Complaint Unlimited Fee AppliesCal. Super. - 6th Dist.March 3, 2021LAW OFFICES OF WILLIAM L. BAKER WILLIAM L, BAKER (State Bar 4114454) 1050 Fulton Avenue, Suite 218 Sacramento, CA 95825 Telephone: (9 l 6) 978-0772 Facsimile: (9il 6) 481-1795 Attorney for Plaintiff TRANE U.S. INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA f UNLIMITED CIVIL CASEt TRANE U.S. INC., a Delaware coITIoration, ) ) Plaintiff, ) ) V. ) ) RkC BR.OWN ASSOCIATES LIMITED ) PARTNERSHIP, a California limited partnership; ) and DOES 1 through 100, inclusive, ) ) ) Defendants. ) ) ) ) ) Case No: I. Breach of Contract 2. Quantum Met uit 3. Action on Open Account Plaintiff complains and alleges: FIRST CAUSE OF ACTION 1. Plaintiff TRANE U.S. INC. is now and at all times in the complaint mentioned was, a corporation duly organized and existing under and by virtue of the laws of the state of Delaware and doing business in California pursuant to and authorized by the laws of the state of California, 2, Plall'ltlfI's now, and was at all of thc tln1cs hclcll'laftcl'tated, a licensed contlactol ln the state of Califorma, and duly licensed as such contractor under the laws of the state of California at the time each of the acts hereinafter mentioned were perforlrled. E-FILED 3/3/2021 1:28 PM Clerk of Court Superior Court of CA, County of Santa Clara 21CV379117 Reviewed By: R. Tien 21CV379117 3. Defendant RKC BROWN ASSOCIATES LIMITED PARTNERSHIP is a California limited partnership and doing business in California. 4. PlNntlff ls igI10rMlt of the tluc I'larncs of defendants nNTled hcl'cln as DOES 1 thlougl'I 100, inclusive, and therefore sues them by the foregoing names, which are fictitious, and is informed and believes and thereon alleges that each of said DOE defendants are legally responsible to Plaintiff, and Plaintiff asks that when their true names are discovered, this complaint may be amended by inserting their true names in lieu of said fictitious names, together with apt and proper words to charge them. 10 20 21 23 5. At all times herein mentioned, each defendant, including the DOE defendants, was an agent, servant or employee of the other defendants herein named; that at all of said times, each said defendant was acting within the course and scope of said agency, service or employment. 6. On November 2, 2016, Plaintiff entered into a written agreement with Defendant RkC BROWN ASSOCIATES LIMITED PARTNERSHIP [hereinafter "Defendant"], wherein Plaintiff agreed to furnish and install HVAC equipment and controls and related equipment and materials for the Caliva project located at 695 South 7"'tl eet„Saii Jose, California [hereinafter "Project"] pursuant to the terms and conditions set forth in the agreement. Attached hereto as Exhibit A is a copy of Plaintiff's proposal and agreement dated November 2, 2016. The contract required Defendant to pay $685,510 plus tax in the amount of $58,546.48. 7. Plaintiff performed all of the conditions, covenants and promises under the agreement on its pait to be performed. 8. The whole of the real propel'escribed in the first cause of action upon which the work of improvement is situated is required for the convenient use and occupation of the work of improvement. 9. Although demand therefor has been made since the labor, equipment and materials wel e furnished as allcgcd above, Defendarlt alld DOES I tl'll ough 25 have failed to I'I'lake all payrncllts in connection with labor and equipment furnished by Plaintiff. Defendant and DOES 1 through 25 breached said agreement by failing to pay the present amount due and owing. Plaintiff is currently owed $ 131,371.48 plus interest, costs and attorney fees. 10. The agreement between Plaintiff and Defendant contains a provision entitling the prevailing party to an award of reasonable attorney fees and costs should any litigation arise out of or in connection with the contract, Plaintiff is entitled to an award equal to all attorney fees and costs incurred in connection with this litigation. WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. SECOND CAUSE OF ACTION uantnM Mel nit 10 12 20 11. Plaintiff refers to and incorporates herein by reference the allegations of the first and second causes of action. 12. At the special instance and request of Defendant and DOES 1 through 25, and on a promise to pay the reasonable value thereof, Plaintiffherein furnished and installed HVAC equipment and controls and related equipment and materials to Defendant in connection with the improvements to the Project located in San Jose„Califo&asia, as more particularly described in the first and second causes 0'f action. 13. The furnishing of the labor, materials and equipment for the above work of improvement were of the reasonable worth and value of $ 744,056.48. 14. Such materials, labor and equipment were furnished, and actually used in connection with the construction of the Project. 15. Although demand has been made on Defendant, only a portion of the above amount has been paid, and the amount of $ 131,371.48 remains due, owing and unpaid. WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. THI~ CAUSE OF ACTION Action on O en Account 16, Plaintiff refers to and incorporates herein by reference the allegations of the first and second causes of action. 17. Within the last four years, Defendant and DOES 1 through 25, became indebted to pay Plaintiff on an open book account for money due, in the principal sum of. $744,056.48 for furnishing and installing HVAC equipment and controls and related equipment and materials for Defendant at the special instance and request of the latter, for which Defendant agreed to pay the above sum to Plaintiff. 