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<br />(n) Replacement of refrigerant is excluded, unless replacement of refrigerant is
<br />expressly stated as included within the scope of Trane's Services, in which case
<br />replacement shall in no event exceed the stated percentage of rated system charge
<br />per year expressly stated in the scope of Services, Customer shall be responsible for
<br />the cost of any additional replacement refrigerant;
<br />(0) Operation of the equipment;
<br />(p) Any claims, damages, losses, or expenses, arising from or related to work done by
<br />or services provided by individuals or entities that are not employed by or hired by
<br />Trane.
<br />9. Warranties. (a) Trane manufactured material supplied and installed by Trane is
<br />warranted to be free from defect in material and manufacture for a period of twelve
<br />months from the earlier of the date of start-up or replacement and Trane's obligation
<br />under this warranty is limited to repairing or replacing the defective part at its option;
<br />(b) laborllabour is warranted (to have been properly performed) for a period of 90 days
<br />from completion and Trane's obligation under this warranty is limited to correcting any
<br />improperly performed labor/labour; and (c) non-Trane equipment and/or parts are not
<br />warranted by Trane and shall have such warranties as are extended to Trane by the
<br />respective manufacturer. Labor/labour to install parts supplied by Customer is not
<br />warranted by Trane. Notwithstanding the foregoing, all warranties provided herein
<br />terminate upon termination or cancellation of this Agreement. THE WARRANTY AND
<br />LIABILITY SET FORTH IN THIS SECTION ARE IN LIEU OF ALL OTHER
<br />WARRANTIES AND LIABILITIES. WHETHER IN CONTRACT OR IN NEGLIGENCE,
<br />EXPRESS OR IMPLIED, IN LAW OR IN FACT, INCLUDING IMPLIED WARRANTIES
<br />OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR FITNESS
<br />FOR A PARTICULAR PURPOSE, IN NO EVENT SHALL TRANE BE LIABLE FOR
<br />ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING WITHOUT
<br />LIMITATION LOST REVENUE OR PROFITS), OR PUNITIVE DAMAGES, NO
<br />REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR FITNESS OF
<br />PURPOSE IS MADE REGARDING PREVENTION BY THE SCOPE OF SERVICES,
<br />OR ANY COMPONENT THEREOF, OF MOLD. FUNGUS, BACTERIA, MICROBIAL
<br />GROWTH. OR ANY OTHER CONTAMINATES, TRANE SPECIFICALLY
<br />DISCLAIMS ANY LIABILITY IF THE SCOPE OF SERVICES OR ANY COMPONENT
<br />THEREOF IS USED TO PREVENT OR INHIBIT THE GROWTH OF SUCH
<br />MATERIALS.
<br />10. Indemnity. Trane and Customer shall indemnify, defend and hold each other
<br />harmless from any and all claims, actions, costs, expenses, damages and liabilities,
<br />including reasonable attorneys' fees, resulting from death or bodily injury or damage to
<br />real or personal property, to the extent caused by the negligence or misconduct of the
<br />indemnifying party, and/or its respective employees or agents. If the parties are both
<br />at fault, the obligation to indemnify shall be proportional to their relative fault. The duty
<br />to indemnify will continue in full force and effect, notwithstanding the expiration or early
<br />termination hereof, with respect to any claims based on facts or conditions that
<br />occurred prior to expiration or termination,
<br />11. Limitation of Liability, NOTWITHSTANDING ANY CONTRARY PROVISION.
<br />NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, OR
<br />CONSEQUENTIAL DAMAGES OF ANY NATURE (INCLUDING WITHOUT
<br />LIMITATION LOST REVENUE OR PROFITS), WHETHER CLAIMED UNDER
<br />CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER
<br />LEGAL THEORY OR FACTS, OR PUNITIVE DAMAGES.
<br />12, Asbestos and Hazardous Materials, Trane's services expressly exclude any
<br />identification, abatement, cleanup, control, disposal, removal or other work connected
<br />with asbestos or other hazardous materials (collectively, "Hazardous Materials").
<br />Should Trane become aware of or suspect the presence of Hazardous Materials,
<br />Trane may immediately stop work in the affected area and shall notify Customer.
<br />Customer will be responsible for taking any and all action necessary to correct the
<br />condition in accordance with all applicable laws and regulations, Customer shall be
<br />exclusively responsible for and shall indemnify and hold harmless Trane (including its
<br />employees, agents and subcontractors) from and against any loss, claim, liability, fees,
<br />penalties. injury (including death) or liability of any nature, and the payment thereof,
<br />arising out of or relating to any Hazardous Materials on or about the premises, not
<br />brought onto the premises by Trane. Trane shall be required to resume performance
<br />of the services only when the affected area has been rendered harmless,
<br />13. Insurance. Trane agrees to maintain insurance in the following minimum
<br />amounts during the Term: Commercial General Liability n $1,000,000 per occurrence;
<br />Automobile Liability n $1,000,000 CSL; Workers Compensation n Statutory Limits. If
<br />Customer has requested to be named as an additional insured under Trane's
<br />insurance policy, Trane will do so but only to the extent of Trane's indemnity assumed
<br />under the indemnity provision contained herein, Trane does not waive any rights of
<br />subrogation.
