Notice: Any acceptance of Supplier’s offer is expressly limited to acceptance of these Terms and Conditions and Supplier expressly objects to any additional or different terms proposed by Customer. No other pre-printed terms and conditions on any form shall modify these Terms and Conditions even if signed by Supplier. Any order to perform work and/or Supplier’s performance of the work shall constitute Customer’s acceptance and agreement to these Terms and Conditions.
1. Definitions. Unless otherwise agreed upon in a writing signed by an authorized representative of Supplier: “Confidential Information” means (i) information that is designated in writing as “confidential” or “proprietary” or equivalent term by the party disclosing such information at the time of written disclosure, and (ii) information that is orally designated as “confidential” or “proprietary” by the party disclosing such information at the time of oral or visual disclosure and is confirmed to be “confidential” or “proprietary” in writing within twenty (20) days after the oral or visual disclosure; “Contract” means either: (i) the contract agreement signed by both parties for the sale of Products and/or Services and/or for the license of Software; or (ii) the purchase order signed by Customer and accepted by Supplier in writing, for the sale of Products and/or Services and/or for the license of Software, together with these Terms and Conditions, Supplier’s final quotation, Supplier’s proposal, the agreed scope(s) of work, and Supplier’s order acknowledgement; “Contract Price” means the agreed prices, rates and fees stated in the Contract for the sale of Products and/or Services and/or for the license of Software, including adjustments (if any) in accordance with the Contract; “Customer” means the entity to which Supplier is providing Products, Software, and/or Services under the Contract; “Data” means all information and data of any type, form or nature (including, but not limited to, data received or processed by the Software, compilations of data, and output such as reports and images created by any Software and/or Product) that may be furnished or made available to Customer, directly or indirectly; “Data Subject” means an identified or identifiable natural person or to any legal entity if such legal entity is subject to data protection legislation in their country of incorporation; “Effective Date” means the effective date of the Contract, as stated in the Contract, or where no date is stated in the Contract, the earlier of the date the Contract is fully executed by all parties, or the date of Supplier’s acceptance of Customer’s purchase order subject to these Terms and Conditions, as applicable; “Hazardous Materials” means any toxic or hazardous substance, hazardous material, dangerous or hazardous waste, dangerous good, radioactive material, petroleum or petroleum-derived products or by- products, or any other chemical, substance, material or emission, that is regulated, listed or controlled pursuant to any national, state, provincial, or local law, statute, ordinance, directive, regulation or other legal requirement of the United States (“U.S.”) or the country of the Site; “Internal Business Purposes” means the internal business operations of Customer; provided however “Internal Business Purposes” exclude any 1) expansion in or to operations occurring due to a business merger or acquisition, 2) fleet addition or rail network expansion, 3) management or servicing of a third party’s fleet, equipment or assets, or 4) infrastructure acquisition or development after the Effective Date; “Personal Data” is any information relating to a Data Subject; “Products” means the equipment, Spare Parts, materials, supplies, and other goods Supplier has agreed to supply to Customer under the Contract, but excluding Software; “Section” means a Section of these Terms and Conditions except where the context requires otherwise; “Services” means service activities Supplier has agreed to perform for Customer under the Contract; “Site” means the premises where Products are delivered or Services are performed, not including Supplier’s premises or premises of Supplier’s subcontractors from which it performs remote Services; “Software” means a computer program, and the Data handled by such computer program, that is fixed in any tangible medium of expression or any storage medium and shall include Supplier’s proprietary software, such as that software provided for operation of the Products; “Spare Parts” means all spare parts Supplier has agreed to supply to Customer under the Contract; “Supplier” means the entity providing Products, Software and/or Services under the Contract; “Terms and Conditions” means these “Standard Terms and Conditions of Supply”, comprising Sections 1 to 20.
2. Pricing. Unless otherwise specified by Supplier in writing, prices do not include domestic or international shipping charges beyond the point of delivery set forth in Section 6, the cost of insurance during the time Customer bears risk of loss, or charges for demurrage, port fees, pier handling, marshaling, or heavy lifts or any other costs. Pricing shall be subject to adjustment in Supplier’s sole discretion or as otherwise set forth in the Contract.
