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Terms & Conditions
TERMS AND CONDITIONS OF SALE AND REPAIR
Notwithstanding the submission of conflicting terms and conditions of sale and repair by a customer (the "Buyer"), Indusco, Ltd., Inc. ("Indusco, Ltd., Inc.") Terms and Conditions shall prevail unless modified in writing and signed by an Indusco, Ltd., Inc. authorized representative. Acceptance of any order by Indusco, Ltd., Inc. is expressly conditional on the assent by each customer to these Terms and Conditions.
NEW EQUIPMENT WARRANTY:
Indusco, Ltd., Inc. warrants that all new equipment to be delivered hereunder shall be free of defects in material and workmanship, under normal use and service as described under each individual manufacturerrranty, if so provided. Indusco, Ltd., Inc.'s obligation for a warranty claim is limited to repairing or furnishing, without charge, F.O.B. delivered, point of manufacture, a similar part to replace any part that is proven to be defective and is within the specified manufacturerrranty period, provided the Buyer has given Indusco, Ltd., Inc. written notice. Indusco, Ltd., Inc. shall have the option of requiring the return of the defective part, transportation prepaid, to establish the claim. Indusco, Ltd., Inc. and its equipment suppliers shall not be held liable for damages or delay caused by defects. No allowance will be made for repairs or alterations without Indusco, Ltd., Inc.'s written consent or approval. The provisions in the specifications hereto attached if any, are descriptive, unless expressly stated as warranties. Indusco, Ltd., Inc.'s liability to the Buyer, except as to title, arising out of the supplying of the said equipment, or its use, whether based upon a claim in warranty, contract, or other tort (including negligence), shall not in any case exceed the cost of correcting defects in the equipment as herein provided and upon the expiration of said warranty period, all such liability shall terminate.
USED, REBUILT, AND SURPLUS EQUIPMENT:
THERE ARE NO WARRANTIES OF ANY KIND OR NATURE FOR EQUIPMENT SOLD THAT IS USED, REBUILT OR SURPLUS IN NATURE. THE FOREGOING STATES Indusco, Ltd., Inc. EXCLUSION OF WARRANTY, EITHER EXPRESSED OR IMPLIED OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR OR INTENDED PURPOSE, FOR ANY USED, REBUILT, AND SURPLUS EQUIPMENT.
INSTALLATION, SERVICING OR REPAIRS:
Any services performed by Indusco, Ltd., Inc. in connection with the sale, installation, servicing or repair of any equipment are warranted to be performed in a workmanlike manner. If any nonconformity with this warranty appears within 90 days after the services are performed, the exclusive obligation of Indusco, Ltd., Inc. shall be to re-perform the services in a conforming manner. In no event shall Indusco, Ltd., Inc.'s obligations with respect to any such service exceed the purchase price of the pertinent order. THE FOREGOING STATES THE ENTIRE GUARANTEE AND WARRANTY OF Indusco, Ltd., Inc. ON SERVICES HEREIN DESCRIBED, IS EXCLUSIVE AND IN LIEU OF ALL OTHER GUARANTEES AND WARRANTIES, EITHER EXPRESS OR IMPLIED, WHETHER WRITTEN, ORAL OR STATUTORY. NO WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR OR INTENDED PURPOSES SHALL APPLY.
All shipments of equipment shall be Ex Works either the pertinent Indusco, Ltd., Inc. warehouse or the pertinent equipment supplier's warehouse or factory. FREIGHT CHARGES WILL BE PREPAID AND ADD UNLESS OTHERWISE NOTED ON CUSTOMER PURCHASE ORDER.
