1. Acceptance. These terms and conditions are an integral part of Hunton Trane’s offer and form the basis of any agreement (the “Agreement”) resulting from Hunton Trane’s proposal (the “Proposal”) for the sale of the described commercial equipment and services (the “Equipment”). HUNTON TRANE’S TERMS AND CONDITIONS ARE SUBJECT TO PERIODIC CHANGE OR AMENDMENT. The Proposal is subject to acceptance in writing by the party to whom this offer is made or an authorized agent (“Customer”) delivered to Hunton Trane within 30 days from the date of the Proposal. If Customer accepts the Proposal by placing an order, without the addition of any other terms  and conditions of sale or any other modification, Customer’s order shall be deemed acceptance of the  Proposal subject to  Hunton Trane’s terms   and conditions. If Customer’s order is expressly conditioned upon Hunton Trane’s acceptance or assent to terms and/or conditions other than those expressed herein, return of such order by Hunton Trane with Hunton Trane’s terms and conditions attached or referenced serves as Hunton Trane’s notice of objection to Customer’s terms and as Hunton Trane’s counter-offer to provide Equipment in accordance with the Proposal and the Hunton Trane’s terms and conditions. If Customer does not reject or object in writing to Hunton Trane within 10 days, Hunton Trane’s counter-offer will be deemed accepted. Customer’s acceptance of the Equipment will in any event constitute an acceptance  by  Customer of Hunton Trane’s terms and conditions. This Agreement is subject to credit approval by Hunton Trane. Upon disapproval of credit, Hunton Trane may delay or suspend performance or, at its option, renegotiate prices and/or terms and conditions with Customer. If Hunton Trane and Customer are unable to agree on such revisions, this Agreement shall be cancelled without any

 

2. Title and Risk  of  Loss.  All  Equipment bec om es t he pr oper t y  of t he pur c has er upon del i v er y  t o  t he c ar r i er . Cl a i m s s h o u l d b e m a d e t o t h e c a r r i e r .

 

3. Pricing and Taxes. Following acceptance without addition of any other terms and condition of sale or any other modification by Customer, the prices stated are firm provided that notification of release for immediate production and shipment is received by Hunton Trane not later than 3 months from order acceptance. If such release is received later than 3 months from order acceptance date, prices will be increased a straight 1% (not compounded) for each 1 month period (or part thereof) beyond the 3 month firm price period up to the date of receipt of such release. If such release is not received within 6 months after the date of order acceptance, the prices are subject  to renegotiation or at Hunton Trane’s option, the order will be cancelled.  Any delay in shipment caused by Customer’s actions will subject prices   to increase equal to the percentage increase in list prices during that period of delay and Hunton Trane may charge Customer with incurred storage fees.  In no event will prices be decreased. The price of Equipment does not include any present or future foreign, federal, state, or local property, license, privilege, sales, use, excise, value added, gross receipts or other like taxes or assessments. Such amounts will be itemized separately to Customer, who will make prompt payment to Hunton Trane. Hunton Trane will accept valid exemption documentation   for such from Customer, if applicable. All prices include packaging in accordance with  Hunton Trane’s standard procedures.  Charges for  special packaging, crating or packing are the responsibility of

 

4. Delivery and Delays.   Delivery dates are approximate and not guaranteed. Hunton Trane will use commercially reasonable efforts    to deliver the Equipment on or before the estimated delivery date and will notify  Customer  if  the  estimated  delivery  dates  cannot  be honored, and will deliver the Equipment and services as soon as practicable thereafter. In no event will Hunton Trane be liable  for  any damages or expenses caused by delays in

 

5. Performance. Hunton Trane shall be obligated to furnish only the Equipment described in the Proposal and in submittal data (if such data is issued in connection with the order). Hunton Trane may rely on the acceptance of the Proposal, and in submittal data as acceptance of the suitability of the Equipment for the particular project or location. Unless specifically stated in the Proposal, compliance with  any  local building codes or other laws or regulations relating to specifications or the location, use or operation of the Equipment is the sole responsibility of Customer. If Equipment is tendered that does not fully comply with the provisions of this Agreement, and Equipment is rejected by Customer, Hunton Trane will have the right to cure within a reasonable time after notice thereof by substituting a conforming tender whether or not the time for performance has