3. Payment.
3.1. Unless otherwise agreed in a writing signed by an authorized representative of Supplier, Customer shall pay Supplier without right of set-off within fifteen (15) days following the date of each Supplier invoice. Supplier shall invoice Customer at the times stated in the Contract or, where no time is stated in the Contract, at the following times: (i) twenty-five percent (25%) of the Contract Price following the Effective Date; and (ii) the balance of the Contract Price for each Product, Software or Service following shipment of Product, provision of Software or completion of the Services, as applicable. In the event Customer makes further purchase commitments pursuant to the Contract after the Effective Date, the additional price applicable to such further purchase commitment shall be invoiced in accordance with the foregoing, except for the purpose of this Section 3.1, the “Effective Date” shall be taken to mean the date on which the further purchase commitment is effective. If Customer fails to make any payments to Supplier when due, without limiting Supplier’s rights or remedies, Customer shall pay a late payment charge computed at the rate of two percent (2%) per month on the overdue balance, or the maximum rate permitted by law, whichever is less, for each calendar month, or fraction thereof, that payment is late.
3.2. Supplier’s delivery or performance obligation shall be extended for each day payment is delayed by Customer.
3.3. Unless otherwise agreed to by Supplier in writing, Customer shall establish, at Customer’s expense in a form acceptable to Supplier, a confirmed, irrevocable, unconditional, sight letter of credit allowing for pro-rata payments to Supplier for all amounts due under the Contract. All payments by Customer, not otherwise covered by an applicable letter of credit, shall be
4. STC – Locomotive Version date: September 2023 Wabtec Proprietary and Confidential 2 3.4. In the event the Contract or any portion thereof is terminated by Supplier in accordance with Section 10, below, at any time prior to the shipment of Products, performance of Services or provision of Software, pursuant to which Supplier will be entitled to calculate and collect termination charges from Customer, Supplier shall be entitled to draw on the letter of credit established by Customer hereunder for such termination charges as calculated by Supplier, upon presentment of the following documents: (i) Supplier’s invoice showing the amount of termination charges due by Customer; and (ii) one (1) copy of the termination notice. The letter of credit established by Customer hereunder shall contain language necessary to acknowledge and permit a draw by Supplier in accordance with this Section 3.4. 4. Taxes and Duties. Supplier shall be responsible for all corporate and individual taxes measured by net income due to performance of or payment for work under this Contract (“Supplier Taxes”). Customer shall be responsible for all taxes, duties, fees, or other charges of any nature (including, but not limited to, consumption, gross receipts, import, property, sales, stamp, turnover, use, or value-added taxes, and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto, imposed by any governmental authority on Customer or Supplier or its subcontractors) in relation to the Contract or the performance of or payment for work under the Contract other than Supplier Taxes (“Customer Taxes”). The Contract Price does not include the amount of any Customer Taxes. If Customer deducts or withholds Customer Taxes, Customer shall pay additional amounts so that Supplier receives the full Contract Price without reduction for Customer Taxes. Customer shall provide to Supplier, within one month of payment, official receipts from the applicable governmental authority for deducted or withheld taxes. 5. Compliance with Laws 5.1. (i) Subject to Sections 5.1(ii) and 5.3, Supplier, to the extent not penalized by or inconsistent with U.S. laws, shall comply with laws applicable to the manufacture of Products and its performance of Services. (ii) Customer shall comply with laws, regulations and government requirements applicable to the import, export, re-export, transfer, installation, application, operation, use and disposal of the Products, Software and Services. Supplier hereby advises Customer that Supplier cannot participate in transactions or dealings involving any blocked, denied, or restricted party or any country subject to comprehensive U.S. sanctions or other sanctions regimes applicable to Supplier during its performance, or with any entity known to be organized in, owned or controlled by, or acting on behalf of, directly or indirectly, a national or government of, any country or region subject to comprehensive U.S. sanctions or other sanctions regime applicable to Supplier during its performance. 