|
Page 1
<br />ADDENDUM
<br />
<br />This Addendum is incorporated in, and made a part of, the Purchase Order CB 23251 (the “PO”) between
<br />City of Everett (the “Buyer”) and Cummins Inc. d/b/a Cummins Sales and Service (the “Seller”). The
<br />Buyer and Seller acknowledge and agree that, notwithstanding anything to the contrary in the PO, the
<br />following changes to the PO terms and conditions are hereby adopted and agreed to by the parties and made
<br />part of the PO. In the event of a conflict between the terms and provisions of this Addendum and the terms
<br />of the PO, the terms of this Addendum shall control and any conflicting terms of the PO shall be null and
<br />void.
<br />
<br />"The paragraph headings throughout this Addendum are for convenience and reference only and shall in no
<br />way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the
<br />provisions of this Addendum."
<br />
<br />1. Payment Terms. Payment terms shall be Net 30 days from date of receipt of a proper
<br />invoice.
<br />
<br />2. Limitation of Liability. NOTWITHSTANDING ANY OTHER TERM OF THE PO, AND TO
<br />THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT SHALL SELLER, ITS
<br />OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO BUYER, WHETHER
<br />IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING,
<br />WITHOUT LIMITATION, STRICT LIABILITY, OR NEGLIGENCE) FOR ANY INDIRECT,
<br />INCIDENTAL, SPECIAL, PUNITIVE, LIQUIDATED, OR CONSEQUENTIAL DAMAGES OF
<br />ANY KIND (INCLUDING WITHOUT LIMITATION DOWNTIME, LOSS OF PROFIT OR
<br />REVENUE, LOST RENTS, LOSS OF DATA, LOSS OF OPPORTUNITY, DAMAGE TO
<br />GOODWILL, ENHANCED DAMAGES, MONETARY REQUESTS RELATING TO RECALL
<br />EXPENSES AND REPAIRS TO PROPERTY, AND/OR DAMAGES RELATED OR
<br />OTHERWISE ATTRIBUTABLE TO DELAY), EVEN IF IT HAS BEEN ADVISED OF THEIR
<br />POSSIBLE EXISTENCE. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED
<br />HEREIN, AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT SHALL
<br />SELLER’S LIABILITY TO BUYER OR ANY THIRD PARTY CLAIMING DIRECTLY
<br />THROUGH BUYER OR ON BUYER’S BEHALF UNDER THE PO EXCEED THE TOTAL
<br />COST OF EQUIPMENT SUPPLIED BY SELLER HEREUNDER. NOTHING IN THE PO
<br />EXCLUDES OR LIMITS LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY A
<br />PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. BY ACCEPTANCE OF
<br />THIS AGREEMENT, BUYER ACKNOWLEDGES BUYER’S SOLE REMEDY AGAINST
<br />SELLER FOR ANY LOSS SHALL BE THE REMEDY PROVIDED HEREIN.
<br />
<br />3. Special Notice. As a result of COVID-19 related effects or industry supply chain disruptions,
<br />temporary delays in delivery, labor or services from Seller and its sub-suppliers or subcontractors
<br />may occur. Among other factors, Seller’s delivery obligations are subject to correct and punctual
<br />supply from our sub-suppliers or subcontractors, and Seller reserves the right to make partial
<br />deliveries or modify its labor or service. While Seller shall make commercially reasonable efforts
<br />to meet the delivery, service or completion obligations set forth herein, such dates are subject to
<br />change. In the event delivery, shipping, installation, or performance is delayed, however
<br />occasioned, due to events beyond Seller’s reasonable control, then the date of delivery, shipping,
<br />installation, or performance for the equipment or services shall be equitably extended for a period
<br />equal to the time lost, plus reasonable ramp-up.
<br />
<br />**SIGNATURES TO FOLLOW ON NEXT PAGE**
|