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C. Sales and Service
<br />Project: City of Everett 125A ATS -Sourcewell
<br />Quotation: Q-379765-20250513-1349
<br />16.LIMITATION OF LIABILITY
<br />NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT, IN NO EVENT SHALL CUMMINS, ITS OFFICERS, DIRECTORS,
<br />EMPLOYEES, OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY, WHETHER IN CONTRACT OR IN TORT OR
<br />UNDER ANY OTimR LEGAL THEORY (INCLUDING, WITIIOUT LIMITATION, STRICT LIABILITY OR NEGLIGENCE), FOR ANY
<br />INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, LIQUIDATED, OR CONSEQUENTIAL DAMAGES OF ANY IOND (INCLUDING
<br />WITHOUT LIMITATION DOWNTIME, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, LOSS OF OPPORTUNITY, DAMAGE TO
<br />GOODWILL, ENHANCED DAMAGES, MONETARY REQUESTS RELATING TO RECALL EXPENSES AND R.EPAJRS TO PROPERTY,
<br />AND/OR DAMAGES CAUSED BY DELAY), OR IN ANY WAY RELATED TO OR ARISING FROM CUMMINS' SUPPLY OF
<br />EQUIPMENT UNDER THIS AGREEMENT OR THE USE OR PERFORMANCE OF EQUIPMENT SUPPLIED UNDER THIS
<br />AGREEMENT. IN NO EVENT SHALL CUMMINS' LIABILITY TO CUSTOMER OR ANY THIRD PARTY CLAIMING DIRECTLY
<br />THROUGH CUSTOMER OR ON CUSTOMER'S BEHALF UNDER THIS AGREEMENT EXCEED THE TOTAL COST OF EQUIPMENT
<br />SUPPLIED BY CUMl'vllNS UNDER THIS AGREEMENT GIVING RISE TO THE CLAIM. BY ACCEPTANCE OF THIS AGREEMENT,
<br />CUSTOMER ACKNOWLEDGES CUSTOMER'S SOLE REMEDY AGAINST CUMMINS FOR ANY LOSS SHALL BE THE REMEDY
<br />PROVIDED HEREIN.
<br />17.DEFAULT; REMEDIES. Customer shall be in breach and default if: (a) any of the payments or amounts due under this Agreement
<br />are not paid; (b) Customer fails to comply, perform, or makes any misrepresentation relating to any of the Customer's obligations or
<br />covenants under this Agreement; or (c) prior to full payment of the balance due, Customer ceases to do business, becomes insolvent,
<br />makes an assignment for the benefit of its creditors, appoints a receiver, commences an action for dissolution or liquidation, or
<br />becomes subject to bankruptcy proceedings, or the Equipment is attached, levied upon, seized under legal process, is subjected to a lien
<br />or encumbrance, or transferred by operation of law or otherwise to anyone other than Cummirrs. Upon the occurrence of any event of
<br />Customer's default, Cummins, at its sole option and without notice, shall have the right to exercise concurrently or separately any one
<br />or all of the following remedies, which shall be cumulative and not alternative: (a) to declare all sums due, and to become due, under
<br />this Agreement immediately due and payable; (b) to commence legal proceedings, including collection actions and specific
<br />performance proceedings, to enforce performance by Customer of any and all provisions of this Agreement, and to be awarded damages
<br />or injunctive relief for the Customer's breach; (c) to require the Customer to deliver the Equipment to Cummins' branch specified on
<br />the face of this Agreement; (d) to exercise one or more of the rights and remedies available to a secured party under applicable law; and
<br />(e)to enter, without notice or liability or legal process, onto any premises where the Equipment may be located, using force permitted
<br />by law, and there to disconnect, remove and repossess the Equipment, the Customer having waived further right to possession after
<br />default_ A waiver of any event of default by Cummins shall not be a waiver as to any other or subsequent default.
<br />18.CUSTOMER REPRESENTATIONS; RELIANCE. Customer is responsible for obtaining, at its cost, permits, import licenses, and other
<br />consents in relation to the Equipment, and if requested by Cummins, Customer shall make these permits, licenses, and consents
<br />available to Cummins prior to shipment. Customer represents that it is familiar with the Equipment and understands operating
<br />instructions and agrees to perform routine maintenance services. Until the balance is paid in full, Customer shall care for the Equipment
<br />properly, maintain it in good operating condition, repair and appearance; and Customer shall use it safely and within its rated capacity
<br />and only for purpose it was designed. Even if Customer's purchase of Equipment from Cummins under this Agreement is based, in
<br />whole or in part, on specifications, technical information, drawings, or written or verbal advice of any type from third parties, Customer
<br />has sole responsibility for the accuracy, correctness and completeness of such specifications, technical information, drawings, or advice.
<br />Cummins make no warranties or representations respecting the accuracy, correctness and completeness of any specifications, technical
<br />information, drawings, advice or other information provided by Cummins. Cummins makes no warranties or representations respecting
<br />the suitability, fitness for intended use, compatibility, integration or installation of any Equipment supplied under this Agreement.
<br />Customer has sole responsibility for intended use, for installation and design and performance where it is part of a power, propulsion, or
<br />other system. Limitation of warranties and remedies and all disclaimers apply to all such technical information, drawings, or advice.
<br />Customer acknowledges and agrees by accepting delivery of the Equipment that the Equipment purchased is of the size, design, capacity
<br />and manufacture selected by the Customer, and that Customer has relied solely on its own judgment in selecting the Equipment.
<br />19.CONFIDENTIALITY. Intentionally removed.
<br />20.GOVERNING LAW AND JURISDICTION. This Agreement and all matters arising hereunder shall be governed by, interpreted, and
<br />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 federal and state courts of the State oflndiana shall have exclusive jurisdiction to settle any dispute or claim
<br />Quotation: Q-379765-20250513-1349
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