5.2. Supplier’s obligations are conditioned upon Customer’s compliance with all U.S. and other applicable trade control laws and regulations, including applicable customs, export and re-export control, economic sanctions and antiboycott laws. Customer shall not, directly or indirectly, sell, provide, export, re-export, transfer, release, disclose, divert, loan, lease, consign, or otherwise dispose of any Products, Services or Software, or any other Supplier product, equipment, material, services, software, or technology to or via any prohibited person, entity, or destination, or for any activity or end-use restricted by any applicable laws or regulations, including those applicable to nuclear, missile, chemical, or biological weapons proliferation, restricted projects or entities in Russia, military, or money laundering or terrorism financing activities, without first obtaining Supplier consent and all required government authorizations, as applicable. This clause will apply regardless of the legality of such a transaction under local law. 5.3. Notwithstanding any other provision, Customer shall timely obtain, effectuate and maintain in force any required permit, license, exemption, filing, registration and other authorization, including, but not limited to, building and environmental permits, import and/or export licenses, environmental impact assessments, and foreign exchange authorizations, required for the lawful performance of Services at the Site or fulfillment of Customer’s obligations (including those necessary to implement or use the Products or Software provided by Supplier), except that Supplier shall obtain any license or registration necessary for Supplier to generally conduct business and visas or work permits, if any, necessary for Supplier’s personnel. Customer shall provide reasonable assistance to Supplier in obtaining such visas and work permits. Supplier shall not be liable if any government authorization is delayed, denied, revoked, restricted or not renewed despite reasonable efforts by Supplier. Additionally, such delay, denial, revocation or non-renewal shall not constitute a breach of this Agreement. 5.4. If Customer is an agency or instrumentality of, or is owned by, the government of any country, Customer hereby unconditionally and irrevocably represents, warrants and covenants to Supplier that: (a) the execution, delivery and performance by Customer of the Contract constitutes private and commercial acts, rather than public or governmental or sovereign acts; (b) Customer is generally subject to civil and commercial law and to legal proceedings, and Customer hereby waives any right of immunity (governmental, sovereign or otherwise) which Customer or any of its assets may currently have or may have in the future. 6. Delivery, Title Transfer & Risk of Loss 6.1. Unless otherwise specified by Supplier in writing, Supplier shall deliver Products to Customer FCA Supplier’s facility, place of manufacture or warehouse (Incoterms 2020). Title and risk of loss to such Products shall pass to Customer upon such FCA delivery. 6.2. For shipments that involve export from the customs jurisdiction of shipping point of origin, Supplier will file any required export declarations. When Customer arranges the export or intercommunity shipment, Customer will provide Supplier evidence of exportation or intercommunity shipment acceptable to the relevant tax and custom authorities. 6.3. Partial deliveries are permitted. Supplier may deliver Products in advance of the delivery schedule. Delivery times are approximate and are dependent upon: (i) prompt receipt by Supplier of all information necessary to proceed with the work without interruption; and (ii) timely discharge of Customer’s responsibilities under the Contract. If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Customer shall so notify Supplier within ten (10) days after receipt. Notwithstanding anything in this Section 6, title to any leased equipment remains with Supplier. 6.4. Software is licensed and not sold. Title to Software does not pass from Supplier to Customer. If Customer uses the Software outside of the license scope Supplier may terminate the license in its sole discretion effective as of the date of Customer misuse.
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7. Excusable Delay. Supplier shall not be liable or considered in breach of its obligations under this Contract to the extent that Supplier’s performance is delayed or prevented, directly or indirectly, by any cause beyond its reasonable control including, but not limited to, acts of God, fire, terrorism or terroristic threats, cyber-attacks, war (declared or undeclared), epidemics, pandemics, nationally or locally required or suggested shutdowns or sanctions, material shortages, insurrection, acts or omissions of Customer or its affiliates (or their agents, or other contractors or suppliers), any act or omission by any governmental authority, strikes, labor disputes, transportation shortages, vendor declared obsolescence, inability to obtain raw materials on commercially reasonable terms, or vendor non-performance or delay caused by any of the foregoing. If an excusable event occurs, the schedule for Supplier’s performance shall be extended by the amount of time lost by reason of the event plus such additional time as may be needed to overcome the event and resume performance. If acts or omissions of the Customer or its affiliates (or their agents, or other contractors or suppliers) cause the delay, Supplier shall also be entitled to an equitable price adjustment.
9. Warranty
8.1. Supplier warrants that Products shall be delivered free from defects in material, workmanship and title, that Services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications in the Contract, and that Software, whether embedded in a Product furnished hereunder or provided separately, will, at the time of delivery by Supplier, conform in all material respects to Supplier’s specifications relating to such Software as referenced in the Contract.
