MORRELL INSTRUMENTS INC.
QUOTATION TERMS AND CONDITIONS
1. Any purchase orders issued by buyer (“Buyer”) pursuant to this quotation, including without limitation, these terms and conditions (collectively “Quotation”) must be in writing. All orders received by Morrell Instruments Inc. (“Morrell Instruments”) for products under this quotation (“Products”) shall be subject to Morrell Instruments' approval and acceptance, and Morrell Instruments reserves the right to reject any purchase order in whole or in part. No purchase order shall be deemed accepted by Morrell Instruments unless acknowledged by Morrell Instruments in writing by an authorized representative of Morrell Instruments at its Melville, NY headquarters. Morrell Instruments reserves the right without prior notice to discontinue the sale of any Products, to change any Products and Product specifications, to allocate any Products, and to cancel any accepted purchase order to the extent of any back-order Products. All sales of Products under this Quotation shall be subject to the terms and conditions contained in this quotation, and any purchase order or other business form which contains terms or conditions which are in addition to, in conflict with, or inconsistent with, the terms and conditions contained in this Quotation are hereby rejected and such terms and conditions are of no force and effect.
2. Buyer’s credit terms shall be established in each instance with Morrell Instruments and Morrell Instruments reserves the right to refuse to ship any orders accepted by it if at any time, in Morrell Instruments’ opinion, Buyer's credit standing becomes impaired or unsatisfactory to Morrell Instruments. Standard payment terms are net thirty (30) days after the invoice date. Any payments made to Morrell Instruments for Products after the due date shall be deemed past due and, where not prohibited by local regulations, interest may be charged to Buyer on the past due amount at the lower of a rate of one (1%) percent per month or the maximum rate allowed by law until paid in full.
3. All price quotations for Products provided hereunder are valid for thirty (30) days from date of Quotation unless otherwise stated in this Quotation. Except as stated above in this Section 3, Morrell Instruments reserves the right without prior notice to change prices, charges, and the terms and conditions of purchase of all Products. Any tax or other charges imposed by federal, state, or other government authority on the Products referred to in this Quotation shall be paid by Buyer in addition to the quoted price.
4. Cancellation of the purchase order by Buyer can only be made with Morrell Instruments’ written consent. Cancelled orders may be subject to a 15% restocking fee. The restocking fee for orders in transit is 30%. Cancellations of special orders, custom orders, or specific equipment requiring special factory orders will not be accepted at any time.
5. A. All shipments are F.O.B. Morrell Instruments’ U.S.A. facility from which Products are shipped. Freight charges are for the account of Buyer and will be added to the invoice unless otherwise stipulated by Morrell Instruments. TITLE AND RISK OF LOSS TO PRODUCTS TRANSFER TO BUYER UPON DELIVERY TO THE CARRIER. Dates of delivery are determined from the date of Morrell Instruments’ acceptance of any purchase order or purchase orders by Buyer and are estimates of approximate dates of delivery, not a guaranty of a particular date of delivery. Morrell Instruments shall not be liable for failure or delay in shipping products under this Quotation for any reason whatsoever. All claims for damage, carton shortage, pilferage, or non-delivery must be made by Buyer to the delivering carrier as Morrell Instruments is not responsible for such claims. Upon request of the Buyer, Morrell Instruments will cooperate in presenting the claim to the carrier providing Morrell Instruments is notified (i) in the case of damage, carton shortage, or pilferage, within three (5) working days after receipt of shipment and the proper claim exception has been noted on the delivery receipt; (ii) in the case of damage or pilferage not readily apparent at the time of delivery, within ten (10) days after receipt of shipment and shipment is left intact until examination is made by carrier; and (iii) in the case of non-delivery, in writing within ten (10) days from date of invoice.
B. Morrell Instruments may ship in installments and shall render a separate invoice for each installment, and Buyer shall pay each such invoice when due, without regard to subsequent shipments. Each installment shall be deemed a separate sale. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept delivery of remaining installments.
6. Buyer shall promptly inspect all products and notify Morrell Instruments in writing of any claims for damages within twenty (20) days of receipt of Product. In the absence of such notification, Products will be deemed accepted upon installation or confirmed delivery if no installation is to be provided, and a waiver by Buyer of any and all such claims.
7. All Products are sold without return privileges. If Morrell Instruments consents to return of Products, Morrell Instruments’ return procedure must be followed.
8. Buyer will be supplied with environmental specifications for certain Products, such as specifications for power, water, and HVAC. It is the Buyer’s responsibility to ensure that the location intended for such Product meet these specifications prior to delivery of the Product. Failure on the part of the Buyer to fully prepare the intended location to meet such specifications shall not be deemed reason for non-payment of any invoice.
