|
Project: Public Works Agency
<br />Quotation: Q-145097-20230522-1026
<br />TERMS AND CONDITIONS FOR SALE OF POWER GENERATION EQUIPMENT
<br />These Terms and Conditions for Sale of Power Generation Equipment, together with the quote (“Quote”), sales order (“Sales Order”),
<br />and/or credit application (“Credit Application”) on the front side or attached hereto, are hereinafter collectively referred to as this
<br />“Agreement” and shall constitute the entire agreement between the customer identified in the Quote (“Customer”) and Cummins
<br />Inc. (“Cummins”) and supersede any previous representation, statements, agreements or understanding (oral or written) between
<br />the parties with respect to the subject matter of this Agreement. Customer shall be deemed to have made an unqualified acceptance
<br />of these Terms and Conditions and it shall become a binding agreement between the parties on the earliest of the following to occur:
<br />(i) Cummins’ receipt of Customer’s purchase order or purchase order number; (ii) Customer’s signing or acknowledgment of this
<br />Agreement; (iii) Cummins’ release of equipment to production pursuant to Customer’s oral or written instruction or direction; (iv)
<br />Customer’s payment of any amounts due to Cummins; or (v) any other event constituting acceptance under applicable law. No prior
<br />inconsistent course of dealing, course of performance, or usage of trade, if any, constitutes a waiver of, or serves to explain or interpret,
<br />the Terms and Conditions set forth in this Agreement. Electronic transactions between Customer and Cummins will be solely governed
<br />by the Terms and Conditions of this Agreement, and any terms and conditions on Customer’s website or other internet site will be null
<br />and void and of no legal effect on Cummins. In the event Customer delivers, references, incorporates by reference, or produces any
<br />purchase order or document, specifications, agreement (whether upstream or otherwise), or any other terms and conditions related
<br />thereto, then such specifications, terms, document, or other agreement: (i) shall be null and void and of no legal effect on Cummins,
<br />and (ii) this Agreement shall remain the governing terms of the transaction.
<br />1. SCOPE. Cummins shall supply power generation equipment and any related parts, materials and/or services expressly identified in
<br />this Agreement (collectively, “Equipment”). No additional services, parts or materials are included in this Agreement unless mutually
<br />agreed upon by the parties in writing. A Sales Order for Equipment is accepted on a hold for release basis. The Sales Order will not be
<br />released and scheduled for production until written approval to proceed is received from Customer. A Quote is limited to the plans and
<br />specifications section specifically referenced in the Quote. No other sections shall apply. Additional requirements for administrative
<br />items may require additional costs. The Quote does not include off unit wiring, off unit plumbing, offloading, rigging, installation,
<br />exhaust insulation or fuel, unless otherwise stated and mutually agreed to in writing by the parties. Unless otherwise agreed by
<br />Cummins in writing, this Quote is valid for a maximum period of thirty (30) days from the date appearing on the first page of this
<br />Quote (“Quote Validation Period”). At the end of the Quote Validation Period, this Quote will automatically expire unless accepted
<br />by Customer prior to the end of the Quote Validation Period. The foregoing notwithstanding, in no event shall this Quote Validation
<br />Period be deemed or otherwise considered to be a firm offer period nor to establish an option contract, and Cummins hereby reserves
<br />its right to revoke or amend this Quote at any time prior to Customer’s acceptance.
<br />2. SHIPPING; DELIVERY; DELAYS. Unless otherwise agreed in writing by the parties, Equipment shall be delivered FOB origin,
<br />freight prepaid to first destination. For consumer and mobile products, freight will be charged to Customer. Unless otherwise agreed
<br />to in writing by the parties, packaging method, shipping documents and manner, route and carrier and delivery shall be as Cummins
<br />deems appropriate. Cummins may deliver in installments. A reasonable storage fee, as determined in Cummins’ sole discretion, may
<br />be assessed if delivery of the Equipment is delayed, deferred, or refused by Customer. In the event Customer fails to take any or all
<br />shipments of Equipment ordered hereunder within thirty (30) days of the agreed upon delivery date, Cummins shall have the right, in
<br />its sole discretion to either (i) charge a minimum storage fee in the amount of one and one-half percent (1.5%) per month of the total
<br />quoted amount; or (ii) consider the Equipment abandoned and, subject to local laws, may (a) make the Equipment available for auction
<br />or sale to other customers or the public, or (b) otherwise use, destroy, or recycle the Equipment at Customer’s sole cost and expense.
<br />The foregoing remedies shall be without prejudice to Cummins’ right to pursue other remedies available under the law, including
<br />without limitation, recovery of costs and/or losses incurred due to the storage, auction, sale, destruction, recycling, or otherwise of the
<br />Equipment. Offloading, handling, and placement of Equipment and crane services are the responsibility of Customer and not included
<br />unless otherwise stated. All shipments are made within normal business hours, Monday through Friday. Any delivery, shipping,
<br />installation, or performance dates indicated in this Agreement are estimated and not guaranteed. Further, delivery time is subject to
<br />confirmation at time of order and will be in effect after engineering drawings have been approved for production. Cummins shall use
<br />commercially reasonable efforts to meet estimated dates, but shall not be liable to customer or any third party for any delay in delivery,
<br />shipping, installation, or performance, however occasioned, including any delays in performance that result directly or indirectly
<br />from acts of Customer or any unforeseen event, circumstance, or condition beyond Cummins’ reasonable control including, but not
<br />limited to, acts of God, actions by any government authority, civil strife, fires, floods, windstorms, explosions, riots, natural disasters,
<br />embargos, wars, strikes or other labor disturbances, civil commotion, terrorism, sabotage, late delivery by Cummins' suppliers, fuel
<br />or other energy shortages, or an inability to obtain necessary labor, materials, supplies, equipment or manufacturing facilities. AS A
<br />RESULT OF COVID-19 RELATED EFFECTS OR INDUSTRY SUPPLY CHAIN DISRUPTIONS, TEMPORARY DELAYS IN DELIVERY, LABOR
<br />OR SERVICES FROM CUMMINS AND ITS SUB-SUPPLIERS OR SUBCONTRACTORS MAY OCCUR. AMONG OTHER FACTORS, CUMMINS’
<br />DELIVERY OBLIGATIONS ARE SUBJECT TO CORRECT AND PUNCTUAL SUPPLY FROM OUR SUB-SUPPLIERS OR SUBCONTRACTORS,
<br />AND CUMMINS RESERVES THE RIGHT TO MAKE PARTIAL DELIVERIES OR MODIFY ITS LABOR OR SERVICE. WHILE CUMMINS SHALL
<br />MAKE COMMERCIALLY REASONABLE EFFORTS TO MEET THE DELIVERY, SERVICE OR COMPLETION OBLIGATIONS SET FORTH
<br />HEREIN, SUCH DATES ARE SUBJECT TO CHANGE. IN THE EVENT DELIVERY, SHIPPING, INSTALLATION, OR PERFORMANCE IS
<br />DELAYED, HOWEVER OCCASSIONED, DUE TO EVENTS BEYOND CUMMINS’ REASONABLE CONTROL, THEN THE DATE OF DELIVERY,
<br />SHIPPING, 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 />3. PAYMENT TERMS; CREDIT; RETAINAGE. Unless otherwise agreed to by the parties in writing and subject to credit approval by
<br />Cummins, payments are due thirty (30) days from the date of the invoice. If Customer does not have approved credit with Cummins,
<br />
<br />Quotation: Q-145097-20230522-1026
<br />
<br />Page 4 of 8
<br />EXHIBIT 1
|