Purchase Agreement – Rev 7-30-26
City of Moreno Valley
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (“Agreement”) is made and entered into this ____ day of ____, 2026 (“Effective Date”), by and between the City of Moreno Valley, a municipal corporation, with its principal place of business at 14177 Frederick Street, Moreno Valley, CA 92552, hereinafter referred to as the “City” (“Buyer”), and Siemens Industry, Inc., a Delaware Corporation by its Smart Infrastructure, Electrification and Automation Business Unit with a place of business at 7000 Siemens Road, Wendell, NC 27591, (“Seller”), with Buyer and Seller together sometimes hereinafter referred to as the “Parties.”
RECITALS:
WHEREAS, Seller will manufacture and deliver a Power Distribution Center (PDC) and Switchgear (“Goods”), as described in Exhibit “A,” attached hereto and incorporated herein by this reference; and
WHEREAS, Buyer is in need of Goods for use for the Moreno Valley Substation Expansion project, within the City of Moreno Valley, California; and WHEREAS, Seller desires to sell, and Buyer desires to purchase, the Goods, upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and promises contained herein and for such other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows:
Section 1. Recitals
The Recitals set forth above are true and correct and are hereby incorporated into this Agreement by this reference, as though set forth in full herein.
Section 2. Purchase, Sale, Delivery of Goods, Liquidated Damages Seller shall sell and deliver to Buyer at the address specified in Exhibit “A” or as otherwise directed in writing by Buyer (“Delivery Location”), and Buyer shall purchase from Seller, the Goods, for the price of three million eight hundred twenty four thousand six hundred forty Dollars and thirty one Cents ($3,824,640.31) plus three hundred twenty five thousand one hundred sixty Dollars and thirty four Cents ($325,160.34) for sales tax (8.75%), for a total of four million one hundred forty nine thousand eight hundred Dollars and sixty five Cents ($4,149,800.65) (“Purchase Price”).
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Unless otherwise stated in the Agreement, Goods will be delivered DDP to Buyer’s Delivery Location, with title to the Goods and risk of loss or damage for the Goods passing to Buyer upon delivery at that point. Buyer is responsible for all transportation, insurance and related expenses only from and after such delivery.
Seller may make partial shipments.
Irrespective of any conflicting term in this agreement or the Purchase Order, Seller’s pricing is subject to adjustment only for new direct or indirect, or modified taxes, duties, tariffs, or equivalent trade measures imposed by any U.S. or foreign governmental authority that are applicable to the Goods after the Effective Date.
Any such prospective adjustment shall operate in both directions and shall be limited to the actual, documented net change in cost attributable to such new measures, without markup: the Purchase Price shall increase to reflect any documented net increase in such costs actually incurred by Seller, and shall decrease to reflect any reduction, removal, refund, rebate, or exemption of such measures. To the extent Buyer has already paid amounts on account of any such measure that is later reduced, removed, refunded, rebated, or found not to apply, Seller shall pass the corresponding benefit through to Buyer and refund such amounts within thirty (30) days of Seller becoming entitled to or receiving them. As a condition to any increase, Seller shall provide Buyer with reasonable written documentation substantiating the amount of, and basis for, the adjustment, and shall use commercially reasonable efforts to mitigate such costs (including through available exemptions, duty drawback, and alternative sourcing). Current tariff levels do not warrant a price adjustment.
Liquidated Damages. As per Exhibit B below.
Section 3. Invoice; Inspection; Payment
a. Seller shall invoice the Buyer for the Goods in an amount not to exceed the Purchase Price within seven (7) days of delivery of the Goods to Buyer. Unless otherwise stated in the Seller’s proposal, all payments are due net thirty (30) days from the invoice date and will be made in United States Dollars, pursuant to the following payment milestones.
Description % of Total Contract Price
Down payment after contract award and
Seller order acknowledgment 10%
Upon Seller’s submittal, and the City’s
written acceptance, of complete and
contract-compliant drawing packages for all
equipment under the Contract, the City shall
pay Seller 25% of the Purchase Price.
25%
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This is a one-time payment event; partial,
incremental, resubmitted, or per-equipment
drawing packages shall not trigger any
separate payment, and total payments under
this milestone shall not exceed 25% of the
Purchase Price.
