Terms and Conditions – Buyers

1. DEFINITIONS. “Articles” means the goods, products, materials, supplies, parts, assemblies, equipment, technical data, drawings, services or other items covered by the Purchase Order and/or any SOW.  “Buyer” means Morrissey, Inc., a Minnesota corporation.  “Purchase Order” means, collectively, the purchase order issued by Buyer (with any and all exhibits attached, including the Terms and Conditions and any SOW).  “Seller” means the party providing the Articles to Buyer and identified on the face of the Purchase Order.  “SOW” means Seller’s statement of work, if any, attached to a Purchase Order.  “Terms and Conditions” means these terms and conditions. 
2. ACCEPTANCE OF PURCHASE ORDER. The Purchase Order constitutes Buyer’s offer to buy the Articles and shall become a binding contract subject to the Terms and Conditions upon acceptance by Seller either by written acknowledgement or commencement of performance of delivering the Articles. Each shipment received by Buyer from Seller shall be deemed to be governed by these Terms and Conditions.  BUYER IS NOT BOUND BY, AND HEREBY OBJECTS TO, ANY TERMS THAT ARE IN ADDITION TO, THAT CONFLICT WITH OR THAT VARY THESE TERMS AND CONDITIONS, WHETHER APPEARING IN SELLER’S QUOTATION, ACKNOWLEDGEMENT, CONFIRMATION, INVOICE, OR ANY OTHER PRIOR OR LATER COMMUNICATION FROM SELLER TO BUYER, UNLESS SUCH TERMS ARE EXPRESSLY AGREED TO IN A WRITING THAT HAS BEEN SIGNED BY BOTH PARTIES.
3. SHIPPING AND PACKAGING. Seller’s deliveries shall be made as specified in the Purchase Order without charge for boxing, crating, carting, or storage, unless otherwise specified. Articles shall be suitably packed to ensure lowest transportation costs, in such manner as to assure against damage from weather or transportation, and in accordance with the requirements of common carriers. Articles shall be described on bills of lading in accordance with current Motor Freight or Uniform Freight Classifications, whichever is applicable. The Purchase Order number must be plainly marked on all invoices, packages, bills of lading and shipping orders. Packing lists, material certification documents, Material Safety Data Sheets, and all other requested documentation shall accompany each shipment. For shipments not accompanied by packing lists, Buyer’s count shall be conclusive on Seller. Except as consented by Buyer, Seller shall not ship in advance of schedule and shall ship exact quantities ordered.  Damage to any Articles resulting from improper packaging will be charged to Seller.
4. TAXES. Seller is liable for and shall pay all taxes, impositions, charges and exactions imposed on or measured by the Purchase Order, except those Buyer specifically agrees or is required by law to pay and which are separately stated on Seller’s invoice.  Prices shall not include any taxes, impositions, charges or exactions for which Buyer has furnished an exemption certificate.
5. TERMS OF PAYMENT. Buyer shall pay Seller’s undisputed invoice upon 45 days from date of Seller’s invoice. Unless specified to the contrary in any SOW, all payments shall be in the legal currency of the United States. Buyer shall be entitled to set off any amount owing at any time from Seller to Buyer against any amount payable at any time to Seller by Buyer.
6. WARRANTY. Seller warrants that all Articles will (a) conform to all applicable specifications, drawings, descriptions and samples, including those specified in any SOW (to the extent available), (b) will be merchantable, of good workmanship and material, fit for the particular purpose or purposes, and free from defect, claim, encumbrance or lien, (c) comply with all applicable laws, and (d) will not infringe upon or constitute an unauthorized use of any third party intellectual property right. Unless specified to the contrary in any SOW, Seller warrants that all Articles shall be “new” and shall not contain remanufactured parts without Buyer’s prior written consent. Seller warrants that all Articles shall be the original works of Seller, or that Seller has the full right to sell the same to Buyer for use and/or resale by Buyer. Seller’s warranties, whether express or implied, shall run to Buyer and Buyer’s end-user customers of the Articles and shall not be deemed to be exclusive. Buyer’s inspection, approval, acceptance, use of, or payment for all or any part of the Articles shall in no way affect its warranty rights, whether or not a breach of warranty is evident at the time.
7. DATE/DATA PROCESSING WARRANTY. Seller warrants that all hardware, firmware, and software provided pursuant to the Purchase Order shall: (a) accurately store and process all date information and calculations with dates before and after January 1, 2000; (b) process any and all two-digit and four-digit date input, fields, records and reports in a manner that resolves any and all ambiguity or confusion as to century, and resolves that ambiguity or confusion in a well-defined and consistent manner; and (c) store and provide output and reports of date information in ways that are unambiguous as to century.
8. INSPECTION. The Articles may be inspected by or for the Buyer at all times and places, at any stage of production, and if at the premises of Seller, Seller shall provide at no charge all reasonable facilities and assistance required for convenient test and inspection. The foregoing shall not relieve Seller of its obligation to make full and adequate test and inspection before shipping Articles to Buyer or to another destination specified in any SOW. Buyer may base acceptance or rejection of any or all Articles on inspection by reasonable sampling techniques.  Buyer agrees to notify Seller promptly upon discovery of any claim for shortage, damage or other cause relating to the Articles, and no such claim shall be forfeited because of Buyer’s payment, acceptance, or use of the Articles or any similar act of Buyer.   If, upon inspection, any of the Articles shall be found to be defective in material or workmanship, or otherwise not in conformity with the requirements and warranties of the Purchase Order, Buyer may, in addition to its other rights: (a) require prompt correction or replacement at Seller’s expense; (b) rework, or have reworked, any such Articles at Seller’s expense for the purpose of conforming the Articles to the contractual requirements and warranties contained in the Purchase Order; (c) reject any such Articles and require the immediate removal of any Articles that have been installed; or (d) terminate the Purchase Order in whole or in part under Section 9. Buyer shall be repaid or credited the full invoice price for all rejected Articles not replaced by Seller and shall be credited transportation charges for all returned or rejected Articles.  Buyer may also charge to Seller all expenses of inspecting, unpacking, examining, repacking, and storing any rejected Articles.  From the time of notice of rejection of defective Articles upon inspection, or for a breach of warranty, the risk of loss shall be upon Seller until redelivery, if any, to Buyer or to Buyer’s end-user customer.
9. CHANGES. Except as provided to the contrary in any SOW, Buyer shall have the right by written notice to change the extent of the work covered by the Purchase Order, the drawings, specifications or other description therein, the time, method or place of delivery or the method of shipment or packaging. Upon receipt of any such notice, Seller shall proceed promptly to make the changes in accordance with the terms of this notice. If any such change causes an increase or decrease in the cost or performance or in the time required for performance, an equitable adjustment shall be negotiated promptly and the Purchase Order shall be modified in writing accordingly. Seller shall deliver to Buyer within 15 days after receipt of a change notice, a statement showing the effect of any such change in the delivery dates and prices. Failure of Seller to submit the statement within the time limits stated shall constitute its consent to perform the change without increase in price, without claim for material rendered obsolete and without change in delivery schedule.
