Warranties.
(a) New Goods. If Buyer is purchasing new Goods from H.O. Penn, Buyer acknowledges that (i) H.O. Penn is not the manufacturer of the Goods; (ii) if the Goods include a manufacturer’s warranty, H.O. Penn will pass through to Buyer the manufacturer’s warranty to the extent permitted by the terms of such warranty; and (iii) the manufacturer’s warranty will be subject to all conditions, exclusions, and exclusive remedies set forth therein. In certain circumstances, Buyer may have the option of purchasing an equipment protection plan or extended service coverage (each, an “Extended Protection Product”); if such an Extended Protection Product is available and is purchased by Buyer at the time of sale, the Extended Protection Product will be subject to all conditions and exclusions included in such Extended Protection Product.
(b) Used Goods. If Buyer is purchasing used Goods from H.O. Penn, Buyer acknowledges that the only warranties with respect to such used Goods are those warranties, if any, expressly set forth in the bill of sale signed by H.O. Penn.
(c) Services. If Buyer is purchasing Services from H.O. Penn, H.O. Penn warrants that its Services will be completed in a good and workmanlike manner, with such service warranty extending for a period of twelve (12) months from completion of the original Services. In the event of a breach of the foregoing service warranty, H.O. Penn shall, in its sole discretion, either (a) use commercially reasonable efforts to cure such breach; or (b) credit or refund the price of any defective Services. The foregoing remedies shall be Buyer’s sole and exclusive remedies for any breach of H.O. Penn’s service warranty. If H.O. Penn performs a repair pursuant to its service warranty, the warranty period remains twelve (12) months from completion of the original Services; the twelve (12) month service warranty period does not start over with the repair. If the replacement parts used by H.O. Penn in connection with the provision of Services include a manufacturer’s warranty, H.O. Penn will pass such warranty through to Buyer to the extent permitted by the terms of the manufacturer’s warranty. H.O. Penn’s service warranty will be voided in the event of any of the following: misuse or abuse of Goods by Buyer, subsequent repairs performed by Buyer or vendors other than H.O. Penn, use beyond ordinary wear and tear, failure to maintain and operate Goods in accordance with the maintenance and operations manual of the manufacturer (including, but not limited to, use of fluids that do not meet the manufacturer’s standards or failure to maintain fluid levels recommended by the manufacturer) or damage due to theft, vandalism or casualty.
(d) Warranty Disclaimer. Except for the express warranties set forth in this Section 5, H.O. Penn makes no warranty, express or implied, oral or written, with respect to any Goods or Services, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, or title, whether arising by law, course of dealing, usage or trade, or otherwise. To the maximum extent permitted by law, all such warranties are hereby disclaimed by H.O. Penn and waived by Buyer. Notwithstanding anything herein to the contrary, H.O. Penn makes no representations and warranties related to, and none of the warranties set forth in this Section 5 shall apply to, fire suppression systems or the installation, removal, maintenance, or servicing of the same.
(e) Warranty Void Upon Uncured Default. H.O. Penn’s warranty shall be null and void and have no legal effect in the event that Buyer has failed to pay for the Goods & Services or failed to bring its account current within seven (7) business days after payment is due. All remedies under H.O. Penn’s warranty are expressly limited to replacing parts or making repairs as specified in this section during the applicable warranty period. Claims for losses arising out of any failure of repaired equipment to operate for the warranty period or for loss due to, or in connection with, the failure of the repaired equipment, including any and all claims for indirect and consequential damages, are excluded from this limited warranty.
Indemnification. Each party agrees to defend, indemnify, and hold harmless the other party for, from and against any third party claims related to the Goods or Services to the extent such third party claims (including, but not limited to claims related to the death or injury of any person(s) or damage to or destruction of any real or personal property) are caused by the indemnifying party’s negligent or more culpable acts or omissions, subject to the limitations set forth in Section 7 below. To the fullest extent permitted by law, Buyer agrees to defend, indemnify, and hold harmless H.O. Penn, its affiliates and subsidiaries, and all of their respective owners, directors, officers, managers, employees, agents, and representatives for, from and against any and all liabilities, claims, actions, suits, damages, losses, and expenses (including, but not limited to, reasonable attorneys’ fees, expert witness fees, costs and expenses) that are caused by, arising from or related in any way to fire suppression systems (including, but not limited to losses related to the death or injury of any person(s) or damage to or destruction of any real or personal property).
