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TERMS AND CONDITIONS-EQUIPMENT SALE 1.General: The Terms and Conditions of Sale outlined herein shall apply to the sale by Volvo The Purchaser shall be obligated to promptly report any failure to conform to the applicable Road Machinery,Inc.d/b/a Volvo Construction Equipment Services(hereinafter referred to as warranty to the Company in sting within the applicable warranty period, whereupon the Company) of products, equipment and parts relating thereto (hereinafter referred to as Company shall,at its option,correct such nonconformity by suitable repair to such Equipment or Equipment).Unless prior written agreement is reached,it shall be understood that the Company's furnish a replacement part F.O.B.point of shipment.provided the Purchaser has stored,installed, proceeding with any work shall be in accordance with e terms and conditions outlined herein. maintained and operated such Equipment in accordance with good industry practices and has The Company hereby gives notice of its objection to anyadditional or different terms included in complied with specific recommendations of the Company.The Company shall not be liable for any purchase order or other form submitted by the Purchaser.Such additional or different terms any repairs,replacements,or adjustments to the Equipment or any costs of labor performed by shall not be included in this contractthe Purchaser or others without the Company's prior written approval. The Company will comply with applicable laws and regulations as they may apply to the The effects of corrosion,erosion and normal wear and tear are specifically excluded from the manufacture of the Equipment. Compliance with any local-governmental laws or regulations Company's warranty.Performance warranties,if any,are limited to those specifically stated within relating to the location,use or operation of the Equipment,or its use in conjunction with other the Company's proposal.Unless responsibility for meeting such performance warranties is limited equipment,shall be the sole responsibility of the Purchaser. to specified shop or field tests,the Company's obligation shall be to correct in the manner and for 2.Title and Risk of Loss:Title and risk of loss or damage to the Equipment shall pass to the the period of time provided in the applicable warranty Accessories or equipment furnished by the Company,but manufactured by others,including. Purchaser upon tender of delivery F.O.B.manufacturing facility unless ofh enwlsetagreed upon by but not limited to,engines,tires,batteries,engine electrical equipment,hydraulic transmissions, the parties, except that a security interest n the Equipment shall remain the Company. and carriers,shall carry whatever warranty the manufacturers have conveyed to the Company regardless of mode of attachment to realty or other property,until full payment has been made and which can be passed on to the Purchaser. therefor.Purchaser agrees upon request to all things and acts necessary to perfect and maintain THE COMPANY MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND such security interest and shall protect Company's Interest by adequately insuring the Equipment WHATSOEVER,EXPRESSED OR IMPLIED EXCEPT THAT OF TITLE AND ALL IMPLIED against loss or damage from any cause wherein the Company shall be named as an additional WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR insured. FITNESS FOR A PARTICULAR PURPOSE.ARE HEREBY DISCLAIMED. 3.Assignment:Neither party shall assign or transfer this contract without the prior written Correction by the Company of nonconformities whether patent or latent,in the manner and consent of the other party.The Company however shall be permitted to assign or transfer,without for the period of time provided above,shall constitute fulfillment of all liabilities of the Company for the prior written consent of the Purchaser,the Company's right to receive all or any portion of the such nonconformities,whether based on contract warranty,negligence,indemnity,strict liability payment due from the Purchaser under this contract. or otherwise with respect to or arising out of such Equipment. 