8.2.Unless otherwise stated in the Contract: (i) the warranty period with respect to a Product (other than Spare Parts) and Software embedded in a Product shall be twenty-seven (27) months from the date of Product shipment, or twenty-four (24) months from the date the Product has been placed in service, whichever occurs first; (ii) the warranty period for new Spare Parts purchases shall be twelve (12) months from the date of Spare Parts shipment; (iii) the warranty period for Services shall be twelve (12) months from performance of the applicable Service; (iv) the warranty period for Software provided separately shall be three (3) months from the date on which the relevant version of the Software was initially made available to Customer; (v) notwithstanding the foregoing, the warranty period for ongoing Services such as support services or Software-as-a-Service (including, without limitation, any Products, Software and other deliverables provided as part of such Services) shall be concurrent and co-terminus with the term of the Contract for such Services; and (vi) notwithstanding the foregoing, unless otherwise expressly agreed by Supplier, the warranty period for repair services performed on out-of-warranty Products shall be ninety (90) days from the completion of the repaired services (the “Warranty Period”). The warranty for the repair services performed on out-of-warranty Products shall be limited to the workmanship of the services and any new parts provided as part of the service, but do not extend to the failed Product itself.
8.3. If any Product, Software or Service does not meet the above warranties within the Warranty Period, Customer shall promptly notify Supplier in writing and, if applicable, make the Product available to Supplier, per Supplier’s specifications, for inspection. In the event Supplier determines that the Product or Software or part thereof, or Services provided, failed to meet the foregoing warranties set forth in this Section 8 (except as to title) within the Warranty Period, Supplier shall: (i) at its option, repair or replace the defective Product(s) or Software as applicable; and/or (ii) re-perform defective Services. If despite Supplier’s reasonable efforts, Supplier determines that a non-conforming Product or Software cannot be repaired or replaced or non-conforming Services cannot be reperformed, Supplier shall refund or credit monies paid by Customer for such non-conforming Products (or the non-conforming part thereof), Software and/or Services, provided, as to Products, Customer returns such non-conforming Products to Supplier undamaged. Warranty repair, replacement or re-performance by Supplier shall not extend or renew the applicable Warranty Period.
Customer shall bear the costs of access for Supplier’s remedial warranty efforts including removal and/or installation costs associated with the repair and replacement of the defective Products and transportation of the Products to Supplier and back to Customer.
8.4. The warranties and remedies are conditioned upon: (i) proper storage, installation, use, operation, and maintenance of Products and Software, as applicable; (ii) Customer keeping accurate and complete records of operation and maintenance during the Warranty Period and providing Supplier access to those records; (iii) modification of Products, Software or Services only as authorized by Supplier in writing; (iv) compliance with the restrictions applicable to Software as set out herein; and (v) Customer providing such information as is necessary for Supplier to replicate and validate any non-conformance of Software with the foregoing warranties.
Supplier’s obligations under this Section 8 shall not apply to: (a) normal wear and tear; (b) any off the shelf consumer goods that may be incorporated into the Products; (c) any Product that is normally consumed in operation; (d) any Product that has a normal life inherently shorter than the Warranty Period specified in Section 8.2; (e) any Product, Software or Service that has been subjected to any other kind of misuse or detrimental exposure, has been involved in an accident, or has been subject to an event of force majeure including, without limitation, any of the events described in Section 7, or (f) any third party Software. In the event Customer uses nonSupplier parts or software or non-Supplier approved repairs, then any damage to, failure of, or performance degradation of the Products, Software or Services indirectly or directly resulting from the use of such parts, software or repairs, shall not be warranted by Supplier. Further, if such parts, software or repairs cause personal injury, death or property damage to third parties, Customer shall indemnify and hold Supplier harmless from all claims and liabilities connected therewith.
