HomeMy WebLinkAboutC2018-380 - 7/31/2018 - Approved us c%
04
II'
..=i��
;� SUPPLY AGREEMENT NO. 1732
v ` 1, �
Tires for Fleet Maintenance
*e p0N 1E0
1852
THIS Tires for Fleet Maintenance Supply Agreement ("Agreement") is entered into
by and between the City of Corpus Christi, a Texas home-rule municipal corporation
("City") and GCR Tires and Service ("Supplier"), effective upon execution by the City
Manager or the City Manager's designee ("City Manager").
WHEREAS, Supplier has bid to provide tires for Fleet Maintenance in response to
Request for Bid No. N/A ("RFB"), which RFB includes the required scope of work and all
specifications and which RFB and the Supplier's bid response are incorporated by
reference in this Agreement as Exhibits 1 and 2, respectively, as if each were fully set
out here in its entirety.
NOW, THEREFORE, City and Supplier agree as follows:
1. Scope. Supplier will provide Tires for Fleet Maintenance in accordance with the
attached Scope of Work, as shown in Attachment A, the content of which is
incorporated by reference into this Agreement as if fully set out here in its entirety.
"Goods," "products", and "supplies", as used in this Agreement, refer to and have
the same meaning.
2. Term. This Agreement is for 12 months. The parties may mutually extend the term
of this Agreement for up to zero additional zero-month periods ("Option
Period(s)"), provided, the parties do so in writing and prior to the expiration of the
original term or the then-current Option Period. The City's extension authorization
must be executed by the City Manager or designee.
3. Compensation and Payment. The total value of this Agreement is not to exceed
$52,621 .20, subject to approved extensions and changes. Payment will be made
for goods delivered and accepted by the City within 30 days of acceptance,
subject to receipt of an acceptable invoice. All pricing must be in accordance
with the attached Bid/Pricing Schedule, as shown in Attachment B, the content
of which is incorporated by reference into this Agreement as if fully set out here in
its entirety.
4. Contract Administrator. The Contract Administrator designated by the City is
responsible for approval of all phases of performance and operations under this
Agreement, including deductions for non-performance and authorizations for
payment. The City's Contract Administrator for this Agreement is as follows:
C.2018-380
7/31/18
M2018-121 n Page 1 of 7
GCR Tires and Service SCANNED
Benjamin Sanchez
Fleet Maintenance
361.826.1959
BenjaminS@cctexas.com
5. Insurance. Before performance can begin under this Agreement, the Supplier
must deliver a certificate of insurance ("COI"), as proof of the required insurance
coverages, to the City's Risk Manager and the Contract Administrator.
Additionally, the COI must state that the City will be given at least 30 days'
advance written notice of cancellation, material change in coverage, or intent
not to renew any of the policies. The City must be named as an additional insured.
The City Attorney must be given copies of all insurance policies within 10 days of
the City Manager's written request. Insurance requirements are as stated in
Attachment C, the content of which is incorporated by reference into this
Agreement as if fully set out here in its entirety.
6. Purchase Release Order. For multiple-release purchases of products to be
provided by the Supplier over a period of time, the City will exercise its right to
specify time, place and quantity of products to be delivered in the following
manner: any City department or division may send to Supplier a purchase release
order signed by an authorized agent of the department or division. The purchase
release order must refer to this Agreement, and products will remain with the
Supplier until such time as the products are delivered and accepted by the City.
7. Inspection and Acceptance. Any products that are delivered but not accepted
by the City must be corrected or replaced immediately at no charge to the City.
If immediate correction or replacement at no charge cannot be made by the
Supplier, a replacement product may be bought by the City on the open market
and any costs incurred, including additional costs over the item's bid price, must
be paid by the Supplier within 30 days of receipt of City's invoice.
8. Warranty.
(A) The Supplier warrants that all products supplied under this Agreement are
new, quality items that are free from defects and of good material and
workmanship. The Supplier warrants that it has clear title to the products and that
the products are free of liens or encumbrances.
(B) In addition, the products purchased under this Agreement shall be
warranted by the Supplier or, if indicated in Attachment D by the manufacturer,
for the period stated in Attachment D. Attachment D is attached to this
Agreement and is incorporated by reference into this Agreement as if fully set
out here in its entirety.
