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4.Security Interest.To secure payment,the Customer grants Cummins Inc a purchase money security interest in the Equipment;risk of loss of the Equipment
<br /> shall transfer to Customer upon delivery of the Equipment.If any portion of the balance due is to be paid following delivery of the Equipment,Customer agrees to
<br /> execute and deliver to Cummins Inc such security agreements,financing statements including but not limited to a UCC-1 Form,deed of trust,and such other
<br /> documents as Cummins Inc may request from time to time in order to permit Cummins Inc to obtain and maintain a perfected security interest in the Equipment
<br /> on terms and conditions acceptable to Cummins Inc;in the altemative,Customer grants to Cummins Inc a power of attorney to execute and file on Customer's
<br /> behalf all financing statements and other documents necessary to perfect this security interest.At its election,Cummins Inc may file for recordation this Sales
<br /> Order or a resulting invoice,bearing Customer's signature,or a photocopy of this Sales Order,in lieu of a UCC-1 Form;provided,however,that such filing by
<br /> Cummins Inc shall not constitute an admission by Cummins Inc of the applicability or nonapplicability of the Uniform Commercial Code,or any statutory
<br /> enactment thereof,to the purchase by the Customer,nor shall the failure to file this form,or the UCC-1 Form,in any way affect,alter or invalidate any term,
<br /> provision,obligation or liability under this Sales Order.This security interest shall be superseded if Customer and Cummins Inc enter into a separate security
<br /> agreement covering the Equipment.
<br /> 5.Condition of Equipment and Exclusive Limited Warranty;Limitation of Liability.Customer acknowledges and agrees by signing this Sales Order,or by
<br /> accepting delivery of the Equipment and a copy of this Sales Order,that the Customer has fully inspected the Equipment,and has received the Equipment from
<br /> Cummins Inc in a satisfactory,safe and serviceable condition.CUSTOMER PURCHASES THE EQUIPMENT"AS IS"FROM CUMMINS INC AND CUMMINS INC
<br /> MAKES NO REPRESENTATION OR WARRANTY AS TO THE FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR USE OR PURPOSE,AS TO THE
<br /> CONDITION,QUALITY OR MERCHANTABILITY OF THE EQUIPMENT,OR ANY OTHER REPRESENTATION OR WARRANTY,EXPRESS OR IMPLIED,AND
<br /> MAKES NO WARRANTIES OF ANY KIND,EXPRESS OR IMPLIED,EXCEPT THAT THE EQUIPMENT SHALL BE FREE FROM DEFECTS AND
<br /> WORKMANSHIP AND MATERIAL UNDER NORMAL USE AND SERVICE AND EXCEPT AS PROVIDED IN WARRANTY MATERIALS ALREADY DELIVERED
<br /> TO THE CUSTOMER,WHICH ARE DESCRIBED ON THE REVERSE SIDE OF THIS SALES ORDER AND THE RECEIPT OF WHICH CUSTOMER
<br /> ACKNOWLEDGES BY SIGNING THIS SALES ORDER,OR BY ACCEPTING DELIVERY OF THE EQUIPMENT AND A COPY OF THIS SALES ORDER.THE
<br /> SOLE RESPONSIBILITY AND LIABILITY OF Cummins Inc UNDER THIS SALES ORDER IS TO REPAIR OR REPLACE THE EQUIPMENT,IN THE MANNER
<br /> DESCRIBED IN SUCH WARRANTY MATERIALS.IN NO EVENT SHALL Cummins Inc BE LIABLE UNDER ANY EXPRESS OR IMPLIED WARRANTY OR FOR
<br /> ANY SPECIAL,PUNITIVE,INDIRECT,INCIDENTAL,OR CONSEQUENTIAL DAMAGES,INCLUDING BUT NOT LIMITED TO LOSS OF TIME,
<br /> INCONVENIENCE,LOSS OF USE OF THE EQUIPMENT,LIABILITY FOR PERSONAL INJURY,OR PROPERTY DAMAGE,AND REGARDLESS OF
<br /> WHETHER THE ALLEGED LIABILITY IS BASED IN CONTRACT OR ANY OTHER LEGAL THEORY,THAT IN ANY WAY ARISE OUT OF OR RELATE TO
<br /> CUSTOMER'S PURCHASE OF EQUIPMENT UNDER THIS AGREEMENT.IN NO EVENT,REGARDLESS OF THE FORM OF CLAIM OR CAUSE OF ACTION,
<br /> SHALL Cummins Inc'S LIABILITY TO CUSTOMER AND/OR CUSTOMER'S CUSTOMERS EXCEED THE PRICE PAID BY CUSTOMER FOR THE SPECIFIC
<br /> PRODUCTS PROVIDED BY Cummins Inc GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.
<br /> 6.Loss or Destruction of Equipment;Customer Insurance.Customer shall bear the risk of loss of,damage to,or destruction of the Equipment from the date of its
<br /> delivery to the Customer through the date of full payment of the balance due.If for any reason the Equipment is lost,stolen,destroyed or damaged beyond repair
<br /> prior to full payment of the balance due,the Customer shall immediately notify Cummins Inc.The total or partial loss of the Equipment by the Customer shall not
<br /> release or relieve the Customer from its obligations and liabilities under this Sales Order.The Customer shall maintain in full force and effect until the full payment
<br /> of the balance due insurance covering the Equipment of such type and in such amounts as Cummins Inc may require;written evidence satisfactory to Cummins
<br /> Inc that such insurance is in full force and effect shall be provided to Cummins Inc upon its request at any time prior to full payment of the balance due.