8.5. This Section 8 provides the exclusive remedies for all claims based on failure of or defect in Products, Software or Services, regardless of when the failure or defect arises, and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The warranties provided in this Section 8 are exclusive and are in lieu of all other warranties, conditions and guarantees whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTY, OR WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES. THE PRODUCTS, SERVICES AND SOFTWARE ARE NOT SAFETY DEVICES AND MUST NOT BE RELIED ON OR USED AS SAFETY DEVICES IN REPLACEMENT OF COMPREHENSIVE AND PROPER TRAINING, OVERSIGHT AND OPERATION. SUPPLIER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT: (A) SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR WILL MEET CUSTOMER’S SPECIFIC NEEDS; (B) MONITORING SOFTWARE WILL DETECT ANY PARTICULAR FAILURE, FAULT OR CONDITION, OR PROVIDE ANY PARTICULAR DEGREE
9. STC – Locomotive Version date: September 2023 Wabtec Proprietary and Confidential 4 OF ADVANCE WARNING OF AN IMPENDING FAILURE, FAULT OR CONDITION OF THE MONITORED EQUIPMENT; OR (C) CYBERSECURITY SOFTWARE WILL PROVIDE COMPLETE OR COMPREHENSIVE PROTECTION AGAINST ALL POSSIBLE SECURITY VULNERABILITIES OR UNAUTHORIZED INTRUSIONS. ANY PRODUCTS, SERVICES OR SOFTWARE NOT EXPRESSLY INCLUDED IN SUPPLIER’S SCOPE OF RESPONSIBILITIES IN THE CONTRACT ARE EXCLUDED. 9. Limitation of Liability. 9.1. The liability of Supplier on any single claim of any kind arising from or related to the formation, performance or breach of the Contract, or any Products, Software or Services, shall not exceed One Million United States Dollars (US$1,000,000.00) or the amount of Contract Price actually paid to Supplier, whichever is less. The total liability of Supplier for all claims of any kind in connection with, arising from or related to the formation, performance or breach of the Contract, or any Products, Software or Services shall not exceed in the aggregate: (i) the total amount of the Contract Price actually paid to Supplier under the Contract, or (ii) if Customer places multiple order(s) under the Contract, then with respect to all claims arising from or related to a particular order, the amount of the Contract Price applicable to such order that has actually been paid to Supplier. 9.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY, SUPPLIER SHALL NOT BE LIABLE FOR LOSS OF PROFIT OR REVENUES, LOSS OF USE, LOSS OF EQUIPMENT, SYSTEMS OR DATA, THIRD-PARTY CYBER-ATTACK, INTERRUPTION OF BUSINESS, COST OF REPLACEMENT POWER, COST OF SUBSTITUTE SERVICES, PRODUCT OR SOFTWARE, COST OF CAPITAL, DOWNTIME COSTS, INCREASED OPERATING COSTS, ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES, OR CLAIMS OF CUSTOMER’S CUSTOMERS OR OTHER CONTRACTORS (OF ANY TIER) FOR ANY OF THE FOREGOING TYPES OF DAMAGES. SUPPLIER SHALL NOT BE LIABLE FOR ADVICE OR ASSISTANCE THAT IS NOT EXPRESSLY PART OF THE SUPPLIER’S WORK SCOPE UNDER THE CONTRACT. 9.3. Any liability of Supplier arising hereunder shall end upon expiration of the applicable Warranty Period, provided that Customer may continue to enforce a claim for which it has given prior notice by commencing an action or arbitration, as applicable under the Contract, before expiration of any statute of limitations or other legal time limitation but in no event later than one year after expiration of such Warranty Period. 9.4. If Customer is supplying Products or Services to a third party, or using Products, Software or Services at a facility owned by a third party, Customer shall either: (i) indemnify and defend Supplier from and against any and all claims by, and liability to, any such third party in excess of the limitations set forth in this Section 9; or (ii) require that the third party agree, for the benefit of and enforceable by Supplier, to be bound by all the limitations included in this Section 9. 9.5. For purposes of this Section 9, the term “Supplier” means Supplier, its affiliates, subcontractors and suppliers of any tier, and their respective employees. The limitations in this Section 9 shall apply regardless of whether a claim is based in contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise, and shall prevail over any conflicting terms, except to the extent that such terms further restrict Supplier’s liability. 10. Termination; Suspension. 10.1. Customer may terminate the Contract for cause if Supplier: (i) becomes insolvent or bankrupt; or (ii) commits a material breach of the Contract which does not otherwise have a specified contractual remedy, provided that: (a) Customer shall first provide Supplier with detailed written notice of the breach and of Customer’s intention to terminate the Contract; and (b) Supplier shall have failed, within sixty (60) days after receipt of the notice, to commence and diligently pursue cure of the breach. 10.2. If Customer terminates the Contract pursuant to Section 10.1: (i) subject to Sections 9.1 and 9.2, Supplier shall pay the actual substantiated direct damages incurred by the Customer due to the termination, provided Customer uses reasonable efforts to mitigate such damages; and (ii) Customer shall pay to Supplier: (a) the applicable Contract Price for any completed Products (provided same are delivered to Customer) and for any Software and Services provided up to the date of termination; and (b) lease fees incurred. 10.3. Supplier may suspend or terminate the Contract (or any affected portion thereof) immediately for cause if Customer: (i) becomes insolvent or bankrupt; or (ii) materially breaches the Contract, including, but not limited to, failure or delay in Customer providing payment security, making any payment when due, fulfilling any payment conditions or failing to comply with any of the restrictions applicable to Customer’s use or disclosure of Software or other Data of Supplier pursuant to the Contract. 