Terms and Conditions of Sale
- GENERAL
The Terms and Conditions of Sale outlined herein shall apply to the sale by Klinge Corporation, and/or subsidiaries or affiliates thereof (hereinafter referred to as Seller’) of products, equipment and parts relating thereto (hereinafter referred to as ‘Unit’). Unless prior written contract is reached, it shall be understood that Seller’s proceeding with any work shall be in accordance with the terms and conditions outlined herein. Seller hereby gives notice of its objection to any additional or different terms included in any purchase order or other form submitted by the Purchaser. Such additional or different terms shall not be included in this contract. Seller will comply with applicable laws and regulations as they may apply to the manufacture of Unit. Compliance with any local governmental laws or regulations relating to the location, use or operation of Unit, or its use in conjunction with other equipment, shall be the sole responsibility of the Purchaser.
- PURCHASE PRICE
Prices for Unit are subject to change at any time prior to shipment to reflect any cost increases related to the manufacture, supply, and shipping of Unit. This includes, but is not limited to, cost increases in raw materials, supplier components, labor, utilities, freight, logistics, wages, tariffs and benefits, regulatory compliance, or any other event beyond Seller’s control. If shipment is delayed due to Purchaser’s actions, Seller may also charge Purchaser with storage fees. All prices include packaging in accordance with Seller’s standard procedures. Charges for special packaging, crating, or packing are the responsibility of the Purchaser.
- TAXES
Prices do not include any present or future direct or indirect, foreign, federal, state, local property, license, privilege, sales, use, excise, value added, gross receipts or other like taxes or assessments applicable to, measured by, or imposed upon or result from this order (‘Taxes’) or services in connection therewith. All taxes will be itemized separately. Purchaser will be responsible for the payment of any Taxes to Seller unless Purchaser provides a valid exemption certificate. If the exemption certificate is not recognized by the governmental taxing authority, Purchaser will reimburse Seller for any Taxes, including any interest or penalty assessed against Seller.
- SHIPMENTS
Purchaser must, no later than the date of order completion, accept the Units before shipment from agreed shipping location provided that they are completed and tendered without obvious defects or deficiencies for shipment on or about the agreed estimated shipment dates. Any Units completed and tendered earlier may be accepted earlier by Purchaser at its discretion, provided, however, in such event, the original payment terms shall still apply. Seller shall inform Purchaser about any recognisable delays immediately after they come to the attention of Seller. Seller will use commercially reasonable efforts to deliver the Unit on or by the estimated delivery date, will notify Purchaser if the estimated delivery dates cannot be honoured, and will deliver the Unit as soon as practicable thereafter. In no event will Seller be liable for any damages or expenses caused by delays in delivery. Delivery dates shall be interpreted as approximate and are not guaranteed, in particular with regard to ocean freight where shipping schedules, overbookings, geopolitical events, and weather can after cause longer and unanticipated delays.
- PAYMENT
Seller will issue an invoice to the Purchaser for the Total Purchase Price. For sales transactions, the payment terms shall be as follows: an initial payment of twenty-five percent (25%) of the total purchase price is due at the time the order is placed. This initial payment must be made upon receipt of the invoice to secure the order. The remaining seventy-five percent (75%) of the total purchase price must be paid in full prior to the shipment of the goods. Purchasers’ failure to meet the payment terms outlined here will obligate Purchaser to pay damages in the amount of one percent (1.5%) per month on the past due outstanding balance, calculated from the date payment was due until the time payment is received. Seller’s option not to enforce this clause does not waive Seller’s rights to demand payment as outlined herein.
- TITLE AND RISK OF LOSS
The Incoterm and freight term governing each sales transaction will be detailed in the Sales Order Acknowledgement and Invoice. Notwithstanding anything to the contrary, title and risk of loss or damage to Unit shall pass to the Purchaser upon tender of delivery to common or contract carrier at the Seller’s U.S. manufacturing facility unless otherwise agreed upon by the parties in writing.
- TESTS
Prior to shipment from Seller’s location, Seller will perform a function test of each Unit to ascertain that each Unit is fully functional.
- WARRANTY
Subject to the conditions hereinafter stated, Seller warrants the Units to be free from defects in material and workmanship for a period, whichever is earlier, of twelve (12) months from the date of commissioning, or eighteen (18) months from shipment from Seller for all Units, or otherwise specified. Such warranty is limited at Seller’s option to repair or replace with new or remanufactured parts at any authorized service affiliate of any part or parts which are found by Seller to have been defective under normal use and service within the specified warranty period. This warranty shall only cover labour and parts in accordance with the Seller Flat Rate Labor Schedule. Such repair or replacement shall be Purchaser’s exclusive remedy and correction of defects in the above manner shall constitute complete fulfilment of all obligations and liabilities of Seller with respect to the Units sold hereunder, whether based in contract, in tort (including negligence and/or strict liability), or otherwise.