Supply Agreement Standard Form Page 2 of 7
9. Quality/Quantity Adjustments. Any quantities indicated on the Bid/Pricing
Schedule are estimates only and do not obligate the City to order or accept more
than the City's actual requirements nor do the estimates restrict the City from
ordering less than its actual needs during the term of the Agreement and including
any Option Period. Substitutions and deviations from the City's product
requirements or specifications are prohibited without the prior written approval of
the Contract Administrator
10. Non-Appropriation. The continuation of this Agreement after the close of any
fiscal year of the City,which fiscal year ends on September 30th annually, is subject
to appropriations and budget approval specifically covering this Agreement as
an expenditure in said budget, and it is within the sole discretion of the City's City
Council to determine whether or not to fund this Agreement. The City does not
represent that this budget item will be adopted, as said determination is within the
City Council's sole discretion when adopting each budget.
11. Independent Contractor. Supplier will perform the work required by this
Agreement as an independent contractor and will furnish such products in its own
manner and method, and under no circumstances or conditions will any agent,
servant or employee of the Supplier be considered an employee of the City.
12. Subcontractors. Supplier may use subcontractors in connection with the work
performed under this Agreement. When using subcontractors, however, the
Supplier must obtain prior written approval from the Contract Administrator if the
subcontractors were not named at the time of bid. In using subcontractors, the
Supplier is responsible for all their acts and omissions to the same extent as if the
subcontractor and its employees were employees of the Supplier. All
requirements set forth as part of this Agreement, including the necessity of
providing a COI in advance to the City, are applicable to all subcontractors and
their employees to the same extent as if the Supplier and its employees had
performed the work.
13. Amendments. This Agreement may be amended or modified only by written
change order signed by both parties. Change orders may be used to modify
quantities as deemed necessary by the City.
14. Waiver. No waiver by either party of any breach of any term or condition of this
Agreement waives any subsequent breach of the same.
15. Taxes. The Supplier covenants to pay payroll taxes, Medicare taxes, FICA taxes,
unemployment taxes and all other related taxes. Upon request, the City Manager
shall be provided proof of payment of these taxes within 15 days of such request.
16. Notice. Any notice required under this Agreement must be given by fax, hand
delivery, or certified mail, postage prepaid, and is deemed received on the day
Supply Agreement Standard Form Page 3 of 7
faxed or hand-delivered or on the third day after postmark if sent by certified mail.
Notice must be sent as follows:
IF TO CITY:
City of Corpus Christi
Attn: Benjamin Sanchez
Assistant Parts Foreman
5352 Ayers, Building 3B, Corpus Christi, Texas 78415
361.826.1959
Fax: 361.826.4394
IF TO SUPPLIER:
GCR Tires and Service
Attn: Bryan Salinas
Commercial Tire Consultant
4859 Baldwin, Corpus Christi, Texas 78408
361.883.5181
Fax: 361 .883.4320
17. EXCEPT TO THE EXTENT OF ANY INJURIES, DEATHS, LOSSES,
DAMAGES, CLAIMS, SUITS, LIABILITIES, JUDGMENTS, COSTS, AND
EXPENSES, RESULTING FROM THE NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE CITY OF CORPUS CHRISTI, ITS DEPARTMENTS,
AND ALL OF THEIR OFFICERS, EMPLOYEES OR AGENTS OR OTHER
CONTRACTORS, SUPPLIER SHALL FULLY INDEMNIFY, HOLD
HARMLESS AND DEFEND THE CITY OF CORPUS CHRISTI AND ITS
OFFICERS, EMPLOYEES AND AGENTS ("INDEMNITEES') FROM AND
AGAINST ANY AND ALL LIABILITY, LOSS, CLAIMS, DEMANDS, SUITS,
AND CAUSES OF ACTION OF WHATEVER NATURE, CHARACTER, OR
DESCRIPTION ON ACCOUNT OF PERSONAL INJURIES, PROPERTY
LOSS, OR DAMAGE, OR ANY OTHER KIND OF INJURY, LOSS, OR
DAMAGE, INCLUDING ALL EXPENSES OF LITIGATION, COURT
COSTS, ATTORNEYS' FEES AND EXPERT WITNESS FEES, TO THE EXTENT
THAT THEY ARISE OUT OF OR IN CONNECTION WITH A BREACH OF
THIS AGREEMENT OR THE PERFORMANCE OF THIS AGREEMENT BY
THE SUPPLIER OR RESULTS FROM THE NEGLIGENT ACT, OMISSION,
MISCONDUCT, OR FAULT OF THE SUPPLIER OR ITS EMPLOYEES OR
AGENTS. SUPPLIER MUST, AT ITS OWN EXPENSE, INVESTIGATE ALL
CLAIMS AND DEMANDS, ATTEND TO THEIR SETTLEMENT OR OTHER
DISPOSITION, DEFEND ALL ACTIONS BASED THEREON WITH
COUNSEL SATISFACTORY TO THE CITY ATTORNEY, AND PAY ALL
Supply Agreement Standard Form Page 4 of 7
CHARGES OF ATTORNEYS AND ALL OTHER COSTS AND EXPENSES
OF ANY KIND ARISING OR RESULTING FROM ANY SAID LIABILITY,
DAMAGE, LOSS, CLAIMS, DEMANDS, SUITS, OR ACTIONS. THE
INDEMNIFICATION OBLIGATIONS OF SUPPLIER UNDER THIS
SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER
TERMINATION OF THIS AGREEMENT.