4.Delivery and Delays:Delivery dates shall be interpreted as estimated and in no event shall The Purchaser shall not operate Equipment which is considered to be defective,without first dates be construed as falling within the meaning of"time is of the essence' notifying[he Company in writing of its)Mention to do so.Any such use of Equipment will ba et the The Company shall net be liable for any loss or delay due to war,riots,fire,flood,strikes.or PurcALLer's sole risk and liability.I other labor difficulty,acts of civil or military authority including governmental laws,order,priorities ALL USED EQUIPMENT IS SOLD'AS IS,WITH ALL FAULTS." or regulations,acts of the Purchaser,embargo car shortage,damage or delay in transportation, 8.Limitations of Liability:THE REMEDIES OF THE PURCHASER SET FORTH HEREIN ARE inability to obtain necessary labor or materials from usual sources.faulty forgoings or castings,or EXCLUSIVE,AND THE TOTAL LIABILITY OF THE COMPANY WITH RESPECT TO THIS other causes beyond the reasonable control of the Company.In the event of delayin rform ance CONTRACT OR THE EQUIPMENT AND SERVICES FURNISHED HEREUNDER, IN due to any such cause,the date of delivery or time for completion will be adjusted to reflect the CONNECTION WITH THE PERFORMANCE OR BREACH THEREOF, OR FROM THE actual length of time lost by reason of such delay.The Purchaser's receipt of Equipment shall MANUFACTURE,SALE,DELIVERY,INSTALLATION,REPAIR OR TECHNICAL DIRECTION constitute a waiver of any claims for delay. COVERED BY OR FURNISHED UNDER THIS CONTRACT, WHETHER BASED ON 5.T :The price does not include apresent or future Federal,State,or local property, CONTRACT,WARRANTY NEGLIGENCE INDEMNITY STRICT LIABILITY OR OTHERWISE, license,pnany vilege,sale,use,excise.gross receipts or other like taxes or assessments which may SHALL NOT EXCEED THE PURCHASE PRICE OF THE, UNIT OF EQUIPMENT UPON WHICH be applicable 1o,measured by,or imposed upon or result from this transaction,or any services SUCH THE COMP IN BASED. performed in connection therewith.Such taxes will be itemized separately to Purchaser,who shall COMPANY AND ITS SUPPLIERS INTEREST N ES ST OR IN BENEFICIARYO EVENTBE LIABLE TO THE D y PURCHASERISCON ANY FOR ANY CO IN IQUE CONSEQUENTIAL, , ANY CT,ASSIGNEE OFR make tromps payment to the Company.The Company to i snot recognized a gniexemption vernment PUTS IVE AT FOR SIN OUT OF THI CORATINCIDENTAL INDIRECT,REASPECIAL OR tram Pauthority n appfiolved,Pu Ih such green ton romptlyte is but ICa the government YIDEE TIN,DAMAGES ARISING OUT OF THIS ON ANY BREACH THEREOF OR taxicover authority suc exempt,Purchaser awhich to promptly reimburserthe Company for any taxes ANY THER OR OOF, U E,MALFUNCTIONTROF THE EQUIPMENT HEREUNDER,T,LOS covered by such exemption certificate which the Company is required to pay. WHETHER BASED UPON LOSS OF USE.LOST PROFITS OR REVENUE,INTEREST,LOS 8.Set Offs:Neither Purchaser nor any affiliated company or assignee shall have the right to claim GOODWILL,WORK STOPPAGE,IMPAIRMENT OF OTHER GOODS,LOSS BY REASON OF compensation or to set off against any amounts which become payable to the Company under this SHUTDOWN OR NON-OPERATION, INCREASED EXPENSES OF OPERATION COST OF contract or otherwise. PURCHASE OF REPLACEMENT POWER OR CLAIMS OF PURCHASER OR CUSTOMERS OF 7.Patents'The Company shall defend any suit or proceeding brought against the Purchaser and PURCHASER FOR SERVICE INTERRUPTION WHETHER OR NOT SUCH LOSS OR DAMAGE shall pay any adverse judgment entered therein so far as such suitor proceeding is based upon a IS BASED ON CONTRACT,WARRANTY,NEGLIGENCE,INDEMNITY,STRICT LIABILITY OR claim that the use of the Equipment manufactured by the Company,and famished under this OTHERWISE. contract,constitutes infringement of any patent of the United States of America,provided the 10.Nuclear Liability:In the event that the Equipment sold hereunder is to be used in a nuclear Company is promptly notified in writing and given the authority,information and assistance by facility,the Purchaser hereby releases and agrees to indemnify the Company and its suppliers for Purchaser for defense of same;and the Company shall,at its option,procure for the Purchaser any nuclear damage,including loss of use,in any manner arising out of a nuclear incident, the right to continue to use such Equipment. modify it so that it becomes non-infringing, replace whether alleged to be due in whole or in part to the negligence