Liability Limitation. In no event shall either party be liable, whether based in contract, warranty, indemnity, tort, strict liability, or any other theory of law or equity, for any special, incidental, indirect, punitive, exemplary or consequential damages, including, but not limited to, lost profits, loss of use of property or equipment, downtime, loss of third party contracts, or lost production, regardless of whether or not such party was advised of the possibility of such damages. In addition, H.O. Penn’s maximum aggregate liability (whether in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity) for damages or loss, howsoever arising or caused, shall in no event exceed the amount Buyer paid to H.O. Penn for the Goods or Services to which the liability relates. The parties recognize that the pricing associated with Goods and Services reflects this allocation of risk and is the basis of the bargain between the parties. The foregoing limitations shall be valid and enforceable, notwithstanding any alleged failure of essential purpose of the limited remedies set forth herein.
Authorization For Release of Information/Privacy Statement. Buyer authorizes all references listed on any application from the Buyer to release confidential information to H.O. Penn. Buyer consents to the collection, use, retention and disclosure of information by H.O. Penn and its parent, subsidiary and affiliated entities (collectively, “H.O. Penn Entities”) in accordance with H.O. Penn’s Privacy Statement, which is posted at https://www.H.O.Penncat.com/privacy-policy/ (as such statement may be revised from time to time), and agrees that such information may be accessed by the H.O. Penn Entities and their partners and manufacturers with a legitimate business reason to access it, as well as third parties who may process such information on their behalf.
Product Information. If Caterpillar equipment purchased, owned, or rented by Buyer is equipped with Product Link or other equipment monitoring technology, data concerning the equipment, its condition, and its operation (“Telematics Information”) is transmitted to Caterpillar, its affiliates, the H.O. Penn Entities, and/or other Caterpillar dealers to better serve Buyer and improve Caterpillar products and services. Telematics Information may include machine serial number, machine location, and other data such as fault codes, emissions data, fuel usage, service meter hours, software and hardware version numbers, and installed attachments. This information will be collected, used, retained, and disclosed in accordance with the Caterpillar Data Governance Statement, posted at https://www.hopenn.com/privacy-policy/ (as revised from time to time) (“Statement”). Buyer consents to the collection, use, retention, and disclosure of the Telematics Information as described in the Statement and agrees that it may be accessed by Caterpillar, its partners, affiliates, subsidiaries, the H.O. Penn Entities, and/or other dealers with a legitimate business reason to access it, as well as third parties who may process this information on their behalf. As outlined in the Statement, Caterpillar may combine Telematics Information with other information about Buyer. Buyer acknowledges that Telematics Information may also be made available to subsequent owners of the equipment. If Buyer does not want Telematics Information transmitted as described, Buyer can request documentation to opt out by emailing optout@H.O.Penn-cat.com.
Compliance With Laws. Buyer agrees to comply fully, at its sole cost, with all applicable federal, state, and local laws, rules, and regulations.
Buyer’s Acts or Omissions. If H.O. Penn’s performance under these Terms or any corresponding agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, H.O. Penn shall not be deemed in breach of its obligations or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer due to such prevention or delay.
Buyer’s Warranties and Representations. Buyer warrants that: (i) if it is an entity, it is duly organized, validly existing, and in good standing; (ii) it is authorized to execute, deliver, and perform its obligations under any corresponding agreement; (iii) when duly executed and delivered by each party, such agreement will constitute a legal, valid, and binding obligation enforceable against Buyer; (iv) it is not insolvent and is paying its debts as they become due; (v) any payments made under the agreement are intended as a substantially contemporaneous exchange for new value; (vi) each payment made for debts incurred under the agreement is in the ordinary course of its business; and (vii) all information provided by Buyer is complete and accurate.
Account Stated. If Buyer fails to notify H.O. Penn in writing of any dispute regarding an invoice within thirty (30) days of receipt, Buyer waives the right to dispute that invoice and it shall be deemed an account stated under the law. Buyer’s obligation to pay the invoiced amounts is absolute and unconditional and shall not be subject to any delay, reduction, set-off, defense, or counterclaim.
Taxes. Buyer is responsible for all sales, use, and excise taxes, as well as any other similar taxes, duties, and charges imposed by any federal, state, or local governmental entity on amounts payable hereunder, excluding taxes on H.O. Penn’s income, revenues, gross receipts, personnel, or real or personal property, unless otherwise specified in writing.
Hours of Operation. Unless specified otherwise in writing, Goods and Services will be performed or provided during H.O. Penn’s publicized business hours. Work performed outside these hours will be billed at applicable overtime or double-time rates.
