Terms and Conditions – Sellers

1. DEFINITIONS. “Agreement” means, collectively, the accompanying quotation or confirmation of sale issued by Seller (with any and all exhibits attached) and these Terms and Conditions.  “Articles” means the goods, products, materials, supplies, parts, assemblies, equipment, technical data, drawings, services or other items covered by the Agreement.  “Buyer” means the party purchasing the Articles from Seller and identified on the accompanying quotation or confirmation of sale.  “Seller” means Morrissey, Inc., a Minnesota corporation.  “Terms and Conditions” means these terms and conditions. 
2. APPLICABILITY. These Terms and Conditions are the only terms that govern the sale of Articles by Seller to Buyer.  SELLER 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 BUYER’S PURCHASE ORDER OR OTHER GENERAL TERMS AND CONDITIONS OF PURCHASE, REGARDLESS OF WHETHER OR WHEN BUYER HAS SUBMITTED ITS PURCHASE ORDER OR SUCH TERMS.  FULFILLMENT OF BUYER’S ORDER DOES NOT CONSTITUTE ACCEPTANCE OF ANY OF BUYER’S TERMS AND CONDITIONS AND DOES NOT SERVE TO MODIFY OR AMEND THESE TERMS AND CONDITIONS.
3. SHIPPING AND DELIVERY. All quoted shipping dates are approximate and not guaranteed.  Seller’s deliveries shall be made within a reasonable time after the receipt of Buyer’s purchase order.  All deliveries and schedules are contingent on availability of raw materials, fuel and transportation.  Seller shall not be liable to Buyer for any delay or failure to perform if such delay or failure is due to causes beyond Seller’s 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.  Delivery shall be made FOB Seller’s facility using Seller’s standard methods of packaging and shipping such Articles.  Seller may, in its sole discretion, without liability or penalty, make partial shipments of Articles to Buyer and submit invoices accordingly.
4. PRICES AND TAXES. Unless otherwise agreed to by the parties, all prices are FOB Seller’s facility.  Prices may be subject to change without notice.  All prices are exclusive of, and Buyer is liable for and shall pay all, taxes, impositions, charges and exactions imposed on or measured by the Agreement, except those imposed on or with respect to Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
5. TERMS OF PAYMENT. Buyer shall pay Seller’s invoices within 45 days from the date of the applicable invoice. Unless otherwise agreed to in writing by the parties, all payments shall be in the legal currency of the United States. Buyer shall not withhold payment of any amounts due and payable by reason of any set off of any claim or dispute with Seller.  Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.  Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.  In addition to all other remedies available under these Terms and Conditions or at law, Seller shall be entitled to suspend the delivery of any Articles if Buyer fails to pay any amounts when due and such failure continues for 10 days following written notice thereof.
6. INSPECTION. All Articles delivered to Buyer shall be deemed accepted unless Buyer notifies Seller within 10 business days of Buyer’s receipt that the Articles do not meet the specifications of the applicable purchase order.  If Buyer timely notifies Seller of any nonconforming Articles, Seller shall, in its sole discretion, (a) replace such nonconforming Articles, or (b) credit or refund the invoice price for such nonconforming Articles.  Buyer shall ship, at its expense and risk of loss, the nonconforming Articles to Seller’s facility located in Bloomington, Minnesota.  If Seller exercises its option to replace the nonconforming Articles, Seller shall, after receiving Buyer’s shipment of nonconforming Articles, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Articles.   Buyer acknowledges and agrees that the remedies set forth in this Section 6 are Buyer’s exclusive remedies for the delivery of nonconforming Articles.  Except as provided in this Section 6, all sales of Articles to Buyer are made on a one-way basis, and Buyer has no right to return Articles purchased under the Agreement to Seller.
7. LIMITED WARRANTY. Seller warrants that for a period of [                    ] [months/years] from the date of shipment of the Articles (the “Warranty Period”), such Articles will (a) conform in all material respects to [all applicable specifications, drawings, descriptions and samples], and (b) be free from material defects in workmanship and material.  EXCEPT FOR THE FOREGOING WARRANTIES, SELLER EXPRESSLY DISCLAIMS AND MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  Seller shall not be liable for a breach of warranty under this Section 7 unless Buyer notifies Seller within 20 days of its discovery of a defect.  Upon Buyer’s timely notice and Seller’s verification that the Articles are defective, Seller shall, in its sole discretion and as Buyer’s sole remedy, either repair or replace the Articles or credit or refund the invoice price of the defective Articles.  Buyer shall ship, at its expense and risk of loss, the defective Articles to Seller’s facility and Seller shall not be liable to Buyer for any removal, transportation, or labor cost or damage.  Seller shall not be liable for a breach of the warranties set forth in this Section 7 if: (a) Buyer makes any further use of such Articles after giving such notice; (b) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Articles; or (c) Buyer alters or repairs such Articles without the prior written consent of Seller.  THE REMEDIES SET FORTH IN THIS SECTION 7 SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDIES AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 7.