10. TERMINATION.
    1. FOR DEFAULT: Time is of the essence in regard to the Purchase Order. Buyer may, by written notice to Seller, terminate for default the Purchase Order, in whole or in part: (a) if the Seller fails to deliver the Articles strictly within the time specified herein, or if no time is specified, within a reasonable time, or Seller so fails to make progress as to endanger performance of the Purchase Order in accordance with its terms; (b) if the Articles delivered do not conform to the contractual requirements and warranties of the Purchase Order or if Seller fails to perform any of the other conditions or provisions of the Purchase Order; or (c) if any proceedings in bankruptcy or insolvency, voluntary or involuntary, are commenced by, or against Seller, or if any receiver is appointed with or without Seller’s consent, or if Seller makes any assignment for the benefit of creditors, or if Seller commits any other act of bankruptcy or becomes insolvent or unable to meet its debts as they mature. If the Purchase Order is terminated for default, Buyer, in addition to all other rights afforded by law, shall have the right to charge Seller the amount by which the costs of fabricating or procuring the Articles set forth in the terminated Purchase Order from another source exceed the prices specified therein and Buyer may set off any such charge against any amounts which may become payable to Seller under the Purchase Order. Upon such termination, Seller will deliver to Buyer any of the Articles, parts or materials for which Buyer shall make written request for delivery. Buyer will pay Seller the price on the face of the Purchase Order for completed Articles and the fair value of any other such property so requested and delivered. Notwithstanding Buyer’s right to terminate the Purchase Order for delay in delivery, Seller shall not be liable to buyer for any damages if (a) Seller’s delay is due to causes beyond its control, and without its fault or negligence, including but not limited to acts of God or of the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, or unusually severe weather, provided Seller exercises due diligence in promptly notifying Buyer of the conditions causing delay and thereafter uses commercially reasonable efforts to mitigate the effects of such event, or (b) if such default arises out of causes beyond the control of both Seller and its subcontractor or supplier, without the fault or negligence of either of them (as described above), and the supplies or services to be furnished by the subcontractor or supplier are not obtainable from other sources in sufficient time to permit Seller to meet the required delivery schedule. If any of the Articles delivered by Seller at Buyer’s request after termination are found to be defective or not in conformity with the Purchase Order, then in addition to any other rights which it may have, Buyer shall be entitled to reject and return such Articles at Seller’s expense and Seller promptly shall replace such Articles with conforming Articles.
    2. FOR CONVENIENCE: Buyer may, at its convenience, terminate work under the Purchase Order, in whole or in part, at any time by giving notice to Seller in writing. Seller will immediately stop work on the Purchase Order or the terminated portion and notify any subcontractors to do likewise. Seller shall be entitled to reimbursement for actual costs incurred up to and including the date of termination. The total of such claim shall not exceed the pro rata portion of the terminated Purchase Order. Seller shall deliver to Buyer within 15 days after receipt of the notice of termination, the statement of claim showing termination costs and supporting figures. Failure of Seller to submit the statement within the time limits shall constitute its consent to effect the termination at no charge to Buyer.  In no event will Buyer be liable to Seller for cancellation charges, if any, in excess of the contract price, or unabsorbed shop overhead or anticipatory profit.
    3. SURVIVAL OF CERTAIN PROVISIONS: All provisions of the Purchase Order, which by their nature should apply after delivery of Articles, including but not limited to payment (and the right to offset), inspection, rejection, warranty and indemnity, shall survive the completion or termination of the Purchase Order for the purpose of governing the Buyer’s post-delivery rights with respect to the Articles.

11. INSURANCE. Seller shall at all times maintain product liability insurance with combined single limit bodily injury and property damage of not less than $1 million per occurrence.  Such policies shall include endorsements to (a) include Buyer, its directors, officers, agents, and employees as additional insureds, and (b) waive the right of recovery or subrogation against Buyer, its directors, officers, agents and employees.  Seller shall provide Buyer with 30 days’ advance written notice in the event of any cancellation or material change in the policies.  All insurance coverage shall be at the sole cost and expense of Seller and all deductibles shall be assumed by, for the account of, and at Seller’s sole expense.  Seller shall furnish evidence of such insurance satisfactory to Buyer.  
12. GENERAL INDEMNIFICATION & LIMITATION OF LIABILITY. Seller agrees that it shall defend, indemnify and hold Buyer and its subsidiaries and affiliates and their respective directors, officers, agents, representatives, employees and customers (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) harmless from and against all claims, expenses (including reasonable attorneys’ fees), losses, costs, damages, liabilities, and suits (collectively, “Claim(s)”) arising directly or indirectly from any actual or alleged (a) breach by Seller of (i) any of Seller’s representations and warranties hereunder, (ii) Seller’s obligations of confidentiality and non-disclosure hereunder, (ii) violation, infringement, or misappropriation of any of Buyer’s ownership rights to Proprietary Information (as defined in Section 14 below) and to any work product or deliverables as outlined hereunder, (b) claim of infringement or misappropriation of any third party patent, copyright, trademark or other proprietary right relating to Buyer’s purchase, use and/or resale of any Article furnished under the Purchase Order, and (c) negligent acts or omissions of Seller (or parties engaged or utilized by Seller in connection with the Purchase Order). The Indemnified Party shall promptly provide the Seller with written notice of any Claim that the Indemnified Party believes falls within the scope of its indemnity. The Indemnified Party may, at its own expense, assist in the defense or settlement if it so chooses, provided that Seller shall control the defense and all negotiations relative to the settlement of any such Claim.  Notwithstanding the foregoing, Seller shall not agree to a settlement which imposes an unindemnified obligation upon an Indemnified Party or that requires an Indemnified Party to agree to any action or inaction without first obtaining such Indemnified Party’s explicit written approval for such settlement.  With respect to Seller’s indemnification obligations under (c) above and unless Buyer agrees otherwise in writing at the time, Seller shall, in addition to all its other obligations under this Section, obtain for Buyer the unfettered right to continue to use and/or resell all Articles which are the subject of any infringement claim, and Seller shall pay all fees and other costs of any license for such right. 
13. LIMITATION OF LIABILITY.  IN NO EVENT SHALL BUYER BE LIABLE TO SELLER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.   IN NO EVENT SHALL BUYER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND WILLFUL MISCONDUCT), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY BUYER TO SELLER UNDER THIS PURCHASE ORDER.
14. CONFIDENTIAL INFORMATION; USE OF DRAWINGS, SPECIFICATIONS, ETC. Seller shall not disclose to any third party or use any information whatsoever concerning the Purchase Order, or the Buyer’s drawings, specifications, samples and other material intended for use herewith (collectively, “Proprietary Information”), or with respect to any Article furnished, without first obtaining the written consent of the Buyer. The Buyer shall retain title at all times to the Proprietary Information, all of which, upon receipt of a request from Buyer and in any event upon completion of the Purchase Order, shall be promptly and fully returned to Buyer. Except as otherwise agreed to in any SOW, any knowledge or information which Seller shall have disclosed, or may hereafter disclose, to Buyer in connection with the purchase of the Articles shall not be deemed to be Seller’s proprietary information and shall be acquired by Buyer free from any restriction as part of the consideration for the Purchase Order.   In addition to any and all other rights and remedies available under law, Buyer shall be entitled to injunction relief for any violation of this Section.
15. RIGHT TO AUDIT.  Upon reasonable notice and during regular business hours, Buyer or its representatives, may, at its own expense, inspect Seller’s facility and audit Seller’s books, records and other documents as necessary to verify compliance with the Purchase Order.
16. COMPLIANCE WITH LAW. Seller shall, in the performance of the Purchase Order, comply with all applicable laws, executive orders, regulations, ordinances, proclamations, demands and requisitions of the government of the country in which the Articles are manufactured and of the country to which the Articles are to be delivered, and of any state, provincial or local governmental authority which may now or hereafter govern performance. Seller shall comply with all applicable export and re-export regulations and shall notify Buyer of any restrictions on the release of Articles or export of the Articles from the United States. Seller is an Equal Opportunity Employer and complies with Executive Orders 11246 and 13496; FAR 52-222-26; 29 CFR Part 471, Appendix A to Subpart A; 41 CFR 60-1.4; 41 CFR 60-250.4; 41 CFR 60-250.5; 41 CFR 60-741.4; 41 CFR 60-741.5; 41 CFR 60-300.5(a); the Fair Labor Standards Act of 1938, as amended; and all valid and applicable regulations and orders of the Administrator of the Wage and Hour Division, all of which are hereby incorporated by reference.   
17. ASSIGNMENT AND SUBCONTRACT. Seller may not assign any of its rights or delegate any of its obligations under the Purchase Order without the prior written consent of Buyer.  Any purported assignment or delegation in violation of this Section is null and void.  No assignment or delegation relieves Seller of any of its obligations under the Purchase Order.