 

6. Force Majeure. Hunton Trane’s duty to perform under this Agreement and the Equipment prices are contingent upon the non- occurrence of an Event of Force Majeure. If Hunton Trane is unable to carry out any material obligation under this Agreement due to an Event of Force Majeure, this Agreement shall at Hunton Trane’s election (i) remain in effect but Hunton Trane’s obligations shall be suspended until the uncontrollable event terminates or (ii) be terminated upon 10 days’ notice to Customer, in which event Customer shall pay Hunton Trane for all parts of the Work furnished to the date  of termination. An “Event of Force Majeure” shall mean any cause or event beyond the control of Hunton Trane. Without limiting the foregoing, “Event of Force Majeure” includes: acts of God; acts of terrorism, war or the  public enemy; hurricane; flood; earthquake; tornado; storm; fire; civil disobedience; pandemic insurrections; riots; labor disputes; labor or material shortages; sabotage; restraint by court order or public authority (whether valid or invalid); and action or non-action by or inability to obtain or keep in force the necessary governmental authorizations, permits, licenses, certificates or approvals if not caused by Hunton Trane; and the requirements of any applicable government in any manner that diverts either the material or the finished product to the direct or indirect benefit of the government.

 

7. Limited Warranty. Hunton Trane warrants the Equipment for a period of the lesser of 12 months from initial start-up or 18 months from date of shipment, whichever is less, against failure due to defects in material and manufacture. Exclusions from this Warranty include damage or failure arising from: wear and tear; corrosion, erosion, deterioration; modifications made by others to the Equipment; repairs or alterations by a party other than Hunton Trane that adversely affects the stability or reliability of the Equipment; vandalism; neglect; accident; adverse weather   or environmental conditions; abuse or improper use; improper installation; commissioning by a party other than Hunton Trane; unusual physical or electrical or mechanical stress; operation with any accessory, equipment or part not specifically approved by Hunton Trane; refrigerant not supplied by Hunton Trane; and/or lack of proper maintenance as recommended by Hunton Trane. LABOR AND MATERIAL SALE WARRANTY FOR PARTS OR MATERIAL INSTALLED, REPAIRED, OR REPLACED BY TRANE PARTS CENTER. The Hunton Trane warrants for a period of 60 days from date of project completion to furnish the necessary labor to replace (or, at the Hunton Trane’s discretion repair) any warranted parts, materials or products covered by this proposal found defective within said 60 day period.  Parts, materials, and products furnished   under

 

a “labor and material” sale shall be warranted as described above. The Hunton Trane shall not be obligated to pay for cost of lost refrigerant. HUNTON TRANE  MAKES  NO  REPRESENTATION  OR  WARRANTY,  EXPRESS  OR  IMPLIED,  REGARDING  PREVENTION  OF MOLD.

FUNGUS, BACTERIA, MICROBIAL GROWTH, OR ANY OTHER CONTAMINATES. No warranty liability whatsoever shall attach to Hunton Trane until Customer’s complete order has been paid for in full and Hunton Trane’s liability under this Warranty shall be limited to the purchase price of the Equipment shown to be defective. Additional warranty protection is available on an extra-cost basis and must be in writing and agreed to by an authorized signatory of the Hunton Trane. EXCEPT FOR HUNTON TRANE’S WARRANTY  EXPRESSLY SET  FORTH HEREIN, HUNTON TRANE DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY WARRANTIES, EXPRESS OR IMPLIED CONCERNING ITS PRODUCTS, EQUIPMENT OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF DESIGN, MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, OR OTHERS THAT ARE ALLEGED TO ARISE FROM COURSE OF

DEALING OR TRADE.  In no event shall the Hunton Trane be liable for any incidental or consequential damages

 

8. Limitation of Liability on Centrifugal and Absorption Water Chiller Parts. Customer acknowledges the complexity and expense    of any centrifugal and absorption water chiller equipment purchased from Hunton Trane, and the need for specially trained and qualified personnel to install, service and/or repair such equipment or parts thereof to reduce the risk of damage thereto.  Accordingly, Customer agrees to assume the entire risk of, and indemnity and hold Hunton Trane harmless from and against, any and liability and expense, including without limitation that arising from death or injury to persons or damage to property, and including all incidental or consequential damages, arising out    of or in connection with the installation, service, and/or repair of such equipment or parts by Customer or any person or persons other than the Hunton