The time for shipment given herein is approximate and is estimated from the date of receipt of order with complete manufacturing information and approval of drawings as may be necessary. Indusco, Ltd., Inc. shall not be liable for any loss or damage for delay or non-delivery due to acts of civil or military authority, acts of the Buyer, or by reason of "force majeure" which shall be deemed to mean all other causes whatsoever not reasonably within the control of Indusco, Ltd., Inc., including, but not limited to acts of God, war, riot or insurrection, blockades, embargo, sabotage, epidemics, fires, strikes, lockouts or other industrial disturbances, delays of carriers, and inability to secure materials, labor or manufacturing facilities. Any delay resulting from such cause shall extend shipping dates correspondingly. Receipt by the Buyer shall constitute acceptance of delivery and waiver of any claims due to delay.
LIMITATIONS OF LIABILITY:
IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL Indusco, Ltd., Inc. OR ITS EQUIPMENT SUPPLIERS OF NEW EQUIPMENT, MECHANICAL SEALS AND/OR USED, REBUILT AND SURPLUS EQUIPMENT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE EQUIPMENT OR ANY ASSOCIATED EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWN TIME COSTS, OR CLAIMS BY THE BUYER'S CUSTOMERS FOR SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR SUCH ENUMERATED DAMAGES ARISING FROM DELAY IN SHIPPING IRRESPECTIVE OF THE REASON THEREFORE.
The prices specified are in U.S. currency unless otherwise specified on invoice, payable in New Jersey free of all expense to Indusco, Ltd., Inc. for collection charges. Pro rata payments shall be made for partial shipments. If delivery is prevented or postponed at the Buyer's request, or by reason of any other cause set forth specifically or by implication in the paragraph on "Shipping Dates", then all dates of payment related to delivery shall relate instead to the date of completion of manufacture. Letters of credit or other credit instruments established to provide payment for the equipment ordered shall make provision for payment as set forth above where delivery is prevented or postponed under such circumstances. Storage of such equipment will be at the Buyer's expense and risk. When in the opinion of Indusco, Ltd., Inc. the financial condition of the Buyer renders it necessary, Indusco, Ltd., Inc. may require cash payments or satisfactory security before shipment. In the event of bankruptcy or insolvency of the Buyer or in the event any proceeding is brought against the Buyer, voluntarily or involuntarily, under the bankruptcy or any insolvency laws, Indusco, Ltd., Inc. shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate and shall receive reimbursement for its reasonable and proper cancellation charges. The rights of Indusco, Ltd., Inc. under this paragraph are cumulative and in addition to all rights available to Indusco, Ltd., Inc. at law or in equity.
The Buyer shall pay to Indusco, Ltd., Inc. in addition to the purchase price, the amount of all Sales, Use, Privilege, Occupation, Excise, or other taxes, Federal, State, local or foreign which Indusco, Ltd., Inc. is required to pay in connection with furnishing goods or services to the Buyer. In lieu thereof, the Buyer shall provide Indusco, Ltd., Inc. with a tax exemption certificate acceptable to the pertinent taxing authorities.
Indusco, Ltd., Inc. fully supports US export compliance policies. Indusco, Ltd., Inc. employees and agents are required to comply with US export controls and economic sanctions. Accordingly, all orders are subject to review for export compliance and Indusco, Ltd., Inc. reserves the right to refuse and/or cancel any order where in its sole discretion, US export compliance is not met.
SALES FOR EXPORT:
In case of sales for export, the Buyer shall be responsible for procuring (as well as arranging for extensions of) such export, import or other licenses or authorizations as may be required. If written notification or the granting or extension of such licenses or authorizations is not received by Indusco, Ltd., Inc. at least sixty (60) days prior to the scheduled date of shipment (or of any part subject to partial shipment), the parties shall consult together in order to arrive at a mutually satisfactory solution of the problems arising as a result of the absence of such licenses or authorizations. Notwithstanding the immediately preceding sentence, Indusco, Ltd., Inc. may at any time after commencement of said 60 day period prior to shipment, request that the terms of payment be changed in a manner that will, in Indusco, Ltd., Inc.'s sole opinion, afford it assurance of receiving from the Buyer sufficient payments from time to time to pay for equipment then ready for shipment. If the Buyer fails within ten (10) days after such request to comply with the payment terms as changed, Indusco, Ltd., Inc. may at its option treat such failure as a cancellation of the order placed hereunder and the Buyer shall thereupon pay to Indusco, Ltd., Inc. a cancellation/restocking charge of no less than twenty-five percent (25%), and up to one hundred percent (100%) of the total purchase price, as and for liquidated damages.
