The goods and services furnished by RailComm, LLC d/b/a Tracsis US (“Seller”), under any quotations, order acceptance or sales by Seller, shall be conditioned on acceptance of these standard terms and conditions (the “Standard Terms and Conditions”), by buyer (the “Buyer”), which Standard Terms and Conditions cannot be varied or waived except by express written agreement, signed by an officer or authorized person of the Seller.


If an export clearance or license is required for any part of the goods or services to be furnished by the Seller, this Agreement between Seller and Buyer will not enter into force and effect with respect to such goods or services until all such export clearances and/or licenses have been granted. If an export clearance and/or license is granted, and the export clearance and/or license are revoked or expire before completion or performance under this Agreement between Seller and Buyer, the Seller shall not be held accountable for failure to perform the remainder of the Agreement for any unfulfilled performance, and the Buyer shall be responsible for payment to Seller for all goods and services previously provided to Buyer. If Buyer intends to export (or re-export), directly or indirectly, the products, services or technical information relating thereto supplied hereunder or ant portion thereof, it is the responsibility of the Buyer to assure compliance with U.S. export control regulations, rules and laws and any foreign country’s import regulations, rules and laws, and, if appropriate, to secure any required export or import 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. Buyer and or end user shall adhere to all applicable import and export laws and regulations in the buyer/end user's country and the United States, without limitation. This Agreement may involve items and information that are subject to the International Traffic in Arms Regulations (ITAR) of the Department of State, Export Administration Regulations (EAR) of the U.S. Department of Commerce, Bureau of Industry and Security, or various Sanctions Programs from the Office of Foreign Assets Control (OFAC) and/or other various Government Agencies.


The term (the “Term”) of this Agreement shall start as of the date of execution (the “Start Date”) and shall end on the earlier of the end date agreed to by Seller and Buyer or the date terminated pursuant to Section 11 by Seller or Buyer (the “End Date”). Upon Buyer’s acceptance in signed writing of a written, signed quotation from Seller, within the time period stated in the quotation, a contract subject to these Standard Terms and Conditions and this Agreement shall be formed and be fully enforceable. Purchase orders offered by Buyer shall be in writing, signed by Buyer, and shall be accepted by Seller in writing, signed by Seller, and once Seller accepts such purchase order in a signed writing, such purchase order shall be subject to these same Standard Terms and Conditions and this Agreement and shall be fully enforceable. Any change to a quotation or purchase order after formal agreement, shall not be enforceable unless in writing, signed by both Seller and Buyer.


All prices are in United States Dollars. Prices shall be specified in a written quotation and/or a purchase order signed by both Seller and Buyer, and such prices shall be the final agreed upon prices between Seller and Buyer with respect that that specific written quotation and/or purchase order. Following the execution of a quotation or purchase order by Seller and Buyer, the prices in such quotation or purchase order shall not be changed except by written agreement signed by both Seller and Buyer. Seller has the right to increase prices at any time in its sole discretion; provided, however, that prices already agreed to in writing signed by Seller and Buyer cannot be changed unless in writing signed by both Seller and Buyer. Prices include delivery FCA (INCOTERMS 2020) 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, which taxes and fees Buyer is responsible for, and Buyer shall indemnify and hold harmless 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 to Seller. Seller shall have no liability to Buyer whatsoever for failure to deliver goods or services on or by a specific date. 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. In no event shall Seller be required to purchase any goods in the marketplace to meet its obligations under this Agreement. Buyer shall have thirty (30) days from date of shipment to inspect and either accept or reject any goods. If goods are rejected, written notice of rejection and the specific reasons therefore must be sent to Seller within such thirty (30) day period after receipt, and Seller, in its sole and reasonable discretion, will determine whether goods are in compliance with this Agreement. Failure to reject goods or to notify Seller of errors, shortages, or other non-compliance with this Agreement within such thirty (30) day period shall constitute irrevocable acceptance of goods and admission that they fully comply with this Agreement.


Risk of loss shall pass from Seller to Buyer on delivery to the first carrier. All shipping, loading and storage costs subsequent to such delivery to the first carrier shall be Buyer’s responsibility.


Title to goods shall pass from Seller to Buyer upon initial delivery of the goods FCA (INCOTERMS 2020) Tracsis US 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 thirty (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 thirty (30) days from date of Seller’s invoice.


Seller warrants that all new and unused hardware furnished pursuant to this Agreement will be free from defective material and workmanship for a period of one year measured from the date all new and unused hardware are shipped from the Seller’s facility. Seller warrants that all software furnished pursuant to this Agreement will be free from defects for a period of ninety (90) measured from the date that such software is provided to Buyer. All warranties are contingent upon (a) Buyer’s normal and proper usage in applications for which the hardware or software were intended, (b) installation, use and maintenance of the hardware or software according to the Seller’s instructions, and (c) the hardware or software still being in the possession of the original Buyer with no changes having being made in the design or function of the hardware or software without prior written authorization by Seller, which written authorization Seller can withhold for any reason whatsoever. 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 no warranty with respect to hardware or 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 hardware and software are estimates only and are not warranted by the Seller. In order to permit Seller to properly administer this warranty, Buyer shall notify Seller promptly of any warranty claims, and provide Seller with an opportunity to inspect and test the hardware or software to determine, in Seller’s sole and reasonable opinion, if the hardware or software are defective.


