HENNY PENNY CORPORATION TERMS AND CONDITIONS
(Revised 01 JAN 2021)
1.PRICES. All prices are F.O.B. origin, freight collect, at the Eaton, Ohio factory of Henny PennyCorporation (hereinafter “Seller”) unless otherwise stated. All quotations are for immediate acceptance byyou (the “Buyer”) unless otherwise stated and are subject to change or withdrawal at any time without noticeprior to issuance of Seller’s acknowledgement. In any event, prices become invalid 60 days after date ofquotation. Stenographic and clerical errors are subject to correction at any time.
2.TERMS . Unless otherwise specified in writing, all sales are documents against confirmed,irrevocable letter of credit, payment in advance, or C.O.D., unless Buyer applies for and is granted a line ofcredit by Seller, in which case purchases can be made against the line of credit with payment net 30 days.No cash discounts are allowed except as provided in the invoice. Regardless of invoice terms, Sellerreserves the right to make deliveries only on a cash or confirmed irrevocable letter of credit at Seller’s solediscretion regardless of prior credit. Seller reserves the right to require current financial information fromthe Buyer as a condition to continued extension of credit.
3.TAXES. All prices and quotations do not include excise, sales, use and transportation taxes orany other import, levy or duty of any taxing authority. These charges are assumed by the Buyer and, if notincluded in the original invoice, such charges may be invoiced at a later date.
4.CANCELLATIONS. Once acknowledged, orders may be cancelled or deliveries deferred onlyupon Seller’s consent. All related charges to be borne by the Buyer will be determined at the time ofcancellation or deferment.
5.DELIVERIES. Seller shall not be liable for default or delay in delivering items if such default ordelay is caused by fire, strike, riot, war, act of God, delay of carriers, governmental order or regulation orother similar or different contingencies beyond the foreseeable control of Seller.
6.RETURNS. No item may be returned without Seller’s prior written authorization. Authorizedreturns may be subject to a minimum restocking charge equal to 15% of the invoice price.
7.SHIPMENT. When ordering, Buyer will explicitly state the method of shipment preferred. In theabsence of shipping directions, Seller may in its sole discretion determine the method of shipment. Allorders are insured and shipped at Buyer’s expense and risk, unless otherwise specified. The delivery ofequipment to a carrier by Seller shall constitute transfer of title in and to the equipment at the point ofdelivery and such carrier shall thereafter be deemed to be acting for Buyer in the handling of the equipment,unless otherwise specified in the freight terms.
8.TELEPHONE AND TELEGRAPHIC INSTRUCTIONS. Seller accepts no responsibility, and Buyercannot hold Seller responsible for errors or misunderstandings in complying with orders or instructionsgiven to Seller by telephone or telegraph.
9.CLAIMS. All claims by Buyer against Seller that materials shipped hereunder do not conform toBuyer’s specifications and all other claims made hereunder, must be made in writing to Seller within 10days of receipt of the materials by Buyer. Failure to give such notice within such time will constitute awaiver by Buyer of all claims with respect to such materials.
10.PATENTS. It is not Seller’s intention to manufacture or sell any product which, or the use of which,infringes on any patent. Buyer will promptly notify Seller of any claim that the product on which Seller isquoting or offering for sale, or the use thereof, infringes on any patent. If any such infringement exists,Seller reserves the right to cancel this sale. If Seller is not given the notice specified herein, Seller will notbe obliged in any way to indemnify Buyer for any losses or damages incurred because of such patentinfringement.
11. FAIR LABOR STANDARDS ACT. Seller certifies that with respect to the production of goods and/or the performance of services covered by this order, it has fully complied with all applicable requirements of the Fair Labor Standards Act as amended, and of regulations and orders of the U.S. Department of Labor issued thereunder.
12. SAFETY DEVICES.
(A) Operations Buyer agrees that it will not remove or alter any guarding, precautionary or warning signs or other devices related to safety which are contained on the equipment sold. Buyer further agrees and warrants that the equipment will be operated according to Seller’s manuals and instructions, including any revisions thereof. Replacement manuals and instructions will be furnished by Seller upon request at a slight charge. Safety devices for normal installation of the equipment when used and maintained according to Seller’s manuals and instructions are supplied with purchased equipment. Safe operation, however, is dependent upon proper installation, operation and maintenance at the user’s site. Buyer agrees to advise Seller of any specific safety requirements with respect to purchased equipment which may relate to safe operation of the equipment arising out of the nature of Buyer’s or user’s business or operation of the equipment. The availability and price of special safety features can be quoted on request as optional additions.