10.4. In the event Supplier terminates the Contract as provided in Section 10.3: (i) Supplier shall be entitled to retain any down payment, advance payments, progress payments and/or milestone payments made by Customer; (ii) Customer shall pay to Supplier the applicable Contract Price for any completed or substantially completed Products (provided same are delivered to Customer) and for any Software and Services provided up to the effective date of termination, plus expenses reasonably incurred by Supplier in connection with the termination. In addition, Customer shall pay Supplier a cancellation charge equal to 80% of the unpaid Contract Price applicable to uncompleted made-to-order Products or custom Software and 15% of the balance of the Contract Price that would have become payable to Supplier under the Contract but for the termination (“Cancellation Charge”). The parties acknowledge and agree such Cancellation Charge amounts are a genuine pre-estimate of the damages Supplier will incur as a result of termination of the Contract and are not a penalty. 10.5. Subject to Section 10.1, above, Customer may not terminate, suspend or cancel the Contract (or any portion thereof) without the prior written consent of Supplier, which consent shall be at Supplier’s sole discretion. Supplier may condition its consent upon any or all of the remedies set forth in Section 10.4, above. 10.6. For purposes of this Section 10, the following shall apply when determining the amount due from Customer for Services performed before the date of termination: (i) for Services performed under time and material pricing, Customer shall pay for all hours performed at Supplier’s then-current standard time and material rates; and (ii) for Services performed under a firm fixed price, Customer shall pay: (a) the applicable price for all milestones achieved; and (b) for any milestone not yet achieved, all hours performed in connection with the unachieved milestone(s) at Supplier’s then-current
10. standard time and material rates.
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13. 10.7. Customer shall pay all reasonable expenses incurred by Supplier in connection with a suspension, including, but not limited
14. to, expenses for repossession, fee collection, demobilization/remobilization, stand-around costs of personnel who are not re-assigned
15. during the suspension (at Supplier’s then-current hourly rates), and costs of storage during suspension. The schedule for Supplier’s
16. obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension.
17. 10.8. Either Customer or Supplier may terminate the Contract (or the portion affected) upon thirty (30) days advance notice if there
18. is an excusable event (as described in Section 7, resulting in a continuous delay or non-performance under this Contract by the other Party)
19. lasting longer than one hundred and twenty (120) days. In such case, Customer shall pay to Supplier amounts payable under
20. Section 10.4, excluding the Cancellation Charge; provided, however, in the event the delay or non-performance was caused by acts or
21. omissions of the Customer or its affiliates (or their agents, or other contractors or suppliers), the Cancellation Charge shall apply.
22. Data & Software.
11.1. All Data and Software is proprietary to and shall remain the sole property of Supplier. Customer is granted a limited license for any Data and Software delivered by Supplier to Customer, whether as part of any Product or separately. This limited, nonexclusive, non-transferable, revocable, personal license allows Customer to use Data and Software for Customer’s Internal Business Purposes solely related to the purpose and intended use of the Product(s) for which the Data and Software are provided, or according to applicable Software specifications. With respect to any Software, the limited license permits Customer: (i) to use the Software only on the Products on which it is installed at the time of delivery or on which it is permitted to be installed as stated in the Contract; or (ii) if the Software is supplied separately for use in relation to specific assets or operations of Customer, to use the Software only in relation to such specific assets or operations of Customer, and only for the ordinary purpose for which Wabtec designed the Software.
Further, if the Software is supplied separately, Customer may make one copy of the Software in machine-readable form solely for backup purposes. In no event is any license or right granted in the source code for any Software.
11.2. Customer may not distribute copies of the Data or Software to others. Supplier and Customer acknowledge that the Data
and Software are provided and protected pursuant to contractual obligations, and may be further protected by copyright, trade secret, and patent laws of the United States of America (and by applicable international treaties). Customer may not decompile, reverse engineer, disassemble, or reduce any Software to a human-perceivable form. CUSTOMER MAY NOT MODIFY, ADAPT, TRANSLATE, LEASE, LOAN, RESELL, DISTRIBUTE, OR CREATE DERIVATIVE WORKS BASED UPON THE SOFTWARE, THE DATA, OR ANY PART THEREOF, INCLUDING THE LOOK AND FEEL OF ANY SOFTWARE, AND MUST NOT OTHERWISE COMMERCIALLY EXPLOIT THE SOFTWARE OR DATA OR MAKE THE SOFTWARE OR DATA AVAILABLE TO ANY THIRD PARTY. Customer shall not allow any third party to access Data, such as, but not limited to, intercepting equipment data streams, particularly during operation of equipment. Customer shall not use Data or Software, or provide Data or Software to any other person, for the design, manufacture, repair, or maintenance of any products or processes. Customer shall not use Data or Software in the creation, manufacture, development, or derivation of repair and maintenance processes, modifications, spare parts, designs or configuration changes, or to obtain any regulatory approval of any of the foregoing. Nothing herein shall prohibit Customer from forward selling a Product acquired hereunder in which applicable Software is installed. Nothing herein shall obligate the Supplier to provide any support, upgrade or revision to any Software, except as otherwise agreed in writing between Customer and Supplier.
