Terms of Service


1. Agreement. In consideration of H.O. Penn Machinery Company, Inc.(“H.O. Penn
Machinery”) and H.O. Penn Leasing, LLC (“H.O. Penn Leasing”)(collectively H.O. Penn
Machinery and H.O. Penn Leasing are referred to herein as H.O. Penn”) accepting this
application, issuing a sales, service, or rental agreement, or providing goods or services, unless
otherwise agreed in a written document signed by a Vice President of H.O. Penn, these Terms
and Conditions of Sales, Rental, and Service (“Terms”) govern the purchase or rental of goods
(including, but not limited to, new and used equipment, engines and generators, trucks,
attachments, components, technology, and parts) (“Goods”) and services (“Services”) from H.O.
Penn by any individual or entity that purchases or rents such Goods or Services from H.O. Penn
(such individual or entity is hereinafter referred to as “Buyer”). The placing of an order with
H.O. Penn, the completion of an online transaction with H.O. Penn, Buyer’s acceptance of any
quote, proposal, or other document issued by H.O. Penn with respect to the Goods or Services, or
the receipt or acceptance of Goods or Services by Buyer constitutes Buyer’s acceptance of these
Terms exactly as written. H.O. Penn hereby rejects the terms of any purchase order or other
document submitted by Buyer, unless the document is signed by a Vice President of H.O. Penn.
The supply of Goods or Services by H.O. Penn to Buyer shall not constitute acceptance by H.O.
Penn of the terms of any purchase order or other document submitted by Buyer. The Terms are
subject to any corresponding Sales, Rental, or Service Agreement issued by H.O. Penn. Should
the terms of any proposal, purchase order, or statement of work issued by the Buyer or a third party conflict with the Terms, then Terms as set forth herein shall control.

2. Order and Delivery of Goods or Services. All orders for Goods and/or Services are
subject to credit approval and final acceptance by H.O. Penn in its sole discretion. Buyer’s
charge privileges may be canceled by H.O. Penn at any time without notice. Buyer shall have no
right to cancel purchase orders for Goods once a purchase order is issued to H.O. Penn, nor shall
Buyer have the right to cancel an online purchase once the order is placed. Some parts may be
returnable to H.O. Penn in accordance with H.O. Penn’s then current parts return policy
(https://www.hopenn.com/parts/parts-return-policy/). Buyer acknowledges that estimated
delivery dates for Goods are estimates only; actual delivery dates depend on a variety of factors,
including, but not limited to, the production schedules of manufacturers. H.O. Penn will use
commercially reasonable efforts to meet estimated delivery dates and shall keep Buyer advised
of the status of its delivery, but H.O. Penn shall have no liability for any loss associated with
delay in the delivery of Goods. In addition, H.O. Penn shall have no liability for any delay in
performance of Services or delivery of Goods caused by any circumstances beyond its
reasonable control, including, but not limited to, delays caused by acts of God, acts of war or
terrorism, fire or other casualty, storms or adverse weather, epidemics, strikes, labor shortages or
disturbances, shortages of materials, restraints or delays affecting carriers, manufacturer delays,
theft or vandalism, transport and handling accidents, or revisions to laws, regulations or
governmental requirements.

3. Pricing. Unless otherwise specified by H.O. Penn, the price for new parts shall be H.O.
Penn’s list price for such parts on the date the parts are ordered; the price for a new machine
shall be H.O. Penn’s list price for such machine on the date the machine ships from the factory;
and the labor rates for Services shall be H.O. Penn’s standard labor rates for the applicable type
of Service (field rates, shop rates, mine rates, or specialty rates, as applicable) in effect at the
time the Services are performed. Pricing for future orders is subject to change without notice.
Buyer will promptly pay to H.O. Penn any taxes that H.O. Penn is required to collect with
respect to the purchase of Goods and/or Services, including, but not limited to, value added,
personal property, sales, use and similar taxes (“Taxes”). For any Taxes from which Buyer
claims exemption, Buyer shall provide H.O. Penn with properly completed exemption
certificates and any documentation needed to validate the exemption prior to the purchase of
the applicable Goods and/or Services. If Buyer fails to provide an appropriate exemption
certificate and supporting documentation, as determined by H.O. Penn, Buyer will remain
liable for all such Taxes and will indemnify H.O. Penn for any liability related to the same.
Title to purchased Goods shall pass to Buyer upon payment in full for the Goods. Risk of loss
for purchased Goods is FOB H.O. Penn’s site, unless purchased Goods are shipped to Buyer
directly from the manufacturer, in which case risk of loss is FOB factory. Any claims for
shortages, damages, or delays in shipping must be made by Buyer directly to the carrier. Unless
specified otherwise in writing, Buyer shall pay all costs of transportation, which include but are
not limited to government duties, local taxes, customs fees, and shipping costs regardless of
whether they arise before, during, or after performance or delivery of the Goods & Services.

