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Harris - RTU upsize I July 232020
<br />DESIGN, MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, OR OTHERS THAT ARE ALLEGED TO ARISE FROM
<br />COURSE OF DEALING OR TRADE.
<br />9. Indemnity. To the fullest extent permitted by law, Company and Customer shall indemnify, defend and hold harmless each other from any and all
<br />claims, actions, costs, expenses, damages and liabilities, including reasonable attorneys' fees, resulting from death or bodily injury or damage to real
<br />or personal property, to the extent caused by the negligence or misconduct of their respective employees or other authorized agents in connection
<br />with their activities within the scope of this Agreement. Neither party shall indemnify the other against claims, damages, expenses or liabilities to the
<br />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
<br />relative fault. The duty to indemnify will continue in full force and effect, notwithstanding the expiration or early termination hereof, with respect to any
<br />claims based on facts or conditions that occurred prior to expiration or termination.
<br />10. Insurance. Upon request, Company will furnish evidence of its standard insurance coverage. If Customer has requested to be named as an
<br />additional insured under Company's insurance policy, Company will do so but only subject to Company's manuscript additional insured endorsement
<br />under its primary Commercial General Liability policies. In no event does Company waive any rights of subrogation.
<br />11. Customer Breach. Each of the following events or conditions shall constitute a breach by Customer and shall give Company the right, without an
<br />election of remedies, to terminate this Agreement, require payment prior to shipping, or suspend performance by delivery of written notice: (1) Any
<br />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
<br />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
<br />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
<br />similar person is appointed over any of the assets or interests of Customer; (3) Any representation or warranty furnished by Customer in connection
<br />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
<br />provision of this Agreement. Customer shall be liable to the Company for all Equipment furnished and all damages sustained by Company (including
<br />lost profit and overhead).
<br />12. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY
<br />SPECIAL, INCIDENTAL, INDIRECT CONSEQUENTIAL, OR PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION
<br />REFRIGERANT LOSS, BUSINESS INTERRUPTION, LOST DATA, LOST REVENUE, LOST PROFITS) EVEN IF A PARTY HAS BEEN ADVISED
<br />OF SUCH POSSIBLE DAMAGES OR IF SAME WERE REASONABLY FORESEEABLE AND REGARDLESS OF WHETHER THE CAUSE OF
<br />ACTION IS FRAMED IN CONTRACT, NEGLIGENCE, ANY OTHER TORT, WARRANTY, STRICT LIABILITY, OR PRODUCT LIABILITY), In no
<br />event will Company's liability in connection with the provision of products or services or otherwise under this Agreement exceed the
<br />entire amount paid to Company by Customer under this Agreement.
<br />13. COVID-19 LIMITATION ON LIABILITY
<br />The transmission of COVID-19 may occur in a variety of ways and circumstances, many of the aspects of which are currently not known. HVAC
<br />systems, products, services and other offerings have not been tested for their effectiveness in reducing the spread of COVID-19, including through the
<br />air in closed environments. IN NO EVENT WILL TRANE BE LIABLE UNDER THIS AGREEMENT OR OTHERWISE FOR ANY ACTION OR CLAIM,
<br />WHETHER BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE, FOR ANY BODILY INJURY (INCLUDING DEATH) OR ANY OTHER
<br />LIABILITIES, DAMAGES OR COSTS RELATED TO COVID-19 (INCLUCING THE SPREAD, TRANSMISSION OR CONTAMINATION THEREOF)
<br />(COLLECTIVELY, "COVID-19 LIABILITIES") AND CUSTOMER HEREBY EXPRESSLY RELEASES TRANE FROM ANY SUCH COVID-19
<br />LIABILITIES.
<br />14. Nuclear Liability. In the event that the Equipment sold hereunder is to be used in a nuclear facility, Customer will, prior to such use, arrange for
<br />insurance or governmental indemnity protecting Company against all liability and hereby releases and agrees to indemnify Company and its suppliers
<br />for any nuclear damage, including loss of use, in any manner arising out of a nuclear incident, whether alleged to be due, in whole or in part to the
<br />negligence or otherwise of Company or its suppliers.
