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N''�� Sales and
<br /> `)° Service
<br /> WARRANTY PROCEDURE
<br /> Prior to the expiration of the Warranty,Customer must give notice of a warrantable failure to Cummins and deliver the defective Equipment to a Cummins location or other location authorized and
<br /> designated by Cummins to make the repairs during regular business hours.Cummins shall not be liable for towing charges,maintenance items such as oil filters,belts,hoses,etc.,communication
<br /> expenses,meals,lodging,and incidental expenses incurred by Customer or employees of Customer,"downtime"expenses,overtime expenses,cargo damages and any business costs and losses of revenue
<br /> resulting from a warrantable failure.
<br /> LIMITATIONS ON WARRANTIES
<br /> THE REMEDIES PROVIDED IN THE WARRANTY AND THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES PROVIDED BY
<br /> CUMMINS TO THE CUSTOMER UNDER THIS AGREEMENT.EXCEPT AS SET OUT IN THE WARRANTY AND THiS AGREEMENT,AND TO THE EXTENT PERMITTED
<br /> BY LAW,CUMMINS EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS,WARRANTIES,ENDORSEMENTS,AND CONDITIONS OF ANY KIND,EXPRESS OR
<br /> IMPLIED,INCLUDING,WITHOUT LIMITATION,ANY STATUTORY OR COMMON LAW IMPLIED REPRESENTATIONS,WARRANTIES AND CONDITIONS OF FITNESS
<br /> FOR A PURPOSE OR MERCHANTABILITY.
<br /> The limited warranty does not cover Equipment failures resulting from:(a inappropriate use relative to designated power rating;(b inappropriate use relative
<br /> to application guidelines;(c inappropriate use of an EPA-SE application generator set relative to EPA's standards;(dnormal wear and tear;(e improper and/
<br /> or unauthorized installation;(f negligence,accidents,or misuse;(g lack of maintenance or unauthorized or improper repair;(h noncompliance with any
<br /> Cummins published guideline or policy;(iuse of improper or contaminated fuels,coolants,or lubricants;(jimproper storage before and after commissioning;
<br /> (k)wner's delay in making Equipment available after notification of potential Equipment problem;(I)replaement parts and accessories not authorized by
<br /> Cummins;(muse of battle short mode;(n owner or operator abuse or neglect such as:operation without adequate coolant,fuel,or lubricants;over fueling;
<br /> over speeding;lack of maintenance to lubricating,fueling,cooling,or air intake systems;late servicing and maintenance;improper storage,starting,warm-up,
<br /> running,or shutdown practices,or for progressive damage resulting from a defective shutdown or warning device;or(o)damage to parts,fitures,housings,
<br /> attachments and accessory items that are not part of the generating set.
<br /> IDEMNITY
<br /> To the fullest extent permitted by law,each party(the"Indemnifying Party")agrees to defend,indemnify and hold harmless the other party,and its officers,directors,employees and representatives(the"Indemnified
<br /> Parties"),front and against any and all third party demands,claims,liens,suits,causes of action,damages,losses,penalties,and/or expenses,including attorneys'fees and defense costs("Losses'),to the extent caused by the
<br /> Indemnifying Party's gross negligence or willful misconduct in performance of or in connection with the services provided hereunder which results in damagge to persons,including bodily injury,disease,or death or tangible
<br /> property.The Indemnifying Party shall,at its own cost and expense,defend any and all actions,suits and proceedings that maybe brought against any Indemnified Party with respect to the foregoing,provided that the
<br /> Indemnified Party shall have the right to reasonably approve the counsel retained by the Indemnifying Party.The Indemnifying Party shall pay,satisfy and discharge any and all judgments,orders and decrees that maybe
<br /> imposed upon any indemnified Party in connection with the foregoing.In the event any Indemnified Party shall,without fault,he made a party to any litigation against the indemnifying Party.the Indemnifying Party shall
<br /> protect and hold it,him or her harmless and shall pay all costs,expenses and attorneys fees incurred or paid by the Indemnified Party in connection with such litigation.In the event of a final determination by a court of
<br /> competent jurisdiction of any joint,comparative,contributory,or concurrent negligence the parties shall bear the loss in proportion to its respective negligence.The obligations hereunder shall survive the completion of the
<br /> services to he rendered and the term of PO.
<br /> LIMITATION OF LIABILITY
<br /> NOT WITHSTANDING ANY OTHER TERM OF THIS AGREEMENT,IN NO EVENT SHALL CUMMINS,ITS OFFICERS,DIRECTORS,EMPLOYEES,OR AGENTS
<br /> BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT,INCIDENTAL,SPECIAL,PUNITIVE,OR CONSEQUENTIAL DAMAGES OF ANY KIND
<br /> (INCLUDING WITHOUT LIMITATION DOWNTIME,LOSS OF PROFIT OR REVENUE,LOSS OF DATA,LOSS OF OPPORTUNITY,DAMAGE TO GOODWILL,
<br /> ENHANCED
<br /> DAMAGES,MONETARY REQUESTS RELATING TO RECALL EXPENSES AND REPAIRS TO PROPERTY,AND/OR DAMAGES CAUSED BY DELAY)IN ANY WAY
<br /> RELATED TO OR ARISING FROM CUMMINS'SUPPLY OF EQUIPMENT UNDER THIS AGREEMENT OR THE USE OR PERFORMANCE OF EQUIPMENT SUPPLIED
<br /> UNDER THIS AGREEMENT.IN NO EVENT SHALL CUMMINS'LIABILITY TO CUSTOMER OR ANY THIRD PARTY CLAIMING DIRECTLY THROUGH CUSTOMER OR
<br /> ON CUSTOMER'S BEHALF UNDER THIS AGREEMENT EXCEED THE TOTAL COST OF EQUIPMENT SUPPLIED BY CUMMINS UNDER THIS AGREEMENT GIVING
<br /> RISE TO THE CLAIM.BY ACCEPTANCE OF THIS AGREEMENT,CUSTOMER ACKNOWLEDGES CUSTOMER'S SOLE REMEDY AGAINST CUMMINS FOR ANY LOSS
<br /> SHALL BE THE REMEDY PROVIDED HEREIN EVEN IF THE EXCLUSIVE REMEDY UNDER THE WARRANTY IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL
<br /> PURPOSE.