or otherwise of the Company or its the same with non-infringing equipment,or remove such Equipment and refund the purchase suppliers. price The foregoing shall not be construed to include any agreement try the Company to accept 11.Governing Law:The rights and obligations of the parties shall be governed by the laws of the any liability whatsoever with respect to patents for inventions including more than the Equipment State of North Carolina excluding its conflicts of law pnnciples.The United Nations Convention on furnished hereunder,or patents for methods and processes to be earned out with the aid of the Contracts for the International Sale of Goods shall not apply to this contract. Equipment. The foregoing states the entire liability of the Company with regard to patent infringement. 12.Execution:The Company shall not be bound by any contract or any modification thereto until 8.Warranty:The Company warrants that new Equipment manufactured by it and delivered approved in writing by an officer of the Company The contract,when so approved, shall hereunder will be free of defects in material and workmanship for the periods of time specified in supersede all previous communications,ether or or written,with respect to the subject matter the applicable warranties of the Company for such Equipment,which are incorporated herein by thereof. reference. TERMS AND CONDITONS-EQUIPMENT RENTAL 1.Lessee agrees to rent the Equipment for the term and at the stipulated rental rates and to pay 10.LESSEE UNDERSTANDS THAT LESSOR MAKES NO REPRESENTATION OR WARRANTY such rental when due irrespective of any claims,demands,set-offs,actions,suits or proceedings, OF ANY KIND WHATSOEVER EXPRESS OR IMPLIED, WITH RESPECT TO THE that it may have or assert against Lessor. EQUIPMENT,AND ALL IMPLIED WARRANTIES,INCLUDING ANY IMPLIED WARRANTIES OF 2.From the time the Equipment is shipped from Lessor's facility,until it is returned to Lessor's MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY designated facility,Lessee shall:(i)use the Equipment solely in the conduct of its business;(Ii) DDISCLAIMED.n use and preserve the Equipment in a careful.proper and lawful manner;(iii)at its own expense 11. LESSOR SHALL NOT BE LIABLE FOR ANY DIRECT INDIRECT, SPECIAL OR keep the Equipment in good repair,condition and working order and pay he cost of any and all CONSEQUENTIAL DAMAGES OR LOSS (I) RESULTING FROM THE NON-DELIVERY, parts and labor required for that purpose.using only parts manufactured or furnished by the DELIVERY,MANUFACTURE,INSTALLATION,USE OR OPERATION OF THE EQUIPMENT, manufacturer of the Equipment; (iv)not make any material alterations to the Equipment; (v) OR FROM ANY DEFECTS IN FAILURES,MAFUNCTIONS,REPAIRS REPLACEMENTS OR promptly notify Lessor of any loss of or damage to the Equipment;and(vi)assume the entire ns ALTERATIONS THEREOF,OR(II)WITHOUT LIMITATION ANY OTHER LIABILITY OF ANY of loss of and damage to the Equipment,and injury or death to persons, from any cause NATURE WITH RESPECT TO DIE EQUIPMENT OR THIS AGREEMENT OR ANY BREACH whatsoever arising under this agreement. THEREOF OR ARISING OUT OF NEGLIGENCE. FURTHERMORE LESSEE SHALL 3.Lessor may inspect the Equipment at a reasonable limes. INDEMNIFY AND HOLD HARMLESS LESSOR.ITS DIRECTORS OFFICERS EMPLOYEES, AGENTS AND REPRESENTATIVES, FROM ANY AND ALL CLAIMS, ACTIONS SUITS, 4.Lessee shall report and pay to the appropriate authority any and all license fees,registration PROCEEDINGS COSTS EXPENSES, DAMAGES, AND LIABILITIES INCLUDING fees, assessments,charges and taxes, including penalty and interest, assessed against the ATTORNEYS'FEES,ARISING OUT OF CONNECTED WITH,OR RESULTING FROM,THIS Equipment due to rental or use thereof and reimburse Lessor upon request for any such amounts AGREEMENT OR THE BREACH THEREOF. assessed against Lessor b reason of the rental or use of the Equipment,except for taxes 12 vpse Upon termination of this agreement,Lessee will,at its own cost and een ,promptly retum payable in respect to Lessors income. the Equipment to Lessor in the same condition as received,reasonable wear and tear and normal 5.Lessee shall keep the Equipment at the address specified in this agreement,and not remove it depreciation excepted. therefrom without the Lessor's prior written consent.Lessee shall not