Any part of a Unit which is repaired or furnished as a replacement under the terms of Seller’s Warranty will be installed by any authorized Seller service affiliate without charge to Purchaser for labour or parts. Any part which is replaced shall become the property of Seller. Such warranty services must be performed by an authorized Seller service affiliate and will not include overtime, mileage, telephone calls or telegrams, or cost of transportation and/or relocation of equipment or service personnel. Seller shall not be liable for any duties, taxes or associated charges which may be imposed by the laws or regulations of any country where a warranty repair is performed.
Equipment installed by third parties must be commissioned at the installation site by an authorized Seller service affiliate. The commissioning must be documented using the approved form and submitted to Seller for approval in order for the warranty to take effect. This warranty includes the cost of labour for the removal and/or reinstallation of defective components in accordance with the Seller Flat Rate Labor Schedule. It also covers the cost of handling or shipping involved in supplying replacement components for repair under warranty when the repair is performed by an authorized Seller service affiliate and/or contractor. Return freight for parts that Seller requests to be returned for inspection must be prepaid by the Purchaser. The cost of return freight will be reimbursed if the part is found to have a defect in material or workmanship. In the event that warranty repairs are performed by an unauthorized Seller service affiliate and/or contractor, labour reimbursement will be in accordance with the Seller Flat Rate Labor Schedule, or at the prevailing local hourly labour rate, whichever is less. Seller’s warranty does not include consumable or maintenance items, such as, but not limited to, lubricants, fuses, fuel, filters and filter elements, injector nozzles, glow plugs, cleaning materials, belts, light bulbs, refrigerant gases, dryers, and batteries. Exclusions from this Warranty include damage or failure arising from: wear and tear; corrosion, erosion, deterioration; modifications made by others to the Unit; repairs or alterations by a party other than Seller that adversely affects the stability or reliability of the Unit; vandalism; neglect; accident; adverse weather or environmental conditions; abuse or improper use; improper installation; commissioning by a party other than Seller; unusual physical or electrical or mechanical stress; operation with any accessory, equipment or part not specifically approved by Seller; refrigerant not supplied by Seller; and/or lack of proper maintenance as recommended by Seller.
Seller’s warranty shall not apply to any Unit which (i) has been so installed, maintained, repaired or altered as, in Seller’s judgement, to affect its integrity, (ii) has been subjected to misuse, negligent handling or accident, (iii) any accessories installed on the Unit (such as but not limited to telematics) are not approved by the Seller, or (iv) has been operated contrary to Seller’s printed instructions.
THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, EXCEPT OF TITLE AND AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
- LIMITATION OF LIABILITY
SELLER SHALL HAVE NO LIABILITY IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, FOR ANY INJURY OR DAMAGE CAUSED TO VEHICLES, CONTENTS, PRODUCT CARGO OR OTHER PROPERTY OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OR INTERRUPTION OF BUSINESS, LOST PROFITS AND LOSS OF USE. THE REMEDIES OF THE PURCHASER HEREIN ARE EXCLUSIVE AND THE TOTAL CUMULATIVE LIABILITY OF SELLER SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE UNITS ON WHICH SUCH LIABILITY IS BASED.
In the event that the Unit sold hereunder is to be used in a nuclear facility, Purchaser hereby releases and agrees to indemnify Seller and its suppliers 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 negligence or otherwise of Seller or its suppliers.
- INTELLECTUAL PROPERTY; PATENT INDEMNITY
“Intellectual Property” means all (i) technology, formulae, algorithms, practices, procedures, processes, methods, systems, techniques, know-how, ideas, creations, inventions, discoveries, trade secrets, enhancements, software programs and improvements (including, but not limited to, structural and functional information and other data repository, formulations and techniques, whether patentable or unpatentable and whether or not reduced to practice); (ii) technical, engineering, and related information and materials; (iii) registration information; (iv) specifications, designs, models, devices, prototypes, schematics, and development tools; (v) logos, labels and packaging; (vi) general intangibles; and (vii) tangible embodiments of any of the foregoing, in any form or media whether or not specifically listed herein, in each case to the extent related to or associated with any products or Units.