8. TERMINATION.  In addition to any remedies that may be provided under these Terms and Conditions, Seller may, by written notice to Buyer, terminate the Agreement, in whole or in part: (a) if Buyer fails to pay any amount when due under the Agreement and such failure continues for 10 days after Buyer’s receipt of written notice of nonpayment; (b) if Buyer has not otherwise performed or complied with the Agreement and fails to cure such breach within 30 days after Buyer’s receipt of written notice of such breach; or (c) if any proceedings in bankruptcy or insolvency, voluntary or involuntary, are commenced by or against Buyer, if any receiver is appointed with or without Buyer’s consent, if Buyer makes any assignment for the benefit of creditors, or if Buyer commits any other act of bankruptcy or becomes insolvent or unable to meet its debts as they mature.
9. CHANGES. Buyer may request in writing changes or additions to the Articles, the time, method or place of delivery or the method of shipment or packaging, subject to Seller’s written consent. If any such change causes an increase or decrease in the cost of performance or in the time required for performance, the parties shall agree to an equitable adjustment of the purchase price and/or delivery schedule, as applicable, and incorporate such changes as a revision to the Agreement.  No other form of notification or oral agreement shall be binding on either party.
10. GENERAL INDEMNIFICATION. Buyer agrees that it shall defend, indemnify and hold Seller 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 Buyer of (i) any of Buyer’s representations and warranties hereunder, (ii) Buyer’s obligations of confidentiality and non-disclosure hereunder, (ii) violation, infringement, or misappropriation of any of Seller’s ownership rights to Proprietary Information (as defined in Section 12 below) and to any work product or deliverables as outlined hereunder, and (b) negligent acts or omissions of Buyer (or parties engaged or utilized by Buyer in connection with the Agreement). 
11. LIMITATION OF LIABILITY.  IN NO EVENT SHALL SELLER BE LIABLE TO BUYER 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 SELLER 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 SELLER’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 THE AGREEMENT.
12. CONFIDENTIAL INFORMATION; OWNERSHIP. Buyer shall not disclose to any third party or use any information whatsoever concerning the Agreement, or Seller’s non-public confidential or proprietary information, including, but not limited to, drawings, specifications, samples and other material intended for use herewith (collectively, “Proprietary Information”), without first obtaining the written consent of Seller. Seller shall retain title at all times to the Proprietary Information, all of which, upon receipt of a request from Seller and in any event upon completion of the Agreement, shall be promptly and fully returned to Seller.   All right, title and interest in and to any specifications, drawings, data, manuals designs, information, ideas, methods, patterns, discoveries or developments which Seller or its employees or agents make, develop, generate, conceive or first reduce to practice during the performance of its obligations under the Agreement, but excluding confidential information of Buyer, will vest in and inure to and be the sole property of Seller.  Following Buyer’s acceptance of and final payment for the Articles, Seller shall grant to Buyer a non-exclusive, non-transferable, non-sublicensable license to use the Proprietary Information solely to the extent necessary to enable Buyer to operate and maintain the Articles pursuant to the terms of the Agreement.  In addition to any and all other rights and remedies available under law, Seller shall be entitled to injunctive relief for any violation of this Section 12.
13. SURVIVAL.  All provisions of the Agreement, which by their nature should apply after delivery of Articles, including but not limited to payment, compliance with laws, confidential information, dispute resolution and governing law, and indemnity, shall survive the completion or termination of the Agreement.
14. COMPLIANCE WITH LAW. Buyer shall comply with all applicable laws, executive orders, regulations, and ordinances. Buyer shall maintain in effect all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Agreement.  Buyer shall comply with all applicable export and import laws of all countries involved in the purchase of the Articles under the Agreement or any resale of the Articles by Buyer.  Buyer assumes all responsibility for shipments of Articles requiring any government import clearance.  
15. ASSIGNMENT AND SUBCONTRACT. Buyer may not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Seller.  Any purported assignment or delegation in violation of this Section 15 is null and void.  No assignment or delegation relieves Buyer of any of its obligations under the Agreement.
16. 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 Agreement 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.
17. MODIFICATION. The Agreement constitutes the entire agreement between Buyer and Seller and supersede all previous communications, representations or agreements between the parties. The Agreement may not be added to, modified, or otherwise altered except by a written instrument executed by Buyer and Seller.
18. RISK OF LOSS. Title and risk of loss pass to Buyer upon Seller’s delivery of the Articles to the carrier.
19. DISPUTE RESOLUTION AND GOVERNING LAW.
    1. ARBITRATION.  The parties will use their best efforts to amicably settle any dispute in connection with the Agreement.  Failing such amicable settlement, and except for the right to injunctive relief as described in paragraph (b) below, all disputes, claims and controversies between the parties arising under or in connection with the Agreement 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 19.  The arbitrator(s) will have the right to award specific performance of the Agreement.  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 Agreement. 
    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 Agreement or to enjoin any violation of the Agreement.
    3. GOVERNING LAW.  The Convention on Contracts for the International Sale of Goods (CISG) will not apply to the Agreement.  The Agreement 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 Agreement, in the state and federal courts in Minnesota.

20. 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 Agreement. 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.
21. INDEPENDENT CONTRACTOR. The relationship between the parties is that of independent contractor.  Nothing contained in the Agreement 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.
22. SEVERABILITY. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of the Agreement will remain in full force and effect. If a court finds that any provision of the Agreement 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.