assign,sublet or pledge any 13 If Lessee breaches its obligation to pay rentals when due or any of the other terms of this of the Equipment or any interest in this agreement,and any attempt to do so shall constitute an agreement,or if Lessee becomes insolvent or ceases to do business as a going concern,or if the act of default hereunder. Equipment or any part of it is abused,illegally used or misused,or if Lessee makes an assignment 8.The Equipment shall at all times remain personal property of Lessor regardless of the degree of for the benefit of creditors,or if a petition in bankruptcy or for arrangement or reorganization is its annexation to any real property and shall not by reason of any annexation become apart filed by or against Lessee,or if property of Lessee is attached or a receiver is appointed for thereof.Lessor shall retain a security interest in the Equipment in the event that the rental of the Lessee or any of Lessee's'property,or if Lessee is in default pursuant to the provisions of any Equipment is held by a court to constitute a lease intended for security and Lessee agrees upon other agreement by and between Lessor and Lessee.or whenever Lessor may deem the rentals request to do all things and acts necessary to perfect and maintain such security interest. or Equipment insecure,the Lessee hereby authorizes Lessor to enter,with or without legal 7.Lessee,at its own expense,will maintain all risk insurance coverage on the Eqquipment for its process,any premises where the Equipment may be and take possession thereof,or at the full replacement value,and also such other insurance as Lessor may require, amountf and request of Lessor,Lessee will assemble the Equipment and make the Equipment available to the policies acceptable to Lessor,with loss payable to Lessee and Lessor as their respective Lessor,in whole or in part as requested,at such place or places designated by the Lessor. All under interests may appear. Upon request of Lessor,Lessee shall famish certificates of insurance remedies herein are cumulative and any or all such remedies may be exercised in lieu of or in evidencing such coverage.Each policy shall provide for thirty(30)days written notice to Lessor of addition attorney any remedies at law. equity or under statute. If afar default this agreement is placed the cancellation or matenal modification thereof. with or, esshon collection ar of unpaid rentals a vment any other rigall remedy ai er Lessor,Lessee shall pay reasonable attorney's fees. Waiver of any default shall not be a waiver S.Lessee shall promptly notify Lessor of each accident involving any Equipment,including time, of any other or subsequent default. place,nature of the accident or damage,and such other information as may be known;advise 14.All notices required to be given hereunder shall be in writing and shall be deemed adequately Lessor of all correspondence,papers,notices,or documents received;aid in the investigation and given if sent by registered or certified mail to the other party at the registered address of such defense of all such claims;and assist in the recovery of damages,from third parties liable other parry,or at such other place as either party may designate in writing to the other party. therefor. S.In the event of damage to or loss,destruction or theft of the Equipment or any part thereof. 18. The rights and obligations of the parties shall be governed by the laws of the State of North Lessee shall pay to Lessor the full value of the Equipment at the time of such occurrence except Carolina excluding its conflicts of law pnnciples. to the extent that Lessor receives proceeds of insurance covering such Equipment.Such payment 18.This document and any attachments hereto constitute the entire agreement of the parties with may,at Lessor's option,be applied(i)to repair such Equipment,or(Ii)to afford Lessee a pro rata respect to the subject matter hereof.No variation or modification of this document and no waiver reduction in the rental payments attributable to the lost or damaged Equipment,or(iii)to replace of any of its provisions or conditions shall be valid unless in writing and signed by both parties. the Equipment with equipment of the same make and the same or later model. Reference Sales Order No: TBD City of Pleasanton Customer's Initials: