I represent and warrant that the engine I purchase will be installed and used in the application identified in the product description in order to maintain compliance with emissions standards. I acknowledge that failure to install the engine in the appropriate application may violate U.S. and Canadian laws and regulations related to motor vehicle emissions and void the applicable engine warranty, if any.
Buyer shall comply with all applicable export control and economic sanctions, rules and regulations relating to the cross-border movement of goods or technology, including but not limited to: the U.S. Department of State, the Export Administration Regulations ("EAR") administered by the U.S. Department of Commerce, the economic and trade sanctions programs administered by the U.S. Department of Commerce and the U.S. Department of Treasury, the Customs Act (Canada), the Customs Tariff (Canada), the Excise Tax Act (Canada) and the Export and Import Permits Act (Canada) and all related orders in effect from time to time, and equivalent measures.
Shipping Agreement / Sale Limitation:
Cummins Inc. ("we") agrees to sell and Buyer ("you") agrees to buy from Cummins at our branch located at 390 Interlocken Crescent, Suite 200, Broomfield, CO 80021, subject to the terms and conditions of this Agreement. We will coordinate the shipping of the Product to you via a third party common carrier on your behalf and you hereby agree and acknowledge that delivery of the Product, including the transfer of title and risk of loss, will occur at the time and location your Product is loaded onto the common carrier's transport (i.e., FOB shipping point) from Cummins' distribution center located at 4155 Quest Way, Memphis, Tennessee 38115. The carrier will insure your Product while in transit and you will be the beneficiary of any claims for damage to the Product or losses occurring while the Product is in the possession of the common carrier.
Due to state / provincial law restrictions, these engines are not available for purchase in the State of Texas, the State of West Virginia.
I am aware that I will need to unload a 750 lb shipping crate from a box trailer and will have the capability to do so. I will be solely responsible for any additional Shipping or Unloading Costs associated with my inability to accommodate this requirement upon delivery.
Warranty Limitation Acknowledgement:
Warranty service with respect to the engines and loose components will not be available in the states of Texas and West Virginia.
Terms and Conditions of Sale:
BY PURCHASING GOODS (“GOODS”) FROM CUMMINS INC (“SELLER”) AND USING THIS WEBSITE, BUYER (“BUYER”) ACKNOWLEDGES ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS OF SALE (“TERMS”). THESE TERMS, TOGETHER WITH THE INFORMATION ON THE ORDER, ARE HEREINAFTER REFERRED TO AS THIS “AGREEMENT” AND SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SELLER AND BUYER AND SUPERSEDE ANY PREVIOUS AGREEMENT OR UNDERSTANDING (ORAL OR WRITTEN) BETWEEN THE PARTIES WITH RESPECT TO THE GOODS. BUYER ACKNOWLEDGES AND AGREES THAT THE PURCHASE OF GOODS HEREUNDER SHALL NOT ENTITLE BUYER TO ANY FUTURE PURCHASE OF GOODS FROM SELLER.
1. All orders for Goods placed by Buyer constitute an offer and are subject to acceptance by Seller. No order for Goods submitted by Buyer shall be deemed accepted by Seller unless and until confirmed in writing by Seller.
2. By entering an order with Seller, Buyer agrees that:
a. the Terms set forth herein shall be incorporated into the order;
b. the Goods purchased are of the size, design, capacity and manufacture selected by Buyer, and Buyer has relied solely on its own judgment in selecting the Goods.
c. these Terms, together with the information on the orders, apply to the Agreement to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Seller reserves the right to cancel an order for any reason including where Seller believes the order to be fraudulent or an error has occurred. If Seller cancels an order, Seller shall have no liability for any resulting damages or costs suffered by Buyer. Seller will refund the purchase price if it has been paid.
4. If a product or service is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product / service listed at the incorrect price, whether or not the order has been confirmed and your credit or debit card charged.
5. No order which has been accepted by Seller may be cancelled by Buyer except with the prior written consent of Seller. Such consent will only be given on terms which compensate Seller in full for all losses and expense howsoever resulting from the cancellation.
6. Seller's employees or agents are not authorized to make any representations concerning the Goods unless confirmed by the Seller in writing. Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.
PRICE AND PAYMENT
1. The price of the Goods shall be Seller's quoted price. Available payment methods will be presented at the time of purchase.
2. Seller shall invoice Buyer for the price of the Goods, shipping costs, and applicable taxes at the time of shipping. Buyer shall be responsible for all credit card costs associated with making payment to Seller.
3. Buyer has and shall maintain the following insurance:
a. $500,000 in General Liability Insurance
SHIPMENT AND DELIVERY
1. Seller shall ship the Goods F.O.B. Seller's shipping dock.
2. Offloading, handling, and placement of the Goods and crane services are the responsibility of Buyer.
3. Any dates quoted for delivery of the Goods are approximate only. Seller shall not be liable for any damages for any failure or delay in delivery of Goods howsoever caused.
4. If Buyer fails for whatever reason to take delivery of the Goods, Seller may:
a. store the Goods at Buyer's costs and risk until actual delivery up to thirty (30) days and charge Buyer for reasonable storage costs including transport, handling, and insurance; and/or
b. sell the Goods after notifying Buyer in writing of its intention to do so and claim the greater of the difference between the selling price of the Goods and the invoiced price, plus liquidated damages of fifteen percent (15%) of the invoice price of the Goods.
5. Buyer shall inspect the Goods upon delivery, before offloading, for damage, defects, and shortage. Any and all claims which could have been discovered by such inspection shall be deemed absolutely and unconditionally waived unless noted by Buyer on the bill of lading. Where Goods are alleged to be non-conforming or defective, written notice of defect must be given to Seller within two (2) days from date of delivery after which time the Goods shall be deemed accepted. Any claim by Buyer must incorporate all relevant details and information, and Buyer shall permit Seller or its agents reasonable access to inspect the Goods. Seller shall have a commercially reasonable period of time in which to correct such non-conformity or defect. If non-conformity or defect is not eliminated to Buyer's satisfaction, Buyer may reject the Goods (but shall protect the Goods until returned to Seller) or allow Seller another opportunity to undertake corrective action. No deductions will be taken against charges by Seller for the Goods for any reason unless approved in writing by Seller. All replaced Goods shall become Seller's property.
6. Buyer shall not return any Goods without the prior written approval of Seller. If Seller agrees to accept the return of any Goods sold to Buyer, Buyer is responsible for all shipping costs and insurance, and a restocking fee not less than 20% shall apply.
RISK OF LOSS AND TITLE
Risk of damage to or loss of the Goods and title shall pass to Buyer upon Seller's delivery to the carrier.
Delay in shipment or failure of Seller to fulfill or perform shall be excused by any cause beyond Seller's control, including, but not limited to: fire, flood, strike, insurrection, war, terrorism, inability to obtain raw materials, or delays in transit or delivery. In the event the occurrence of such event interferes with Seller's performance of its obligations, Seller may, at its option, cancel this Agreement or any part thereof without any liability to Buyer resulting therefrom.
Goods purchased hereunder are accompanied by an express written manufacturer’s warranty and is the only warranty offered on the Goods. A copy of the express manufacturer’s warranty is available upon request. Seller’s obligations under this warranty are limited to repair or replacement, at Seller’s option, of any defective component. Prior to the expiration of the applicable warranty, Buyer must give notice of a warrantable failure to Seller in accordance with the express written manufacturer’s warranty and deliver the defective Goods to a Seller’s location or other location authorized and designated by Seller to make the repairs during regular business hours. Seller shall not be liable for travel, towing or shipping charges, maintenance items such as lubricating oil, antifreeze, oil filters, belts, hoses, etc., communication expenses, meals, lodging, and incidental expenses incurred by Buyer, "downtime" expenses, overtime expenses, cargo damages, fines and any business costs and losses of revenue resulting from a warrantable failure. Buyer shall be solely responsible for, and shall indemnify and hold Seller harmless for, any warranty given to a customer which exceeds the express written manufacturer’s warranty provided by Seller.
LIMITATIONS ON WARRANTY
Seller expressly disclaims all warranties, either express or implied, including any implied warranty of merchantability and warranty for fitness of a particular purpose, to the extent permitted by law. The warranty set forth herein is the sole warranty made by Seller. The limited warranty does not cover Goods failures resulting from: (1) inappropriate use; (2) inappropriate use relative to application guidelines; (3) normal wear and tear; (4) improper and/or unauthorized installation; (5) negligence, accidents, or misuse; (6) lack of maintenance or unauthorized or improper repair; (7) noncompliance with any Seller's published guideline or policy; (8) use of improper or contaminated fuels, coolants, or lubricants; (9) improper storage before and after commissioning; (10) owner's delay in making Goods available after notification of potential problem; (11) replacement parts and accessories not authorized by Seller; (12) owner or operator abuse or neglect such as: operation without adequate coolant, fuel, or lubricants; over fueling; over speeding; lack of maintenance to lubricating, fueling, cooling, or air intake systems; late servicing and maintenance; improper storage, starting, warm-up, running, or shutdown practices, or for progressive damage resulting from a defective shutdown or warning device; or (13) damage to equipment in which the Goods are installed or damage to parts, housings, attachments and accessory items that are not part of the Goods.
Buyer shall indemnify and hold harmless Seller, its affiliates, subsidiaries, officers, directors, agents and employees from and against any and all losses, costs, liabilities, damages and expense, including reasonable attorney and expert fees attributable to (1) bodily injury or property damage caused by the negligence or willful misconduct of Buyer or (2) Buyer's failure to pay any tax on the Goods assessed by any taxing authority.
LIMITATION ON REMEDIES
THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, AGREEMENT DAMAGES AND DAMAGES FOR PROPERTY, WHETHER ARISING FROM SELLER'S BREACH OF AGREEMENT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PRICE OF THE GOODS PAID BY BUYER UNDER THIS AGREEMENT WHICH SHALL BE THE SOLE REMEDY UNDER THIS AGREEMENT. IN NO EVENT SHALL SELLER BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DOWNTIME, PROPERTY DAMAGE, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, DAMAGE TO GOODWILL) HOWSOEVER CAUSED ARISING FROM THIS AGREEMENT OR THE BREACH OF THIS AGREEMENT, WHETHER IN INDEMNITY, TORT, CONTRACT, OR OTHERWISE. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY SELLER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. BY ACCEPTANCE OF THIS AGREEMENT, BUYER ACKNOWLEDGES BUYER'S SOLE REMEDY AGAINST SELLER FOR ANY LOSS SHALL BE THE REMEDY PROVIDED UNDER THIS AGREEMENT.
Any intellectual property rights created by Seller in the course of the performance of this Agreement or otherwise shall remain Seller's property. Nothing in this Agreement shall be deemed to have given Buyer a license or any other rights to use any of the intellectual property rights of Seller. All rights not expressly granted to Buyer under this Agreement are expressly reserved by Seller.
This Agreement and all matters arising hereunder shall be governed by and construed in accordance with the laws of the State of Indiana without giving effect to any choice or conflict of law provision.
Any dispute shall be settled by arbitration administered by the American Arbitration Association pursuant to this Section. Any arbitration will take place pursuant to the American Arbitration Association's Consumer Arbitration Rules effective September 1, 2014 (collectively, "Arbitration Rules"). Any hearings that take place during the arbitration shall take place in Indianapolis, Indiana. The arbitration proceedings shall be conducted by a single arbitrator (the "Arbitrator") selected in the manner proscribed by the Arbitration Rules. In no event will the Arbitrator be authorized or empowered to award any party punitive or special damages. Each party will bear its own costs, attorneys' fees, expert witness fees and expenses, and any other expenses incurred in any arbitration proceeding. The Parties will share equally the costs of the arbitration, including any administrative fees and the fees of the Arbitrator, regardless of the outcome of the arbitration. In no event will the Arbitrator be authorized or empowered to transfer, award or re-allocate any of the fees and costs identified herein, or related fees or costs. Consistent with the Arbitration Rules, the Arbitrator shall allow such discovery as he/she determines appropriate under the circumstances.