18. Termination.
(A) The City Manager may terminate this Agreement for Supplier's failure to
perform the work specified in this Agreement or to keep any required insurance
policies in force during the entire term of this Agreement. The Contract
Administrator must give the Supplier written notice of the breach and set out a
reasonable opportunity to cure. If the Supplier has not cured within the cure
period, the City Manager may terminate this Agreement immediately thereafter.
(B) Alternatively, the City Manager may terminate this Agreement for
convenience upon 30 days advance written notice to the Supplier. The City
Manager may also terminate this Agreement upon 24 hours written notice to the
Supplier for failure to pay or provide proof of payment of taxes as set out in this
Agreement.
19. Assignment. No assignment of this Agreement by the Supplier, or of any right or
interest contained herein, is effective unless the City Manager first gives written
consent to such assignment. The performance of this Agreement by the Supplier
is of the essence of this Agreement, and the City Manager's right to withhold
consent to such assignment is within the sole discretion of the City Manager on
any ground whatsoever.
20. Severability. Each provision of this Agreement is considered to be severable and,
if, for any reason, any provision or part of this Agreement is determined to be
invalid and contrary to applicable law, such invalidity shall not impair the
operation of nor affect those portions of this Agreement that are valid, but this
Agreement shall be construed and enforced in all respects as if the invalid or
unenforceable provision or part had been omitted.
21. Order of Precedence. In the event of any conflicts or inconsistencies between this
Agreement, its attachments, and exhibits, such conflicts and inconsistencies will
be resolved by reference to the documents in the following order of priority:
A. this Agreement (excluding attachments and exhibits);
B. its attachments;
C. the bid solicitation document including any addenda (Exhibit 1); then,
D. the Supplier's bid response (Exhibit 2).
Supply Agreement Standard Form Page 5 of 7
22. Certificate of Interested Parties. Supplier agrees to comply with Texas Government
Code Section 2252.908, as it may be amended, and to complete Form 1295
"Certificate of Interested Parties" as part of this Agreement.
23. Verification Regarding Israel. In accordance with Chapter 2270, Texas
Government Code, the City may not enter into a contract with a company for
goods or services unless the contract contains a written verification from the
company that it: (1) does not boycott Israel; and (2) will not boycott Israel during
the term of the contract. The signatory executing this Agreement on behalf of the
Supplier verifies that the company does not boycott Israel and will not boycott
Israel during the term of this Agreement.
24. Governing Law.This Agreement is subject to all federal, State, and local laws, rules,
and regulations. The applicable law for any legal disputes arising out of this
Agreement is the law of the State of Texas, and such form and venue for such
disputes is the appropriate district, county, or justice court in and for Nueces
County, Texas.
25. Entire Agreement. This Agreement constitutes the entire agreement between the
parties concerning the subject matter of this Agreement and supersedes all prior
negotiations, arrangements, agreements and understandings, either oral or
written, between the parties.
26. Limitation of Liability. The total liability of any Party to this Agreement shall not
include any liquidated, penalty, incidental or consequential damages of any
kind.
(SIGNATURE PAGE FOLLOWS)
Supply Agreement Standard Form Page 6 of 7
SUPPI 1 '
Si nature:` 1 _ -.___. ...__.... ._
Printed Name:121L -
Title: CAS CiC-
Date: Li, 15- - ��L
CITY OF CORPUS CHRISTI
Signature: 16 . )2_ 8o-. _
Printed Name: t t k Ira
Title: ►tea t ('er}v( or fill4h«aC.( Serc/tcd
Date:
ATTEST:
APPROVED AS TO LEGAL FORM: RE ECCA HUERTA
CITY SECRETARY
AAA
Assistant City Attorney Date
Attached and Incorporated by Reference: \22\
Attachment A: Scope of Work
Attachment B: Bid/Pricing Schedule R COUNCIL.,. 1.
Attachment C: Insurance Requirements
Attachment D: Warranty Requirements SECT START
Incorporated by Reference Only:
Exhibit 1: RFB No. N/A
Exhibit 2: Supplier's Bid Response
Supply Agreement Standard Form Page 7 of 7
Attachment A: Scope of Work
New tires will be ordered on an as needed basis
1. Contractor will deliver new P265/60R 17 tires
2. Contractor shall maintain stock in sufficient amount and sizes of tires to
supply the reasonable demands of the City
3. Contractor shall have five hours to deliver the tires if the order is placed
before 11 am
4. Contractor shall have 24 hours to deliver the tires if the order is placed
after 11 am
5. Contractor shall deliver tires between the hours of 8am - 5pm
6. Tires will be delivered to the City Garage, City Service Center, at 5352
Ayers St., Corpus Christi, Texas 78415
7. Contractor shall provide bill of lading when tires are delivered
Page 1 of 1
fl Attachment B: Bid/Pricing Schedule f
5Eff IliREM.VIA:".1,,,,,.;:ft91?9,0A99s1f;Roymnio,,a0.2.11.1pp
INVOICE DATE CUST.NO.I ORDER NOJ PAGEI INVOICE NO.
TIRES&SERVICE 04/30/18 53831C 149462 1 •
GCR 170992 CORPUS C630T1C _
4859 BALDWIN STREET copy
CORPUS CHRISTI, TX 78408-2715
(361)883-5181 Tax Id: CORPUS CHRISTI TX 78469-9277 US
SOLD CITY OF CORPUS CHRISTI SHP CITY OF CORPUS CHRISTI
TO PO BOX 9277 TO PO BOX 9277
ATTENTION FLEET MAINTANCE ATTENTION FLEET MAINTANCE
CORPUS CHRISTI, TX 78469-9277 CORPUS CHRISTI, TX 78469-9277
PURCHASE ORDER NO. SALES PERSON PHONE I SHIP VIA
GI s-a U t
1141 361-857-1912 DELIVER
ITEM NO. DESCR PT ON I CITY.ORDERED QTY.SHIPPED F.E,T. PRICE NET EXTENSION
023189 FS P265/60R17 FH GTV PURSUIT BL108V 423 423 0.00 124.40 52621.20
*BUY BOARD PROPOSAL#553-18
*CONTRACT#7105
• CHK'D BY: 1DELV'D B':,_„_ •
TIME: OUT/IN 1V
MILEAGE: OUT/I I
DC) NOT PON"_ HIS IS p QUOTE
SubTbt Parts: 52621.20 •
Cut44�� ��ae.11,1., cc'
�»Lrr atltH6rrdi cdmbltlfto perform the above written services to their vehicle.
SEE INFORMATION STATEMENT OF REVERSE SIDE REGARDING CONSUMER CREDIT CONTRACT AND SECURITY AGREEMENT
X
PRINT NAME/AUTHORIZED SIGNATURE
NOTE:In order to save all FINANCE CHARGES,the customer must pay,in full,the entire unpaid balance by the 10th of the following
00 month.F NANCE CHARGES are computed on amounts 30 days or more past due at the PERIODIC RATE of 1.5%PER MONTH I it v Total . 5262 1.20
(MINIMUM CHARGE OF 51.00)wNdn Is an ANNUAL PERCENTAGE RATE OF 18%.The above cred t terms have been set out
In accord with the Truth•In-Lending requirements of the Federal Government and are for the customer's benefit and protection.
PAY FROM THIS IM/OICe,
PO#
Date Delivered: Disposition of Take Off Tires: Your wheel components have been inspected
Fleet Authorization#_ _ReYd w/Driver _ReYd w/Dealer and it has been determined your wheel components ,
Credit Release# _Ret'd to Customer_Ret'd for Warranty require immediate attention.