4. Payment Terms. (a) Parts & Service: Full payment is due and payable from the Buyer to
H.O Penn 30 days from the invoice date. (b) Equipment & Generator Rentals: Full payment is
due from the Buyer to H.O Penn on or before the beginning of each rental period. (c) Equipment
Sales: Payment in full is due from the Buyer to H.O Penn on or before delivery unless otherwise
stated in the contract and/or purchase order.4. Generator Sales: Payment is due within 30 days of
invoice date. Start-up is subject to previous payments of 95% of the project. Retainage may not
exceed 5%. If Buyer fails to pay for Goods and/or Services as and when due, Buyer shall pay a
service charge of 2% of the invoice balance each month until charges are paid in full, or the
maximum allowed by law, and Buyer shall pay H.O. Penn all reasonable attorneys’ fees and
collection costs and expenses incurred by H.O. Penn. Any corresponding credit agreement issued
by H.O. Penn and any financing provided shall not be considered a loan. In addition to any other
right of set-off or recoupment H.O. Penn has under applicable law, Buyer agrees that, with
respect to any amounts due from Buyer or Buyer’s affiliates to H.O. Penn or H.O. Penn’s
affiliates, H.O. Penn and its affiliates may set-off such amounts against any amounts owing to
Buyer or Buyer’s affiliates. If Buyer requests customization of equipment, Buyer agrees to pay
all parts and labor costs H.O. Penn incurs in customizing the equipment, regardless of whether or
not Buyer completes the purchase of the customized equipment. Buyer must pick up its
equipment from H.O. Penn’s facility within two (2) business days after notification from H.O.
Penn of completion of Services. To the extent permitted by applicable lawH.O. Penn may sell
Buyer’s equipment if such equipment remains in H.O. Penn’s possession after 30 days and any
amounts owed remain unpaid or enforce any applicable lien rights. This remedy is not intended
to be exclusive and H.O. Penn may exercise any rights it may have under the law.

5. 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.

6. 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).

7. 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.

8. 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/legal/privacy-statement (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.

9. Product Information. If Caterpillar equipment that is 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 being transmitted to
Caterpillar, its affiliates, the H.O. Penn Entities and/or other Caterpillar dealers to better serve
Buyer and to improve Caterpillar products and services. Telematics Information being
transmitted may include machine serial number, machine location, and other machine data
including, but not limited to, fault codes, emissions data, fuel usage, service meter hours,
software and hardware version numbers and installed attachments. The Telematics Information
will be collected, used, retained and disclosed in accordance with the Caterpillar Data
Governance Statement, which is posted at https://www.hopenn.com/privacy-policy/ (as such
statement may be revised from time to time) (“Statement”). Buyer consents to the collection, use,
retention and disclosure of the Telematics Information in accordance with the Statement and
agrees that the Telematics Information may be accessed by Caterpillar, its partners, its affiliates,
its 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 the Telematics Information on their behalf. As
set forth in the Statement, Caterpillar may use Telematics Information in combination with
information about Buyer. Buyer further acknowledges and agrees that Telematics Information
may be made available to subsequent owners of equipment. If Buyer does not want Telematics
Information transmitted as described above, Buyer can request documentation to opt out of the
transmission of such information by sending an email to optout@H.O. Penn-cat.com.

10. Compliance With Laws. Buyer agrees to comply fully, at its sole cost, with all
applicable federal, state and local laws, rules and regulations.

11. Buyer’s Acts or Omissions. If H.O. Penn’s performance under these Terms and 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 under the Terms or agreement or otherwise liable for any costs, charges, or losses
sustained or incurred by Buyer to the extent arising directly or indirectly from such prevention
or delay.

12. Buyer’s Warranties and Representations. Buyer warrants that (i) if an entity, it is
duly organized and validly existing in good standing; (ii) it is duly 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 Buyer’s legal, valid, and
binding obligation, enforceable against it in accordance with its terms; (iv) it is not insolvent
and is paying all of its debts as they become due; (v) any payments made pursuant to any such
agreement are intended by it to be a substantially contemporaneous exchange for new value
given to it; (vi) each payment made of a debt incurred by it under any such agreement is or was
in the ordinary course of its business or financial affairs, and (vii) all information supplied by
Buyer is complete and accurate.

13. Account Stated. Failure to notify H.O. Penn in writing of any dispute regarding an
invoice within thirty (30) days of receipt of said invoice waives Buyer’s right to dispute such
invoice, and shall be deemed to be an account stated under the law. Buyer’s obligation to pay
amounts invoiced shall be absolute and unconditional and shall not be subject to any delay,
reduction, set-off, defense, or counterclaim.

14. Taxes. Buyer shall be responsible for all sales, use, and excise taxes, and any other
similar taxes, duties, and charges of any kind imposed by any federal, state or local
governmental entity on any amounts payable by Buyer hereunder, excluding any taxes imposed
on, or with respect to, H.O. Penn’s income, revenues, gross receipts, personnel or real or
personal property or other assets unless otherwise specified in writing.