Upon delivery of all individual type of
equipment to PEC supplier 30%
Completion of FAT for all individual
components of PEC at PEC supplier 30%
Upon delivery of all individual PEC to project
site or to customer’s place of storage 5%
b. After delivery, Buyer shall inspect the Goods within a reasonable time not to exceed ten (10) days and provide written notice to the Seller specifying any defects discovered upon reasonable inspection. The Goods shall be deemed accepted upon the earliest to occur of: (i) Buyer's failure to provide such written notice within the ten (10) day inspection period; (ii) installation, energization, commercial operation, or beneficial use of the Goods; or (iii) Buyer's written acceptance of the Goods. Acceptance of the Goods, whether in whole or in part, shall not be deemed a waiver of any defects identified by the Buyer, nor any defects later discovered by the Buyer during the Warranty Period, and specified to the Seller in writing.
c. Title to Goods or any portion thereof and risk of loss or damage during shipment pass from Seller to Buyer upon delivery to address specified in Section 2 of this Agreement.
Section 4. Representations and Warranty for Defective Goods Seller hereby makes the following representations, warranties, and acknowledgments, and agrees that such representations, warranties and acknowledgments shall be true as of the Effective Date:
A. Representations.
1. Seller, and the person executing this Agreement on behalf of Seller, has the full right, power and authority to enter into this Agreement and to take all actions required of Seller by the terms of this Agreement.
2. All documents executed by Seller pursuant to this Agreement will be duly authorized, executed and promptly delivered to Buyer, and will be legal, valid and binding obligations enforceable against Seller and will not violate any provisions of any agreement to which Seller is a party or to which it is subject.
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B. Warranties.
1. General Warranty and Warranty Period. The Goods provided to Buyer shall be free from all defects in material and workmanship, liens, encumbrances or adverse claims and are of good quality and materially conform to Seller’s specifications that are attached to or expressly incorporated into this agreement. Seller warrants the Goods against defects in materials and workmanship for a period of not less than two (2) years from the date of Buyer’s acceptance, or the manufacturer’s standard warranty period, whichever is longer.
2. Warranty Remedies. Seller agrees that if there is any claim of defect in the Goods, as determined in Buyer’s sole reasonable discretion, and upon written notice thereof given to Seller, during the Warranty Period, Seller shall, at its own expense as Buyer’s sole and exclusive remedies for breach of the Warranties: (i) for Service, re-perform the relevant Services or in Seller’s reasonable discretion, refund Buyer the pro rata portion of the fees paid to Seller under this Agreement allocable to the non-conforming Services; and (ii) for Goods, at Seller’s reasonable discretion, repair or replace the Goods or its non-conforming parts, within a reasonable time period, or refund all or part of the purchase price. The Warranty Period on any repaired or replaced component of the Goods or any reperformed Service shall be the longer of (i) the remainder of the original Warranty Period applicable to the Goods, or (ii) ninety (90) days following completion of the repair, replacement or re-performance. Such warranty shall apply only to the repaired or replaced component or re-performed Service. The Warranty Period for the remainder of the Goods shall remain unchanged and shall not be extended, renewed or restarted.
Unless Seller agrees otherwise in writing, Buyer will be responsible for any costs associated with: (i) gaining access to the Goods or Services; (ii) removal, disassembly, replacement, installation, or reinstallation of any equipment, materials or structures to permit Seller to perform its warranty obligations; (iii) transportation to and from Seller’s factory or repair facility; and (iv) damage to equipment components or parts resulting in whole or in part from non-compliance by Buyer with this Warranty or from their deteriorated condition. All exchanged Goods or components replaced under this Warranty will become the property of Seller.
