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June 15, 2020

Marketplace Terms and Conditions of Use




Last updated: June 15, 2020

These Terms and Conditions of Use (“Terms”) govern your use of the Cummins Inc. (“Cummins”) website, www.marketplace.cummins.com (the “Website”) and related services.

PLEASE CAREFULLY READ THESE TERMS, INCLUDING THE AGREEMENT TO ARBITRATE. BY ACCEPTING THESE TERMS, USING THE WEBSITE AND THE RELATED SERVICES, AND/OR VIA WEBSITE PURCHASES (AS DEFINED BELOW) PROVIDED BY CUMMINS THROUGH THE WEBSITE, YOU AGREE TO BE BOUND CONTRACTUALLY BY THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU ARE NOT PERMITTED TO USE THE WEBSITE, THE RELATED SERVICES OR WEBSITE PURCHASES.

The parties to these Terms are Cummins Inc. and you (i.e., the person or legal entity using the Website and purchasing products, services and/or subscriptions thereon (“Website Purchases”)). All references to “Cummins”, “us”, “we”, or “our” shall mean Cummins Inc., and any of its subsidiaries or Affiliates. All references to “you”, “your”, or “User” shall be construed to mean you and all of your employees and agents whom you allow to use the Website or Website Purchases. If you are using the Website and making Website Purchases on behalf of an organization, you are agreeing to these Terms on behalf of your organization and representing that you are authorized to do so. These Terms govern your access to the Website and Website Purchases and include, and incorporate by reference, the Privacy Policy available at https://public.cummins.com/sites/CSP/Pages/PrivacyPolicy.aspx (the “Privacy Policy”). These Terms, along with any other terms specific to the product or service being purchased by you, constitute the entire agreement between you and Cummins with respect to, and supersede any previous oral or written communications or documents, concerning the subject matter of these Terms. In no event will any additional or inconsistent term in any purchase order or similar document submitted by you modify these Terms.

You must indicate your acceptance of and agreement with these Terms by clicking “I accept the Terms and Conditions of Use” or similar prompt during your purchase at www.marketplace.cummins.com, which acceptance serves as your electronic signature.
  1. Definitions. The following defined terms are used in these Terms:

    1. “Affiliate” means an entity that directly or indirectly owns or controls, is directly or indirectly owned or controlled by or is directly or indirectly under common ownership or control with another entity. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of more than 50% of the voting equity securities or other equivalent voting interests of an entity.
    2. “Billing Period” means the required payment frequency- (e.g., monthly, quarterly, annually) set forth in the relevant Invoice, provided that if there is no billing period indicated on the Invoice, the billing period shall be monthly or one time, based on the product selected.
    3. “Term” means the period during which we agree to provide Website Purchases to you as set forth in the Invoice, unless we terminate your use of Website Purchases earlier in accordance with these Terms.
    4. “Initial Term” means the original, established term for Website Purchases as set forth in the Invoice.
    5. “Parties” mean, collectively, Cummins and you.
    6. “User Generated Content” means all data and information submitted via the Website or Website Purchases by Users.

  2. Changes to Terms. We reserve the right to modify or replace these Terms, including the agreement to arbitrate, from time to time in our sole discretion. For example, we may need to reflect changes in the law or updates regarding how the Website or Website Purchases work. If we make material changes to the Terms, we will notify you by posting the updated Terms on the Website or sending you the updated Terms by email or other means. Your continued use of the Website and Website Purchases following a change in the Terms represents your consent to the new Terms to the fullest extent permitted by law. We encourage you to periodically review these Terms.