<br />14, Force Majeure, If Trane shall be unable to carry out any material obligation under
<br />this Agreement due to an Event of Force Majeure, this Agreement shall at Trane's
<br />election (i) remain in effect but Trane's obiigations shall be suspended until the
<br />uncontrollable event terminates or (ii) be terminated upon ten (10) days notice to
<br />Customer, in which event Customer shall pay Trane for all parts of the Work furnished
<br />to the date of termination. An "Event of Force Majeure" shall mean any cause or event
<br />beyond the control of Trane. Without limiting the foregoing, "Event of Force Majeure"
<br />includes: acts of God; acts of terrorism, war or the public enemy; flood; earthquake;
<br />tornado; storm; fire; civil disobedience; pandemic; insurrections; riots; labor disputes;
<br />labor or material shortages; sabotage; restraint by court order or public authority
<br />(whether valid or invalid), and action or non'action by or inability to obtain or keep in
<br />force the necessary governmental authorizations, permits, licenses, certificates or
<br />approvals if not caused by Trane.
<br />
<br />rQ2008 Trane All rights reserved
<br />
<br />15. Services Other Than Solely Scheduled Service, If Trane's services hereunder
<br />are not limited solely to Scheduled Service, the following provisions shall also apply:
<br />(a) Required restoration shall be performed by Customer at its cost prior to Trane
<br />being obligated to perform hereunder; (b) any changes, adjustments, service or
<br />repairs made to the Equipment by any party other than Trane, unless approved by
<br />Trane in writing, may, at Trane's option, terminate Trane's obligation to render further
<br />service to the Equipment so affected; in such case no refund of any portion of the
<br />Service Fee shall be made; and (c) Customer shall (i) promptly notify Trane of any
<br />unusual performance of Equipment; (iI) permit only Trane personnel to repair or adjust
<br />Equipment and/or controls during the Term; and (iii) utilize qualified personnel to
<br />properly operate the Equipment in accordance with the applicable operating manuals
<br />and recommended procedures.
<br />16, General. To the maximum extent provided by law, this Agreement is made and
<br />shall be interpreted and enforced in accordance with the laws of the state or province
<br />in which work is performed. This Agreement contains all of the agreements,
<br />representations and understandings of the parties and supersedes all previous
<br />understandings, commitments or agreements, oral or written, related to the subject
<br />matter hereof. If any part of this Agreement is deemed to be unlawful, invalid, void or
<br />otherwise unenforceable, the rights and obligations of the parties shall be reduced
<br />only to the extent required to remove the invalidity or unenforceability. Customer may
<br />not assign, transfer, or convey this Agreement, or any part hereof, without the written
<br />consent of Trane. Subject to the foregoing, this Agreement benefit of the parties
<br />hereto and their permitted successors and assigns. Except as provided for Service
<br />Fee adjustments, no modifications, additions or changes may be made to this
<br />Agreement except in a writing signed by both parties, This Agreement may be
<br />executed in several counterparts, each of which when executed shall be deemed to be
<br />an original, but all together shall constitute but one and the same Agreement. A fully
<br />executed facsimile copy hereof or the several counterparts shall suffice as an original.
<br />Trane reserves the right to change the terms and conditions herein at any time upon
<br />written notice to Customer provided at least thirty days prior to the effective date of
<br />such changes.
<br />17. Equal Employment Opportunity/Affirmative Action Clause, Trane is a federal
<br />contractor which complies fully with Executive Order 11246, as amended, and the
<br />applicable regulations contained in 41 C.F.R. Parts 60-1 through 60-60, 29 U.S.C,
<br />Section 793 and the applicable regulations contained in 41 C.F.R. Part 60-741; and 38
<br />U,S.C. Section 4212 and the applicable regulations contained in 41 C.F.R, Part 60-
<br />250 in the United States and with Canadian Charter of Rights and Freedoms Schedule
<br />B to the Canada Act 1982 (U,K.) 1982, c, 11 and applicable Provincial Human Rights
<br />Codes and employment law in Canada.
<br />18. U,S. Government Work. The following provision applies only to direct sales
<br />by Trane to the US Government. The Parties acknowledge that all items or services
<br />ordered and delivered under this Agreement / Purchase Order are Commercial Items
<br />as defined under Part 12 of the Federal Acquisition Regulation (FAR). In particular,
<br />Trane agrees to be bound only by those Federal contracting clauses that apply to
<br />"commercial" suppliers and that are contained in FAR 52.212-5(e)(1). Trane complies
<br />with 52.219-8 or 52.219-9 in its service and installation contracting business. The
<br />following provision applies only to indirect sales by Trane to the US
<br />Government. As a Commercial Item Subcontractor, Trane accepts only the following
<br />mandatory flow down provisions: 52,219-8; 52.222-26; 52.222-35; 52.222-36; 52.222-
<br />39; 52,247-64. If the Work is in connection with a U.S. Government contract,
<br />Customer certifies that it has provided and will provide current, accurate, and complete
<br />information, representations and certifications to all government officials, including but
<br />not limited to the contracting officer and officials of the Small Business Administration,
<br />on all matters related to the prime contract, including but not limited to all aspects of its
<br />ownership, eligibility, and performance. Anything herein notwithstanding, Trane will
<br />have no obligations to Customer unless and until Customer provides Trane with a true,
<br />correct and complete executed copy of the prime contract. Upon request, Customer
<br />will provide copies to Trane of all requested written communications with any
<br />government official related to the prime contract prior to or concurrent with the
<br />execution thereof, including but not limited to any communications related to
<br />Customer's ownership, eligibility or performance of the prime contract. Customer will
<br />obtain written authorization and approval from Trane prior to providing any
<br />government official any information about Trane's performance of the work that is the
<br />subject of this offer or agreement, other than this written offer or agreement.
<br />
<br />1,26,130, 7 (0208)
<br />Supersedes "26,130.7 (0108)
<br />
<br />S/If
<br />
<br />Service Agreement
<br />
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