensing requirements, as well as compliance generally with filing and other regulatory requirements. Buyer represents and warrants that it understands and accepts the responsibility for obtaining any required export license and complying generally with United States export-related laws and regulations. Buyer will indemnify and hold Seller harmless against any claims asserted against, or costs or damages incurred or paid, by Seller which arise or result from Buyer’s failure or alleged failure to comply with applicable export-related laws or regulations.
Delivery, Shipment, and Risk of Loss. The delivery periods will commence when Seller has accepted a completed purchase order and/or applicable documents required to effect shipment. All scheduled or quoted delivery dates are approximate and Seller will not be liable for failure to deliver goods by the scheduled delivery date. Goods will be packaged in accordance with Seller’s standard procedures, except as otherwise provided on the order accepted by Seller. The method of shipment will be at Buyer’s election, as specified by Buyer on the order accepted by Seller, and any additional expense of the method or route of shipment requested by Buyer will be borne by Buyer. Unless otherwise agreed in writing by Buyer and Seller, all goods furnished hereunder will be shipped F.O.B. point of shipment, and possession and risk of loss in such goods will pass to Buyer upon Seller's delivery to the carrier at the point of shipment. When the risk of loss has passed to Buyer, Buyer must obtain remedy for freight losses, shortages or damages from the carrier, and/or applicable insurers, and Seller is not responsible for any such freight losses, shortages or damages.
Inspection, and Acceptance. Buyer must inspect goods delivered or warranty repairs performed within thirty (30) 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 Seller 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 forty-five (45) days of the date of receipt of said goods Buyer sends Seller 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 Seller, as evidenced by Seller’s written consent, and Seller may impose reasonable cancellation and restocking charges.
Warranties, and Limitations. Seller warrants that its products will be free from defects in material and workmanship for a period of 18 months from the date of shipment or 12 months from the date the parts are placed in service, whichever occurs first; provided, that this warranty is void if the goods are damaged as a result of misuse, abuse, neglect, accident, improper handling, improper electrical voltages or currents, unauthorized repair, alteration or maintenance, any use in violation of instructions furnished by Seller or the destruction or alteration of the serial number. The obligation of Seller under this warranty will be limited to repair or replacement (at Seller’s option), during the warranty period, of any part which proves to be defective in material or workmanship under normal installation, use and service, provided the goods are returned to Seller, shipping charges prepaid.
All other express warranties are hereby excluded and disclaimed. ALL IMPLIED WARRANTIES REGARDING THE PRODUCT, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED. NO ACTION, REGARDLESS OF FORM, MAY BE BROUGHT AGAINST SELLER 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 Seller or any other entity affiliated therewith be liable for any special, incidental or consequential damages of any kind arising out of the purchase, distribution and/or use of the goods.
Custom and Usage. No course of performance or any course of dealing or usage of trade will vary the express terms hereof.
Proprietary Information. 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 Seller or its licensors and/or suppliers; and Buyer agrees not to infringe upon any of Seller’s rights in or to the foregoing.
Force Majeure. Seller 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 Seller’s suppliers or contractors or any other cause or causes (whether or not similar in nature to any of those listed above) beyond Seller’s control.
Non-Waiver. Waiver by either Seller or Buyer of a breach by the other 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.
Modification. This document is 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 or their duly authorized agents.
Assignment. The order accepted by Seller may not be assigned by Buyer without the written consent to Seller, provided, that Seller may assign such order to any entity controlled by, controlling or under common control with Seller.
Governing Law. All questions relating to the legality, validity, enforceability, interpretation and performance of the order accepted by Seller, and this document, will be governed by the laws of the State of Minnesota, 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 State of Minnesota having subject matter jurisdiction in any suit, action, proceeding or other dispute arising under this document.
BUYER AND SELLER HEREBY SPECIFICALLY AGREE AND DECLARE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THE GOODS AND/OR SERVICES THAT ARE THE SUBJECT OF THE ORDER ACCEPTED BY SELLER.