Purchaser hereby acknowledges and agrees that all Intellectual Property that is owned or controlled by Seller as of the date of sale to Purchaser, or that is developed, conceived or reduced to practice outside of the performance of the services, products or Units by Seller, and all modifications or improvements thereto, shall vest in, be the property of, and shall be owned solely and exclusively by, Seller. Purchaser hereby acknowledges and agrees that any and all Intellectual Property that is developed, conceived or reduced to practice by representatives of Seller in the performance of the services, products or Units and that is (i) within the field of the Seller, and (ii) does not rely on or incorporate Purchaser materials or confidential information, is not part of the services, products or Units and shall vest in and be the sole and exclusive property of, Seller.
Seller hereby grants to the Purchaser a nonexclusive and nontransferable license to use the Intellectual Property only to the extent necessary to: (a) market any of the Seller products or Units for re-sale to one or more end Purchasers of the Purchaser; (b) distribute the products or Units to one or more end Purchasers; (c) to incorporate any of the products or Units (as a whole, but not any part thereof) as a component of one or more of the Purchaser’s products or Units and/or; (d) utilize the product or Unit for Purchaser’s own refrigerated transport or storage purposes. Any and all uses of the Intellectual Property by the Purchaser that are not authorized pursuant to these terms shall not be permitted without the prior written consent of Seller and will result in revocation of the License as well as consequences for the breach of these terms as outlined below.
Except as these terms expressly permit, Purchaser shall not, and shall not permit any other person or entity to: (i) modify, correct, adapt, enhance, or otherwise prepare derivative works or improvements of any products or Units; (ii) rent, lease, lend, sell, sublicense, assign, distribute, transfer or otherwise make available products or Units to any third party; (iii) reverse engineer, disassemble, decompile, or adapt products or Units, in whole or in part; (iv) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any warranties, disclaimers, or Intellectual Property, proprietary rights or other symbols, notices, marks, or serial numbers on or relating the products or Units; (v) use products or Units in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property right or other right of any person or entity, or that violates any applicable law; (vi) use the products or Units for purposes of (a) benchmarking or competitive analysis of the products or Units; (b) developing, using, or providing a competing product, unit or service; or (c) any other purpose that is to Seller’s detriment or commercial disadvantage; or (vii) use the products or Units in any manner or for any purpose or application not expressly permitted by these terms.
Remedies for Breach. The Purchaser understands and agrees that money damages would not be a sufficient remedy for any breach of these terms and that Seller shall be entitled, in addition to such monetary damages, to seek equitable relief by way of preliminary and/or permanent injunction, specific performance or any other equitable relief to remedy or forestall any such breach or threatened breach by the Purchaser. Such remedy shall not be deemed to be the exclusive remedy for any breach of these terms but shall be in addition to all other rights and remedies available at law or in equity. The Purchaser further acknowledges and agrees that the covenants contained herein are necessary for the protection of legitimate business interests and are reasonable in scope.
No shipments will or may be made to Seller or its purchasers, directly or indirectly, to Cuba, North Korea, Iran, Syria, Sudan, Venezuela, or to any party included on the lists described at the following website: https://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern.
Provided Purchaser gives prompt notice and assistance to Seller, Seller shall at its own expense defend, or at its option settle, any claim or suit brought against Purchaser based upon a claim that the Units purchased hereunder infringe the intellectual property rights of a third party, and Seller shall pay all damages and costs awarded in such suit, unless the products or Units are supplied according to Purchaser’s design, or if the infringement results from either modification of the products or Units or combination with products or Units not purchased hereunder by Purchaser. Purchaser shall indemnify Seller against any claim or suit brought against Seller if the products or Units are supplied according to Purchaser’s design or if the infringement results from either modification of the products or Units or combination with products or Units not purchased hereunder by Purchaser, and Purchaser shall pay all damages and costs awarded in such suit.
- COMPLIANCE WITH LAWS AND REGULATIONS
The Purchaser acknowledges and agrees that: i) it shall not violate applicable laws and regulations in performing its duties under this Contract; ii) it does not and shall not engage in any conduct that shall violate any applicable anti-bribery or anti-corruption laws or regulations in the United States or elsewhere; iii) it (and its owners, officers, directors, employees and agents) shall not pay, offer, promise or authorise the payment of, either directly or indirectly, anything of value (including but not limited to cash or cash equivalents (such as stocks, gift cards, debit cards, traveller’s cheques), gifts, entertainment, charitable donations or sponsorships, political donations or sponsorships, products, services, discounts, meals, travel, entertainment, favours, loans, loan guarantees, the use of property or equipment, job offers, transportation, and the payment of expenses or debts) to (a) any government official or employee of any government; (b) any official or employee of any department, agency, or instrumentality of a government; (c) any employee of any corporation or entity owned or controlled by a government; (d) any family member of such officials or employees; (e) any political party, party official, or political candidate; or (f) any other persons, owners, officers, directors, employees and agents of any corporation or entity; to improperly or illegally assist in obtaining or retaining business (including but not limited to any contracts, avoidance of duties or reduction of tariffs, reduction of taxes or to obtain money owed, or to obtain regulatory approval) or for the purpose of causing, soliciting or inducing the sale and purchase of the Seller’s products or services by any party; iv) it has full knowledge of and will comply with Trane Technologies Code of Conduct for Business Partners; and v) it will comply with the Trane Technologies’ International Trade and Export Policy and Procedure.