3. Conditions. The Warranties are conditioned on: (i) no repairs, modifications or alterations being made to the Goods and Equipment other than by Seller or its authorized representatives; (ii) Buyer handling, using, storing, installing, operating and maintaining the Goods and Equipment in compliance with any parameters or instructions in any specifications attached to, or incorporated into this Agreement, (iii) or in the absence of such conditions, parameters or instructions or to the extent not applicable, in accordance with the generally accepted industry standards applicable in the locale where the Services are being performed and having regard to the nature of the Goods and Services; (iv) Buyer discontinuing use of the Goods and Equipment after it has, or should have had knowledge Purchase Agreement – Rev 7-30-26
of any defect in the Goods or Equipment; (v) Buyer providing Seller with reasonable access to operating and maintenance data as requested by Seller, (which may include secure broadband connection). Without expense to Seller, Buyer shall provide to Seller and Seller’s subcontractors and their respective employees and agents on a twenty four (24) hours a day, seven (7) days a week basis, access to the Site, and each unit, including rights of way and easements required for safe access of such persons and equipment, as well as, to the extent applicable, online access to the Site, including to an installed remote monitoring system and to all units, as necessary to permit Siemens to perform the Services. Seller shall be accompanied by a City employee if requested by the City, and Seller shall provide twenty-four (24) hours’ prior notice before accessing the site; (vi) Buyer providing prompt written notice of any warranty claims within the Warranty Period; (vii) at Seller's discretion, Buyer either removing and shipping Goods or Equipment or nonconforming part thereof to Seller, at Buyer's expense, or granting Seller reasonable access to Goods or Equipment to assess the warranty claims; (viii) Goods and Equipment not having been subjected to accident (including force majeure), alteration, abuse or misuse; and (ix) Buyer not being in default of any payment obligation. Buyer shall provide, without cost to Seller, access to the nonconformity by disassembling, removing, replacing and reinstalling any Goods, Equipment, materials or structures to the extent necessary to permit Seller to perform its warranty obligations.
Notwithstanding subsection (i) above or any other provision of this Section, Buyer’s connection, wiring, and integration of the Goods and Equipment into its electrical distribution system and SCADA network – including the installation of cabling, conduit, networking equipment, servers, and similar components reasonably necessary to place the Goods into service – shall not constitute a repair, modification, or alteration that voids or impairs the Warranties, provided such work is performed in accordance with Seller’s specifications (where applicable) and generally accepted industry standards.
4. Exclusions from Warranty Coverage. The Warranties do not apply to (i) any product not supplied by Seller; (ii) any Third Party Parts or Equipment; or (iii) to services not performed by Seller pursuant to this Agreement. Seller will have no liability to Buyer under any legal theory for such products, Third Party Parts, Equipment, services or any related assignment of warranties. Any Goods that are described as being experimental, developmental, prototype, or pilot is specifically excluded from the Warranties and is provided to Buyer “as is” with no warranties of any kind. Normal wear and tear are excluded, including any expendable items that comprise part of the Goods (such as fuses, light bulbs and lamps).
Seller does not warrant or guarantee that any Goods will be secure from cyber threats, hacking or similar malicious activity. Goodsthat are networked, connected to the internet, or otherwise connected to computers or other devices must be appropriately protected by Buyer and/or end user against unauthorized access.
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5. Transferability. The Warranties are only transferable during the warranty period and only to the Goods’ initial end-user.
6.The warranties in this section 4 are seller's sole and exclusive warranties as to the goods and are subject to the limits of liability in section 10 below. Seller makes no other warranties, express or implied, including, without limitation, warranties of merchantability or fitness for a particular purpose, course of dealing and usage of trade.
Section 5. Buyer’s Representations and Warranties
Buyer hereby makes the following representations, warranties, and acknowledgments, and agrees that such representations, warranties and acknowledgments shall be true as of the Effective Date:
a. Buyer, and the person executing this Agreement on behalf of Buyer, has the full right, power and authority to enter into this Agreement and to take all actions required of Buyer by the terms of this Agreement.
b. All the documents executed by Buyer pursuant to this Agreement will be duly authorized, executed and promptly delivered by Buyer, and will be legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with their respective terms, and will not violate any provisions of any agreement to which Buyer is a party or to which it is subject.
Section 6. Indemnification Obligations of Seller
Seller shall defend, indemnify, and hold Buyer harmless from any and all losses, claims, expenses, costs, causes of action or obligations (including reasonable attorneys’ fees) to the extent arising from: (i) any third-party claim alleging bodily injury, death, or damage to tangible property caused by Seller’s negligent acts, omissions, or willful misconduct; (ii) any claim that the Goods or any component thereof infringe or misappropriate any patent, copyright, trademark, trade secret, or other intellectual property right of a third party; and (iii) Seller’s breach of any of its representations, warranties, or covenants under this Agreement. If the injury or damage is caused by the parties’ joint or contributory negligence, the loss and/or expenses shall be borne by each party in proportion to its degree of negligence.