18, In spite of dcl'lland fof paylTlcnt, only a portion of thc above sunl has bccn paid, and there is still due, owing and unpaid from Defendant and DOES 1 through 25 to Plaintiff the principal sum of $ 131,371.48 together with interest as allowed by law to date of entiy ofjudglnent herein. P~VER FOlk DAMAGES 10 WHEREFORE, Plaintiffprays for judgment against Defendants, and each of them as follows: 1. As to the first, second and third causes of action, Plaintiff prays for judgment against Defendant RAC BROWN ASSOCIATES LIMITED PARTNERSHIP and DOES 1 through 100, for the sum of $ 131,371.48 plus interest at the legal rate and for attorney fees and costs; For costs of suit, including attorney fees incurred herein; and For such other and further relief as the Court deems just and proper under the cll cUIBstanccs. Dated: March, 2021 LAW OFFICES OF WILLIAM L. BAKER 18 WILLIAM L. BAKER, SBN 114454 Attorney for Plaintiff TRANE U.S. INC. 20 21 -4- COMPLAINT I OR BREACH OI»'ONTRACT From; Senti To Subjeot; Batffsio!t, Rob Wednesday, hfovernber 02, 2016 2."50 PM Youngbfood, Sustain; INeat Credit Review Fyy: Celiva - 8 8 C E)rown Assoofafea, LP Letter cf fnterit - Trane Proposal X1-114882-3 REV AS Dated Qolober 11, 2016 Hi there, Piease see th'e LOI emafl below with the updates requested. Hest, Rob Subjeot Io your eoceptanoe of Trane Terms and Conditions ebs ieftsrenoeV fn Trane Propoeaf dated 8e tembera,201I) Rob Hattfston l &08.891-c!~94 I rob.battiston trane.corri From: Lowry Pendley jmailto.'Iowry@randcbrown.corn] Sent.')Aietfnesday, November 02, 2016 2.'45 PM Yo; Battfston, Rob &Rob. Battfstonl) trans,cotn& Cc, Prew Brown &drewtirandcbrown.corn&; Mark McQoweff &markrnirandcbrown,corn&; Larry Thacker &fthackerN!caffvacafffornia,corn&; Chris Rooney &croonay@ca)ivacafifornfa.corn& Subject; Re: Caffva - R at C Brown Associates, Lp Letter of Intent- Trans proposal )I'I-%14882-I REV II5 Dated October 0,, 2016 ltob, pursuant to your request n! revise die Letter ol'latent please sec belon in b~&fdlIaNcr uhlch nro taken verbatim frotn your cmaiL I trust this sill be th» Inst revision and that this has not affected the ship date(s) of'any ol'th» equipment ot'ontrols. Also, os diseussid, pl»ase Ibrnord a Schedule of Values for Ihe entire order at ) our»oiliest conc»nicncc, please accept tltfs email us R A c Broivn Associates, Lp's IRAN Q) forma I Loner ol hucnt to enter hito an A are»ment to gg lth Tmnc I I s, fnc, to provide the equfpmcnt, labor and material lbr the I IVAC s)stem described in thc above subject quotation, As vrc have discussed, it is th» intent of'MC to purchns!! alf ol'thc Itents llsled In thc proposal, est,ept thc 'I'ouchserecn Controlk!rs tvhich are not being ordered by RkC, but stagger shlpine!it io accontmodatc thc construction schedule, 3 tttr totrtl voltte fof Eqttfpntcrit ort@ cori tro$$for tAe @eject8'kC requires that aff cqulpmcnt nnd controls r»quired i'or ihc I'uR operational capacity ot'Ron!us 7, 8 and 9 he released Ibr Immcdiat» fhbrfcatfon and shipment All remaining eqoipmcnt and controls sholi hc shlppnf on or about Pebruar) I, 20I V with ann»tuel date to bc dctcllnlnid no Intel'han December I 6, 20 I 6, It Is our understanding tha( the equfpmcnt aod controls lo!'toonts 7, II And 0 arc aslolf'6's,'sis n dad tnthe ul nt nt rfe o % 's Vt).t)OPIos "Ats rereren d thove ogty t0) ) 5 Ton Trone %sill" nith IOI)~A Itch»at Coiis o sty (4) Trane Qc!lesfs pholociitalvtfc AfrCIeaners (I5 Year Media) I 0 Qty (6) l3astratlficallon I'ans o Qt) (I j Ventilation Exhaust Fan c! Qty(1) Emergency Eshiius1 Fan e Qty ( I) Ctu'ban Odor Scrubber (serves a «omtnon ronnaction to Ventilation anti Emergency I~Ataust Fans) o mg'-C s s itr nel de In e !i'eaof II283, as Ta rater n d bov o Qty (4) 15 'I cn Tranc KVSI IP ivith I OOt)s I(cheat CoHs 0 Qly (0) Trune Genesis Photocatnl)tlc Ah'leaners (15 Year Media) 0 Qt) (6) Deslnttlficatlon Fans o Qty(l) Vanti)ation Eshaust Fan o Qty(i) Emargcnc) Eshaus( Fan c! Qty ( I ) Carbon Odor Scrubber (series a common connection to Ventilation and I"mcrgency Exhaust Fans) -Cos s «coded inl a E ui aut rieeol'$5283'N.OOPlus Taxra('e eat bove 0Qty (4) 15 Ton Tenne EVSI IP ivith 100'i» Raitaat Coils o Qtv (0) Tranc Genesis Photocatalisk Air Cleaners (15 Year Ivlcdta) 0 Qty (0) DestNtl lleallon I!ans 0 Qly ( I ) Ventilation Lxhaust Fan o Qty (I) Etnerganc), Exhaust Fan c! Qt) (I) Carbon Odor Scrubber (serves a commori connection to Ventilation and Emergency Eslraust I!ans) e C o u Tm "Plant A cess ries ' b GC.-CostsareI lured ntie Eiul!ment rleaal'Sg28 7000Pius o Qty (2) IOHP VFl3s lbr Condenser EVatar Plant Dell and Gossctt Pumps c Qty (I } Cooling Totvar and Condenser Loop Controller o Qty (I) Veer on Chemical Treatment ol'Cooling Toivcr Controls including bat not necessarily limbed ta. 'II chemicals fbr tha iirst year including 12 Sita Visits und B&qaisitc Tests "No Scale Guattlntca Iw thc First Veer Annual 'I'oivcr Cleaning during regular business hours + Foe o canted 8ACNR'VCot tr ls- t ts re neluded the ts I eut rl ca 5 8 7000 T, ereneed ~bo e 0 As Describe in Tranc Proposttl Bc« ll5 ~ Cote . tt r 2- oa tCo frntlers- 8 V8,09AI . ncltn 0 0 As Deserihcd IA Trane Propostll ltl,'v N5 0 lunch &Scrvcl') Conti'(iitels Bfe cYcluded rois A tel'I ate!tt3 Rtlfs Caatt'AH 8 n tfft her Rmlms» $3t 735.00 I Lx lllle4 0hs Described ln Trltnc Proposai Re«N5 0'I'ltuch Screen C(mtrollcrs arc excluded tto I te e d fat' C Ilel 0 ttatt of Roams 7 tt nod 9na ste(t attove - stsal'c htehltletl in e . ui nte rl eof I 8 V0&00PIsfs'gas tel'erene tt t b ve I'cr thc tcnns of the Agreement, a 50fYo down paytnent cia Credit Card is acceptable for the g626,376+tetr shipmcm n hh thc balance due within 30 days alter Shipntcltt. 