Orders are not subject to cancellation or change in specifications, shipping schedules or other conditions originally agreed upon without Indusco, Ltd., Inc.'s written consent and then only upon agreement to compensate Indusco, Ltd., Inc. for loss caused by such cancellation or changes. Compensation in the event of any cancellation or change will be no less than twenty-five percent 25%, and up to one hundred percent (100%) of the total purchase price.
RETURNS FOR CREDIT:
No returns for credit will be accepted unless Indusco, Ltd., Inc.'s permission has been obtained in each case in writing in advance. Only standard items, which are in active demand, may be accepted. Credit will be based on prices prevailing at the time of return, or invoiced price, whichever is lower subject to deduction for handling and restoring goods to saleable condition. Obsolete or specially manufactured goods can be accepted for return or credit only to the extent of value to Indusco, Ltd., Inc. and only at its option. No credit will be issued to other than the original Buyer. All disputes in quantities received are required to be made in writing to Indusco, Ltd., Inc. within 72 hours after receipt of the merchandise. All returns for credit must be approved in writing by Indusco, Ltd., Inc. within one year from the date of the original shipment.
NUCLEAR FACILITY OR ACTIVITY:
Unless otherwise agreed to in writing by an authorized representative of Indusco, Ltd., Inc., equipment sold hereunder that is General Electric equipment is not intended for use in connection with any nuclear facility or activity. If so used and any nuclear damage, injury or contamination occurs, Indusco, Ltd., Inc. disclaims all liability of every kind, and the Buyer shall indemnify Indusco, Ltd., Inc. for any such liability, including Indusco, Ltd., Inc.'s negligence.
Indusco, Ltd., Inc. shall not be liable for non-performance due wholly or partly to any cause either not wholly or exclusively within its control or which it could not by reasonable diligence have avoided. Upon the occurrence of any such contingency, Indusco, Ltd., Inc. shall have the right to suspend or reduce deliveries during the period of such contingency, and the total quality deliverable under this contract shall be reduced by the quantities so omitted. Without limiting the generality of the foregoing, the following shall not be considered wholly or exclusively within Indusco, Ltd., Inc.࣯ntrol: labor controversies and court decrees, and adjustment thereof, partial or total shutdown of plants or facilities as a result of governmental action, machinery malfunctions or breakdowns, and the inability to obtain fuel, power, raw materials, labor, containers or transportation facilities, all without litigation or the payment of penalties, premiums or extraordinary prices.
Unpaid invoices will accrue interest at the rate of eighteen (18%) percent per annum.
These Terms and Conditions together with the invoice sets forth the entire understanding of the partner with respect tot e subject matter hereof, and supersedes any and all prior communications between the parties, verbal or written.
These terms and conditions of sale shall be construed (both as to validity and performance) and enforced in accordance with, and governed by, the laws of the State of New Jersey applicable to contracts to be performed entirely within that State, without giving effect to the principles of conflicts of law. The parties hereto agree that any suit or proceeding arising out of or relating to this document or the consummation of the transactions contemplated hereby shall be brought only in a Federal or state court located in the City, County and State of New Jersey; provided, however, that neither party waives its right to request the removal of such action or proceeding from the State court to a Federal court in such jurisdiction. The parties hereto waive any claim that such jurisdiction is not a convenient forum for any such suit or proceeding and the defense of lack of personal jurisdiction. In the event that a party hereto commences an action with respect to this document or the consummation of the transactions contemplated hereby, the non-prevailing party in such action shall reimburse the prevailing party, upon demand, for all of the prevailing party's costs and expenses incurred in such action, including, without limitation, its reasonable attorneyথes.