  3. Eligibility and Conditions. You are eligible to purchase, use or access the Website and Website Purchases only if you: (a) are a registered online customer in Cummins’ systems, (b) have Internet service and an Internet email address, and (c) consent to these Terms as provided herein. You shall be the end user of Website Purchases and shall not resell or re-subscribe them or allow them to be used by a third party. Cummins and you agree that Website Purchases will not be used or made available in any country in violation of the law or U.S. policy. Accordingly, you recognize that Website Purchases may not be purchased or used in countries that have been placed under an embargo or are sanctioned by the U.S. government. As a result, no Website Purchases, including but not limited to military transactions, under this Agreement shall involve transactions with Cuba, Iran, Myanmar, North Korea, The Republic of South Sudan (South Sudan), The Republic of Sudan (Sudan), or Syria. If you contemplate a transaction that would result directly or indirectly in Website Purchases ending up in one of these sanctioned countries, you agree to immediately notify Cummins to determine if the transaction complies with applicable export control laws.

  4. Orders. You can place orders for Website Purchases through the Website (each, an “Order”). All Orders for Website Purchases are subject to acceptance by us. Orders will be accepted by us “in writing” either by direct action on the Website, or by confirmed receipted email (each, an “Acceptance”). Orders not accepted as described above shall be deemed rejected. Orders for Website Purchases are subject to availability, and we reserve the right to cancel your Order, in whole or in part, in our sole discretion. Any quote made by us in connection with our products or services is valid for 90 days from the date of issuance thereof and shall be null and void in the event you have not purchased it within such period of time. You may cancel an Order for products within twenty-four (24) hours after the Order is placed and an Order for services and subscriptions within thirty (30) days after the Order is placed, in either case for a full refund.

  5. Term, Suspension and Termination. With regard to any Website Purchase, these Terms shall be effective beginning on first day of the Initial Term for such Website Purchase and shall continue thereafter for the Initial Term of such Website Purchase, unless earlier terminated as described below. Following the Initial Term, these Terms shall automatically renew on a Billing Period-by-Billing Period basis thereafter (each a “Renewal Term”) under the same terms and conditions, unless either you or Cummins notifies the other in writing of its intention not to renew these Terms at least 30 days prior to the expiration of the Initial Term or the final Renewal Term. Notwithstanding the foregoing, after the end of the Initial Term, we may increase your recurring fees for Website Purchases upon prior written notice to you, but in the event of an increase you shall have the right to terminate the Website Purchases and these Terms immediately by providing us notice of termination within 10 days of receiving the increase notice. We may suspend or terminate these Terms, suspend or disable the Website Purchases or any portion of Website Purchases immediately without notice to you, and without liability, if (a) we cease to provide services associated with a Website Purchase generally or in your area, (b) you fail to remain eligible for Website Purchases as described in Section 3 above, (c) we are unable to communicate with you (including when your registered email account is or becomes invalid) or validate your account, (d) you fail to login after [X] days, (e) you fail to make any payments due under or otherwise violate the conditions of these Terms or any other agreement between you and us, (f) you use Website Purchases for an unlawful purpose, or (g) your use of Website Purchases (i) harms or interferes with our systems or network, (ii) violates privacy or intellectual property rights, or (iii) publishes or disseminates threatening, obscene or offensive material. Upon termination for any reason, you are responsible for the payment of all fees and charges. If we reinstate your Website Purchases in our sole discretion, we may require several days to complete the reinstatement and may charge you a reinstatement fee. Notwithstanding anything else contained in these Terms, we reserve the right to terminate these Terms and Website Purchases for any other reason, without cause and without any liability, upon 30 days advance written notice to you, provided that in such event we shall refund to you any unused Website Purchases fees on a pro-rated based. Website Purchases may be subject to additional terms and conditions specific to such Website Purchase, including regarding termination and cancellation. Such terms and conditions will, to the maximum extent possible, be interpreted to be consistent with and supplemental to these Terms but, if there is a conflict between the termination rights in this Section 5 and such terms and conditions, the conflict will be resolved by giving priority to the termination rights in the terms and conditions specific to such Website Purchase.