(B) OSHA Compliance Compliance with OSHA regulations is, by law, the responsibility of the employer/purchaser, rather than the equipment supplier, and is dependent upon proper installation, operation and maintenance at the user’s site. It is therefore inappropriate for Seller to warrant compliance of the equipment it supplies. Buyer should advise Seller of any specific requirements with respect to purchased items which may be necessary to assure compliance with OSHA regulations.
13. WAIVER. No waiver of any of the provisions contained in this order shall be valid unless made in writing by the Seller. Failure of Seller to insist upon strict performance shall not constitute a waiver of any of the provisions of this agreement or waiver of any other default.
14. LIMITED WARRANTY WITH EXCLUSION OF OTHER WARRANTIES AND LIMITATION OF REMEDIES. Subject to the following conditions, Henny Penny Corporation makes the following limited warranties to the original purchaser (or to the original purchaser from an authorized distributor) only for Henny Penny equipment and replacement parts:
NEW EQUIPMENT: Any part of a new equipment, except baskets, lamps, fuses, and door gaskets for combi ovens which proves to be defective in material or workmanship within two (2) years from date of original installation, will be repaired or replaced without charge F.O.B. factory, Eaton, Ohio, or F.O.B. authorized distributor. Baskets will be repaired or replaced for ninety (90) days from date of original installation. LAMPS, FUSES, AND DOOR GASKETS FOR COMBI OVENS ARE NOT COVERED UNDER THIS LIMITED WARRANTY.
FILTER SYSTEM: Failure of any parts within a fryer filter system caused by the use of the non-OEM filters or other unapproved filters is not covered under this Limited Warranty.
REPLACEMENT PARTS: Any equipment replacement part, except lamps, fuses, and door gaskets for combi ovens which proves to be defective in material or workmanship within ninety (90) days from date of original installation will be repaired or replaced without charge F.O.B. factory, Eaton, Ohio, or F.O.B. authorized distributor.
The warranty for new equipment covers the repair or replacement of the defective original equipment manufacturer’s part and includes labor and maximum mileage charges of 200 miles (300km) round trip for a period of one (1) year from the date of original installation.
The warranty for replacement parts covers only the repair or replacement of the defective original manufacturer's part and does not include any labor charges for the removal and installation of any parts, travel, or other expenses incidental to the repair or replacement of a part.
EXTENDED FRYPOT WARRANTY: Henny Penny will replace any frypot that fails due to manufacturing or workmanship issues for a period of up to seven (7) years from date of manufacture. This warranty shall not cover any frypot that fails due to any misuse or abuse, such as heating of the frypot without shortening.
NEW THROUGH 3 YEARS (THIRTY-SIX MONTHS): During this time, any frypot that fails due to manufacturing or workmanship issues will be replaced at no charge for parts, labor, or freight. Henny Penny will either install a new frypot at no cost or provide a new fryer at no cost.
4 YEARS (THIRTY-SEVEN MONTHS) THROUGH 7 YEARS (EIGHTY-FOUR MONTHS): During this time, any frypot that fails due to manufacturing or workmanship issues will be either replaced at no charge or a credit will be issued to the area distributor for the original purchaser's benefit. Any freight charges and labor costs to install the new frypot as well as the cost of any other parts replaced, such as insulation, thermal sensors, high limits, fittings, and hardware, will be the responsibility of the owner.
Any warranty work must be first authorized by Henny Penny or the distributor from whom the equipment was purchased. No allowance will be granted for repairs made by anyone else without Henny Penny’s written consent. If damage occurs during shipping, notify the sender at once so that a claim may be filed.
THE ABOVE LIMITED WARRANTY SETS FORTH THE SOLE REMEDY AGAINST HENNY PENNY FOR ANY BREACH OF WARRANTY. BUYER AGREES THAT NO OTHER REMEDY (INCLUDING CLAIMS FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY SPECIAL LOSS OR DAMAGES ARISING FROM THE USE OF, OR INABILITY TO USE, THE EQUIPMENT) SHALL BE AVAILABLE.