The Purchaser shall indemnify and hold Seller harmless from any claim, demand, expense, or cost arising from any breach of this anti-corruption provision. The Purchaser shall permit Seller to conduct an audit or review of Purchaser’s financial books and records, and business operations related to Purchaser’s business with Seller at such other times that Seller considers it necessary to confirm compliance with this anti-corruption provision. Such audit may be conducted by representatives of Seller or, at the Seller’s sole discretion, by a certified public accounting firm selected by Seller. Purchaser shall cooperate with any inquiries from the Trane Technologies Ethics & Compliance Group.
A violation of this anti-corruption provision constitutes a material breach of this Contract and Seller may terminate this Contract immediately, with no opportunity to cure, by providing a notice to Purchaser.
- FORCE MAJEURE
Seller shall not be liable for any loss, damage, detention or delay resulting from any cause beyond its reasonable control, including, but not limited to, fires, floods, earthquake, tornado, storms or weather; acts of God; pandemic; strikes, lockouts or other concerted actions of workers; acts or omissions of any governmental authority or of Purchaser; insurrections, riots, embargoes, wars, civil disobedience or hostilities; transportation shortages, delays or wrecks; or inability to obtain labour or material from usual sources; restraint by court order or public authority; 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 Seller; 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. In such event, the date of shipment or delivery will be postponed by such length of time as may be reasonably necessary to compensate for such delay. In the event that it wishes to claim relief by reason of any of the circumstances referred to herein above, Seller shall promptly notify Purchaser in writing both on the occurrence and on the cessation thereof.
- DOCUMENTATION
Seller will furnish Purchaser with a full set of operator’s manuals in English.
- GOVERNING LAW
These terms and conditions shall be construed, interpreted and enforced in accordance with the laws of Delaware, as may be in effect from time to time, except that its conflict of law principles and the United Nations Convention on Agreements for the International Sale of Goods shall not apply.
- SUCCESSORS AND ASSIGNS
Neither party shall assign or transfer this contract without the prior written consent of the other party. Seller however shall be permitted to assign or transfer, without the prior written consent of the Purchaser.
- HEADINGS
The headings of the Sections of this contract are inserted for convenience only and shall not be deemed to constitute part of this contract or to affect the construction hereof.
- WAIVER
Any of the terms or conditions of this contract may be waived in writing at any time by the Party which is entitled to the benefits thereof. No waiver of any of the provisions of this contract shall be deemed to be or shall constitute a waiver of such provision at any other time or a waiver of any other provision hereof.
- NOTICES
Any notice to be given hereunder by either party hereto to the other party shall be in writing and delivered personally, by overnight courier service, by fax or sent by registered or certified mail, postage prepaid to the agreed address for such party or at such other address for a Party as shall be specified in writing by that Party. Any notice which is delivered personally or by fax to the agreed addresses shall be deemed to have been duly given to the Party to whom it is directed upon actual receipt by such Party (or its agent for notices hereunder).
- DISPUTE RESOLUTION
All disputes, controversies or claims arising out of or in connection with this contract, including any question regarding the existence, validity, termination or breach thereof, shall be settled first by mutual discussion and, only if that is unavailing, Parties shall submit to the exclusive jurisdiction of the United States District Court sitting in Minneapolis, Minnesota. The proceedings shall be conducted in the English language.
- SEVERABILITY
The Parties agree that if any provision of this contract shall under any circumstances be deemed invalid or inoperative, this contract shall be construed with the invalid or inoperative provision deleted and the rights and obligations of the Parties shall be construed and enforced accordingly and the validity and enforceability of the remaining provisions contained herein shall not be affected or impaired thereby.
- AMENDMENT
No amendment, modification or alteration of the terms or provisions of this contract shall be binding unless the same shall be in writing and duly executed by the Parties hereto.
- ASSURANCES OF PERFORMANCE
Seller shall have the right at any time to demand adequate assurances from Purchaser that it has the financial capability to make all payments required under this contract. In the event Purchaser fails to provide adequate assurances within five (5) days of such demand, such failure shall be deemed a material breach of this contract and Seller shall have the right to terminate this contract.
- ENTIRE AGREEMENT
This contract hereto constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior contracts and understandings between the Parties with respect to such subject matter.