  6. Fees and Payment. The fees payable for Website Purchases and the payment timing associated therewith shall be as displayed on the Website or otherwise set forth in the applicable invoice (“Invoice”). We are not responsible for pricing, typographical or other errors in offers for Website Purchases. Fees do not include taxes or other government required fees. We will charge you for such taxes and fees for Website Purchases with respect to states and other jurisdictions for which we are obligated to collect and report them. The tax rate / regulations in effect at the time the order is placed will be applicable for the entire subscription length. Any one-time orders placed in the middle of the subscription lifecycle will reflect the taxation rates / regulations at the time of order placement. To the extent you are tax exempt, a valid tax exemption certificate evidencing as such must be provided at least five (5) business days in advance of the Website Purchase. We must approve the tax-exempt status prior to any Website Purchase in order for you to be qualified as tax exempt. Any Website Purchases made in advance of any such approval by us shall be taxed and no tax refunds shall be issued. Any tax exemption certificate approved by us will only apply to orders placed after such approval.

    Unless otherwise stated on the Website or in the relevant Invoice, (i) with respect to any payments for Website Purchases being made by credit card, we will invoice you for Website Purchases in advance of each Billing Period, and you must pay us by the date set forth in the Invoice and (ii) with respect to all other forms of payment for Website Purchases, we will invoice you for Website Purchases within thirty (30) days of the first day of each Billing Period, and you must pay us by the date set forth in the Invoice, which such payment date shall be in accordance with your customer payment terms in our current billing and payment system, as applicable. Any undisputed amount payable by you hereunder which remains unpaid after the due date shall be subject to a late charge equal to the lesser of one percent (1%) per month of such unpaid amount or the maximum interest allowed by law from the due date until we receives full payment. Our billing and payment process may be managed by a third party service provider directly on our behalf. We or such provider may collect billing and payment information, such as credit card numbers and other information about you (e.g., address and postal code) that is necessary to ensure that the transaction is properly authorized. Our service provider may retain such information to facilitate future transactions.

  7. Ownership.

    1. Ownership of Intellectual Property Rights in Website Purchases. We and/or our third party service providers own all of the intellectual property rights relating to Website Purchases, including, but not limited to, copyrights, patents, trademarks, trade secrets and other rights relating to Website Purchases (including the Website and the imagery and product descriptions contained therein) protected under U.S. laws and international treaties.
    2. Trademarks. Cummins and the Cummins logo are registered trademarks of Cummins. All other trademarks appearing on the Website are the registered and unregistered trademarks of their respective holders. You may not use any trademark or service mark appearing on the Website without the prior written consent of Cummins or the owner of the mark.
    3. Feedback. If you choose to provide technical, business or other feedback to Cummins concerning the Website or Website Purchases or any Cummins products or services (collectively, “Feedback”), Cummins will be free to use, disclose, reproduce, license, or otherwise distribute or exploit such Feedback in its sole discretion without any obligations or restrictions of any kind, including intellectual property rights or licensing obligations. You hereby irrevocably assign to us all right, title, and interest in and to the Feedback and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Feedback. By submitting Feedback, you represent and warrant to Cummins that you have all necessary rights in and to such Feedback and all information it contains and that such Feedback does not infringe any proprietary or other rights of third parties or contain any libelous, tortious, or otherwise unlawful information. You understand and agree that the incorporation by Cummins of Feedback into any of its products or services does not grant you any proprietary rights therein.

  8. User Accounts. You agree that it is your sole responsibility to safeguard all usernames and passwords and other access credentials for your personnel who have access to the Website and Website Purchases and to limit access to your authorized personnel. You agree to accept responsibility for all activities that occur using your usernames or passwords. You are required to establish Account logins for your personnel in accordance with Cummins’ policies and providing accurate and true information requested, including, if required, providing the legal full name, valid email address and any other information requested for each person for whom a login is created. If we believe that your information is incorrect or incomplete or that a security breach relating to your Account has occurred or is likely to occur, we may prevent you from accessing the Website, terminate or suspend your Account on the Website or otherwise limit or restrict your access to Website Purchases. If you believe that the security of such access credentials has been compromised, you agree to notify us immediately and to cooperate in the resetting of any such access credentials. We cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.