'I hank you I'or your cooperation. Eye look ('oncard to n orl ing whh you on this project, Best Regis On Tue, Nov l,20I68t 6:06 PM, Bntttston, Rob &Rob.Bt t. l 1'.rit 0 0 ~ wt'otc: Again, thanl&s for working withus, As I mentioned on the phone The factory got started on this TOlMY. 50, start the dock- we t'e rnovtng forward with productIGn Gn the Wetet'GLlrce Heat PUBtps. ls tt posslhle fol'ou to make the following corrections based Gn the feed!Mdt frQm out legei teatnl please edtl the following line as lndlcated in boi4'red below- note that this total incfudes ell Items, lnelutling the ($8,940) Advanced Payment Discount, which wasn't accounted for previously, The total maitre for Eristiprnenf attri corttroisfor the project fs $685520 (pitrs tatt an aNappNntbie eqaiptrtent portions of the pfoiect as irtdicateri abave). Pmpe)sBI Rev 3 tVatid!or 30 days trornr Proposal daisI f-"'.r~Df"iflEi AA&'iifVG COfyfr K3f;:fyf M! PACifrl:.fi'i' Oi'rarre 'i2.~~. irrc, DfS'76'f897'f~~AV TD Df'if&I, 7HAly TffEf r@A~iED RFCfPJlrfy'i 18 Pti r.'&ffi8lTf'f) «0 fG Trans Aff'fgl&fs reserverl Prepared For: Larry Thacker Caliva Job hfame: Caliva - NC3 - Rrn f-12 Delivery Terms: Freight Allowed and Prepaid - F.Q.B. Faotory Trane U.S, Inc, is pleased to provide the fotlovAng proposal for your review and approval. Fr D = rurnisbcd by rranr! U,S, tr'tc / trIslel!ed by Qrrrgrs caiiva - tvcs ~ Rm 7-t2 Ssp'tst11bor S pete Room 7: Qty(4) 15 Ton Trane WSHP with 100% Reheat Coils Qty(4) Trane Genesis Photocatalytic Air Cleaners (15 Year Media) Room 8: Qty(4) 15 Ton Trane WSHP v;ith 100'/0 Reheat Coils Qty(4) Trane Genesis Photocatalytic Air Cleaners (15 Year Media) Room 9: Qty(4) 15 Ton Trane WSHP with 100'/o Reheat Coils Qty(4) Trans Genesis Photocatalytic Air Cleaners (15 Year Media) Rooms - 7IBlgl1 2/13: Qty(6) Destratiflcation Fans Qty(1) Ventilation Exhaust Fan Qty(1) Emergency Exhaust Fan Qty(1i) Carbon Gdor scrubber (serves a common connection to Venti'lation and Emergency Exhaust Fan) Rooms -1 D/11: Qty(3) Destratification Fans Qty(1) Ventilation Exhaust Fan Qty(1) Emergency Exhaust Fan Qty(1) Carbon Gdor scrubber (serves a common connection to Ventilation and Emergency Exhaust Fan) Coolin Tower Plant Accessories Towers b AGC: Qty(2) 10HP VFDs for Condenser Water Plant Bell and Gossett Pumps Qty(1) Cooling Tower and Condenser Loop Controller Qty(1 ) Year of Chemical Treatment of Cooling Tower Controls NOTE: First Year Chemical Treatment includes: c All chemicals for the first year of treatment including 12 Visits/Tests o No-Scale Guarantee for the First Year o Annual Tower Cleaning (during regular business hours) Fb 9 = Furnish so'y Trans U S, inc. /insets lied by Others EqiI/pmen i F'rapassl Caliva - NC3 - Rn& 7-12 Rev 3 ~ HVAC 8ase Scope Gf tV&fA - Total @et Pt'tce (ExcAtdtng Saks Tap'f ...„„.„.....,....:...., ~~ 525,37C+tex All mechanical instaliation by AGC. All electrical and Unit Heat Pump Controllers by Others, Heat Pumps and PCO devices come vtith 1" year Parts and Labor Vyarranty. Not including: INaintenance, spare filters, UV lamps, 6y stgA~Ag BGoye, CUSIGtnef Bgt'eeS GtXf tS tMutNf ]9 thte ierÃs MG'ofKA'ttQlts Gf itits Bgl'eetnerti. F jD = FtnTtistied by Trafl6 U.S. tnc. I tnsfal!ed by Otbers casva ~ NC3- Rm 7-12 Se tember 8, 2016 Sco ecfwork includes: (24) Heat pumps o Provide, install, and program the following: (1) Supply duct temperature t'umidity sensor (1) 8/fring only to reheat controi valve (I) Networking and point mapping to supervisory controller in option 1 ( i) Custom graphical table of points Sco e of work includes: (7) Room Controls Provide, install, and program the following: (1) Control enclosure (1) Programmabie BACnet controller with wireless communication interface (4) Lighting level output relays (4) RO pump enable (1) Tank conductivity sensor (wiring only, sensor by others) (4) Tank PH sensor (wiring only, sensor by others) (4) Irrigation output relays (1) CG2 sensor mounted at 18" ( l ) CG2 sensor hanging from ceiling with 50'oil of wire (1) High CG2 alarm horn / strobe mounted in room near main entrance door (1) High CG2 purge fan enable (h) Gccupancy ventilation fan enable (1) Networking and point mapping to supervisory controller in option 1 (f) Custom graphical table of points Sco e of work includes: (2) Room Controls Provide, install, and program the following: (1) Control enclosure (1) Programmable BACnet coniroller with wireless communication interface (4) Lighting level output relays e ('t) RG pump enable ( i) Tank conductivity sensor (wiring only, sensor by others) FLD = Frirnisned by Tiane U.S, Inc./Installed by Gttlers Eqrtipment Proposal cahva ~ Acs- Re 7-12 (1) Tank PH sensor (wiring only, sensor by others) (4) Irrigation output relays (1) CO2 sensor mounted at 18" (t) CO2 sensor hanging from ceiling with 50'oil of wire (1) High CO2 alarm horn / strobe mounted in morn near main entrance door (1) High CO2 purge fan enable (1) Occupancy ventilation fan enable (I } Networking and point mapping to supervisory rontroller in option 1 (1) Custom graphical table of points (1) Room Mounted BH Sensor se iember 8, 201e Sco e of vvork based on: AII labor based on normai work hours (M-F 7am-4prn) Static IP addresses, Web access 8 internet service provider provided by customer Heat pump zone sensors mounted by others Celive ~ NCS - Rm 7-tl2 Se terrrber 8, 2016 e of work excludes: All work not listed above under includes Overtime labor Permits t ine voltage conduit and wiring to control panels, VFDs and Starters Alr and watel'alancing and assoclatecl reports All Fire Life Safety Systems, smoke detectors, fire smoke dampers, and associated conduit and wiring Any and ail pneumatic sensing lines Cooling tower vibration switch and wiring shutdown Tank PH and Conductivity sensors and