Buyer shall provide the Seller with prompt written notice of any third party claims covered by this Section. Seller has the unrestricted right to select and hire counsel, and the exclusive right to conduct the legal defense and/or settle the claim on the Buyer’s behalf. Buyer shall not make any admission(s) which might be prejudicial to Seller and shall not enter into a settlement without the express permission of Seller.
Section 7. General Provisions
a. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter contained herein, and supersedes Purchase Agreement – Rev 7-30-26
any prior agreement and understanding, either written or oral, about the subject matter hereof. No agreement, statement, or promise not contained in this Agreement shall be valid or binding. This Agreement may only be modified or amended by a written instrument executed by the Parties.
b. Time is of the Essence. Time is of the essence of this Agreement subject to liquidated damages applying for late deliveries in Article 2 above. c. Headings. The subject headings of the sections and paragraphs of this Agreement are included for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions.
d. Termination For Convenience. Buyer may terminate this Agreement for any reason whatsoever, prior to delivery of the Goods and Buyer’s payment of the Purchase Price as set forth herein. After delivery and acceptance of the Goods, the purchase of the Goods shall be subject to the warranty and defect remedy provisions of this Agreement. In the event Buyer cancels the Agreement, a Purchase Order, or portions of the Purchase Order in writing, the following charges, as a percentage of the total Purchase Order price for the Purchase Order, or applicable portions thereof, will apply:
After receipt of order, or before approval drawings are completed 15.0% After approval drawing completion, but before release to manufacturing 30.0% Before start of fabrication, but after major component purchase 60.0% After start of fabrication, but before start of assembly 80.0% After assembly has started 100.0%
e. Modifications and Amendments. This Agreement may be modified or amended only by a written document executed by both Buyer and Seller and approved as to form by Buyer’s City Attorney.
f. Notices.
1. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first-class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section.
Seller:
Siemens Industry, Inc.
7000 Siemens Road
Wendell, NC 27591
Purchase Agreement – Rev 7-30-26
Attn: Ben Martin
City:
City of Moreno Valley
14177 Frederick Street
P.O. Box 88005
Moreno Valley, CA 92552
Attn: Jason Niccoli, Electric Utility Division Manager – Public Works
2. Notices, payments and other documents shall be deemed delivered upon receipt by personal service or as of the second (2nd) day after deposit in the United States mail.
g. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Electronic signatures shall be deemed to constitute evidence of the Agreement having been executed.
h. Successors and Assigns. Each covenant and condition contained in this Agreement shall inure to the benefit of and be binding on the parties to this Agreement and their respective heirs, executors, administrators, personal representatives, successors and assigns. Excluding assignment to an affiliate, this Agreement shall be non-assignable without the express written consent of Buyer.
i. Further Assurances. The Parties agree to cooperate with each other and to execute, deliver and record such other agreements and documents and to take such other actions as are reasonably necessary or helpful to more effectively consummate the transaction(s) contemplated under this Agreement and to carry out its purpose and intent. Upon reasonable notice, Seller shall provide Buyer with reasonable access to, and allow it to copy, any books and records concerning the Goods as are in Seller’s possession or control. j. Attorneys’ Fees; Costs of Litigation. If any legal action or any other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorneys' fees and other reasonable costs incurred in that action or proceeding. k. Termination for Default. Failure by a party to comply with any material provision under this Agreement, shall constitute a “default” of the offending party under this Agreement.
In the event that a default remains uncured for more than thirty (30) days or as agreed upon by the parties, following receipt of written notice of default from the other party, a Purchase Agreement – Rev 7-30-26
"breach" shall be deemed to have occurred and either party shall the right to terminate.
As a result of said breach and termination, Buyer shall be entitled to its reasonable, direct and verifiable costs to complete the services or obtain replacement Equipment.
