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Project: City of Everett 500 KW Trailer Mounted
<br /> ales an� ``' Generator
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<br /> race Quotation: Q-83440-20211105-0803
<br /> LIMITATIONS ON WARRANTIES
<br /> THE REMEDIES PROVIDED IN THE WARRANTY AND THIS AGREEMENT ARE THE SOLE AND
<br /> EXCLUSIVE WARRANTIES AND REMEDIES PROVIDED BY CUMMINS TO THE CUSTOMER UNDER THIS AGREEMENT. EXCEPT
<br /> AS SET OUT IN THE WARRANTY AND THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, CUMMINS EXPRESSLY
<br /> 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
<br /> AND CONDITIONS OF FITNESS 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 to application guidelines;(c)inappropriate use of
<br /> an EPA-SE application generator set relative to EPA's standards;(d)normal wear and tear;(e)improper and/or unauthorized installation; (f)negligence,accidents,or misuse;(g)lack of maintenance or
<br /> unauthorized or improper repair;(h)noncompliance with any Cummins published guideline or policy;(i)use of improper or contaminated fuels,coolants,or lubricants;(j)improper storage before and after
<br /> commissioning;(k)owner's delay in making Equipment available after notification of potential Equipment problem;(I)replacement parts and accessories not authorized by Cummins;(m)use of battle short
<br /> mode;(n)owner or operator abuse or neglect such as:operation without adequate coolant,fuel,or lubricants;over fueling;over speeding;lack of maintenance to lubricating,fueling,cooling,or air intake
<br /> systems;late servicing and maintenance;improper storage,starting,warm-up,running,or shutdown practices,or for progressive damage resulting from a defective shutdown or warning device;or(o)
<br /> damage to parts,fixtures,housings,attachments and accessory items that are not part of the generating set.
<br /> INDEMNITY
<br /> REMOVED.
<br /> LIMITATION OF LIABILITY
<br /> NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT, IN NO EVENT SHALL CUMMINS,
<br /> ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY
<br /> INDIRECT,INCIDENTAL,SPECIAL,PUNITIVE,OR CONSEQUENTIAL DAMAGES OF ANY KIND(INCLUDING WITHOUT LIMITATION
<br /> DOWNTIME, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, LOSS OF OPPORTUNITY, DAMAGE TO GOODWILL, ENHANCED
<br /> DAMAGES, MONETARY REQUESTS RELATING TO RECALL EXPENSES AND REPAIRS TO PROPERTY, AND/OR DAMAGES
<br /> CAUSED BY DELAY) IN ANY WAY RELATED TO OR ARISING FROM CUMMINS' SUPPLY OF EQUIPMENT UNDER THIS
<br /> AGREEMENT OR THE USE OR PERFORMANCE OF EQUIPMENT SUPPLIED UNDER THIS AGREEMENT. IN NO EVENT
<br /> SHALL CUMMINS' LIABILITY TO CUSTOMER OR ANY THIRD PARTY CLAIMING DIRECTLY THROUGH CUSTOMER OR ON
<br /> CUSTOMER'S BEHALF UNDER THIS AGREEMENT EXCEED THE TOTAL COST OF EQUIPMENT SUPPLIED BY CUMMINS UNDER
<br /> THIS AGREEMENT GIVING RISE TO THE CLAIM. BY ACCEPTANCE OF THIS AGREEMENT, CUSTOMER ACKNOWLEDGES
<br /> CUSTOMER'S SOLE REMEDY AGAINST CUMMINS FOR ANY LOSS SHALL BE THE REMEDY PROVIDED HEREIN EVEN IF THE
<br /> EXCLUSIVE REMEDY UNDER THE WARRANTY IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL 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 any of
<br /> the Customers 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 benefit of its
<br /> 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 legal process,is
<br /> 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 remedies,
<br /> which shall be cumulative and not alternative:(a)to declare all sums due,and to become due,under this Agreement immediately due and payable;(b)to commence legal proceedings,including collection
<br /> actions and specific performance proceedings,to enforce performance by Customer of any and all provisions of this Agreement,and to be awarded damages or injunctive relief for the Customer's breach;(c)
<br /> 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 secured party under
<br /> 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 disconnect,remove and
<br /> 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 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,and
<br /> 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 services.Until
<br /> 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 rated capacity and
<br /> only for purpose it was designed.Even if Customer's purchase of Equipment from Cummins under this Agreement is based,in whole or in part,on specifications,technical information,drawings,or written or
<br /> verbal advice of any type from third parties,Customer has sole responsibility for the accuracy,correctness and completeness of such specifications,technical information,drawings,or advice.Cummins make
<br /> no warranties or representations respecting the accuracy,correctness and completeness of any specifications,technical information,drawings,advice or other information provided by Cummins.Cummins
<br /> makes no warranties or representations respecting the suitability,fitness for intended use,compatibility,integration or installation of any Equipment supplied under this Agreement.Customer has sole
<br /> responsibility for intended use,for installation and design and performance where it is part of a power,propulsion,or other system.Limitation of warranties and remedies and all disclaimers apply to all such
<br /> technical information,drawings,or advice.Customer acknowledges and agrees by accepting delivery of the Equipment that the Equipment purchased is of the size,design,capacity and manufacture selected
<br /> 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.The
<br /> 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 /> Upon Customer's request,Cummins will provide to Customer a Certificate of Insurance evidencing Cummins'relevant insurance coverage.
<br /> ASSIGNMENT
<br /> This Agreement shall be binding on the parties and their successors and assigns.Customer shall not assign this 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 property or
<br /> subject matter related thereto,shall be Cummins'property.Customer agrees to assign,and does hereby assign,all right,title,and interest to such intellectual property to Cummins.Any Cummins pre-existing
<br /> intellectual property shall remain Cummins'property.Nothing in this Agreement shall be deemed to have given Customer a licence or any other rights to use any of the intellectual property rights of Cummins.
<br /> MISCELLANEOUS
<br /> Cummins shall be an independent contractor under this Agreement.All notices under this Agreement shall be in writing and be delivered personally,mailed via first class certified or registered mail,or sent by
<br /> a nationally recognized express courier service to the addresses set forth in this Agreement.No amendment of this Agreement shall be valid unless it is writing and signed by the parties hereto.Failure of
<br /> either party to require performance by the other party of any provision hereof shall in no way affect the right to require such performance at any time thereafter,nor shall the waiver by a party of a breach of
<br /> any of the provisions hereof constitute a waiver of any succeeding breach.Any provision of this Agreement that is invalid or unenforceable shall not affect the validity or enforceability of the remaining
<br /> Quotation: Q-83440-20211105-0803
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