their installation ral nates: Although Pacific Coast Trane Controls will make every attempt to minimize tenant disruption during this project, certain disruptions are inherent. Pacific Coast Trane Controls wili not incur additionai charges due the necessity of having to pull off the project in response to tenant complaints. Based on straight time labor rates The quoted prices include freight, state and local taxes Pacific Coast Trane's liability is limited to its'wn negligence, omissions or misconduct. This price is based on both parties reaching mutualiy agreeable terms, conditions, and schedule. All systems are assumed to be operable, clean and free of debris. This includes all ancillary sensing lines and probes Additional repairs and the associated costs shall be brought to your attention prior to any other work being performed and will be quoted separately. The quoted prices will be held firm for 8 period thirty (30) days from the date of this proposal. Scopes of work proposed above are per mechanical drawings dated (none) and no specifications or addendums. FLD = Frrrrrishert by rrerre U.R tnc. I instetted by Others Sbpletfsbbr S, 2O16 Tax Status: Taxable Exempt IF EXEI'eIPT PLEASE SUBfallT COMPLETED TAX EXEMPTION CERTIFICATE WITH YOUR SIGNED PROPOSAL OR WITH YOUR PURCHASING DOCUMENTS, KEEP YOUR ORIGINAL GN Fll F IN THE OFFfCE YQU WILL BE CHARGED TAX IF A VALID EXEMPTION CERTIFICATE IS NQT GiN FILE BEFORE EQUIPMENT, PARTS QR SERVfCES ARE PROVIDED, SEE ItllWYV TÃd&SITES.Cf3M/STATE-!.INKS.H1f st FGR TAX FORSIS ~Anficl 'ett'on Discount Trene hes created en easy &vay to reduce your rost through the Anticipation Discount Prografn (AOPj. AOP is a flexjtfte progrant designeo'or all custonfers. Your discount depends olf how much you pay, Ivhen you pay, the current discoulft fate and the date yoflr ertuipnfent ships. Total potential AOP ffiscoffnt for ttfis project Your Trane representative will be happy lo provide you with a formal ADP quotation. Sincerely, Rob Etattieton - Trane U.S, inc. 310 Soquel Way Sunnyvale, CA 94085-4101 Phone: (408) 481-3600 Cell; (408 I 891-9694 Fax: (408) 481-3666 This proposal is subject to your acceptance of the attached Trans terms and conditions. FLD = Furninf&od by rtatfe U.S. fits. I fnsfaltets by Gffsnts Caliva - NC3 ~ Rm T.12 TERIf/IS AND CONDITIONS - COMMERCIAL EQUIPMENT "Company*'hall mean Trans Canada ULC for sales in Canada snd Trans U.S. Ine. for sales in the United States. 1. Acceptance. These terms and conditions are an integral part of Company's olfsr snd farm the basis of sny agreement(the "Agreement" ) resulting from Company's proposal (the "Propossi"j for the sale of the described commercial equipment and sny ancillary services (ths "Equipment" j. COMPANY'S TERMS AND CONDITtGNS ARE SUBJECT TO PERIODIC CHANGE OR AMENDMENT. The Proposal ls subject to acceptance in writing by the party to wham this offer is made or an authorized agent ("cvstomer") delivered to company within 30 days fram the date of lhs Pioposaf, If Customer accepfa the Proposal by pladng an order, without the addilion of any other terms and conditions of sale or any other modification, Customer's rirder shall be deemed acceptance of the Proposal subject to Company's terms and conditions. If Customer's order is expressly conditioned upon Company's acceptance or assent to terms and/ar conditions ether than those expressed herein, return of such order by Company with Company's karma and conditions attached ar referenced serves as Company's nofiee of objection ta Customer's terms and as company's counteroffer to provide Equipmenk in accordance with the pre posal and the company's terms and conditions. If customer does not reject or object in writing to company within 10 days, company's counteroffer will be deemed accepted. customer's acceplance of the Equipmsnl will in any event constitute an acceptance by Customer of Company's terms and conefitians, This Agreement is subject lo credit appraval by Company. Upon disapprovaf af credff, Company may delay or suspend performance or, at its option, renegoIIate prteea and/or terms and conditions with Customer. If Canipaay and Customer are unable ta agree on such revisions, this Agreement shaft be cancelled without any liability. 2. Tdle and Risk of Loss. All Eqvipmenl sales with destinstians to Canada ar the U.S. shelf be made as follows: FOB Company's U.S, manulncturing facility or warehouse (fu11 freight allowed). Title snd risk of lass or damage to Equipment will pass to customer upon tender of delivery of such ta carrier at Company's U.S. manufacturing facility ar warehouse. 3. Pricing snd Taxes, Following acceptance without addition of any other terms and condiiion of sale or any other modification by Customer, the prices stated are firm provided ihat notification of release for Immediate production and shipment is received at Company's factory not tater khan 3 months from order acceptance. if such release is received later than 3 months from order acceptance date, prices will be increased a straight I oA, (not compounded) foi'each 1 month period {or part thereof) beyond the 3 month firm price period up to the date of receipt af such release. If such release is nat received within 6 months after the date of order acceptance, the prices sre svbject to renegatialion or at Company's option, the order witl be cancelled. Any delay in shipment caused by customer's sefians will subject prices ta increase equal to the percentage increase in list prices during that period of delay and Company may charge Customer with incurred storage (ees, In no event will prices be decreased, The price of Equipinent does not include any p~esent or future foreig~, federal, state, or local