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<br />Project: City of Lake Elmo (Sourcewell)
<br />Quotation: City of Lake Elmo (Sourcewell) Q-344881
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<br />Quotation: City of Lake Elmo (Sourcewell) Q-344881
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<br />Page 7 of 9
<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 TO
<br />GOODWILL, ENHANCED DAMAGES, MONETARY REQUESTS RELATING TO RECALL EXPENSES AND REPAIRS TO PROPERTY,
<br />AND/OR DAMAG ES 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 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
<br />becomes subject to bankruptcy proceedings, or the Equipment is attached, levied upon, seized under legal process, is subjected to a
<br />lien or encumbrance, or transferred by operation of law or otherwise to anyone other than Cummins. Upon the occurrence of any event
<br />of Customer's default, Cummins, at its sole option and without notice, shall have the right to exercise concurrently or separately any
<br />one or all of the following remedies, which shall be cumulative and not alternative: (a) to declare all sums due, and to become due,
<br />under 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
<br />damages or injunctive relief for the Customer's breach; (c) to require the Customer to deliver the Equipment to Cummins' branch
<br />specified on the face of this Agreement; (d) to exercise one or more of the rights and remedies available to a secured party under
<br />applicable law; and (e) to enter, without notice or liability or legal process, onto any premises where the Equipment may be located,
<br />using force permitted by law, and there to disconnect, remove and repossess the Equipment, the Customer having waived further right
<br />to possession after 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
<br />other 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
<br />Equipment properly, maintain it in good operating condition, repair and appearance; and Customer shall use it safely and within its
<br />rated capacity and only for purpose it was designed. Even if Customer’s purchase of Equipment from Cummins under this Agreement is
<br />based, in whole or in part, on specifications, technical information, drawings, or written or verbal advice of any type from third parties,
<br />Customer has sole responsibility for the accuracy, correctness and completeness of such specifications, technical information,
<br />drawings, or advice. Cummins make no warranties or representations respecting the accuracy, correctness and completeness of any
<br />specifications, technical information, drawings, advice or other information provided by Cummins. Cummins makes no warranties or
<br />representations respecting the suitability, fitness for intended use, compatibility, integration or installation of any Equipment supplied
<br />under this Agreement. Customer has sole responsibility for intended use, for installation and design and performance where it is part
<br />of a power, propulsion, or other system. Limitation of warranties and remedies and all disclaimers apply to all such technical
<br />information, drawings, or advice. Customer acknowledges and agrees by accepting delivery of the Equipment that the Equipment
<br />purchased is of the size, design, capacity and manufacture selected by the Customer, and that Customer has relied solely on its own
<br />judgment in selecting the Equipment.
<br />19. CONFIDENTIALITY. Each party shall keep confidential any information received from the other that is not generally known to the
<br />public and at the time of disclosure, would reasonably be understood by the receiving party to be proprietary or confidential, whether
<br />disclosed in oral, written, visual, electronic, or other form, and which the receiving party (or agents) learns in connection with this
<br />Agreement including, but not limited to: (a) business plans, strategies, sales, projects and analyses; (b) financial information, pricing,
<br />and fee structures; (c) business processes, methods, and models; (d) employee and supplier information; (e) specifications; and (f) the
<br />terms and conditions of this Agreement. Each party shall take necessary steps to ensure compliance with this provision by its
<br />employees and agents.
<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 of Indiana shall have exclusive jurisdiction to settle any dispute or claim
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