1 APPLICABILITY AND VARIATION
1.1 These Trane general terms and conditions (the Terms™) apply to all proposals, quotations, contracts or agreements issued or entered into by Trane.
1.2 No variation to these Terms shall be applicable unless explicitly agreed in writing by an authorized Trane representative.
1.3 These Terms shall take precedence over any other terms and conditions, in particular those which are referred to in any of the customers documents.
2 FORMATION OF CONTRACT
2.1 Unless explicitly stated otherwise, any proposal submitted by Trane is valid for a period of 30 days from its date.
2.2 The contract will be formed only upon issuance of a written order acknowledgement by Trane, or, if sooner, upon the execution of the order.
3.1 Unless agreed otherwise, prices are quoted EXW (Incoterms 2000), inclusive of standard domestic packaging for truck transport and shall be exclusive of VAT or any other applicable tax or duty which the customer will pay in addition to the prices.
3.2 Prices are valid for shipment of products or performance of services during the on-going calendar year. Trane may apply a price indexation mechanism for shipment or performance in subsequent years.
4.1 Unless agreed otherwise, products are delivered EXW (Incoterms 2000) with standard domestic packaging for truck transport.
4.2 Delivery dates are estimates only and Trane shall not be liable for any damages attributable to any delay or failure to deliver. In the event delivery is delayed beyond the acknowledged delivery date for any reason and at any time, Trane shall advise the customer thereof as soon as practicable and provide a new estimated delivery date. The customer will have to notify the carrier and Trane immediately of any damage detected or detectable upon delivery.
4.3 The customer must inform Trane of any issues that might prevent the scheduled on-site delivery. If Trane is unable to deliver the products to the customer for any reason attributable to the customer, the products will be deemed to have been delivered and Trane may invoice and store the products until actual delivery and the customer will be liable for all related costs and expenses.
5 ACCESS TO SITE AND ACCEPTANCE OF PRODUCTS AND SERVICES
5.1 Trane and its subcontractors will be given free, safe and continuous access to the site and use of services on site as reasonably required by Trane to perform the services or deliver or commission the products, failing which customer will pay all of Trane's costs arising of or resulting from such customers refusal.
5.2 The customer is deemed to have accepted the products or services or any part thereof, unless Trane is notified in writing to the contrary within 7 calendar days of Trane™s provision of the products or services.
6.1 Unless agreed otherwise, the price shall be paid in USD and is due within 30 days from the date of Trane™s invoice as follows: 30% of the price on acceptance of the customers order and 70% of the price on shipment of products or performance of services based upon a confirmed, unconditional and irrevocable Letter of Credit, at first sight, acceptable to Trane.
6.2 No payment shall be deemed to have been received until Trane has received cleared funds.
6.3 The customer shall make all payments due without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
6.4 Trane reserves the right to suspend warranty or further deliveries of products or performance of services under any contract with the customer in the event of late or non-payment.
6.5 Where amounts are not duly paid and without prejudice to any other right or remedy, Trane will automatically and without any formal notification be entitled to levy interest at a rate of 1 % per month. When the customer after a formal notification fails to settle the outstanding amount, Trane will automatically be entitled, to a fixed indemnity of 10% of the price in addition to the principal amount and interests thereon.
7 DEFERRAL AND CANCELLATION
7.1 Except with Trane™s prior written agreement, the customer may not defer delivery or cancel, in whole or part, any contract. Such agreement shall be subject to the customer indemnifying Trane in full against any loss (including loss of profit), costs, charges and other expenses incurred as a result of the deferral or cancellation.
7.2 Trane reserves the right to cancel the contract in the event of non- or late payment.
7.3 Return of new and unused spare parts is only possible within one month after delivery, subject to Trane™s prior written approval. When approved, credit notes will be issued at no more than 50% of the value of the so returned spare part compensating for Trane™s re-stocking charges.
8 TRANSFER OF TITLE AND RISK
8.1 Risk in the products and all liability to third parties in respect thereof shall pass to the customer upon delivery in accordance with Article 4.1 or storage in accordance with Article 4.3 (if earlier).
8.2 To the extent allowed under applicable law, ownership of the products shall not pass to the customer until Trane has received in full all sums due to it in respect of the products.
8.3 While the ownership of the products remains with Trane, it may, subject to the customer not having fulfilled its payment obligations, take repossession of the products.
8.4 Until ownership has passed pursuant to Article 8.2, the customer shall not, unless otherwise agreed in writing, transfer ownership to a third party nor charge or encumber the products in any way and maintain the products in satisfactory condition insured on Trane's behalf for their full price.
9.1 Subject to the conditions set forth herein, Trane warrants that its products are free from defects of material and workmanship and have the capacities and ratings set forth in Trane catalogues, subject to normal laboratory test tolerances.
9.2 The following warranty periods apply:
a) Products: subject to mandatory provisions of applicable law, 12 (twelve) months from the date of first commissioning (start-up™) with a maximum of 18 (eighteen) months from the date of shipment;
b) Repaired or replacement products (or parts): the remainder of the warranty period pursuant to Article 9.2(a).