property, license, privilege, sales, vse, excise, value added, gross receipts or other Eke taxes or assessments. Such amounts will be itemized separately to Customer, who will make prompt payment to Company. Company will accept valid exemption docuinentation for such from Customer, if applicable. All prices indude packaging in accordance with Company's standard procedures. Charges far special packaging, crating ar packing sre the responsibility of Customer. rL Delivery and Delays. Delivery dates are approximate and noi guaranteed. Company will use commercially reasonable efforts to deliver the Equiprrient on or before the estimated delivery date wiff notify Customer if the estimated deIivery dates cannot be honored, and will deliver the Equiprnenk and senices as soon as practicabte ihereaffer. In no event will Company be liable for any damages or expenses caused by delays in delivery. 5. Performance, Company 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). Company may rely on the acceptance of the Proposal, snd in submittal data as acceptance of the suitabrlity of the Equipment far the particular project or locatiori. Unless speciTicafiy stated in the proposai, compliance w@h any local building codes or other laws ar regvfatians relaling to specifications or the location, use or operation of the Equipment is the sole responsibility of Cvstomer. If Equipment is tendered that does not fully comply with the provisions of this Agreement. and Fquipment is rejected by Customer, Company will have the right ta cure within a reasanable lime after notice thereof by substituting a conforming tender whether or not the tires for performance has passed. 6. Force Majeure. company's dvty to perform under tfiis Agreement and the Equipment prices are contingent upon the non-oecurrence of an Event of Farce Majeure. If the company shall be unabfe ta cany out any material obligation under this Agreement due to an Event of Force Majeure, this Agreement shall et company's election (i) remain in effect but campany's obligations shall be suspended until the uncontraf fable event lerminales or (ii) be termi~ated upor 10 days notice to customer, in which event customer shall pay company for all parts of the work furnished to lhe date of termfriation. An "Fvent of Force Majeure shall mean any cause or event beyond the control of Company. Without limiting the foregoing, "Evenk of Force Majeure" inrludes: acts of God; acts of tei.rorism, war or the public enemy; ffood; earthquake; tornado; storm; fire; civff disobedience; pandemic insurrections; riots; faber/labour disputes; labarltabour or material shortages; sabotage; restraint by court order ar public authority (whether valid or invalid); snd adion or non-action by or inability ta obtain or keep in force the necessary governmental authorizations, permits, licenses, certificates or approvals if not caused by Company; and the requirements of any applicable government in any manner that diverts either the malerial or the finished product to Ihe direct or indirect benefit af the government, T. IJmited Warranty. Company wa~ra~ts the Equipment manufactured by Company for a period of the lesser of 12 months fram initial start-up or 18 months fram date of shipment, whichever is less, against failure due to defects in material and manufacture and that it has the capacities and ratings sef forth in Company's catalogs and bulletins ('V/arranty"}. Equipment manufactured by Company that includes required start-vp and sold in North America will nat be warranted by Company unless Company performs the Equipment startup, Exclusions from this Warranty include damage or failure arising from; wear and tear; corrosion, erosion, deterioration; madificatians made by others to the Equipment; repairs or alterations by a party other than Company that adversely affects the stability or reliability of the Equipment; vandalism; neglect; accident; adverse weather or environmental conditions; abuse or improper vse; improper Installation; commissioning by a party other than Company; vnusual physical or elertricsl or meahanicat stress; operation with any accessory. equipmenl or part not speciTicaliy approved by Company; refrigerant not supplied by Company; and/ar lack of proper maintenance es recommended by Company. Company shall nat be obligated ta psy for the cost of lost refrigerant or lost product. Company's abligations and liabilities under this Warraniy are limited to furnishing replacement equipment or parts, at its option, FCA (Incatenns 2000) factory or warehouse (f,o.b. fartaiy or warehouse for US domestic purposes) at Company-designated shipping point, freight-allowed to Company's warranty agent's stock location, for all non-conforming Company-manufactured Eq~fpment (which have been returned by Customer to Company. Returns musk have prior written approval by Company and are subject to restocking charge where applicable. Equipment, material and/or parts that are nfrt manufactured by Company are nai warranted by Company and have such warrarities as may be ex1ended by the respective manufacturer. COMPANY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS GR IMPLIED, REGARDING PREVENTION OF MOLD/MOULD, FUNSLIS, BACTERIA, MICROBIAL GROWTH, OR ANY OTHIER CONTAMINATES. hfo warranty liability whatsoever shall attach to Company vn51 Customer's compfete order has been paid for in fvll and Company's ffabiTity under this Warranty shall be limited to the purchase price of the Equipment shove ka 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 Company, EXCEPT FOR COMPANY'S WARRANTY EXPRESSLY SET FORTH HEREIN, COMPANY DOES NGT MAKE, AND HEREBY EXPRESSt.Y DISCLAIMS, ANY WARRANTIES, EXPRESS OR IMPLIED CONCERNfNG ITS PRGDLICTS, EQUIPMENT GR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF DESIGN, MERCHANTABIILfTY OR OF FITNESS FOR A PARTICULAR PURPOSE, GR OTHERS THAT ARE AU.EGE D TG ARISE FROM COURSE OF DEALING OR TRADE. 