BUYER AGREES THAT BUYER MAY BRING CLAIMS AGAINST SELLER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, the Arbitrator may not consolidate Buyer's claims with the claims of any other of Seller's customers, and may not otherwise preside over any form of a representative or class proceeding. Upon the conclusion of the arbitration proceedings, the Arbitrator shall provide the Parties a Reasoned Award (as defined in the Arbitration Rules), with the legal and factual reasons therefor set forth. The Arbitrator shall issue the Reasoned Award within one hundred fifty (150) days after the selection of the Arbitrator. The decision of the Arbitrator shall be final, binding and nonappealable with respect to both parties, including any party who failed or refused to participate in the arbitration process. Any judgment on the award rendered by the Arbitrator shall be entered, and enforced, in the United States District Court for the Southern District of Indiana. Each party submits itself to personal jurisdiction of that Court and appoints the Secretary of State of Indiana as its agent for service of process by such Court, for that purpose, and agrees to take or cause to be taken all actions necessary to implement the decision and award rendered by the Arbitrator. All proceedings and all evidence given or discovered pursuant hereto, shall be maintained in confidence by all parties and by the Arbitrator. The dispute resolution provisions of this Section shall be the sole and exclusive remedy and process to resolve any disputes.
Buyer acknowledges that the Goods, and any related technology that are sold or otherwise provided hereunder may be subject to export and other trade controls restricting the sale, export, re-export and/or transfer, directly or indirectly, of such Goods or technology to certain countries or parties, including, but not limited to, licensing requirements under applicable laws and regulations of the United States, the United Kingdom and other jurisdictions. It is the intention of Seller to comply with these laws, rules, and regulations. Any other provision of this Agreement to the contrary notwithstanding, Buyer shall comply with all such applicable all laws relating to the cross-border movement of goods or technology, and all related orders in effect from time to time, and equivalent measures. Buyer shall act as the importer of record with respect to the Goods and shall not resell, export, re-export, distribute, transfer, or dispose of the Goods or related technology, directly or indirectly, without first obtaining all necessary written permits, consents, and authorizations and completing such formalities as may be required under such laws, rules, and regulations. In addition, Seller has in place policies not to distribute its products for use in certain countries based on applicable laws and regulations including but not limited to UN, U.S., UK, and European Union regulations. Buyer undertakes to perform its obligations under this Agreement with due regard to these policies. Strict compliance with this provision and all laws of the territory pertaining to the importation, distribution, sales, promotion and marketing of the Goods is a material consideration for Seller entering into this Agreement with Buyer. Buyer represents and warrants that it has not and shall not, directly or through any intermediary, pay, give, promise to give or offer to give anything of value to a government official or representative, a political party official, a candidate for political office, an officer or employee of a public international organization or any other person, individual or entity at the suggestion, request or direction or for the benefit of any of the above-described persons and entities for the purposes of inducing such person to use his influence to assist Seller in obtaining or retaining business or to benefit Seller or any other person in any way, and will not otherwise breach any applicable laws relating to anti-bribery. Any failure by Buyer to comply with these provisions will constitute a default giving Seller the right to immediate termination of this Agreement and/or the right to elect not to recognize the warranties associated with the Goods. Buyer shall accept full responsibility for any and all civil or criminal liabilities and costs arising from any breaches of those laws and regulations and will defend, indemnify, and hold Seller harmless from and against any and all fines, penalties, claim, damages, liabilities, judgments, costs, fees, and expenses incurred by Seller or its affiliates as a result of Buyer's breach.
1. If any provision of this Agreement is held to be in conflict with, or invalid, illegal or unenforceable, under any applicable local, state, federal or other law, such provisions shall be of such force and effect to the maximum extent permissible by such jurisdiction and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
2. This Agreement is not assignable by Buyer without the prior written consent of Seller.
3. The forbearance or failure of Seller to enforce any of the terms and conditions of this Agreement shall not affect or impair Seller's rights, and such forbearance or failure shall not constitute a waiver of other rights of Seller.
4. Any legal action with respect to a transaction contemplated herein or in connection with any related transaction with Seller must be commenced within one (1) year after the cause of action has accrued.
5. Any notice required to be given by either party to the other under this Agreement shall be in writing addressed to the other party at, with respect to Seller, its registered office and, with respect to Buyer, at its shipping address.