1. Products and Services
Railhead Corporation, an Illinois corporation (“Railhead”) hereby offers to provide the products (“Products”) and installation services (“Services”) described in any purchase order, quotation, acknowledgment or oral agreement made by Railhead and Customer. Any agreement by Railhead to provide Products or Services is expressly contingent upon Customer’s consent to the terms and conditions described herein, and Railhead rejects any other terms and conditions proposed by Customer, whether before or after this instrument. By accepting any Products or Services, Customer agrees to these terms and conditions. Any different or additional terms proposed by Customer in any acknowledgment form, purchase order or other form (whether oral or written) are hereby rejected by Railhead notwithstanding Railhead’s providing of Services or shipping of Products. Railhead shall not be deemed to have agreed to any additional or different terms and conditions proposed by Customer unless Railhead has agreed to such additional or different terms in a writing executed by Railhead’s President.
Unless otherwise expressly specified, all prices are exclusive of taxes, customs, duties, transportation and insurance. Unless otherwise expressly specified in writing by Railhead, any and all current or future tax or governmental charge applicable to the sale, delivery, shipment or storage of the Product or Service that Railhead is required to pay or collect shall be for Customer’s account and shall be added to the price, and shall not be subject to any reduction.
3. Payment Terms
Railhead shall issue invoices for Products sold and Services provided to Customer. Unless otherwise agreed in writing, Customer shall pay the amount of each invoice within 30 days from the date of such invoice. All payments shall be in U.S. Dollars. Any payment not made within 30 days from the date of the applicable invoice shall be subject to a 5% late payment fee, and any payments not made within 60 days from the date of the applicable invoice shall be subject to an 8% late payment fee. Customer shall reimburse Railhead for any and all fees and expenses, including, without limitation, attorneys’ fees and expenses and court costs, incurred by Railhead in collecting any sums due to Railhead. Customer shall not be entitled to deduct, counterclaim or set-off against any amount Customer owes to Railhead. If Customer is delinquent in the payment of any sums due and owing to Railhead, Railhead may defer further performance of Services or shipment of Products until such payments have been made.
All goods shall be shipped F.O.B. Railhead’s facility. Customer shall pay all shipping, handling and insurance charges. Risk of loss and title to any Products shall pass to Customer upon delivery of the Products to Customer’s designated shipping point (the “Shipping Point”). If the Products are delivered to the Shipping Point via truck, then Customer shall note on the bill of lading any damage and obtain driver’s signature on such bill of lading, and in all events notify Railhead in writing within 7 days of receipt of delivery to the Shipping Point. If the Products are delivered to the Shipping Point via rail, then Customer shall immediately (i) notify the rail carrier of the damage; (ii) obtain a waiver of inspection or arrange for inspection by the rail carrier; (iii) obtain pictures of each Product damaged; and (iv) notify Railhead in writing of such damage within 7 days of receipt of delivery to the Shipping Point. If Customer notifies Railhead in writing of an in transit loss of any Products within 60 days of the expected delivery date, then Railhead shall, at its option, either replace (solely upon the delivery terms otherwise applicable hereunder) the damaged Product, or refund to Customer the purchase price or portion thereof actually received by Railhead for the damaged Product. CUSTOMER ACKNOWLEDGES AND AGREES THAT A CLAIM WILL NOT BE VALID OR RECOGNIZED IF RAILHEAD IS NOT NOTIFIED IN WRITING WITHIN THE APPLICABLE TIME PERIOD SET FORTH IN THIS SECTION OR IF, IN THE EVENT OF IN TRANSIT DAMAGE, THE ACTIONS TO BE TAKEN BY CUSTOMER SET FORTH IN THIS SECTION ARE NOT TAKEN.
5. Customer Inspection
Customer must immediately inspect all Products for damage and for conformity with the quantities ordered and must inspect all Services provided for conformity to the specifications of such Services. If Customer does not provide Railhead with written notice of any damage to Products or non-conformity with quantities ordered or Services provided within 7 days of receipt of the Products or Services, Customer will be deemed to have accepted the Products and Services and any and all defects and non-conformities will be deemed waived by Customer. In the event Customer provides such notice, such notice must describe any damage or other non-conformity in reasonable detail, and Customer must afford Railhead a reasonable opportunity to inspect the Products and Services. No Products will be taken back and credited or replaced unless arrangements for return have been made with Railhead. Any action by Customer against Railhead must be commenced within one year after the cause of action occurs, and no such action may be maintained that is not commenced within such period.
6. Warranty Exclusions
Customer shall be responsible for removing any of its existing equipment. If Customer does not engage Railhead to install the Products, then the warranty for such Product shall be void. If Customer purchases or transfers any Product or any components of any Product from any party other than Railhead, then the warranty for such Product shall be void, unless Customer engages Railhead to inspect and re-certify such Product, and pays Railhead the applicable re-certification fee.
7. Customer Remedies; Disclaimer of Warranties
Customer’s exclusive remedy for breach of contract as to any Products or Services, and Railhead’s only liability for any such breach, shall be replacement or repair of such Products or Services or repayment to Customer of the purchase price paid for such Products or Services, whichever such remedy Railhead elects. If Railhead elects to repay the purchase price for any Products, Customer must return the Products to Railhead upon written demand. OTHER THAN THE FOREGOING, RAILHEAD DISCLAIMS ANY AND ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS OR SERVICES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. RAILHEAD HAS NOT BEEN PROVIDED AND HAS MADE NO ADVICE, RECOMMENDATION OR REPRESENTATION THAT ANY PRODUCTS OR SERVICES WILL BE ADEQUATE FOR CUSTOMER’S INTENDED PURPOSES.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL RAILHEAD BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL OR BUSINESS INTERRUPTION, FOR ANY MATTER ARISING OUT OF OR RELATED TO PRODUCTS OR SERVICES PROVIDED TO CUSTOMER WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF RAILHEAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES BY CUSTOMER.
9. Force Majeure
Railhead shall not be liable for any failure or delay in performing any of its obligations under this Agreement, if such failure or delay is caused by any act of God, accident, explosion, fire, casualty, flood, hurricane, tornado, drought, earthquake, tornado, storm, epidemic, electrical-power outage, internet outage, telecommunications service failure, transportation service unavailability, embargo imposed by a governmental authority, blockade, boycott, act of war, act of terrorism, riot, insurrection, invasion, sabotage, civil disturbance, labor dispute (including strikes, lockouts, work slowdowns, and similar labor unrest or strife), change in law preventing or restricting performance of such party, court order, or supplier default. If any such event occurs, Railhead shall be granted such additional time within which to perform as may be reasonably necessary under the circumstances.
Any and all matters concerning Railhead and Customer, including, without limitation, the enforcement of these terms and conditions, shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to conflicts of law principles. Any disputes between Railhead and Customer shall be resolved in the circuit courts located in county of Railhead’s then-current principal place of business. Customer may not assign its rights and duties under these terms and conditions and/or under any agreement with Railhead with respect to Products or Services without Railhead’s prior written consent. Any failure on the part of Railhead or Customer to comply with any of its obligations hereunder may be waived in writing by the other party. No waiver of any provision of these terms and conditions shall be deemed a waiver of any other provision, nor shall any waiver constitute a continuing waiver. These terms and conditions shall be binding upon and inure to the benefit of Railhead and Customer and their respective successors and assigns. These terms and conditions shall not be modified, changed, or amended except in a writing executed by Railhead’s President. These terms and conditions constitute the entire and exclusive agreement between Railhead and Customer with respect to Products and Services provided by Railhead.