Phone:
Customer/Fleet Acct#,_ Tire Replacement Reason A wheel assembly has been installed.Industry
Customer/Fleet Loc# 1 •
guidelines require that the torque level of the
wheel nuts be rechecked between 50 and 100
Vehicle Information: For ERS Information Only: miles of operation and retorqued as necessary.
Hubometer ERS Work Order# Failure to do so may result in loss of this assembly.
Make Odometer DOT On Tires I acknowledge receipt of wheel assembly info.
Model Color DOT Off Tires
Vehicle# Lic#/State
Trailer# Chassis# Driver Roll Time
Tire/Wheel Pos: (Signature)
Container# SerialNIN#
(Name Printed)
FILE
Page 1 of 1
Attachment C: Insurance and Bond Requirements
A. CONTRACTOR'S LIABILITY INSURANCE
1. Contractor must not commence work under this contract until all insurance required
has been obtained and such insurance has been approved by the City. Contractor
must not allow any subcontractor, to commence work until all similar insurance
required of any subcontractor has been obtained.
2. Contractor must furnish to the City's Risk Manager and Contract Administrator one
(1) copy of Certificates of Insurance with applicable policy endorsements showing
the following minimum coverage by an insurance company(s) acceptable to the
City's Risk Manager. The City must be listed as an additional insured on the General
liability and Auto Liability policies by endorsement, and a waiver of subrogation
endorsement is required on all applicable policies. Endorsements must be provided
with Certificate of Insurance. Project name and/or number must be listed in
Description Box of Certificate of Insurance.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30-day advance written notice of Bodily Injury and Property Damage
cancellation, non-renewal, material Per occurrence - aggregate
change or termination required on all
certificates and policies.
COMMERCIAL GENERAL LIABILITY $1,000,000 Per Occurrence
including: $1,000,000 Aggregate
1. Commercial Broad Form
2. Premises - Operations
3. Products/ Completed Operations
4. Contractual Liability
5. Independent Contractors
6. Personal Injury- Advertising Injury
AUTO LIABILITY (including) $1,000,000 Combined Single Limit
1. Owned
2. Hired and Non-Owned
3. Rented/Leased
WORKERS'S COMPENSATION Statutory and complies with Part II
(All States Endorsement if Company is of this Exhibit.
not domiciled in Texas)
Employer's Liability $500,000/$500,000/$500,000
Page 1 of 3
3. In the event of accidents of any kind related to this contract, Contractor must furnish
the Risk Manager with copies of all reports of any accidents within 10 days of the
accident.
B. ADDITIONAL REQUIREMENTS
1. Applicable for paid employees, Contractor must obtain workers' compensation
coverage through a licensed insurance company. The coverage must be written on
a policy and endorsements approved by the Texas Department of Insurance. The
workers' compensation coverage provided must be in statutory amounts according
to the Texas Department of Insurance, Division of Workers' Compensation. An All
States Endorsement shall be required if Contractor is not domiciled in the State of
Texas.
2. Contractor shall obtain and maintain in full force and effect for the duration of this
Contract, and any extension hereof, at Contractor's sole expense, insurance
coverage written on an occurrence basis by companies authorized and admitted to
do business in the State of Texas and with an A.M. Best's rating of no less than A- VII.
3. Contractor shall be required to submit renewal certificates of insurance throughout
the term of this contract and any extensions within 10 days of the policy expiration
dates. All notices under this Exhibit shall be given to City at the following address:
City of Corpus Christi
Attn: Risk Manager
P.O. Box 9277
Corpus Christi, TX 78469-9277
4. Contractor agrees that, with respect to the above required insurance, all insurance
policies are to contain or be endorsed to contain the following required provisions:
• List the City and its officers, officials, employees, and volunteers, as additional
insureds by endorsement with regard to operations, completed operations, and
activities of or on behalf of the named insured performed under contract with the
City, with the exception of the workers' compensation policy;
• Provide for an endorsement that the "other insurance" clause shall not apply to the
City of Corpus Christi where the City is an additional insured shown on the policy;
• Workers' compensation and employers' liability policies will provide a waiver of
subrogation in favor of the City; and
• Provide thirty (30) calendar days advance written notice directly to City of any,
cancellation, non-renewal, material change or termination in coverage and not less
than ten (10) calendar days advance written notice for nonpayment of premium.
Page 2 of 3
5. Within five (5) calendar days of a cancellation, non-renewal, material change or
termination of coverage, Contractor shall provide a replacement Certificate of
Insurance and applicable endorsements to City. City shall have the option to
suspend Contractor's performance should there be a lapse in coverage at any time
during this contract. Failure to provide and to maintain the required insurance shall
constitute a material breach of this contract.