 

9. Returns/Cancellations. Returns must have prior written approval by Hunton Trane and are subject to restocking charge where applicable. Special orders are not subject to Orders cannot be cancelled without the written permission of Hunton Trane. A reasonable charge will be applied to all approved cancellations to cover cost incurred by Hunton Trane in processing the order and associated costs.

 

10. Indemnity. To the fullest extent permitted by law, Hunton Trane and Customer shall indemnify, defend and hold harmless each other from any and all claims, actions, costs, expenses, damages and liabilities, including reasonable attorneys’ fees, resulting from death or bodily injury or damage to real or personal property, to the extent caused by the negligence or misconduct of their respective employees or other authorized agents in connection with their activities within the scope of this Agreement. Neither party shall indemnify the other against claims, damages, expenses or liabilities to the extent attributable to the acts or omissions of the other party. If the parties are both at  fault,  the obligation to indemnify shall be proportional to their relative fault. The duty to indemnify will continue in full force and effect, notwithstanding the expiration or early termination hereof, with respect to any claims based on facts or conditions that occurred prior to expiration or termination.

 

11. Customer Breach. Each of the following events or conditions shall constitute a breach by Customer and shall give Hunton Trane the right, without an election of remedies, to terminate this Agreement, require payment prior to shipping, or suspend performance by delivery of written notice: (1) Any failure by Customer to pay amounts when due; or (2) any general assignment by Customer for the  benefit of  its  creditors, or if Customer becomes bankrupt or insolvent or takes the benefit of any statute for bankrupt or insolvent debtors, or makes or proposes to make any proposal or arrangement with creditors, or if any steps are taken for the winding up or other termination of Customer or the liquidation of its assets, or if a trustee, receiver, or similar person is appointed over any of the assets or interests of Customer; (3) Any representation or warranty furnished by Customer in connection with this Agreement is false or misleading in any material respect when made; or (4) Any failure by Customer to perform or comply with any material provision of this Agreement. Customer shall be liable to the Hunton Trane for all Equipment furnished and all damages sustained by Hunton Trane (including lost profit and overhead).

 

12. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL HUNTON  TRANE  BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT CONSEQUENTIAL, OR PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION REFRIGERANT LOSS, BUSINESS INTERRUPTION, LOST DATA, LOST REVENUE, LOST PROFITS) EVEN IF A PARTY HAS BEEN ADVISED OF SUCH POSSIBLE DAMAGES OR IF SAME  WERE REASONABLY FORESEEABLE AND  REGARDLESS  OF WHETHER THE CAUSE OF ACTION IS FRAMED IN CONTRACT, NEGLIGENCE, ANY OTHER  TORT,  WARRANTY,  STRICT LIABILITY, OR PRODUCT LIABILITY). In no event will Hunton Trane’s liability in connection with the provision of products or services or otherwise under this Agreement exceed the entire amount paid to Hunton Trane by Customer under this Agreement. Hunton Trane shall not be obligated to pay for the cost of lost refrigerant.  We limit our responsibility to the value of defective material only in accordance with the policies   of the manufacturer. We assume no liability for damage to person or property caused by merchandise bought from us. We are not liable for the loss or damage caused by contingencies beyond our control or which may cause delay in delivery. No liability whatever shall attach to Hunton Trane until any parts, material, products and/or labor purchased hereunder have been completely paid for, and then said liability shall be limited to the purchase price of the parts, materials, products and/or labor shown to be

 

13. Intellectual Property/Patent Indemnity. Customer will hold Hunton Trane harmless against any expense or loss resulting from infringement of patents or trademarks arising from compliance with Customer’s designs or specifications or

 