<br /> NOTWITHSTANDING ANY OTHER PROVISION OF THIS SALES ORDER OR OF ANY OTHER WRITING,Cummins Inc WAIVES NO RIGHT OF
<br /> SUBROGATION WHICH MIGHT IN ANY WAY APPLY TO THE EQUIPMENT,TO ITS LOSS OR DESTRUCTION,TO BODILY OR PERSONAL INJURY TO,OR
<br /> DEATH OF,ANY PERSON,OR TO THE LOSS OF OR DAMAGE TO ANY PROPERTY OF THE CUSTOMER OR ANY THIRD PARTY.
<br /> 7.Location of Equipment.The Equipment shall remain personal property until permanently affixed to and made a part of real property of Customer;if the
<br /> Equipment is so permanently affixed prior to full payment of the balance due,the Customer shall provide notice to Cummins Inc within[three(3)]days.Prior to full
<br /> payment of the balance due,the Equipment will be kept by the Customer at the location(s)specified in this Sales Order,and will not be moved from such location
<br /> (s)without the prior notice to Cummins Inc;and Cummins Inc shall have the right to inspect the Equipment at all reasonable times.
<br /> 8.Default;Remedies.Customer shall be in breach and default under this Sales Order if(a)any payment or any other amount due under this Sales Order to
<br /> Cummins Inc is not paid promptly when due;(b)the Customer fails to comply or perform,or makes any misrepresentation relating to,any of the Customer's
<br /> obligations or covenants under this Sales Order;or(c)prior to full payment of the balance due,the Customer ceases to do business,becomes insolvent,makes
<br /> an assignment for the benefit of its creditors,appoints a receiver,commences an action for dissolution or liquidation,or becomes subject to bankruptcy
<br /> proceedings,or the Equipment is attached,levied upon,seized under legal process,is subjected to a lien or encumbrance,or transferred by operation of law or
<br /> otherwise,to anyone other than Cummins Inc.Upon the occurrence of any event of Customer's default as set forth in the preceding paragraph,Cummins Inc,at
<br /> its sole option and without notice to the Customer,shall have the right to exercise concurrently or separately any one or all of the following remedies,which shall
<br /> be cumulative and not alternative:(a)to declare all sums due,and to become due,under this Sales Order immediately due and payable;(b)to commence legal
<br /> proceedings,including collection actions and specific performance proceedings,to enforce performance by the Customer of any and all provisions of this Sales
<br /> Order,and to be awarded damages or injunctive relief for the Customer's breach;(c)to require the Customer to deliver the Equipment to Cummins Inc's branch
<br /> specified on the face of this Sales Order,(d)to exercise one or more of the rights and remedies available to a secured party under the Uniform Commercial Code,
<br /> whether or not this Sales Order is subject thereto;and(e)to enter,without notice or liability or legal process,onto any premises where the Equipment may be
<br /> located,using force permitted by law,and there to disconnect,remove and repossess the Equipment,the Customer having waived further right to possession
<br /> after default.A waiver of any event of default by Cummins Inc shall not be a waiver as to any other or subsequent default.
<br /> 9.Notices.All notices to be provided,or instruments required or permitted to be served upon,or sent to,either of the parties shall be in writing,and shall be
<br /> deemed served or sent:(a)when personally delivered to the other party,(b)when sent by facsimile with receipt acknowledged,(c)one business day after being
<br /> deposited with any nationally recognized overnight carrier which routinely issues receipts,addressed to the party at the address stated above,or(d)three(3)
<br /> business days after being placed in the United States mails by certified mail,return receipt requested,postage prepaid,addressed to the party at the address
<br /> stated above.Each of the parties may modify its notice address by communication sent to the other party in the manner described above.
<br /> 10.Reciprocal Indemnification.
<br /> A.Cummins Inc indemnification.Subject to the limitations of paragraph 5,Cummins Inc specifically and expressly agrees to indemnify,defend and hold
<br /> harmless,in whole or in part,the Customer,its agents and affiliates against and from any and all claims,demands,suits,losses,costs and damages of every
<br /> kind and description,brought or made against or incurred by the Customer or any of its agents or affiliates resulting from,arising out of or in any way
<br /> connected with the(i)willful act or omission or(ii)negligent act or omission of Cummins Inc or its employees,agents or affiliates,in performance,or
<br /> nonperformance,of its obligations under this Sales Order.Subject to the limitations of paragraph 5,this indemnity obligation shall include,but not be limited to,
<br /> the following:
<br /> a.Loss of or damage to any property of the Customer,or any third party;and
<br /> b.Bodily or personal injury to,or death of,any person,including without limitation employees of the Customer or of Cummins Inc.
<br /> B.Customer indemnification.The Customer specifically and expressly agrees to indemnify,defend and hold harmless,in whole or in part,Cummins Inc,its
<br /> agents and affiliates against and from any and all claims,demands,suits,losses,costs and damages of every kind and description,brought or made against or
<br /> incurred by Cummins Inc or any of its agents or affiliates resulting from,arising out of or in any way connected with the(i)willful act or omission or(ii)negligent
<br /> act or omission of the Customer or its employees,agents or affiliates,in performance,or nonperformance,of its obligations under this Sales Order.This
<br /> indemnity obligation shall include,but not be limited to,the following:
<br /> a.Loss of or damage to any property of the Customer,or any third party;and
<br /> b.Bodily or personal injury to,or death of,any person,including without limitation employees of the Customer or of Cummins Inc.
<br /> 11.Delivery;Delay in Delivery;Inspection and Acceptance.F.O.B.Factory,freight allowed to first destination.Any delivery,shipping,installation or performance
<br /> dates indicated on the reverse side are estimated,and,although Cummins Inc shall use best efforts to meet such dates,Cummins Inc shall not be liable for any
<br /> delay in delivery,shipping,installation,or performance,however occasioned.Cummins Inc may deliver the Equipment in installments as the Equipment becomes
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