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Project: Public Works Agency
<br />Quotation: Q-145097-20230522-1026
<br />for site test (if offered in the Quote) are equipped with only 100 feet of cable. Additional lengths may be arranged at an extra cost.
<br />Cummins is not responsible for any labor or materials charged by others associated with start-up and installation of Equipment,
<br />unless previously agreed upon in writing. Supply of fuel for start-up and/or testing, fill-up of tank after start up, or change of oil is
<br />not included unless specified in the Quote. All installation/execution work at the site including, but not limited to: civil, mechanical,
<br />electrical, supply of wall thimbles, exhaust extension pipe, elbows, hangers, expansion joints, insulation and cladding materials, fuel/
<br />oil/cooling system piping, air ducts, and louvers/dampers is not included unless specified in the Quote. When an enclosure or sub-
<br />base fuel tank (or both) are supplied, the openings provided for power cable and fuel piping entries, commonly referred to as “stub-
<br />ups”, must be sealed at the site by others before commissioning. All applications, inspections and/or approvals by authorities are to be
<br />arranged by Customer.
<br />12. MANUFACTURER’S WARRANTY. Equipment purchased hereunder is accompanied by an express written manufacturer’s warranty
<br />(“Warranty”) and, except as expressly provided in this Agreement, is the only warranty offered on the Equipment. A copy of the
<br />Warranty is available upon request. While this Agreement and the Warranty are intended to be read and applied in conjunction, where
<br />this Agreement and the Warranty conflict, the terms of the Warranty shall prevail.
<br />13. WARRANTY PROCEDURE. Prior to the expiration of the Warranty, Customer must give notice of a warrantable failure to
<br />Cummins and deliver the defective Equipment to a Cummins location or other location authorized and designated by Cummins to
<br />make the repairs during regular business hours. Cummins shall not be liable for towing charges, maintenance items such as oil filters,
<br />belts, hoses, etc., communication expenses, meals, lodging, and incidental expenses incurred by Customer or employees of Customer,
<br />"downtime" expenses, overtime expenses, cargo damages and any business costs and losses of revenue resulting from a warrantable
<br />failure.
<br />14. LIMITATIONS ON WARRANTIES.
<br />THE REMEDIES PROVIDED IN THE WARRANTY AND THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES
<br />AND REMEDIES PROVIDED BY CUMMINS TO THE CUSTOMER UNDER THIS AGREEMENT. EXCEPT AS SET OUT IN THE
<br />WARRANTY AND THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, CUMMINS EXPRESSLY DISCLAIMS ALL
<br />OTHER REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED,
<br />INCLUDING, WITHOUT LIMITATION, ANY STATUTORY OR COMMON LAW IMPLIED REPRESENTATIONS, WARRANTIES AND
<br />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)
<br />inappropriate use relative to application guidelines; (c) inappropriate use of an EPA-SE application generator set relative to EPA’s
<br />standards; (d) normal wear and tear; (e) improper and/or unauthorized installation; (f) negligence, accidents, or misuse; (g) lack
<br />of maintenance or unauthorized or improper repair; (h) noncompliance with any Cummins published guideline or policy; (i) use of
<br />improper or contaminated fuels, coolants, or lubricants; (j) improper storage before and after commissioning; (k) owner’s delay in
<br />making Equipment available after notification of potential Equipment problem; (l) replacement parts and accessories not authorized
<br />by Cummins; (m) use of battle short mode; (n) owner or operator abuse or neglect such as: operation without adequate coolant, fuel,
<br />or lubricants; over fueling; over speeding; lack of maintenance to lubricating, fueling, cooling, or air intake systems; late servicing
<br />and maintenance; improper storage, starting, warm-up, running, or shutdown practices, or for progressive damage resulting from a
<br />defective shutdown or warning device; or (o) damage to parts, fixtures, housings, attachments and accessory items that are not part of
<br />the generating set.
<br />15. INDEMNITY. Customer shall indemnify, defend and hold harmless Cummins from and against any and all claims, actions, costs,
<br />expenses, damages and liabilities, including reasonable attorneys' fees, brought against or incurred by Cummins related to or arising
<br />out of this Agreement or the Equipment supplied under this Agreement (collectively, the “Claims”), where such Claims were caused
<br />or contributed to by, in whole or in part, the acts, omissions, fault or negligence of the Customer. Customer shall present any Claims
<br />covered by this indemnity to its insurance carrier unless Cummins directs that the defense will be handled by Cummins' legal counsel
<br />at Customer’s expense.
<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 OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY OR NEGLIGENCE), FOR ANY
<br />INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, LIQUIDATED, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING
<br />WITHOUT LIMITATION DOWNTIME, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, LOSS OF OPPORTUNITY, DAMAGE
<br />TO GOODWILL, ENHANCED DAMAGES, MONETARY REQUESTS RELATING TO RECALL EXPENSES AND REPAIRS TO
<br />PROPERTY, AND/OR DAMAGES CAUSED BY DELAY), OR IN ANY WAY RELATED TO OR ARISING FROM CUMMINS’ SUPPLY
<br />OF 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 CUMMINS 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
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<br />Quotation: Q-145097-20230522-1026
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<br />EXHIBIT 1
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