  9. Disclaimer of Warranties.

    1. WEBSITE PURCHASES, CUMMINS CONTENT AND DOCUMENTATION PROVIDED OR MADE AVAILABLE TO YOU BY OR ON BEHALF OF CUMMINS (“DOCUMENTATION”) ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS”, AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE WEBSITE PURCHASES, CUMMINS CONTENT AND DOCUMENTATION IS WITH YOU. ALL WARRANTIES WITH RESPECT TO THE WEBSITE PURCHASES, CUMMINS CONTENT AND DOCUMENTATION, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, ACCURACY, TIMELINESS, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR LACK OF VIRUSES OR ERRORS ARE HEREBY DISCLAIMED. NO INFORMATION CONVEYED BY THE WEBSITE OR WEBSITE PURCHASES EITHER ORALLY OR IN WRITING SHALL CREATE SUCH A WARRANTY. CUMMINS ACCEPTS NO RESPONSIBILITY OR LIABILITY FOR THE INFORMATION OR ADVICE POSTED IN ANY PART OF THE WEBSITE OR WEBSITE PURCHASES. WE DISCLAIM WARRANTIES IN THIS SECTION ONLY TO THE EXTENT PERMITTED BY LAW.
    2. The Website is provided over the Internet and mobile networks and so the quality and availability of the Website may be affected by factors beyond Cummins’ control. Moreover, Cummins is not responsible for the availability or unavailability of the Website or information therefrom due to interruption of service, difficulty or inability to download or access content, any bug or virus, or any communication system failure or any factors beyond Cummins’ control.
    3. Cummins and its suppliers make no guarantees and disclaim all warranties and representations about the Website’s and Website Purchases’ accuracy, relevance, timeliness or completeness, and do not warrant that Website Purchases will meet your requirements in any respect, operate securely or be available at all times, or that the operation of Website Purchases will be uninterrupted or error-free, or that defects or errors in Website Purchases or nonconformity to its Documentation can or will be corrected.

  10. Limitation of Liability.

    1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT AND REGARDLESS OF THE FORM OF ACTION, WILL CUMMINS, ITS AFFILIATES OR THEIR SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOST PROFITS OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER ARISING OUT OF THESE TERMS, YOUR USE OF OR INABILITY TO USE THE WEBSITE OR WEBSITE PURCHASES, YOUR ACCESS TO OR YOUR INABILITY TO ACCESS THE WEBSITE OR WEBSITE PURCHASES, THE INACCURACY OR LOSS OF ANY DATA GENERATED OR MADE AVAILABLE BY THE WEBSITE OR WEBSITE PURCHASES OR YOUR RELIANCE ON ANY SUCH DATA, OR FOR DAMAGES IN AN AMOUNT GREATER THAN THE ACTUAL FEES OR CHARGES PAID BY YOU FOR THE WEBSITE PURCHASES GIVING RISE TO THE DAMAGES, EVEN IF CUMMINS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    2. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CUMMINS’ OR ITS SUPPLIERS OR LICENSORS TOTAL LIABILITY TO YOU FOR ALL DAMAGES OR COSTS ARISING FROM OR IN CONNECTION WITH THE USE OF, OR ACCESS TO, THE WEBSITE OR ANY INFORMATION PROVIDED, GENERATED OR TRANSMITTED THROUGH IT, OR THE FAILURE THEREOF (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED AN AMOUNT EQUAL TO THE ACTUAL FEES OR CHARGES PAID BY YOU TO CUMMINS FOR THE WEBSITE PURCHASES GIVING RISE TO THE DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  11. Indemnification. You shall indemnify, defend and hold Cummins and its respective officers, directors, agents and employees harmless from and against any claims, losses, damages, liabilities or expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from your access to, use of or inability to access or use Website Purchases or your breach or violation of any representation, warranty or obligation under these Terms, to the fullest extent allowed by applicable law.