14. Cancellation. Equipment is specially manufactured in response to orders. An order placed with and accepted by Hunton Trane cannot be delayed, canceled, suspended, or extended except with Hunton Trane’s written consent and upon  written  terms  accepted  by  Hunton Trane that will reimburse Hunton Trane for and indemnify Hunton Trane against loss  and  provide Hunton Trane with  a  reasonable profit for its materials, time, labor, services, use of facilities and otherwise. Customer will be obligated to accept any Equipment shipped,  tendered for delivery or delivered by Hunton Trane pursuant to the order prior to any agreed delay, cancellation, suspension or extension of the order. Any attempt by Customer to unilaterally revoke, delay or suspend acceptance for any reason whatever after it has agreed to delivery of or accepted any shipment shall constitute a breach of this Agreement. For purposes of this paragraph, acceptance occurs by any waiver of inspection, use or possession of Equipment, payment of the invoice, or any indication of exclusive control exercised by

 

15. Invoicing and Payment. Equipment shall be invoiced to Customer upon tender of delivery thereof to the carrier. Customer shall pay Hunton Trane’s invoices within net 30 days of shipment date days unless contrary terms appear on the face hereof or unless otherwise expressly agreed to in writing. Hunton Trane reserves the right to add to any account outstanding for more than 30 days a service charge equal to the lesser of the maximum allowable legal interest rate or 1.5% of the principal amount due at the end of each month.  Customer shall pay all costs

 

(including attorneys’ fees) incurred by Hunton Trane in attempting to collect amounts due and otherwise enforcing these terms and conditions. If requested, Hunton Trane will provide appropriate lien waivers upon receipt of payment. Hunton Trane may at any time decline to ship, make delivery or perform work except upon receipt of cash payment, letter of credit, or security, or upon other terms and conditions satisfactory to Hunton Trane. Customer agrees that, unless Customer makes payment in advance, Hunton Trane will have a purchase money security interest in all Equipment to secure payment in full of all amounts due Hunton Trane and its order for the Equipment, together with these terms and conditions, form a security agreement (as defined by the UCC) ). Customer shall keep the Equipment free of all taxes and encumbrances, shall not remove the Equipment from its original installation point and shall not assign or transfer any interest in the Equipment until all payments due Hunton Trane have been made. The purchase money security interest granted herein attaches upon Hunton Trane’s acceptance of Customer’s order   and on receipt of the Equipment described in the accepted Proposal but prior to its installation. The parties have no agreement to postpone the time for attachment unless specifically noted in  writing on the  accepted order.  Customer will have no  rights of set off against any amounts, which become payable to Hunton Trane under this Agreement or otherwise.  All payments are to be made in Houston, Harris County, Texas.

 

16. Hunton Trane will consider claims for concealed shortages in shipments or rejections due to failure to conform to an order only if such claims or rejections are made in writing within 15 days of delivery and are accompanied by the packing list and, if applicable, the reasons in detail why the Equipment does not conform to Customer’s order. Upon receiving authorization and shipping instructions from authorized personnel of Hunton Trane, Customer may return rejected Equipment, transportation charges prepaid, for replacement. Hunton Trane may charge Customer any costs resulting from the testing, handling, and disposition of any Equipment returned by Customer which are not found by Hunton Trane to be nonconforming. All Equipment damaged during shipment and all claims relating thereto must be made with the  freight  carrier in accordance with such carrier’s policies and procedures. Claims for Equipment damaged during shipment are not covered under the warranty provision stated herein.

 

17. Export Laws. The obligation of Hunton Trane to supply Equipment under this Agreement is subject to the ability of Hunton Trane to supply such items consistent with applicable laws and regulations of the  United States and  other governments. Hunton Trane reserves the right to refuse to enter into or perform any order, and to cancel any order, under this Agreement if Hunton Trane in its sole discretion determines that performance of the transaction to which such order relates would violate any such applicable law or regulation. Customer will pay all handling and other similar costs from Hunton Trane’s factories including the costs of freight, insurance, export clearances, import duties and taxes. Customer will be “exporter of record” with respect to any export from the United States of America and will perform all compliance and logistics functions in connection therewith and will also comply with all applicable laws, rules and regulations. Customer understands that Hunton Trane and/or the Equipment are subject to laws and regulations of the United States of America which may require licensing or authorization for and/or prohibit export, re-export or diversion of Hunton Trane’s Equipment to certain countries, and agrees it will not knowingly assist or participate in any such diversion or other violation of applicable United States of America laws and regulations. Customer agrees to  hold harmless and indemnify Hunton Trane for any damages resulting to Customer or Hunton Trane from a breach of this paragraph by