Except in the case of Seller’s gross negligence or willful misconduct, in the case of any claim based on Seller’s breach of warranty, breach of any other duty, or breach of any of the terms and conditions of this Agreement, 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, refund of money, repair or, replacement, FCA 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, PUNITIVE, EXEMPLARY 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, whether based in contract, tort or any other legal theory. In the case of Seller’s gross negligence or willful misconduct, Seller’s liability shall not exceed two (2) times the fees paid to Seller in the prior twelve (12) months. In the event that Buyer terminates this Agreement without Seller’s written consent, or breaches this Agreement in any manner, Buyer shall pay Seller’s damages resulting from such termination or breach including, but not limited to, lost profits, direct and indirect damages, costs incurred, and attorneys’ fees. If Buyer is in default under this Agreement or any other agreement with Seller, or if Seller at any time shall not be satisfied with the financial responsibility of Buyer, Seller shall have the right, without prejudice to any other legal remedy, to suspend deliveries hereunder until such default or condition is remedied. Seller’s waiver of any breach of this Agreement or failure to enforce any of Buyer’s agreement under this Agreement at any time, shall not limit or waiver Seller’s rights pursuant to this Agreement to enforce strict compliance with all the terms and conditions of this Agreement.


Seller shall not assume liability for any governmental or local safety and health standards that apply to Buyer’s use of goods purchased hereunder, and Buyer shall be fully liable for any such standards in connection with the goods purchased hereunder; provided, however, Seller shall take due care 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 Agreement cannot be terminated by Buyer except in connection with a material breach by Seller, which material breach by Seller is not cured within sixty (60) days of Seller receiving written notice of such breach from Buyer. Seller may terminate this Agreement if Buyer fails to make payments in accordance with this Agreement, provided that Seller will provide Buyer notice of such failure and Buyer will have thirty (30) days from receipt of such notice to make all payments necessary to be in compliance with the terms of this Agreement. If Seller terminates this Agreement pursuant to this Section 11, Buyer shall be responsible for all past due payments, and shall be responsible to pay for all goods where the design and manufacture of goods ordered hereunder are 75% completed at the time of termination or are scheduled to be completed within 30 days of the termination. Further, if Seller terminates this Agreement pursuant to this Section 11, Seller shall be fully compensated for all costs for work completed and for commitments that have been made to suppliers, contractors or any other third parties.


Because of Seller’s policy of constant product improvement, Seller may make, in its sole discretion, changes from time to time in equipment and software of the type included pursuant to this Agreement, and Buyer agrees to accept any such changed equipment and software. Seller is not obliged to make similar changes to products and software which have already been delivered to Buyer or for which Seller has received orders from Buyer prior to the date such changes are made effective.


Seller shall not be liable for failure to perform under this Agreement 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, whether similar or dissimilar to the foregoing (collectively, “Force Majeure”). Buyer shall not be entitled to collect damages for any delay in delivery, maintenance or services resulting from Force Majeure. Buyer shall not by reason of any such Force Majeure have any right to cancel this Agreement. In the event Seller is required to terminate this Agreement because of Force Majeure, any advance payments made by Buyer to Seller for goods or services that Seller is no longer able to provide shall be reimbursed to Buyer by Seller.


Buyer and Seller will make good faith efforts to settle any disagreements through amiable negotiations. If an agreement cannot be reached through Buyer and Seller negotiations, then Buyer and Seller agree to submit to mediation with an appropriate mediator in the relevant jurisdiction and make good faith efforts to settle any disagreements through mediation. Disagreements that cannot be settled through negotiation or mediation shall be resolved through application of the law of the State of New York, as set forth in Section 18 below.


All Seller’s software must comply with Seller’s US Software Policy and Requirements.


Seller’s patents, ideas, inventions, designs, software, hardware, trade secrets, trade names, copyrights, logos, service marks or trademarks or other intellectual property, whether developed prior to, during or after the Term of this Agreement (collectively, “Seller’s Intellectual Property”), shall remain the exclusive property of Seller. No rights in Seller’s Intellectual Property are granted by Seller to Buyer under this Agreement. Buyer acknowledges and agrees that it shall not use Seller’s Intellectual Property in any manner whatsoever, including, without limitation, in any press release, advertising, or for promotional purposes, without the prior written consent of Seller, which consent Seller can withhold for any reason whatsoever.


Buyer agrees to indemnify Seller and save Seller harmless from and against any claims, demands, actions, suits, damages, losses, settlements, judgments, liabilities, costs, expenses, including attorneys’ fees, actually or allegedly, directly or indirectly, arising out of or in connection with any: (1) Buyer acts or omissions; (2) Buyer breach of this Agreement; or (3) third party claim which arise out of, relate to or result from any act or omission of Buyer or Buyer breach of this Agreement.


This Agreement shall be governed by the laws of the State of New York, without reference to conflict of laws principles.


If any provision of this Agreement is deemed unenforceable by a court of competent jurisdiction, the other provisions shall remain in full force and effect as if the unenforceable provision had not been included.


Buyer may not assign, transfer, or delegate its or obligations under this Agreement without the prior written consent of Seller, which consent Seller may withhold for any reason whatsoever, and any purported assignment without such consent shall be null and void.


Headings used in this Agreement are for reference purposes only and shall not be deemed a part of the Agreement.

Last updated: 17/07/2024