6. In addition to any other remedies the City may have upon Contractor's failure to
provide and maintain any insurance or policy endorsements to the extent and within
the time herein required, the City shall have the right to order Contractor to stop work
hereunder, and/or withhold any payment(s) which become due to Contractor
hereunder until Contractor demonstrates compliance with the requirements hereof.
7. Nothing herein contained shall be construed as limiting in any way the extent to
which Contractor may be held responsible for payments of damages to persons or
property resulting from Contractor's or its subcontractor's performance of the work
covered under this contract.
8. It is agreed that Contractor's insurance shall be deemed primary and non-
contributory with respect to any insurance or self insurance carried by the City of
Corpus Christi for liability arising out of operations under this contract.
9. It is understood and agreed that the insurance required is in addition to and separate
from any other obligation contained in this contract.
2018 Insurance Requirements
Purchasing
Delivery of New Tires for Fleet
05/09/2018 sw Risk Management
Valid Through 12/31/2018
Bond is not required for this service.
Page 3 of 3
Attachment D: Warranty Requirements
"Warranty: All new products ("Products") supplied by Supplier are subject to manufacturer's standard
limited warranties as in effect at the time of delivery.As the exclusive remedy for breach of this warranty,
Supplier, at its option, shall: (a) repair the Products, (b) replace the Products, or(c) refund the fees paid
and attributable to the Products at issue for the then-current Period. Each casing retreaded using the
Bandag® process (a "Bandag® Retread")and supplied to City by Supplier under this Agreement is subject
to the provisions of the Bandag National Warranty, as in effect at the time of delivery. City will make no
set-off, without the written consent of Supplier, for warranty claims or adjustments against any sum
otherwise owing to Supplier, but settlement of such claims and adjustments will be in accordance with
Supplier's warranty procedures then in effect. All warranty claims will be submitted to Supplier in
accordance with warranty claims procedures in effect at the time of claim, unless Supplier notifies City
otherwise.
Supplier warrants that the services it provides ("Services") will be performed in a good workmanlike
manner,with that standard of care,skill, and diligence normally provided by a similar professional in the
performance of similar services in accordance with applicable specifications and industry standards. As
the exclusive remedy for breach of this Services warranty, Supplier, at its option, shall: (a) correct or re-
perform any Service that is in breach of the warranties expressed herein or(b) refund the fees paid and
attributable to the Services at issue.
OTHER THAN THE WARRANTIES STATED IN THE AGREEMENT, SUPPLIER DOES NOT MAKE ANY AND
EXPRESSLY DISCLAIMS ALL: 1)WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, 2) ANY OTHER OBLIGATIONS OR
LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR OF WARRANTY; 3) ANY OBLIGATIONS
WHATSOEVER ARISING FROM TORT CLAIMS OR ARISING UNDER OTHER THEORIES OF LAW OR EQUITY
WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SUPPLIER,OR ANY UNDERTAKINGS,ACTS
OR OMISSIONS RELATING THERETO. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND
NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL
EITHER PARTY NOR ITS PARENT, SUBSIDIARIES OR AFFILIATED ENTITIES, BE LIABLE FOR ANY INCIDENTAL,
EXEMPLARY,SPECIAL, INDIRECT,CONTINGENT, PUNITIVE OR CONSEQUENTIAL DAMAGES,ANY CAUSE OF
ACTION,WHETHER ARISING OUT OF BREACH OF ANY EXPRESS OR IMPLIED WARRANTY,WHETHER BASED
IN AGREEMENT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, OF ANY KIND OR NATURE,
INCLUDING WITHOUT LIMITATION,LOSS OF ACTUAL OR ANTICIPATED PROFITS,REVENUES,OR BUSINESS,
LOSS OF GOODWILL, LOSS OF USE OF PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL,
FACILITIES, SUBSTITUTE PRODUCTS OR SERVICES, DOWNTIME, DELAY OR SLOWDOWN COSTS,SPOILAGE
OF MATERIAL, OR FOR ANY OTHER TYPE OF ECONOMIC LOSS, DIRECT OR INDIRECT, WHETHER OR NOT
THE OTHER PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THESE OR ANY OTHER DAMAGES OR
IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN."
Page 1 of 1