Furthermore, as a result of said breach and termination, Seller shall be entitled to the amounts pursuant to the cancellation schedule as referenced in Section 9 d. l. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. m. Non-Liability of Officials and Employees of Buyer. No member, official or employee of Buyer shall be personally liable to Seller, either individually or jointly, or any of Seller’s successors-in-interest, in the event of any default or breach by Buyer for any amount which may become due to Seller or any of Seller’s successors, or on any obligations under the terms of this Agreement.
n. Interpretation. As used in this Agreement, masculine, feminine or neutral gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word “including” shall be construed as if followed by the words “without limitation,” where it is contextually appropriate. This Agreement shall be interpreted as though prepared jointly by the Parties.
o. Legal Advice. The Parties represent and warrant to the other party the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel, as to the matters set forth in this Agreement, or, have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. p. Venue. All proceedings involving disputes over the terms, provisions, covenants or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in Riverside County, California.
q. Force Majeure. Neither Buyer nor Seller will be held liable for failure to fulfill its obligations hereunder if such failure is due to a Force Majeure Event. A “Force Majeure Event” means, but is not limited to, an act of war; domestic and/or international terrorism; civil riots or rebellions; quarantines, pandemics or epidemics; embargoes, state or national states of emergencies, and other similar unusual governmental actions; or extraordinary elements of nature or acts of God; provided that such Force Majeure Event is beyond the excused Purchase Agreement – Rev 7-30-26
Party’s reasonable control, occurs without the excused Party’s fault or negligence and is not caused directly by the excused Party. The affected Party shall provide prompt written notice to the other Party of the Force Majeure Event and the affected Party’s time of performance will be extended by a period equal to the length of time it takes to overcome the effect of the event and the affected Party shall use reasonable efforts to mitigate the effects of such event.
The affected Party will notify the other Party within a reasonable time after becoming aware of any such event. If there are force majeure delays exceeding 180 days in the aggregate, either Party may terminate the Agreement. Failure to pay shall not constitute a force majeure delay.
Section 8. Confidentiality
Both during and after the term of this Agreement, the Parties will treat as confidential all information obtained from the disclosing Party and all information compiled or generated by the disclosing Party under this Agreement for the receiving Party, including but not limited to business information, the quotation, the Agreement, processes and procedures, know-how, methods and techniques employed by either Party in connection with the Goods and services, technical data and drawings. Neither Party may disclose or refer to the Goods and services to be performed under this Agreement in any manner that identifies the other Party without advance written permission.
Either Party has the right to share confidential information with its affiliates, agents, and contractors provided those recipients have executed a written non-disclosure agreement no less stringent than Section 10 in its entirety.
Nothing in this Agreement requires a Party to treat as confidential any information which:
(i) is or becomes generally known to the public, without the fault of the receiving Party; (ii) is disclosed to the receiving Party, without obligation of confidentiality, by a third party having the right to make such disclosure; (iii) was previously known to the receiving Party, without obligation of confidentiality, which fact can be demonstrated by means of documents which are in the possession of the receiving Party upon the date of this Agreement; or (iv) was independently developed by receiving Party or its representatives, as evidenced by written records, without the use of discloser’s confidential information, or (v) is required to be disclosed by law, except to the extent eligible for special treatment under an appropriate protective order, provided that the Party required to disclose by law will promptly advise the originating Party of any requirement to make such disclosure to allow the originating Party the opportunity to obtain a protective order and assist the originating party in so doing.
Notwithstanding anything to the contrary in this Section 10 or elsewhere in this Agreement, Buyer is a public agency subject to the California Public Records Act (Cal. Gov.
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Code § 7920.000 et seq.) and other applicable public disclosure laws. Buyer’s disclosure of information in accordance with the California Public Records Act or other applicable law, or pursuant to a valid order or request of a court or governmental authority, shall not constitute a breach of this Agreement or of any confidentiality obligation hereunder. Upon receipt of a request that may call for disclosure of Seller’s confidential information, Buyer will, to the extent permitted by law and reasonably practicable, notify Seller so that Seller may, at its sole expense, seek a protective order or other appropriate remedy. Buyer shall have no obligation to initiate, join, or defend any legal proceeding, or to incur any cost or expense, to withhold or protect such information, and Buyer shall not be liable for any disclosure made in good faith in response to a requirement under the California Public Records Act or other applicable law.
