ZTR CONTROL SYSTEMS, LLC TERMS AND CONDITIONS
GENERAL
The following terms and conditions apply to any sale of goods and services by ZTR Control Systems, LLC (“ZTR”) pursuant to a Services and Supply Agreement between ZTR and purchaser (“Purchaser,” and for purposes hereof, the Services and Supply Agreement, together with these terms and conditions, and any other terms and conditions referred to therein, the “Agreement”).
CONFIDENTIALITY
Neither party will use, disclose or otherwise make available to any other person or entity the contents of the Agreement or any other documents, data or information previously delivered or to be delivered to the other party in connection thereto (collectively, the “Confidential Information”). Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information: (a) to those employees, agents, representatives, and consultants of such party who have a need to know such Confidential Information in connection with their respective obligations under the Agreement; (b) to governmental or regulatory authorities pursuant to valid legal or regulatory requirements, in which case the disclosing party will provide written notice to the other party before producing such Confidential Information; and (c) upon the other party’s prior written consent. Each party will advise its employees, agents, representatives, and consultants having access to the other party’s Confidential Information of its obligations under the Agreement and safeguard the other party’s Confidential Information using a reasonable degree of care, but at least the same degree of care used by it in safeguarding its own confidential information. Upon the expiration or earlier termination of the Agreement, each party will return or, if requested by the other party, destroy and certify the destruction of the other party’s Confidential Information.
Each party acknowledges that if it breaches (or attempts to breach), or if its employees, agents, representatives, or consultants breach (or attempt to breach), the obligations set forth in the preceding paragraph, the other party will suffer immediate and irreparable harm, it being acknowledged that legal remedies are inadequate. Accordingly, if a court of competent jurisdiction should find that either party has breached (or attempted to breach) any such obligations, such party will not oppose the entry of an appropriate order compelling performance by such party and restraining it from any further breaches (or attempted breaches).
PRICING; TERMS OF PAYMENT
Unless otherwise provided in the Agreement: (a) prices are in U.S. dollars; (b) ZTR may increase the pricing set forth in the Agreement on an annual basis by the greater of (i) five percent (5%) or (ii) the percentage increase in the Producer Price Index (PPI) for the prior year; provided, however, that if ZTR has not increased the pricing set forth in the Agreement in one or more years, ZTR will be entitled in future years to increase the pricing up to the total percentage of the increases that were permissible in the preceding years; and (c) invoices are payable within thirty (30) days of the invoice date. ZTR reserves the right, until the price has been fully paid in cash, to charge Purchaser interest on overdue payments at the rate of one and a half percent (1.5%) per month, or such lesser amount as may be permitted by law. The charging of such interest will not be construed as obligating ZTR to grant any extension of time in the terms of payment.
TAXES
Prices do not include federal, state, provincial or municipal sales, use, value-added or similar tax. Accordingly, in addition to the price specified in the Agreement or in any other form issued by ZTR, the amount of any present or future tax (sales, use, value-added or similar) applicable to the sale of the goods and services by ZTR thereunder, or the use of such goods and services by Purchaser, are the sole responsibility of Purchaser, and ZTR will have no responsibility therefor.
TRANSPORTATION / DELIVERY
Unless otherwise provided in the Agreement, all equipment is shipped Incoterms 2020 Ex Works (EXW) ZTR’s London, Ontario, Canada facility, delivered duty unpaid. Customary methods of shipment will be selected by ZTR, and such shipment will be at Purchaser’s expense. Special methods of shipment will be used upon Purchaser’s request and expense, provided reasonable notice of such shipment requirements are given by Purchaser to ZTR in writing prior to shipment. Any required export permit(s) will be at Purchaser’s expense.
Delivery schedules are approximate and are based on prevailing market conditions applicable at the time of ZTR’s quotation and ZTR’s acceptance of Purchaser’s order. Delivery will also depend upon prompt receipt by ZTR of any necessary information. ZTR may extend delivery schedules or may, at its option, cancel Purchaser’s order in full or in part, without liability other than to return any deposit or prepayment which is unearned by reason of the cancellation.
FORCE MAJEURE
Fires, floods, strikes, acts of terrorism, war, acts of God, lockouts, epidemics, accidents, shortages of transportation, any governmental warnings that either party might reasonably rely upon which would curtail their operations, or any other causes beyond the reasonable control of the parties, which prevent a party from performing its obligations under the Agreement, will operate to suspend such obligations during the period required to remove such cause or causes.
TECHNICAL SUPPORT
ZTR maintains Technical Support representatives to receive phone calls from Purchaser (see https://www.ztr.com/contact). Technical Support for locomotive equipment applications is provided 24/7/365; otherwise, ZTR equipment and services are supported Monday through Friday between the hours of 8:00AM and 5:00 PM Eastern time. Technical Support will be in English only.
Where possible, Technical Support work will be completed remotely (via phone and Internet). In the event travel by ZTR or its representative(s) to a site is required or requested by Purchaser, a written estimate of the travel and/or support costs will be provided by ZTR to Purchaser so that a purchase order can be supplied.
Warranty-related, remote Technical Support is free of charge during ZTR’s standard support hours stated above. On-site Technical Support, as well as any non-warranty related Technical Support (remote or otherwise), is billable at ZTR’s then -standard rates. Any parts provided will be priced at ZTR’s then-published prices and will be subject to the limited warranty set forth below.
MANUALS
Manuals and other documentation will be produced in English.
LIMITED WARRANTY
ZTR warrants that all equipment sold will be free from defects in material and workmanship for a period of one year from the date of shipment; provided, however, that this warranty (a) does not apply to normal deterioration of replaceable or renewable parts and components and (b) will be voided upon any alteration, or attempted alteration, to the equipment after its installation. ZTR further warrants that all equipment sold has been inspected and tested and found to meet its published specifications when shipped from ZTR’s facility. Additionally, ZTR warrants that the services: (i) will be performed in a good and workmanlike manner, in accordance with ZTR’s standard practices and generally accepted practices in the industry, as in effect from time to time; and (ii) will conform to the terms and conditions set forth in the Agreement. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THE PRECEDING SENTENCES, ZTR MAKES NO WARRANTY (EXCEPT AS TO TITLE), EXPRESS, IMPLIED, BY DESCRIPTION, BY SAMPLE OR OTHERWISE, AND IN PARTICULAR AND WITHOUT LIMITATION, MAKES NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE. No modifications are authorized in this warranty unless in writing and signed by the President or any Vice President of ZTR.
Repair or Replacement Exclusive Remedy
If any item of equipment fails to conform with the foregoing warranties, Purchaser’s sole and exclusive remedy is to return the non-conforming equipment for repair, replacement or, at ZTR’s option, refund or credit, to ZTR’s facility, transportation charges pre-paid by Purchaser. If ZTR confirms that such equipment is non-conforming, ZTR will repair or replace the same and return the repaired equipment or replacement equipment to Purchaser, Incoterms 2020 Ex Works (EXW) ZTR’s London, Ontario, Canada facility, delivered duty unpaid, or at its option, ZTR may refund or credit the purchase price paid for the non-conforming equipment. ZTR’s obligation hereunder is subject to the other terms and provisions hereof and will terminate no later than one year from the date of shipment of the equipment. For installations by ZTR personnel only: If a defect in material or workmanship arises during the one-year warranty period, ZTR will (a) replace or repair the defective parts, (b) provide for reasonable and customary labor costs incurred while effecting repairs to defects in accordance with the policies and repair times laid down by ZTR, and (c) provide limited travel, labor and mileage, if it cannot reasonably be transported to an appropriate service location, or engage Purchaser to provide such service. Purchaser is responsible for (i) operating the equipment in accordance with the manufacturer’s instructions, (ii) accepting ZTR’s sole judgment as to whether the faulty part is defective in material or workmanship, (iii) any costs in excess of the purchase price of the equipment, (iv) other miscellaneous costs including, but not limited to, loss of use, travel, lodging, taxes, telephone calls, overtime, etc., and (v) completing payment for the purchase of equipment and parts or services relating to the equipment under warranty.
INDEMNIFICATION
Subject to the limitations of liability set forth herein, ZTR agrees to and will indemnify, defend and hold harmless Purchaser and all of its officers, employees and agents, against any and all claims, lawsuits and losses to the extent arising from the failure of ZTR to perform its obligations under the Agreement or from the negligence of ZTR and its officers, employees and agents. Subject to the limitations of liability set forth herein, Purchaser agrees to and will indemnify, defend and hold harmless ZTR and its service providers, and all of their respective officers, employees and agents, against any and all claims, lawsuits and losses to the extent arising from the failure of Purchaser to perform its obligations under the Agreement or from the negligence of Purchaser and its officers, employees and agents.