 

18. General. Except as provided below, to the maximum extent provided by law, this Agreement is made and shall be interpreted and enforced in accordance with the laws of the state of Texas without regard to conflict of law principles that might otherwise call for the application of a different state’s law, and not including the United Nations Convention on Contracts for the International Sale of Goods. Any action or suit arising out of or related to this Agreement must be commenced within one year after the cause of action has accrued. To the extent the Equipment is being used at a site owned and/or operated by any agency of the Federal Government, determination of any substantive issue of law shall be according to the Federal common law of Government contracts as enunciated and applied by Federal judicial bodies and boards of contract appeals of the Federal Government. This Agreement contains all of the agreements, representations and  understandings of  the  parties and supersedes all previous understandings, commitments or agreements, oral or written, related to the subject matter hereof. This Agreement may not be amended, modified or terminated except by a writing signed by the parties hereto. No documents shall be incorporated herein by reference except to the extent Hunton Trane is a signatory thereon. If any term or condition of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, all other terms and conditions of this Agreement will nevertheless remain in full force and effect as long as the economic or legal substance of the transaction contemplated hereby is not affected in a manner adverse to any party hereto. Customer may not assign, transfer, or convey this Agreement, or any part hereof, or its right, title or interest herein, without the written consent of Hunton Trane. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of Customer’s permitted successors and assigns. This Agreement may be executed in several counterparts, each of which when executed shall be deemed to be an original, but all together shall constitute but one and the same Agreement.   A fully executed facsimile copy hereof or the several counterparts shall suffice as   an original.

 

19. Equal Employment Opportunity/Affirmative Action Clause. Hunton Trane is a federal contractor that complies fully with Executive Order 11246, as amended, and the applicable regulations contained in 41 C.F.R. Parts 60-1 through 60-60, 29 U.S.C. Section 793 and the applicable regulations contained in 41 C.F.R. Part 60-741; and 38 U.S.C. Section 4212 and the applicable regulations contained in 41 C.F.R. Part 60-250 Executive Order 13496 and Section 29 CFR 471, appendix A to subpart A, regarding the notice of employee rights in the United States.

 

20. S. Government Work. The following provision applies only to direct sales by Hunton Trane to the US Government. The Parties acknowledge that Equipment ordered and delivered under this Agreement are Commercial Items as defined under Part 12 of the Federal Acquisition Regulation (FAR). In particular, Hunton Trane agrees to be bound only by those Federal contracting clauses that apply to “commercial” suppliers and that are contained in FAR 52.212-5(e)(1). The following provision applies only to indirect sales by Hunton Trane to the US Government. As a Commercial Item Subcontractor, Hunton Trane accepts only the following mandatory flow down provisions:  52.219- 8; 52.222-26; 52.222-35; 52.222-36; 52.222-39; 52.247-64. If the sale of the Equipment is in connection with a U.S. Government contract, Customer certifies that it has provided and will provide current, accurate, and complete information, representations and certifications to all government officials, including but not limited to the contracting officer and officials of the Small Business Administration, on all  matters  related to the prime contract, including but not limited to all aspects of its ownership, eligibility, and performance. Anything herein notwithstanding, Hunton Trane will have no obligations to Customer unless and until Customer provides Hunton Trane with a true, correct and  complete executed copy of the prime contract. Upon request, Customer will provide copies to  Hunton Trane of  all  requested written communications with any government official related to the prime contract prior to or concurrent with the execution thereof, including but not limited to any communications related to Customer’s ownership, eligibility or performance of the prime contract.  Customer will obtain written authorization and

 

approval from Hunton Trane prior to providing any government official any information about Hunton Trane’s performance of the work that is the subject of the Proposal or this Agreement, other than the Proposal or this Agreement.

 

 

 

PLEASE REMIT PAYMENT TO: HUNTON TRANE

P.O.  BOX  650998, Dept. HOU1121, Dallas, TX 75265-0998