11.3. With respect to any data or information that Supplier receives from Customer (“Customer Data”), Supplier is granted a nonexclusive, perpetual, irrevocable, worldwide limited license to use any such Customer Data for Supplier’s internal business purposes, which includes, without limitation, maintenance, development, research, upgrade or improvement of products, software and services.
23. Intellectual Property Indemnification.
12.1. Supplier warrants that any Product, Software or Service furnished hereunder that has been manufactured, developed or performed by Supplier or any affiliate of Supplier, as applicable, shall, without any alteration or further combination, be free of any rightful claim of any third party for infringement of any valid patent in the country the Supplier delivers the Product, Software or Service to the Customer. If Customer notifies Supplier within fifteen (15) days of the receipt of any claim that such Product, Software or Service infringes a patent and gives Supplier information, assistance and exclusive authority to settle and defend such claim, Supplier shall, at its own expense and in its sole discretion: (i) settle or defend such claim or proceeding arising therefrom and pay all damages and costs awarded therein against Customer; (ii) procure for Customer the right to continue using such Product, Software or Service;
(iii) modify the Product, Software or Service so that it becomes non-infringing; (iv) replace the Product or Software with an equivalent non-infringing Product or Software or re-perform the Service with a non-infringing Service; or (v) remove the Product or Software or reverse the Service performed and refund the applicable price paid (less reasonable depreciation) and any transportation or installation costs that have been separately paid by Customer.
12.2. This Section 12 shall not apply to and Supplier shall have no obligation or liability with respect to any patent infringement claim based upon: (i) any Product that is manufactured, or Service performed, or Software provided, that is customized to Customer’s design or specification; (ii) the combined use of any Product or Software with any other apparatus or material; (iii) the use of any Product, Software or Service furnished hereunder to the extent that the infringement claim is based upon a modification to the Product, Software or Service that was made by the Customer or its affiliates (or their agents, or other contractors or suppliers); or (iv) the failure of Customer to implement any update provided by Supplier that would have prevented the claim. As to any Product, Software, Service or use described in the preceding sentence, Supplier assumes no liability whatsoever for patent infringement or the unauthorized use of Products, Software or Services, including, without limitation, a breach of the Contract.
12.3. This Section 12 states Supplier’s exclusive and entire liability for indemnification for patent, trademark, copyright, and trade secret infringement for Products, Software and Services.