18. WAIVER. The failure of either party to insist, in any one or more instances, upon the strict performance of any of the terms, covenants or conditions of the Purchase Order or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such term, covenant or condition or the future exercise of such right. The obligation of each party with respect to such future performance shall continue in full force and effect.
19. MODIFICATION. The terms and conditions of the Purchase Order constitute the entire agreement between Buyer and Seller and supersede all previous communications, representations or agreements between the parties. Except as expressly permitted in Sections 2 and 10, the Purchase Order may not be added to, modified, or otherwise altered except by a written instrument executed by Buyer and Seller.
20. SAFETY NOTICES / HAZARDOUS MATERIALS. Seller shall notify Buyer of every Article ordered which contains material hazardous or injurious to the health or physical safety of persons or the environment, even though said hazard or injury may only occur due to mishandling or misuse of the Article.  In addition, Seller shall identify the hazardous or injurious material and notify Buyer of the effects of such material on human beings and the physical manifestations that could result.  For each Article so identified, Seller shall supply Buyer warning labels or instructional material, including Material Safety Data Sheets, appropriate to inform persons coming in contact with such materials of the hazard and its effects, material contents and recommended remedial actions.  If any Articles contain substances regulated by the EU Restriction on Hazardous Substances (RoHS) directive, Seller shall notify Buyer of the quantity (in parts per million) of each such substance in each Article which contains them.
21. RISK OF LOSS. The risk of loss remains with the Seller until delivery of the Articles to Buyer at the destination stated in the Purchase Order and the acceptance of the Articles by Buyer following delivery.
22. DISPUTE RESOLUTION AND GOVERNING LAW.
    1. ARBITRATION.  The parties will use their best efforts to amicably settle any dispute in connection with the Purchase Order.  Failing such amicable settlement, and except for the right to injunctive relief as described in (b) below, all disputes, claims and controversies between the parties arising under or in connection with the Purchase Order or the making, performance or interpretation thereof, will be settled by arbitration.  The arbitration proceedings will be conducted in Minneapolis, Minnesota under the international arbitration rules of the International Centre for Dispute Resolution, to the extent such rules are not inconsistent with the provisions of this Section.  The arbitrator(s) will have the right to award specific performance of the Purchase Order.  The decision of the arbitrator(s) will be in writing and final and binding on all parties.  Judgment upon the award of the arbitrator may be entered in any court having jurisdiction thereof.  During any arbitration proceeding, Buyer and Seller will fully perform their respective obligations under the Purchase Order. 
    2. ATTORNEYS’ FEES.  The nonprevailing party will pay all costs and expenses, including reasonable attorneys’ fees, the prevailing party incurs in any action brought to enforce any provision of the Purchase Order or to enjoin any violation of the Purchase Order.
    3. GOVERNING LAW.  The Convention on Contracts for the International Sale of Goods (CISG) will not apply to the Purchase Order.  The Purchase Order will be governed by and construed under the laws of the State of Minnesota, without applying its conflict of law rules.
    4. JURISDICTION.  The parties hereby expressly consent to personal and exclusive jurisdiction over, and venue of any suit arising out of or related to the Purchase Order, in the state and federal courts in Minnesota.

23. NOTICE. Any notice required to be delivered hereunder shall be delivered (a) in writing and given by hand delivery, (b) by reputable overnight carrier for next morning delivery, provided recipient must sign for receipt, or (c) by certified mail, postage prepaid with return receipt requested addressed to the parties at the addresses identified on the face of the Purchase Order or any SOW. All notices shall be deemed given on the day when actually delivered as provided above if delivered by hand or by fax, or on the day shown on the return receipt, if delivered by mail or overnight courier.
24. INDEPENDENT CONTRACTOR. The relationship between the parties is that of independent contractor.  Nothing contained in the Purchase Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
25. SEVERABILITY. If any provision of the Purchase Order is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of the Purchase Order will remain in full force and effect. If a court finds that any provision of the Purchase Order is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.