8. Indemnity. To the fullest extent permitted by law, company and Customer shall indemnify, defend and hold harmless each other from any and ail claims, actions, costs, expenses, damages and liabilities, including reasonable attorneys" fees, resuiting from death or bodily injury or damage ta rea1 or persorfaf property, ta the extent caused by the negligence or misconduct af their respective employees or other authorized agents in connect'on with their activities within the scope of this Agreement. Neither party shall indemnify Ihe other against claims, damages„expenses or liabilities ta the extent eitfribukebfe to the acts or omissions of the other party, If the parties are bakh at fault, the obligation ta indemnify shall be proportional to their relative fault. The duty to indemnify wiff continue in full force and effect, notwithstanding the expkation or early termination hereof, with respect to any claims based on facts or conditions thai occurred prior ko expiration or termination. FLD = Furnished by 7rane I/.S fnc. //nsfaffed by Others Page 8 af 10 Caliva - NC3- Rm 7-12 Se tember6, 2016 fk Insurance, Upon request, Company will furnish evidence of its sisnda«d insurance coverage. If Customer has requested to be named as an addi!ional insured under Company's insurance policy. Company will do so but only subject to Company's manuscripi additional insured endorsement under its prirnaiy Commercial General Liability policies. In no event does Company waive any rights of subrogation. 10. Customer Breach. Each of the following evenis or conditions shall constitute a breach by Customer and shall g!ve Company the right, vrithauk an eteckiork of remedies, to terminals this Agreement, require payment prior to shipping, or suspend performance by delivery of written notice: (1) Any failure by Custcmer ta 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 skatvte for bankrupt or insolvent debto!s, or makes or proposes to make any proposal or arrangement with «reditonb or if any steps are taken for the winding up or other termination of Customer or the liquidation of i!s assets, or if a truetee, receiver, Or similar person is appointed over any of the assels or interests of customer; (8) Any representation or warranty furnished by customer in connection with th)s Agreement is false or misleading in any material respect when made; ar (4) Any failure by Customer to perform or comply with sny material provision of khis Agreement, Customer shall be liable ta the Company for sll Equipmenl furnished and sll damages sustained by Company (including tost profk and overhead}. 11. Lirnita5on of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NQ EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAI INCIDENTAL, INDIRECT CONSEI2UENTIAL, QR PUNITIVE OR EXEMPLAR'I'AMAGIES (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 REASONABI.Y 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 Company's liability in connection with the provision of products ar services or otherwise under this Agreement exceed ths enfire amount paid to Company by Customer under this AgreemsnL 12. Ifuckear Liability, ln the event that the Equipment sold hereunder is to be used in a nudear facility. Customer will, prior ta such use, arrange for insurance ar govemrnentsl indemnity protecting Company against all liabikty and hereby releases snd agrees to indemnify Company snd its suppliers for any nuclear damage, including loss of use, in sny manner arising out of a nuclear incideni, whether alleged to be due, in whole or in part lo the negligence or otherwise of Company or its suppliers 12, Intellectual Property; Patent Indemnity. Company retains all ownership, license and other rights to all patents, trademarks, copyrights, Irade secrets and other intellectual property rights related to the Equipment. snd, except for the right ta use the Equipment sold, Customer obtains no rights to use any such in1ellectual property. Company agrees to defend any suit or proceeding brought against Custarner so fsr ss such suil or proceeding is 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, provided Company is promptly notified in writing and given authority, information and assistance for defense of same. Company wilt, st iis option, procure for Customer the right to continue to use said Equipment, or modify it so ihat it becomes non-infringing, or replace same with non-infringing Equipment, or ta remove said Equipment and to refund the purchase price. The foregoing will not be conslrued to include any Agreement by Company to accept any liabigty whatsoever in respect to psients for inventions induding more than the Equipment furnished hereunder, or in respect of ps!ants for nwthads and processes to be carried aut with the aid of said Equipment. The provision of Equipmerlt by Campar!y does not convey any license, by implication, estoppel, or otherwise, vnder patent claims covering combinations of said Equipment with other devices or elements. The foregoing states the entire iiabi1ity of Company with regard ta patent infringement. Notwithsksnding the provisions of this paragraph, Customer will hold Company harmless against any expense or loss resulting from infringement of patents or trademarks arising from compliance with Customer' designs or specifications or inslruckions. 