<br /> DEFAULT;REMEDIES
<br /> Customer shall be in breach and default if:(a)any of the payments or amounts due under this Agreement are not paid;(b)Customer fails to comply,perform,or makes any misrepresentation relating to
<br /> any of the Customer's obligations or covenants under this Agreement;or(c)prior to full payment of the balance due,Customer ceases to do business,becomes insolvent,makes an assignment for the
<br /> benefit of its creditors,appoints a receiver,commences an action for dissolution or liquidation,or becomes subject to bankruptcy proceedings,or the Equipment is attached,levied upon,seized under
<br /> legal process,is subjected to a lien or encumbrance,or transferred by operation of law or otherwise to anyone other than Cummins.
<br /> Upon the occurrence of any event of Customer's default,Cummins,at its sole option and without notice,shall have the right to exercise concurrently or separately any one or all of the following
<br /> remedies,which shall be cumulative and not alternative:(a)to declare all sums due,and to become due,under this Agreement immediately due and payable;(h)to commence legal proceedings,
<br /> including collection actions and specific performance proceedings,to enforce performance by Customer of any and all provisions of this Agreement,and to he awarded damages or injunctive relief for the
<br /> Customer's breach;(c)to require the Customer to deliver the Equipment to Cummins'branch specified on the face of this Agreement;(d)to exercise one or more of the rights and remedies available to a
<br /> secured party under applicable law;and(e)to enter,without notice or liability or legal process,onto any premises where the Equipment may be located,using force permitted by law,and there to
<br /> disconnect,remove and repossess the Equipment,the Customer having waived further right to possession after default.A waiver of any event of default by Cummins shall not be a waiver as to any other
<br /> or subsequent default.
<br /> CUSTOMER REPRESENTATIONS;RELIANCE
<br /> Customer is responsible for obtaining,at its cost,permits,import licenses,and other consents in relation to the Equipment,and if requested by Cummins,Customer shall make these permits,licenses,
<br /> and consents available to Cummins prior to shipment.Customer represents that it is familiar with the Equipment and understands operating instructions and agrees to perform routine maintenance
<br /> services.Until the balance is paid in full,Customer shall care for the Equipment properly,maintain it in good operating condition,repair and appearance;and Customer shall use it safely and within its
<br /> rated capacity and only for purpose it was designed.Even if Customer's purchase of Equipment front Cummins under this Agreement is based,in whole or in part,on specifications,technical information,
<br /> drawings,or written or verbal advice of any type from third parties,Customer has sole responsibility for the accuracy,correctness and completeness of such specifications,technical information,
<br /> drawings,or advice.Cummins make no warranties or representations respecting the accuracy,correctness and completeness of any specifications,technical information,drawings,advice or other
<br /> information provided by Cummins.Cummins makes no warranties or representations respecting the suitability,fitness for intended use,compatibility,integration or installation of any Equipment
<br /> supplied under this Agreement.Customer has sole responsibility for intended use,for installation and design and performance where it is part of a power,propulsion,or other system.Limitation of
<br /> warranties and remedies and all disclaimers apply to all such technical information,drawings,or advice.Customer acknowledges and agrees by accepting delivery of the Equipment that the Equipment
<br /> purchased is of the size,design,capacity and manufacture selected by the Customer,and that Customer has relied solely on its own judgment in selecting the Equipment.
<br /> CONFIDENTIALITY
<br /> REMOVED
<br /> GOVERNING LAW AND JURISDICTION
<br /> This Agreement and all matters arising hereunder shall be governed by and construed in accordance with the laws of the State of Indiana without giving effect to any choice or conflict of law provision.
<br /> The parties agree that the courts of the State of Indiana shall have exclusive jurisdiction to settle any dispute or claim arising in connection with this Agreement.
<br /> INSURANCE
<br /> OaTtjuni '"nrci-' li a«sde to Customer a Certificate of Insurance evidencing Cummins'relevant insurance coverage. Doc Ref:O-Z 1 O38-ZO210107-1 SOZ
<br /> This Agreement shall be binding on the parties and their successors and assigns.Customer s aelagoa8i f tas Agreement without the prior written consent of Cummins.
<br /> INTELLECTUAL PROPERTY
<br /> Any intellectual property rights created by either party,whether independently or jointly,in the course of the performance of this Agreement or otherwise related to Cummins pre-existing intellectual
<br /> property or subject matter related thereto,shall he Cummins'property.Customer agrees to assign,and does hereby assign,all tight,title,and interest to such intellectual property to Cummins.Any
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