Limitation of Liability. IN NO EVENT SHALL H.O. PENN BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT; LOSS OF DATA; DIMINUTION IN VALUE; OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING ATTORNEYS’ FEES, COSTS, AND EXPERT-WITNESS FEES) OF ANY NATURE WHATSOEVER, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INDEMNITY OBLIGATIONS, UNLESS SPECIFICALLY AGREED TO IN WRITING, H.O. PENN WILL NOT BE LIABLE FOR ANY LIQUIDATED DAMAGES AND IS NOT BOUND BY ANY AGREEMENT CONTAINING SUCH DAMAGES.
Force Majeure. H.O. Penn shall not be liable, nor be deemed to have defaulted or breached any agreement, for any failure or delay caused by circumstances beyond its reasonable control, including, but not limited to, acts of God, floods, fires, earthquakes, explosions, governmental actions, war, invasion, terrorist acts, riots, national emergencies, epidemics, strikes, labor disputes, carrier restraints or delays, or an inability to obtain adequate materials.
Communications. All notices, requests, consents, claims, demands,waivers, and other communications (each, a “Communication”) must be in writing and addressed to the other party at the address provided in the corresponding agreement or at another designated address. Unless otherwise agreed in writing, all Communications must be delivered by facsimile, e-mail, personal delivery, courier, or certified/registered mail (return receipt requested). A Communication is effective only on receipt by the receiving party if the sending party has complied with this Section. Communications are deemed received (i) by facsimile or e-mail on the date of transmission if sent before 3:00 p.m. (EST) on a business day, or otherwise on the next business day, (ii) by courier or personal delivery on the date of delivery, and (iii) by mail two (2) days after mailing.
Modification and Amendment. The corresponding agreement can only be modified or amended by a written instrument signed by both parties. Any changes made by Buyer are not binding on H.O. Penn unless agreed to in writing by a Vice President of H.O. Penn and Buyer’s representative.
No Waiver. No exercise, failure, or delay by H.O. Penn in exercising any right or remedy under these Terms will be considered a waiver of any such rights and/or remedies. Remedies under these Terms are cumulative and in addition to any other legal or equitable remedies.
No Third-Party Beneficiaries. The Terms and corresponding agreement benefit only the parties and their respective permitted successors and assigns. Nothing confers any legal or equitable right, benefit, or remedy to any other person under the agreement.
Headings. Headings are for reference only and do not affect the interpretation of these Terms.
Assumption of Risk. Buyer acknowledges the risks associated with the use and operation of equipment sold by H.O. Penn, including injury to persons and property, and agrees to assume these risks. Buyer waives any rights to seek compensation, restitution, or indemnification for any injuries, claims, or damages arising from these risks.
Trade-in Equipment. Buyer warrants that any equipment traded in as described in the Sales Agreement is owned by Buyer, free of liens and encumbrances, and that Buyer has the legal authority to convey title.
Local Requirements. H.O. Penn is not responsible for ensuring that its Goods and Services comply with any local approvals, permissions, permits, licenses, certifications, regulations, or restrictions. Buyer is responsible for verifying that the Goods and Services are suitable for their intended use and for obtaining any necessary local approvals, permissions, permits, licenses, or certifications.
Choice of Law; Waiver of Jury Trial. These Terms shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law provisions. The parties agree that exclusive jurisdiction and venue for any legal proceedings will be in the state or federal courts located in New York. Each party knowingly, voluntarily, irrevocably, and unconditionally waives its right to a jury trial for any claim arising from the purchase of Goods or Services from H.O. Penn, including contract, tort, breach of duty, and other common law or statutory claims. Each party (a) understands this waiver represents an important legal right, and (b) acknowledges having had the opportunity to discuss this waiver with legal counsel.
General Provisions. Buyer may not assign any rights or obligations under these Terms without H.O. Penn’s prior written consent; any attempted assignment will be void. If any provision of these Terms is found to be invalid, unlawful, or unenforceable, it will be severed, and the remaining provisions will remain in full force. A waiver of any breach will not constitute a waiver of any different or subsequent breach. No employment, agency, partnership, joint venture, or similar arrangement is created or intended between Buyer and H.O. Penn. Any rule requiring that ambiguities be resolved against the drafting party shall not apply to the interpretation of these Terms. Buyer has had a full opportunity to review these Terms and seek legal advice, understands the Terms and its obligations, and enters into the transaction voluntarily. H.O. Penn retains ownership of all records related to Goods and Services provided to Buyer (“Records”) and may disclose these Records pursuant to a court order or if disclosure becomes necessary for H.O. Penn’s defense in legal matters. H.O. Penn is an EEO/Affirmative Action Employer. Buyer warrants that the invoiced Goods and Services will be used for business or agricultural purposes and not for personal, family, or household purposes.