  12. Privacy. Cummins respects the privacy of our customers. By using the Website or Website Purchases or otherwise providing information to us, you agree to our Privacy Policy (as such policy may be updated from time to time), which governs your use of the Website and Website Purchases, and explains our policies for the collection, use and sharing of personally identifiable information. Please see our Privacy Policy available at https://public.cummins.com/sites/CSP/Pages/PrivacyPolicy.aspx for more information.

  13. Notifications. We may send you e-mails and/or text messages regarding your Account and Website Purchases from time to time. Some notifications may be mandatory as a condition of your use of Website Purchases and in some instances are required by federal regulation. If you fail to check your e-mail or text messages or if you deactivate your specific e-mail account or wireless phone number, you may miss important information regarding your Account or Website Purchases. Notifications from the Website may be delayed and are not accurate up to the second they are sent. Therefore, you are responsible for monitoring your Account on the Website at all times. You may contact Cummins at any time as follows: care@cummins.com.

  14. Copyright Infringement. Cummins respects the intellectual property rights of others. Accordingly, Cummins has a policy of removing User Generated Content that violates copyright law, and, in appropriate circumstances, suspending access to the Website or Website Purchases (or any portion thereof) to any user who uses the Website or Website Purchases in violation of copyright law, and/or terminating the account of any user who uses the Website or Website Purchases in violation of copyright law. Pursuant to Title 17 of the United States Code, Section 512, Cummins has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright is being infringed by a user of the Website or Website Purchases, please provide written notice to the following Cummins agent for notice of claims of copyright infringement.

    Cummins Inc.
    ATTN: Legal Function, Copyright Agent
    500 Jackson St.
    Columbus, IN 47201
    Email: legal.function@cummins.com

    Your written notice must: (a) contain your physical or electronic signature; (b) identify the copyrighted work alleged to have been infringed; (c) identify the allegedly infringing material in a sufficiently precise manner to allow Cummins to locate that material; (d) contain adequate information by which Cummins can contact you (including postal address, telephone number and e-mail address); (e) contain a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, the copyright owner's agent, or the law; (f) contain a statement that the information in the written notice is accurate; and (g) contain a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner. If your notice does not include all such information, we will not be responsible for any failure to remove the relevant User Generated Content, suspend access or terminate accounts.

  15. Trial, Evaluation, Pre-Release, Limited Release or Beta Software. If you download or otherwise receive any feature from the Website that we give you on a trial or evaluation basis or that is labeled as “Pre-Release,” “Limited Release,” “Beta” or otherwise described as experimental, untested, or not fully functional (“Trial Features”), then this section of these Terms of Service shall also apply. To the extent that any provision in this section is in conflict with any other term or condition in these Terms, this section shall supersede such other term(s) and condition(s) with respect to such Trial Features, but only to the extent necessary to resolve the conflict. ALL TRIAL FEATURES ARE PROVIDED AS IS, WITHOUT ANY WARRANTY, INDEMNITY, MAINTENANCE OR SUPPORT, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, SUBJECT TO ANY STATUTORY RIGHTS THAT CANNOT BE EXCLUDED OR LIMITED BY LAW. YOU ACKNOWLEDGE THAT THE TRIAL FEATURES MAY CONTAIN BUGS, ERRORS AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM OR OTHER FAILURES AND DATA LOSS. YOU ACKNOWLEDGE THAT WE HAVE NOT PROMISED OR GUARANTEED TO YOU THAT TRIAL FEATURES WILL BE ANNOUNCED OR MADE AVAILABLE TO ANYONE IN THE FUTURE, THAT WE HAVE NO EXPRESS OR IMPLIED OBLIGATION TO YOU TO ANNOUNCE OR INTRODUCE THE TRIAL FEATURES, AND THAT WE ARE NOT OBLIGATED TO INTRODUCE A PRODUCT SIMILAR TO OR COMPATIBLE WITH THE TRIAL FEATURES OR ANY UPDATES TO ANY TRIAL FEATURES. ACCORDINGLY, YOU ACKNOWLEDGE THAT ANY USE OF THE TRIAL FEATURES IS ENTIRELY AT YOUR OWN RISK.

