Terms of Sale
1. ACCEPTANCE AND ENTIRE AGREEMENT. These Terms and Conditions shall govern the sale of the Goods quoted by Perry Products Corp (“Perry”). These Terms and Conditions, together with the most recent quotation from Perry, shall constitute the entire agreement (“Agreement”) between Perry and the purchaser named in the quotation (“Buyer”) with respect to the goods and services (“Goods”) described in the quotation. IF THE TERMS AND CONDITIONS OF THIS AGREEMENT DIFFER IN ANY WAY FROM THE TERMS AND CONDITIONS OF BUYER’S ORDER OR OFFER TO BUY, THIS AGREEMENT SHALL BE CONSTRUED AS A COUNTER-OFFER AND SHALL NOT BE EFFECTIVE AS AN ACCEPTANCE OF SUCH ORDER OR OFFER. The failure of Buyer to object to the Terms and Conditions of this Agreement in writing within five (5) days from the date of Buyer’s receipt hereof shall constitute Buyer’s acceptance of same. No modification of, addition to, or waiver of any of the Terms and Conditions of this Agreement will be effective unless agreed to in writing by a duly authorized officer of Perry, and in no event shall such modifications, addition or waiver affect any rights of Perry accrued prior thereto. Perry and Buyer agree that no course of prior dealings between the parties or usage of the trade shall be relevant to give particular meaning to, supplement or qualify any of the Terms and Conditions hereof.
2. DELIVERY AND RISK OF LOSS. Unless otherwise stated in the Agreement, all shipments shall be EXW loaded to transport, Perry’s facility, Hainesport NJ. Delivery and risk of loss shall be defined as per EXW Incoterms 2010. Perry reserves the right to make delivery in installments or to make partial shipments, and all such installments or partial shipments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Any date of shipment stated in the Agreement is approximate only. If delivery is in installments, delay in delivery of any installments shall not relieve Buyer of its obligation to accept remaining deliveries.
3. WARRANTY. Perry expressly warrants to Buyer that the Goods sold will be free from defects in materials and workmanship. This express warranty shall apply only to the extent the Goods are properly installed, used and maintained in the type of operation for which they have been designed. This express warranty applies only to defects in materials or workmanship found within the earlier of eighteen (18) months from the date of shipment or twelve (12) months from the date of installation.
Perry’s obligations under this express warranty shall be only to Buyer and not to any subsequent owner. Upon the discovery of an alleged defect, Buyer shall notify Perry in writing setting forth the dates of delivery and installation, and a detailed description of the alleged defect. If Perry determines that there is a defect in materials or workmanship covered by this express warranty, Perry shall repair the defect. Unless Perry and Buyer agree to repair the defect at Buyer’s premises, Buyer shall return the equipment to Perry, return freight prepaid. Perry shall have no responsibility for any labor charges relating to the removal, installation or reinstallation of the Goods in the event of repair by Perry.
EXCEPT FOR THE EXPRESS WARRANTY STATED ABOVE, THERE ARE NO OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE WHICH SHALL APPLY TO THE WORK, THE MATERIALS FURNISHED, OR THE GOODS SOLD, AND PERRY HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES. PERRY SHALL HAVE NO LIABILITY TO THE BUYER OR ANY THIRD PARTY FOR ANY LOSS, COST, EXPENSE, DAMAGE OR LIABILITY, WHETHER DIRECT OR INDIRECT, OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
Perry’s liability to Buyer or anyone claiming through by Buyer on any claim of any kind is limited to Perry’s liability under this express warranty and Buyer waives any claim it may otherwise have for any loss or damage arising out of, connected with, or resulting from the Goods, whether such claim is based upon Perry’s negligence, Perry’s performance or breach hereunder, strict liability, or any other theory of law, or otherwise. In no event shall Perry be liable for the cost of any removal, installation or reinstallation done by Buyer or for any special, indirect, incidental or consequential damages of any nature whatsoever suffered by Buyer or anyone else arising out of the use of the Goods or of any breach under this Agreement or negligence of Perry.
4. BUYER’S INDEMNITY OF PERRY. Perry will not be responsible for any loss or injury resulting from defects in the Goods sold or from the subsequent use of the Goods. Buyer expressly agrees that as a condition of its purchase of these Goods, it will indemnify and hold Perry harmless of and from any and all liability which may be asserted against or incurred or suffered by Perry by virtue of any suit or claim of any kind arising out of, connected with, or resulting from the purchase, sale, use or consumption of the Goods by Buyer or any subsequent user of the goods including but not limited to claims or suits for breach of warranty, negligence, strict liability environmental liability, exposure to hazardous materials, alleged non-compliance of the Goods with O.S.H.A. or any other law or regulation, or infringement of patent or trademark of Goods alone or in combination with any other goods, materials, products or services. Buyer shall pay any and all judgments rendered against Perry as a result of the foregoing and shall pay all costs and expenses incurred by Perry in defending any action brought against Perry as a result thereof, including attorney’s fees and expenses, expert witness fees and expenses and court costs. If requested by Perry, Buyer will, at its own cost and expense, defend any and all such actions.
5. CANCELLATION OR DEFAULT IN PAYMENT. Cancellation of this Agreement can only be made with Perry’s written consent. If Buyer fails to pay any amount due on the Goods sold under this Agreement or any other agreement between Buyer and Perry, Perry may defer further shipments until such payments are made, or may, at its option cancel the unshipped balance. In the event of the suspension of work on the Goods as a result of instructions of Buyer, or lack of instructions, the sales price may be increased to cover any extra expense thereby incurred by Perry. In addition, Perry shall charge Buyer for all costs of collection for past due amounts, including, without limitation, all legal expenses and costs incurred by Perry.
Note: Terms of Sale published on the website are subject to change. Publication of these terms on PerryProducts.com does not constitute the official source of Terms of Sale but is for reference only. The Order Acknowledgement from Perry Products is the official document establishing Terms of Sale in the absence of agreed upon Terms of Sale in an acknowledged Purchase Order and the lack of specific reference in a quotation from Perry Products.