14. Cancellation. Equipmen! is specially manufactured in response 1o orders. An arder placed with and accepted by Company cannol be delayed, canceled, suspended, or extended except with Company's written consent and upon written teens accepted by Company that wip reimburse Company for and indemnify Company against loss and provide Company with a reasonable profit for I1s materials, time, labor, services. use of facilities and otherviise. Customer will be obligated ta accept any Equipment shipped, tendered for delivery or delivered by Company pursuant to the orderprior ta any agreed delay. cancellation, suspension a! extension cf the order. Any atlempt by Customer to unilaterally revoke, delay or suspend accepiance for any reason whatever after it has agreed to delivery of ar accepted any shipment shall canstituIe a breach of this Agreement, For purposes of this paragraph, acceptance occurs by any waiver of inspection, use or possession af Equipment, payment af the invoice, or any indication of exdusive conlrol exercised by Customer. f 5. Invoicing snd Payment. Equiprnenl she!i be invoiced to Customer upon tender of delive!y thereof ta the carrier. Customer shall pay Company's invoices within net 30 days of shipment date. Company reserves the right to add ta any account outstanding for more than 30 days a senrice charge equal to the lesser Of the maximum allowable legal inierest rate or 1.6% of the principal amount due st the end of each month. Customer shall pay all costs (including attorneys'ees) incurred by company in attempting to collect amounts due snd otherwise enl'arcing these terms and conditions lf requested, Company will provide appropriate lien waivers upon receipt of payment, Company may at sny time decline to ship, make delivery or perform work except upon receipt af cash payment, letter of credit, or security, or upon other terms and conditions sagsfactory to Company. Customer agrees that, unless Customer makes payment in advance. Company will have a purchase money 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 conditions, form a security agreement {as defined by the UCC in the United States and as defined in the Personai Property Security Act in Canada). Customer shall keep the Equipment free of all taxes and encumbrances, shall not remove the Equip!nant from its original installation point and shall not assign or transfer sny interest in the Equipmeni until all payments due Company have been made. The purchase money security inta~est granied herein attaches upon Company's accepkance of Custa«reer'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 w«iting on the accepted order. Customer will have no rights of set off sgainsl any amounts, wkiich become payabie to Company under this Agreement or otherwise. 16. Claims. Company will consider claims far concealed shortages in shipments or rejections due ta failure to conform ta an order only if such claims or rejectians are made in writing within 16 days of delivery snd sre accompanied by the packing list snd, 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 Company, Cust«mer msy relurn rejected Equipment, transportation cha«ges prepaid, for replacement. Company msy charge Customer any casks resulting from the testing, handling. snd disposition of any Equipment relurned by Customer which are nat found by Company to be nonconforming. All Equip«nant damaged during shlpmeni and all daims relaling 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 skated herein. 17. Export Laws. The obligation of company to supply Equipment under this Agreement is subject (o the ability of company to supply such items cansistenl with applicable taws and regulations of the United States and other governments. Company reserves the right to refuse to enter into or perform sny order, and to cancel any order, under this Agreement if Company in its sole disc«etian determines that perfonnance of the transacllon to which such order relates would violate any such applicable law or regu'lation, Cuslomer w'll pay all handling and other similar costs from Company's facto«iss including the costs of freighl„ insurance, export clesrances, import duties snd taxes. Customer will be exporter of record" with respect to any export from the United Slates of America and will perform all compliance and logistics funcgons in connection therewith and will also comply with ail applicable laws, rules and regulalionS. Customer understands thak Company and/or lhs Equipment sre subject to laws arid regulations of the Uniled States of America which may require licensing or authorizslion far sndfar prohibit export, re-sxport or diversion of Company's Equipment lo certain coun!ries, and agrees it will nat knowingly assist or participate in sny such «fiversion or other w'olation of applicable United States of America laws and regulations. Cuslomer aqrees to hold harmless and indemnify Company for any damages resulting ta Customer or Company from a breach af this paragraph by Customer. 16. generak Except as provided below. ta 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 New York for Equipment shipped to s U.S. location and the laws of 1he province ta which Equipment is FLO ~ Fumisfie«f by Tmne U.S. Inc. I installed by Others Callva - NC3- Rin T-12 Se tember 6, 2016 shipped within Canada, without regard to its conflict of law principles that might otherwise cali for the application of a different state's or province's law, and not including the United Nations Convention an Contracts for the international Sale of Goods. Any action or suit arising out of or related Ia this Agreement must be commenced within ane year after the cause of action has accrued. To the extent the Fquipment is being used at a site awrwd and/or operated by eny agency of the Federal Government, determination of any substantive issue of law shall be according to the Federal common Iaw 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 