24. 12.4. Each party shall retain ownership of all Confidential Information and intellectual property it had prior to the Contract. All new intellectual property conceived or created by Supplier in performing the Contract, whether alone or with contribution from Customer, shall be owned exclusively by Supplier. Customer agrees to deliver assignment documentation necessary to achieve that resu
25. STC – Locomotive Version date: September 2023 Wabtec Proprietary and Confidential 8 such liability. Consent of Supplier to any such use, if any, will be conditioned upon additional terms and conditions that Supplier determines to be acceptable for protection against nuclear liability. 18. Personal Data Protection. In the event that Personal Data is provided or made accessible as part of the Contract, Customer and Supplier represent that they will take commercially reasonable efforts to comply with all applicable laws and regulations, including but not limited to, providing notices to or obtaining consents from the Data Subjects when (and if) required. The parties agree to take such security measures as are commercially reasonable, in compliance with applicable data protection laws and adapted to the risks posed by the Personal Data disclosed, to prevent accidental, unauthorized or unlawful access, use, modification, disclosure, loss or destruction of such Personal Data. By entering into a Contract with Supplier, Customer consents to Supplier processing Customer’s Personal Data to: (i) establish and maintain its customer database; (ii) assess respective risk profiles; and (iii) engage in factoring transactions related to Supplier’s receivables. Customer further consents to Supplier’s communication of Customer’s Personal Data to Supplier’s affiliates for the same purposes as set forth herein. Customer and Supplier further agree that any Personal Data obtained from the other party is proprietary and confidential and shall be subject to the Confidentiality provisions of Section 15. 19. Site Access; Health & Safety Matters. 19.1. If Services are to be performed by Supplier at Customer’s property, Customer shall take all necessary precautions for the health and safety of Supplier’s personnel at the Site. Such precautions include, but are not limited to: (i) providing to Supplier for review Customer’s safety policies and procedures; (ii) instructing Supplier’s personnel regarding: (a) Customer’s safety practices; and (b) the proper and safe handling of, and protection of Supplier’s personnel from exposure to, Hazardous Materials; and (iii) making Customer’s Site medical facilities and resources available to Supplier’s personnel. Without limiting the foregoing, Supplier may, from time to time, review and inspect applicable health, safety, security and environmental documentation, procedures and conditions at the Site. If, in Supplier’s reasonable opinion, the health, safety, or security of personnel or the Site is, or is apt to be, imperiled by security risks, terrorist acts or threats, the presence of or threat of exposure to Hazardous Materials, or unsafe working conditions, Supplier may, in addition to other rights or remedies available to it, evacuate some or all of its personnel from Site, suspend performance of all or any part of the Contract, and/or remotely perform or supervise the work. Any such occurrence shall be considered an excusable delay pursuant to Section 7 of these Terms and Conditions. 19.2. Customer shall indemnify Supplier for any and all claims, damages, losses, and expenses arising out of or relating to any Hazardous Materials which are or were: (i) present in or about Customer’s equipment or the Site prior to the commencement of Supplier’s work; (ii) improperly handled or disposed of by Customer or Customer’s employees, agents, contractors or subcontractors; or (iii) brought, generated, produced or released on Site by parties other than Supplier. 19.3. Operation of Customer’s equipment is the responsibility of Customer. If Customer requires or permits Supplier’s personnel to operate Customer’s equipment at the Site, Customer shall indemnify and save Supplier, its employees and agents, harmless from expense and liability (including reasonable attorneys’ fees) incurred by or imposed upon Supplier, its employees and agents, based upon exposure to Hazardous Materials, injury to persons (including death) or damage to property resulting from operation of such equipment at the Site by Supplier personnel. 20. General. 20.1. Supplier may assign or novate its rights and obligations under the Contract, in whole or in part, without Customer’s consent, to any of Supplier’s subsidiaries or affiliates, or to any purchaser or other successor in interest of Westinghouse Air Brake Technologies Corporation (or portion thereof to which the Contract relates), and may assign any of its accounts receivable under the Contract to any party for factoring purposes. Customer agrees to execute any documents that may be necessary to complete Supplier’s assignment or novation. Supplier may subcontract portions of the work, so long as Supplier remains responsible for the subcontracted work. The delegation or assignment by Customer of any or all of its rights or obligations under the Contract without Supplier’s prior written consent (which consent shall not be unreasonably withheld) shall be void. 20.2. Customer shall notify Supplier immediately upon any change in ownership of more than fifty percent (50%) of Customer’s voting rights or of any controlling interest in Customer. If Customer fails to do so or Supplier reasonably objects to the change, Supplier may: (i) terminate the Contract; (ii) require Customer to provide adequate assurance of performance (including but not limited to payment), and/or (iii) put in place special controls regarding Supplier’s Confidential Information. 20.3. If any Contract provision is found to be void or unenforceable, the remainder of the Contract shall not be affected. The parties will endeavor to replace any such void or unenforceable provision with a new provision that achieves substantially the same practical and economic effect and is valid and enforceable. 20.4. The following Sections shall survive termination or cancellation of the Contract as well as any other provisions that expressly limit or exclude liability: 3 through 12, and 15 through 20. 20.5. The Contract represents the entire agreement between the parties. No modification, change, amendment, rescission or waiver shall be binding on either party unless agreed in writing by the parties’ authorized representatives. The parties represent and warrant that they did not rely upon any statement, oral or written, not contained in this Contract in making their respective decisions to enter into this Contract. The Contract may be signed in multiple counterparts that together shall constitute one agreement. 20.6. Except as provided in Section 9, regarding limitation of liability, and in Section 17, above, regarding nuclear use, this Contract is for the benefit of the Customer and Supplier and not for any third party.
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