  16. Force Majeure. Our obligations hereunder shall be suspended while and to the extent that we are prevented from complying herewith in whole or in part by any event beyond our reasonable control, which for purposes of these Terms shall include, without limitation, acts of God, pandemic, epidemic, public health emergency, quarantine, shelter-in-place order, earthquakes, unavoidable accidents, laws, rules, regulations or orders of government authorities, acts of war (declared or not), terrorism, hostilities, blockades, civil disturbances, embargoes, strikes or any other similar event or cause.

  17. Governing Law and Venue. These Terms shall be governed by and construed in accordance with the laws of the State of Indiana, without regard to principles of conflicts of law, except to the extent preempted by federal law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms. The governing language for this agreement shall be English, and no concurrent or subsequent translation of this agreement into any language shall modify any term of this agreement. Venue for any legal action arising out of or relating to this agreement shall be exclusively the state or federal courts in Indianapolis, Indiana. The parties consent to the jurisdiction of such courts. The venue provision, however, does not apply to the agreement to arbitrate.

  18. Arbitration and Class Action Waiver.

    1. PLEASE READ THIS CAREFULLY AS IT AFFECTS YOUR RIGHTS.
    2. Subject to Section 18, any and all controversies, disputes, demands, counts, claims or causes of action between you and Cummins or its employees, agents, successors, or assigns that arise from or relate to the Website or Website Purchases (including those related to the interpretation and scope of this agreement to arbitrate, and the arbitrability of the controversy, dispute, demand, counts, claim or cause of action), shall exclusively be settled via binding and arbitration; except that you or Cummins may take claims to small claims court in the United States if the dispute qualifies for hearing in such court or take to the court any challenge to the enforceability of the Class Action Waiver. Provided, however, that if a claim that you or Cummins brings in small claims court is transferred to any court other than a small claims court, the dispute shall immediately become subject to arbitration in accordance with this agreement. Each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
    3. This agreement to arbitrate is intended to be broadly interpreted, and expressly includes claims brought under any law, statute, regulation, or legal or equitable theory. You and Cummins agree that the Federal Arbitration Act, 9 U.S.C. 1, et seq. (“FAA”), applies to this agreement to arbitrate, and governs all questions of whether a dispute is subject to arbitration.
    4. Unless you and we agree otherwise in writing, arbitration shall be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules in effect at the time of filing of the arbitration, or if appropriate, by the International Centre for Dispute Resolution (“ICDR”) under its International Dispute Resolution Procedures in effect at the time of filing of the arbitration (collectively, the “Rules”). If the AAA or ICDR is unavailable, you and Cummins shall agree to another arbitration body or one shall be selected by a court of justice.
    5. Subject to the terms and limitations in these Terms, including those set forth in Section 12, the arbitrator(s) may award any damages and relief (including attorneys’ fees) authorized by law or the Rules. The award is final and binding and judgment on it may be entered in any court of competent jurisdiction, in accordance with the FAA.
    6. There is no judge or jury in arbitration, and arbitration procedures are simpler and more limited than rules applicable in courts of justice. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT TO ARBITRATE, YOU AND CUMMINS ARE EACH WAIVING THE RIGHT TO SUE IN COURT, INCLUDING THE RIGHT TO RECEIVE A TRIAL BY JURY AND TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY-GENERAL ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING. (the “Class Action Waiver”). THIS AGREEMENT TO ARBITRATE DOES NOT ALLOW FOR CLASS ARBITRATIONS EVEN IF THE PROCEDURES OR RULES OF THE AAA OR ICDR WOULD. RATHER, YOU AND CUMMINS ARE ONLY ENTITLED TO PURSUE ARBITRATION ON AN INDIVIDUAL, BILATERAL BASIS. FURTHER, AND UNLESS YOU AND CUMMINS AGREE OTHERWISE IN WRITING, THE ARBITRATOR(S) MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL PARTY’S CLAIMS WITH ANY OTHER PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE, COLLECTIVE PROCEEDING.
    7. Subject to your and our compliance with Section 18, payment of all filing, administration and arbitrator fees will be governed by the Rules; provided, however, that we will pay such fees to the extent necessary for this agreement to arbitrate to be enforceable. Arbitration under this agreement to arbitrate shall be held in the city, town or village where you live or work; Indianapolis, Indiana; or any other location we mutually agree to. The arbitration shall be conducted and the award shall be rendered in the English language.
    8. This agreement to arbitrate does not preclude you from bringing issues to the attention of international, federal, state or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
    9. You may decline this agreement to arbitrate (i.e., “opt-out”) by emailing Cummins at legal.function@cummins.com and providing the requested information as follows: (1) your name, (2) your address, (3) your phone number, (4) the URL containing these Terms, and (5) clear statement that you wish to opt out of this agreement to arbitrate. This opt-out notice must be emailed no later than 30 days after the date you first accept these Terms.
    10. If any term(s) of this agreement to arbitrate are illegal or unenforceable, the terms(s) shall be severed, and the remainder of this agreement shall be given full force and effect. Also, if the Class Action Waiver is unenforceable as to a particular claim or a particular remedy, then that claim or that remedy (and only that claim or that remedy) shall be severed and brought in a court of justice, and all other claims and remedies shall be arbitrated in accordance with this agreement to arbitrate.