The above limited warranty does not apply (a) to damage resulting from accident, alteration, misuse, or abuse; (b) if the equipment’s serial number is removed or defaced; or (c) to lamps, fuses, and door gaskets for combi ovens. THE ABOVE LIMITED WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, INCLUDING TRADE USAGE. ALL OTHER WARRANTIES ARE DISCLAIMED. HENNY PENNY NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER OBLIGATION OR LIABILITY.
15. APPLICABLE LAW/FORUM. This agreement, the construction of this agreement, all rights and obligations between the parties to this agreement, and any and all claims arising out of or relating to the subject matter of this agreement (including all tort claims), shall be governed by the laws of the state of Ohio.
Any litigation or other legal proceeding of any kind based upon or in any way related to these terms and conditions, its subject matter, and/or any rights or obligations between the parties, shall be brought exclusively in an appropriate court of competent jurisdiction (state or federal) located in Hamilton County, Ohio (if the action is brought in state court) or in the Southern District of Ohio (if the action is brought in federal court). Any action brought in such courts shall not be transferred or removed to any other state or federal court. It is further understood and agreed by the parties that they consent to the exercise of jurisdiction over them by the above-named courts as their freely negotiated choice of forum for all actions subject to this forum-selection clause.
16. ACCEPTANCE. SELLER’S ACCEPTANCE OF AN ORDER IS EXPRESSLY MADE CONDITIONAL ON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS. Goods shipped prior to such assent are shipped as an accommodation only. If Buyer does not accept the goods on these terms, they are to be returned at once, unopened and unused, at Buyer’s expense, or receipt of such goods will otherwise be deemed an assent to the foregoing terms and conditions.
This document constitutes an offer to sell the goods and/or services which are the subject hereof. If this document is in response to any prior offer by Buyer, it is not in any respect an expression of acceptance of that prior offer, but rather constitutes a rejection in toto of the prior offer. Acceptance of this offer is expressly
limited to the terms and conditions contained herein, unless Buyer has signed a distribution agreement with Seller; in which case, the terms and conditions of the distribution agreement shall also apply. No terms and conditions other than those contained herein, including but not limited to any terms and conditions contained in any purchase order from Buyer, shall be binding upon Seller unless expressly accepted in writing by an authorized representative of Seller. Seller hereby notifies Buyer in advance that Seller specifically objects to and rejects any terms and conditions in Buyer’s order or in any other form of Buyer which in any way add to, conflict with, reduce or affect these terms and conditions and, if applicable, the terms and conditions of the distribution agreement between Seller and Buyer, whether or not such additional or different terms would materially alter the contract. If a contract between Buyer and Seller is established through performance or other conduct of the parties, the terms and conditions of that contract shall not be deemed to consist only of terms and conditions as to which the writings of the parties agree, but rather the terms and conditions contained in this document and, if applicable, the terms and conditions of the distribution agreement between Seller and Buyer shall be a part of that contract and shall prevail over the conflicting and/or different terms and conditions of any other document forming a part of the contract.
17. INDEMNIFICATION. Buyer agrees to defend, indemnify and save harmless Seller its related affiliates and their officers, employees, directors and agents, from any and all losses, damages, complaints, liabilities, and demands, including all costs and expenses involved in such losses, damages, complaints, liabilities, and demands (including, without limitation, reasonable attorney, accountant and expert witness fees and all costs of discovery, litigation and settlement,) and all claims of any nature made by third-parties (including, but not limited to, employees of Buyer) against Seller resulting from any and all acts or omissions by Buyer, its employees, directors or agents, which include, without limitation, acts or omissions because or as a result of the removal or alteration of devices related to safety installed on equipment sold by Seller or of the failure of Buyer to install devices related to safety offered for sale or recommended by Seller or of the failure of Buyer to specify the need for additional safety features necessitated by the nature of Buyer’s or user’s business or operation of the equipment or of the failure of Buyer or user and its/their agents, officers and employees to operate and/or maintain the equipment according to the manner recommended by Seller or any modifications made to equipment, which were not authorized in writing by Seller.
18. NON-ASSIGNMENT. Buyer may not assign its rights under this document, whether by operation of law or otherwise, without the prior written consent of Seller.