LIMITATION OF LIABILITY
PURCHASER ACKNOWLEDGES THAT THE LIABILITY OF ZTR ARISING OUT OF OR CONNECTED IN ANY WAY WITH THE AGREEMENT, THE EQUIPMENT SOLD OR SERVICES PROVIDED UNDER THE AGREEMENT, THE NON-DELIVERY OF SAID EQUIPMENT OR SERVICES, OR IN ANY OTHER FASHION IN CONNECTION WITH THE EQUIPMENT, SERVICES OR THEIR SALE IS LIMITED AS FOLLOWS: (A) UNDER NO CIRCUMSTANCES WILL ZTR BE LIABLE FOR THE ACTIONS OR INACTIONS OF PURCHASER, ANY SERVICE PROVIDER, OR ANY END CONSUMER; (B) UNDER NO CIRCUMSTANCES WILL ZTR BE LIABLE TO PURCHASER OR ANY OTHER PARTY FOR INJURIES OR DEATH TO PERSONS OR PROPERTY ARISING OUT OF OR RELATING TO THE EQUIPMENT AND SERVICES, OR THE INSTALLATION, REPAIR OR MAINTENANCE OF EQUIPMENT; (C) IN ALL CIRCUMSTANCES THE MAXIMUM LIABILITY OF ZTR TO PURCHASER UNDER ANY THEORY (INCLUDING TORT, BREACH OF CONTRACT OR PRODUCT LIABILITY) IS LIMITED TO, AS APPLICABLE, (I) THE AMOUNT PAID BY PURCHASER FOR THE EQUIPMENT IN CONNECTION WITH WHICH THE LIABILITY ARISES, (II) AN AMOUNT EQUAL TO PURCHASER’S MONTHLY SERVICES FEE IN CONNECTION WITH WHICH THE LIABILITY ARISES, OR (III) AN AMOUNT EQUAL TO PURCHASER’S FEES FOR A SPECIFIC CONNECTED ASSET RELATING TO THE PERIOD OF SERVICE DURING WHICH SUCH LIABILITY ARISES; AND (D) UNDER NO CIRCUMSTANCES CAN PURCHASER RECOVER ATTORNEYS’ FEES OR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, SUCH AS, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS FROM BUSINESS INTERRUPTION, OR LOSS OF INFORMATION. ALL LIMITATIONS OF LIABILITY AND INDEMNITIES WILL SURVIVE THE TERMINATION OF THE AGREEMENT.
RETURNED GOODS
Except as otherwise provided above under Repair or Replacement Exclusive Remedy, no goods may be returned to ZTR without ZTR’s prior written permission. ZTR reserves the right to decline all returns or to accept them for credit, subject to a handling/restocking charge. If ZTR authorizes the return of goods for credit, ZTR reserves the right to subsequently adjust the amount of any credit given to Purchaser on return of the goods based on the condition of the goods on arrival in ZTR’s facility. Credit for returned goods will be issued to Purchaser only where such goods are returned by Purchaser and not by any subsequent owner of the goods.
CHANGES, TERMINATION AND CANCELLATION
ZTR reserves the right to make changes, including, but not limited to, discontinuing certain equipment or services, or issuing updates without notice, if such changes can be completed without substantially modifying any agreed-upon technical specifications. Either party may terminate the Agreement effective immediately upon written notice to the other party if a petition in bankruptcy or petition alleging insolvency or inability to pay debts when due in the ordinary course of business is filed against the other party and not dismissed within 30 days, a receiver is appointed for the assets of the other party and not dismissed within 30 days, or the other party makes an assignment for the benefit of creditors, becomes insolvent, or is unable to pay its debts when due in the ordinary course of business.
Equipment. Purchase orders accepted by ZTR are not subject to changes or cancellation by Purchaser, except with ZTR’s written consent or as otherwise provided in the immediately preceding paragraph. Any requested changes in specifications of the equipment ordered, after submitted drawings have been approved, production release has been issued or due to Purchaser’s request, will result in engineering charges, in addition to the cost(s) of the change. Any change order may cause a reschedule of the purchase order. If ZTR authorizes changes or cancellation, ZTR reserves the right to charge Purchaser for costs and expenses already incurred and commitments made by ZTR, including, but not limited to, any labor performed, material purchased, equipment shipped, travel expenses, and ZTR’s usual overhead and reasonable profit and cancellation charges from its suppliers, as well as a handling/restocking charge.