Seller shall retain all intellectual property rights in the Seller’s Goods and services, works, Seller’s documents, processes, Seller’s confidential information, and any design information and/or documents made by (or on behalf of) Seller. Upon receipt of all fees, expenses and taxes due in respect of the relevant Seller’s Goods and services, Seller grants to the Buyer a non-transferable, non-exclusive, royalty-free license to copy, use and communicate Seller’s documents for the sole purpose of operation and maintenance of the facility upon which the Seller’s Goods and services have been performed.
Section 9. Patent and Copyright Infringement
Seller will, at its own option and expense, defend or settle any suit or proceeding brought against Buyer based on an allegation that any processes performed by Seller in connection with the Seller’s Goods and services constitutes an infringement of any Patent Cooperation Treaty (“PCT”) country member’s patent or misappropriation of a third party’s trade secret or copyright in the country where the Buyer’s Site is located. Buyer will promptly give Seller written notice of the suit or proceeding and the authority, information, and assistance needed to defend the claims. Seller shall have full and exclusive authority to defend and settle such claim and will pay the damages and costs awarded against Seller in any suit or proceeding so defended. Buyer shall not make any admission(s) which might be prejudicial to Seller and shall not enter into a settlement without Seller’s consent. If and to the extent any process performed by Seller in connection with the Seller’s Goods and services as a result of any suit or proceeding so defended is held to constitute infringement or its use by Buyer is enjoined, Seller will, at its option and expense, either: (i) procure for Buyer the right to continue using said process; (ii) replace it with substantially equivalent non-infringing process; or (iii) modify the process so it’s use is non-infringing.
Seller will have no duty or obligation under this Section 11 if the process is: (i) performed according to Buyer's design or instructions and compliance therewith has caused Seller to deviate from its normal course of performance; (ii) modified by Buyer or its contractors Purchase Agreement – Rev 7-30-26
after performance; or (iii) combined by Buyer or its contractors with devices, methods, systems or processes not furnished hereunder and by reason of said design, instruction, modification, or combination a suit is brought against Buyer.
Section 10. Limitation of Liability
Notwithstanding anything in this agreement to the contrary, neither party is liable, whether based in contract, warranty, tort (including negligence), strict liability, indemnity or any other legal or equitable theory, for: loss of use, revenue, savings, profit, interest, goodwill or opportunity, loss of production, costs of capital, costs of replacement or substitute use or performance, loss of information and data, loss of power, voltage irregularities or frequency fluctuation, claims arising from Buyer'sthird party contracts, or for any type of indirect, special, liquidated, punitive, exemplary, collateral, incidental or consequential damages or for any other loss or cost of a similar type.
Seller’s maximum liability under this agreement under any theory of recovery, shall not exceed the actual purchase order price received by Seller under this agreement.
Buyer agrees that the exclusions and limitations in this Section 12 will prevail over any conflicting terms and conditions in this agreement and must be given full force and effect whether or not any or all such remedies are determined to have failed of their essential purpose. These limitations of liability are effective even if Seller has been advised by Buyer of the possibility of such damages. The waivers and disclaimers of liability, releases from liability and limitations on liability expressed in this Section 12 extend to Seller’s affiliates, partners, principals, shareholders, directors, officers, employees, subcontractors, agents and successors and assigns of Seller.
In the event that physical loss or damage to the Buyer’s property results from the failure of a portion of the Seller’s goods and services to conform to its respective warranty during the applicable warranty period, Seller’s liability shall in no case exceed Seller’s obligation to perform the remedies specified in Section 4, as applicable, which Seller would have had to perform if such remedy had been carried out immediately prior to the occurrence of the physical loss or damage.
Notwithstanding the foregoing, the exclusions and limitations set forth in this Section 12, including the waiver of consequential, indirect, and other damages and the cap on Seller’s maximum liability, shall not apply to: (i) Seller’s indemnification obligations under Section 7 (Indemnification) or Section 11 (Patent and Copyright Infringement); or (ii) losses or damages arising from Seller’s gross negligence or willful misconduct.
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SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
City of Moreno Valley Siemens Industry, Inc
BY: BY:
City Manager
TITLE: ______
_____________________________________ (President or Vice President) Date
BY: ______
TITLE: ______
INTERNAL USE ONLY (Corporate Secretary)
APPROVED AS TO LEGAL FORM:
City Attorney
Date
RECOMMENDED FOR APPROVAL:
Department Head
Date