  19. Pre-Arbitration Notice of Disputes. Before either you or we commence arbitration in accordance with Section 17, a party must first send to the other a written Notice of Dispute (“Notice”). The Notice to us should be sent by email to: legal.function@cummins.com. The Notice to you will be sent to any email address we have for you in our files. The Notice must (a) include your name; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought. If you and we do not reach an agreement to resolve the claim within 45 days after the Notice is received, you or we may commence an arbitration. During the arbitration, the amount of any settlement offer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you are entitled. If you have complied with the requirements of this Section and the arbitrator awards you an amount of money that exceeds the value of our last written settlement to you before the appointment of the arbitrator, then we will pay you $1,000 in lieu of any smaller award. In determining whether you are entitled to the minimum $1,000 recovery, the arbitrator shall not consider amounts offered or awarded for attorneys’ fees or costs. Any disputes as to recovery of the $1,000 minimum recovery shall be resolved by the arbitrator, and must be raised within 14 days of the arbitrator’s ruling on the merits.

  20. Relationship of the Parties. The relationship between the parties to these Terms is and shall be that of independent contractors. The parties expressly acknowledge that nothing in these Terms shall be construed to create or imply a partnership, joint venture, agency relationship or contract of employment. Neither party shall have the authority to make any statement, representation nor commitment of any kind, or to take any action that shall be binding on the other party except as authorized in writing by the party to be bound.

  21. Miscellaneous. These Terms, any terms associated with the product or service itself, the Privacy Policy and the Invoice constitute the entire agreement between you and us relating to your use of Website Purchases (including the Website). All prior or contemporaneous agreements, proposals, understandings and communications between you and us regarding the subject matter hereof, whether oral or written, are superseded by and merged into these Terms. Except as expressly permitted by these Terms, these Terms may be amended only by mutual written agreement of authorized representatives of both you and Cummins. If any part of these Terms is determined to be invalid or unenforceable for any reason under relevant law, then that part will be deemed replaced with a valid, enforceable provision that most closely matches the intent of the original provision and the remaining Terms will continue in full force and effect. Cummins’ failure to enforce strict performance of any part of these Terms does not waive any of our rights. We may assign our rights and duties under these Terms to any party at any time without your consent. Expiration or termination of the Term will not affect accrued rights, indemnities, existing commitments or any contractual provision intended to survive termination

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