15. Hours of Operation. Unless specified otherwise in writing, the Goods & Services shall
be performed or provided during H.O. Penn’s publicized business hours. Goods & Services
performed or provided outside of such hours will be billed at applicable overtime or doubletime

16. Limitation of Liability. IN NO EVENT SHALL H.O. PENN BE LIABLE TO

17. 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 or resulting from acts or
circumstances beyond its reasonable control including, without limitation, acts of God, flood,
fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is
declared or not), terrorist threats or acts, riot or other civil unrest, national emergency,
revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not
relating to either Party’s workforce), restraints or delays affecting carriers, an inability or delay
in obtaining supplies of adequate or suitable materials, telecommunication breakdown or power

18. 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 such other address that the
receiving party has designated in accordance with this Section. Unless otherwise agreed to in
writing, all Communications must be delivered by facsimile, e-mail, personal delivery, courier
or certified or registered mail (return receipt requested, postage prepaid). A Communication is
effective only on receipt by the receiving Party if the Party giving the Communication has
complied with the requirements of this Section. Communications shall be deemed received (i)
if given by facsimile or e-mail, on the date of transmission if sent prior to 3:00 p.m. (EST) on a
business day and otherwise on the following business day, (ii) if by courier or personal
delivery, on the date of delivery, and (iii) if by mail, two (2) days after the date of mailing.

19. Modification and Amendment. The corresponding agreement shall only be modified
or amended by an instrument in writing signed by the parties. Any changes, additions,
stipulations or deletions, by Buyer, shall not be deemed to be agreed to or binding upon H.O.
Penn unless agreed to in writing in the form of an amendment signed by a Vice President of
H.O. Penn and by the Buyer’s representative.

20. No Waiver. No exercise, nor any failure or delay by H.O. Penn in the exercise of, any
right or remedy available hereunder, at law or in equity will be deemed an election of remedies
or a waiver of any such rights and/or remedies. Remedies hereunder shall not be exclusive, but
shall be cumulative and in addition to all other remedies existing at law or in equity.

21. No Third-Party Beneficiaries. The Terms and corresponding agreement benefits
solely the parties and their respective permitted successors and assigns. Nothing, whether
express or implied, confers on any other person any legal or equitable right, benefit or remedy
of any nature whatsoever under or by reason of any corresponding agreement.

22. Headings. Headings are for reference and do not affect the interpretation of the Terms.

23. Assumption of Risk. Buyer hereby acknowledges and understands that there are risks
associated with the use and operation of equipment sold by H.O. Penn which include but are
not limited to injury to persons and property as well as death. Buyer acknowledges and
understands these risks, agrees to assume them, and waives any and all rights to seek
compensation, restitution, or indemnification for any injuries, claims, or damages that might
arise from said risks.

24. Trade-in Equipment. Buyer warrants that the equipment traded in described on any
corresponding Sales Agreement and for which trade-in allowance is given, is owned by the
Buyer, is free and clear of all liens and encumbrances, and that the Buyer has legal authority to
convey title.

25. Local Requirements. H.O. Penn is not responsible for and does not represent or
warrant that its Goods & Services comply with any local approvals, permissions, permits,
licenses, certifications, regulations, or restrictions. Buyer is responsible for verifying the Goods
& Services are fit for their intended use. Buyer is also responsible for obtaining any applicable
local approvals, permissions, permits, licenses, or certifications.

26. 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 giving effect to conflict of law
provisions. The parties agree that exclusive jurisdiction and venue for any proceeding at law or
in equity 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 of any claim or cause
of action based on or arising out of the purchase of Goods or Services from H.O. Penn
(including, but not limited to, contract, tort, breach of duty, and all other common law and
statutory claims). Each party (a) understands that this is a waiver of an important legal right, and
(b) acknowledges having had a reasonable opportunity to discuss this waiver and its effects with
legal counsel.

27. General Provisions. Buyer may not assign Buyer’s rights or obligations hereunder
without H.O. Penn’s prior written consent, and any such attempted assignment will be void. If
any provision in these Terms is found to be invalid, unlawful or unenforceable, it shall be
deemed severed and the remaining provisions in these Terms shall remain in full force and
effect. A party’s 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 of construction requiring that ambiguities be
resolved against the drafting party shall not apply to the interpretation of these Terms. Buyer has
had a full and fair opportunity to review these Terms, and to seek the advice of legal counsel, and
understands the Terms and Buyer’s obligations and representations, and Buyer enters into the
corresponding transaction of its own free will. H.O. Penn retains ownership of all records
relating to Goods and Services provided to Buyer (“Records”) and may disclose the Records
pursuant to a court order or in the event disclosure of the Records becomes part of H.O. Penn’s
defense in a legal matter. H.O. Penn is an EEO/Affirmative Action Employer. Buyer warrants
that the invoiced Goods or Services will be used for business or agricultural purposes and not for
personal, family or household purposes.

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