Services. Except as otherwise provided above, termination of services requires written notice by either party at least 90 days prior to the end of the term of any then-existing purchase order. Purchaser’s early termination of services will result in a charge by ZTR to Purchaser of the full amount of service fees and any hardware and financing fees (if applicable) that are remaining in the purchase order and may include any associated administrative fees. If notice of termination is not received within the foregoing notice period, the purchase order will automatically renew for an additional one-year periods. Price changes for subscription-based services and any underlying devices may apply upon automatic renewal of a purchase order, with at least 90 days’ prior written notice from ZTR.
COMPLIANCE WITH LAWS
Each of ZTR and Purchaser agrees to comply with applicable federal, state, provincial and municipal laws, rules and regulations applicable to the services set forth in the Agreement in effect at the time of performance of thereof. Upon completion of the services, Purchaser will be responsible for complying with any changes in federal, state, provincial and municipal laws, rules and regulations.
INTELLECTUAL PROPERTY
Purchaser acknowledges that all intellectual property in the equipment and services that are the subject of the Agreement, other than any intellectual property provided by Purchaser or a third party, is the property of ZTR, and all ZTR designs, templates, manuals, formats, pricing, documentation, manuals, software listings, source code or object code relating to the equipment and services that are the subject of the Agreement may constitute trade secret, proprietary and/or confidential information of ZTR. Notwithstanding the foregoing, ZTR grants to Purchaser and its authorized users a non-exclusive, non-transferable, non-sublicensable, revocable license to use and access the equipment and services that are the subject of the Agreement, pursuant to the terms of the Agreement and any applicable end user license agreement(s). Purchaser’s exposure to the equipment and services that are the subject of the Agreement may result in Purchaser developing or suggesting improvements or changes related to such equipment and services (collectively, “Feedback”). Feedback provided by Purchaser or any of its authorized users with respect to the equipment and services that are the subject of the Agreement will be the property of ZTR.
ASSIGNMENT
ZTR is entitled to assign and transfer, in whole or in part, its rights and obligations under the Agreement. Purchaser may not assign or transfer its rights or obligations under the Agreement without ZTR’s prior written consent.
GOVERNING LAW
The Agreement will be governed by and construed in accordance with the laws of the State of Minnesota, United States of America, without regard to its principles of conflicts of law.
ARBITRATION
Any controversy or dispute of any nature whatsoever between the parties regarding or relating to the Agreement will be settled exclusively by arbitration, except as otherwise provided herein. The arbitration will comply with and be governed by the provisions of the (United States) Federal Arbitration Act and will be conducted by a single arbitrator in Minneapolis, Minnesota, United States of America, in accordance with the rules of the American Arbitration Association (“AAA”) and conducted by individuals who are approved by the AAA, unless the parties agree otherwise. The decision of the arbitrator will be final and conclusive. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The cost of the arbitration will be borne by the non-prevailing party or in such proportions as the arbitrator determines. Each party will be responsible for its own attorneys’ fees and expenses. All questions as to the meaning of this section or as to the arbitrability of any dispute hereunder will be resolved by the arbitrator, and the arbitrator’s decision thereon will be binding and not subject to judicial review. Every aspect of this arbitration clause is intended to be severable. If any term or provision of this section, in general or with respect to a specific situation, is illegal or invalid for any reason whatsoever, such illegality or invalidity will not affect the validity of the remainder hereof.
Notwithstanding the immediately preceding paragraph, each of the parties acknowledges and agrees that the other party may seek from a state or federal court in Minneapolis, Minnesota, United States of America, injunctive relief, including, but not limited to, temporary or permanent injunctions, restraining orders or a decree of specific performance that may be necessary to protect its rights or property, together with reasonable attorneys’ fees and other costs incurred in obtaining injunctive relief.
ELECTRONIC SIGNATURES
The Agreement may be separately signed by ZTR and Purchaser in counterparts, each of which, when signed and delivered, will be deemed to be an original, and all of which will constitute the same agreement. Each party agrees that the Electronic Signatures (whether digital or encrypted) included in the Agreement are intended to authenticate the writing and have the same effect as manual signatures. “Electronic Signature” means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a person with the intent to sign the record, including email electronic records, in accordance with the Uniform Electronic Transactions Act, Minnesota Statutes 325L.01–325L.19, as amended from time to time. A signed copy of the Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of the Agreement.
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