9.3 The warranty will not apply to:
a) Consumable parts including, without limitation, filters, oil and v-belts.
b) Normal wear and tear, corrosion, erosion or loss of refrigerant;
c) Products which are not installed, stored or used correctly in accordance with Trane™s instructions or which are damaged by a third party during the installation or commissioning;
d) Products which are not subject of a Trane maintenance agreement or not maintained by qualified engineers in accordance with Trane's instructions;
e) In the event of improper water treatment; or
f) Products which are modified without Trane™s written approval or damaged by any act beyond Trane's control.
9.4 If a product does not conform to this warranty, Trane shall at its sole option repair or replace such product (or the defective part thereof), or if the products (or defective part thereof) cannot be repaired or replaced for any reason, refund the Price of such products, provided that, if Trane so requests, the customer returns the product to Trane. Any product returned to Trane which cannot be repaired will belong to Trane. Replacement products (or parts) will be delivered EXW (Incoterms 2000). Freight and return costs of defective, repaired or replacement products (or parts) will be borne by customer. When products (or parts) are repaired on site, Iabour costs, as well as travel and residence expenses incurred by Trane are borne by the customer as per Trane™s then applicable labour rates.
9. 5 In relation to services, Trane warrants that the services will be provided using reasonable skill and care for a period of 90 days from completion of such services and Trane™s obligation under this warranty is limited to correcting any improperly performed services.
9.6 Trane Parts shall be warranted for 12 months from the date of shipment to be free from defects of material and workmanship and Trane shall, at its discretion replace or repair Parts shown to be defective provided the Parts were installed, operated and maintained in accordance with Trane recommendations.
9.7 The customer will inform Trane in writing of any defect or deficiency in the products or services within 2 weeks of the time such defect or deficiency becomes apparent, in absence of which the customer forfeits its rights under the warranty.
9.8 In the event of a warranty claim, Trane has the right to inspect the products or services.
9.9 Beyond its own product portfolio Trane provides no additional warranty and accepts no liability for third party products selected by the customer, in particular but not limited to controls, and which are required by the customer to be integrated in Trane products.
9.10 Once complied with this Article, Trane shall have no further liability for a breach of warranty in respect of such products or services.
10 FORCE MAJEURE
10.1Trane reserves the right to defer the delivery date or to cancel the contract in whole or in part, if it is prevented from or delayed in the carrying on of its business due to circumstances beyond its reasonable control, including (without limitation) acts of God, accidents, compliance with any law, regulation or other government order (whether or not valid), war or national emergency, riots, fire, industrial action, shortages of labour, restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials. If the force majeure event continues for a continuous period in excess of 6 months, either party shall be entitled to terminate the contract.
11 LIMITATION OF LIABILITY
11. 1 Unless otherwise provided for by mandatory provision of applicable law, Trane™s total liability for direct damages, if and when established, shall be limited to the price of such products and/or services. Trane shall be under no liability to the customer for any consequential damage or indirect damage, including but not limited to loss of profit, costs of unloading, crane and personnel availability, loss of refrigeration.
11.2 Catalogs, price lists and any other sales literature are issued by Trane for information purposes only and can be updated or amended from time to time. Any typographical, clerical or other error, mistake or omission in these documents or in offers, order acknowledgements, drawings, specifications, invoice or other documents shall be subject to correction without any liability on the part of Trane.
11.3 Trane shall not be responsible for any consequence arising of or resulting from the use of incomplete or incorrect information communicated by the customer to Trane.
11.4 The customer retains responsibility for the HVAC system design, its drawings and in particular the verification of the accuracy and suitability of the products and services within customer™s system.
12 INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
12.1 The customer acknowledges that it will acquire no intellectual or industrial property rights in any patent, trademark, trade name, drawings or any other related right owned, used or developed by Trane prior to or during the execution of the contract.
12.2 The customer agrees not to do or permit to be done anything which might in any way adversely affect the validity or value of Trane™s intellectual or industrial property rights or the goodwill therein.
12.3 Notwithstanding the foregoing, when Trane develops specific software or source code for a customer, this customer is, subject to payment of the agreed royalties, granted a non-transferable, non-exclusive right of usage for the lifetime of the concerned HVAC system on the agreed project site.
13.1 The customer shall not be entitled to assign the contract or any part of it without the prior written consent of Trane.
13.2 Trane may assign the contract or any part of it to any person, firm or company.
14 LAW AND JURISDICTION
14.1 All Contracts are governed by Belgian law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
14.2 Parties will refer any dispute to the exclusive jurisdiction of the Courts of Brussels.
15.1 If any provision of the Terms is found by any court to be wholly or partly illegal, invalid or unenforceable it shall to the extent of such illegality, invalidity or unenforceability be deemed severable and the remaining provisions of the Terms shall continue in full force and effect.
15.2 Failure or delay by Trane in enforcing or partially enforcing any provision of the Terms will not be construed as a waiver of any of its rights under the Terms.