agreeinents, representations and understandings of the parlies and supersedes all previous understandings, camrnitrnenls or'greements, araf 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 documenls shall be incorporated herein by reference except to the extent Company is a signatory thereon, lf any term ar condition of this Agreeriient is invalid, illegal or incapable of being enforced by any rule af law, all other Ierms and conditions of this Agreement will nevenheless remain in full farce and effect as long as the ecanomic or legal subsiance of the transaction conlemplateil hereby is not affected in a inanner adverse to any party hereto. Customer may not assign, transfer, or convey this Agreement, ar any part hereof, or its right, title or interest herein, without the written consent of the company. subject ta 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 sn original. but all together shall constitute but one and the same Agreemenl. A fully executed facsimile copy hereof or the several counterparts shall suffice as an original, 19. Kqust Employmsnt Opport unitylAffirmative Action Clause. Company is e federal conb'actor that complies fvily with Executive Order 11246, as amended. and the applicable regulations contained in 41 C.F.R. Parts 60-1 through 604)0, 29 U.S.C. Section 793 and the applicab!e regulations contained in 41 C.F R Part 60-741; and 38 U.S.C. Section 4212 snd the applicable regulatians canlained in 41 C.F.R. Part 60-250 Executive Order 13496 and Section 29 CFR 4T1, appendix A to subpart A, regarding the notice of employee ~ights in the United States and with Canadian Charter of Righls and Freedoms schedule B to the canada Act 1982 (U.K.) 1982, c. 11 and applicable Provincial Human Rights codes and employment law in Canada. 20. U.S. Govemrnent tnfork. The following provision applies only to direct sales by Company to the US Government. The Parties acknowledge that Equipment ordered and delivered under this Agreement are Commercial Items as defined under Pari 12 of the Federal Acquisition Regulation (FAR). In particular, Company agrees lo 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 sates by Company to the US Government. As a Commercial Item Subcontractor, Company accepts on/ the following mandatory flow down provisions: 52,219-6; 52.222-26; 52.222-35; 52.222-36; 52.222-39; 52.24744. If the sale of the Equipment is in connection with a U.S. Government contract, Customer certifies that it has provicled and wigi provide current, accurate, and complete infoiination, representations end certiTicslions to all government officials, including but not limited to the contracting officer and officials of the Smelt Business Administration, on all matters related to the prime contract, including but not limited to all aspects of its ownership, eligR&ility, and performance. Anything herein notwithstanding, Company will have no obIigatians to Customer unless and until Customer provides Company with a true, correct and complete executed copy of the prime contract. Upon request, Customer will provide copies to Company of alt requested written communications with any government official related to the prime contract prior ta or concurrent with the execution thereof, induding but not limited to any communications related ta Customer's ownership, eligibilily or performance of the prime contract. Customer will obtain written authorization and approvai froin company prior to providing any gavernrnent official any infarmatian about company's performance of the work that is the subject of the Prapesat or this Agreement, other than the Proposal or this Agreement, 21. Limited vAiver of sovereign Immunity. If customer is an Indian tribe (in the U.s.) or a First hlation or Band council {in canada), customer, whether acting in its capacity as a governmsnl, gOvernrnenta1 entity, a duly organized corporate entity or otherwise, for iiseIf and far its agents, successors, and assigns. (1) hereby provides this limited waiver of its sovereign immunity as to sny damages, claims, lawsuit, or cause of action (herein *Action") brought against Customer by Company and arising or alieged to arise out af the furnishing by Coinpany ol any product or service under this Agreement, whether such Action is based in con tract, tort, strict liability, civil liability or any other legal theory; (2} agrees that jurisdiction and venve for eny such Action shell be proper and valid (a) if customer is in the U.s,, in any state or United states court iocated in the state in whlrh Company is performing this Agreement or (b) if Customer is in Canada, in the superior court of the province or territory in which the work was perfoinn ed; (3) expressly ronsents Io such Aetio it, and we ives any objection to jurisdiction or venue; (4) we ives eny requirement of exhaustion of tribal court or administrative remedies for any Action arising out of or related to this Agreement; snd (5) expressly acknowledges snd agrees that Company is not subject to the jurisdiction of customer's tribal couri ar any similar tribal forum, that customer will not bring any action sgainsi, coinpany In tribal court, and that Customs~ will not avail itself of any ruling or direction of the tribal court permitting or directing it 1o suspend ils payment oi other obligations under this Agreement. The indlvldust signing on behalf of Customer warrants snd represents that such individual is duly authorized to provirle this waiver and enter into this Agreement and that this Agreement constitutes the valid snd Ieqslly binding obligation of Customer, enforceable in accordance with its terms. 'I 26.1304 (0614) Supersedes 1-26,130%(0214) FED = Fumisfied by Trene U.S. inc. l inslslled by Ofhers