<br />15. Intellectual Property; Patent Indemnity. Company retains all ownership, license and other rights to all patents, trademarks, copyrights, trade
<br />secrets and other intellectual property rights related to the Equipment, and, except for the right to use the Equipment sold, Customer obtains no rights
<br />to use any such intellectual property. Company agrees to defend any suit or proceeding brought against Customer so far as such suit or proceeding is
<br />solely based upon a claim that the use of the Equipment provided by Company constitutes infringement of any patent of the United States of America,
<br />provided Company is promptly notified in writing and given authority, information and assistance for defense of same. Company will, at its option,
<br />procure for Customer the right to continue to use said Equipment, or modify it so that it becomes non -infringing, or replace same with non -infringing
<br />Equipment, or to remove said Equipment and to refund the purchase price. The foregoing will not be construed to include any Agreement by
<br />Company to accept any liability whatsoever in respect to patents for inventions including more than the Equipment furnished hereunder, or in respect
<br />of patents for methods and processes to be carried out with the aid of said Equipment. The provision of Equipment by Company does not convey any
<br />license, by implication, estoppel, or otherwise, under patent claims covering combinations of said Equipment with other devices or elements. The
<br />foregoing states the entire liability of Company with regard to patent infringement. Notwithstanding the provisions of this paragraph, Customer will hold
<br />Company harmless against any expense or loss resulting from infringement of patents or trademarks arising from compliance with Customer's
<br />designs or specifications or instructions.
<br />16. Cancellation. Equipment is specially manufactured in response to orders. An order placed with and accepted by Company cannot be delayed,
<br />canceled, suspended, or extended except with Company's written consent and upon written terms accepted by Company that will reimburse
<br />Company for and indemnify Company against loss and provide Company with a reasonable profit for its materials, time, labor, services, use of
<br />facilities and otherwise. Customer will be obligated to accept any Equipment shipped, tendered for delivery or delivered by Company pursuant to the
<br />order prior to any agreed delay, cancellation, suspension or extension of the order. Any attempt by Customer to unilaterally revoke, delay or suspend
<br />acceptance for any reason whatever after it has agreed to delivery of or accepted any shipment shall constitute a breach of this Agreement. For
<br />purposes of this paragraph, acceptance occurs by any waiver of inspection, use or possession of Equipment, payment of the invoice, or any indication
<br />of exclusive control exercised by Customer.
<br />17. Invoicing and Payment. Unless otherwise agreed to in writing by Company, equipment shall be invoiced to Customer upon tender of delivery
<br />thereof to the carrier. Customer shall pay Company's invoices within net 30 days of shipment date. Company reserves the right to add to any account
<br />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
<br />due at the end of each month. Customer shall pay all costs (including attorneys' fees) incurred by Company in attempting to collect amounts due and
<br />otherwise enforcing these terms and conditions. If requested, Company will provide appropriate lien waivers upon receipt of payment. Company may
<br />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
<br />conditions satisfactory to Company. Customer agrees that, unless Customer makes payment in advance, Company will have a purchase money
<br />security interest in all Equipment to secure payment in full of all amounts due Company and its order for the Equipment, together with these terms and
<br />conditions, form a security agreement (as defined by the UCC in the United States and as defined in the Personal Property Security Act in Canada).
<br />Customer shall keep the Equipment free of all taxes and encumbrances, shall not remove the Equipment from its original installation point and shall
<br />not assign or transfer any interest in the Equipment until all payments due Company have been made. The purchase money security interest granted
<br />herein attaches upon Company's acceptance of Customer's order and on receipt of the Equipment described in the accepted Proposal but prior to its
<br />installation. The parties have no agreement to postpone the time for attachment unless specifically noted in writing on the accepted order. Customer
<br />will have no rights of set off against any amounts, which become payable to Company under this Agreement or otherwise.
<br />18. Claims. Company will consider claims for concealed shortages in shipments or rejections due to failure to conform to an order only if such claims
<br />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
<br />Equipment does not conform to Customer's order. Upon receiving authorization and shipping instructions from authorized personnel of Company,
<br />FLD = Furnished by Trane U.S. Inc. dba�e/ Equipment Proposal
<br />Installed by Others
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