9. Morrell Instruments will defend, indemnify, and hold Buyer harmless from any costs or damages as a result of any third party action or claim brought against Buyer in any court of competent jurisdiction based on an allegation that a Product furnished by Morrell Instruments hereunder constitutes an infringement of a United States patent or copyright of a third party, provided Morrell Instruments is notified promptly in writing of such action or claim, shall have sole control of the defense or settlement of any such action or claim, and shall receive the full cooperation of Buyer in its defense or settlement of any such action or claim. This indemnification shall apply only to actual costs and damages awarded against Buyer and incorporated in a judgment by a court of last resort finding that such Product constitutes an infringement. In no event shall Morrell Instruments be responsible for any special, indirect, incidental, or consequential damages of any kind whatsoever incurred by Buyer or for any costs or settlements incurred without Morrell Instruments’ prior written consent. In the event a final injunction shall be obtained against Buyer’s use of a Product by reason of such infringement or in the event, in Morrell Instruments’ opinion, a Product is likely to become the subject of an action or claim of such infringement, Morrell Instruments will, at its option, (i) procure for Buyer the right to continue using the Product, (ii) replace or modify the Product so that it becomes noninfringing, or (iii) give Buyer a credit for the Product at an amount based on a depreciated straight line basis over the lifetime of the Product as shall be determined by Morrell Instruments. In no event shall Morrell Instruments have any other liability to Buyer as the foregoing states Morrell Instruments’ entire liability for any patent or copyright infringement action or claim. THIS INDEMNIFICATION SHALL NOT APPLY TO ANY PRODUCT THAT IS MODIFIED OR ALTERED IN ANY MANNER WHATSOEVER BY ANY PARTY OTHER THAN MORRELL INSTRUMENTS.
10. OTHER THAN THE WARRANTIES SET FORTH IN THE WARRANTY CARD THAT ACCOMPANIES THE PRODUCT, THE “CLICK WRAP” OR “SHRINK WRAP” END USER LICENSE AGREEMENT THAT GOVERNS THE USE OF SOFTWARE PRODUCT, OR THIS QUOTATION, IF ANY, AS THE CASE MAY BE, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGMENT, NOR ANY OBLIGATION OR LIABILITY FOR CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE OR INCIDENTAL DAMAGES ON THE PART OF MORRELL INSTRUMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS QUOTATION, MORRELL INSTRUMENTS’ LIABILITY ON ANY CLAIM OF ANY KIND ARISING FROM OR RELATING DIRECTLY OR INDIRECTLY TO THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR OR USE OF ANY PRODUCTS FURNISHED BY MORRELL INSTRUMENTS SHALL IN NO CASE EXCEED THE PRICE APPLICABLE TO THE PRODUCT OR PART THEREOF WHICH GIVES RISE TO THE CLAIM. IN NO EVENT SHALL MORRELL INSTRUMENTS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
11. This Quotation is personal to Buyer, and Buyer cannot assign or transfer, in whole or in part, its rights or obligations under this quotation nor can Buyer appoint any other person or entity to act for or instead of it.
12. The failure to enforce at any time any of the provisions of this Quotation shall in no way be construed to be a waiver of such provisions, nor in any way affect the validity of this Quotation or the right thereafter to enforce one or more of the provisions thereof.
13. This Quotation constitutes the entire agreement between Morrell Instruments and Buyer superseding all prior agreements, if any, in connection with the sale of Products listed in this Quotation. Neither this Quotation nor any provisions hereof may be modified, waived, amended, or discharged except by an instrument in writing signed by both Morrell Instruments and Buyer.
14. If at the time of purchase of Products there is a contract in place between Morrell Instruments Inc. and any organization under whose auspices the Buyer is legally eligible to purchase Products, Buyer’s purchase order is placed under said contract, then, the terms in the contract shall take precedence over this Quotation. In such case however, this Quotation shall continue to take precedence over and supersede any additional or conflicting terms and conditions set forth in the Buyer’s purchase order or in any other communication from the Buyer and not included in said contract.
15. THIS QUOTATION IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS QUOTATION, THE BREACH OR TERMINATION THEREOF, THE RELATIONSHIP OF THE PARTIES AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES SHALL BE FINALLY DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ARBITRATION SHALL BE CONDUCTED IN NEW YORK CITY UNLESS THE PARTIES AGREE IN WRITING OTHERWISE. ANY AWARD, ORDER OR JUDGMENT RENDERED PURSUANT TO SUCH ARBITRATION SHALL BE FINAL, SHALL INCLUDE THE REASONABLE ATTORNEYS' FEES OF THE PREVAILING PARTY, SHALL NOT INCLUDE PUNITIVE DAMAGES AND MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. EACH PARTY AGREES TO SUBMIT TO THE JURISDICTION OF ANY COURT SITTING IN NEW YORK STATE FOR PURPOSES OF THE ENFORCEMENT OF ANY SUCH AWARD, ORDER OR JUDGMENT.
16. Notices given pursuant to this Quotation shall be in writing and shall be deemed given when the same are mailed postage prepaid by registered or certified mail, return receipt requested, or shipped by a nationally recognized overnight courier with tracking capability, shipping prepaid, in the case of Buyer, to Buyer at the address set forth on the face of the Quotation and in the case of Morrell Instruments, to Morrell Instruments Inc., Attention Order Fulfillment Manager, 502 Walt Whitman Rd, Melville, NY 11747; or such other addresses as may be designated in writing by either party and sent in accordance with this Paragraph.
17. If any of the provisions of this Quotation shall be determined to be invalid for any reason, the remaining provisions shall not thereby be invalidated and such remaining provisions shall to the extent practicable remain in full force and effect.
18. BUYER SHALL NOT, DIRECTLY OR INDIRECTLY, TRANSMIT, DELIVER, SEND OR EXPORT ANY PRODUCT TO ANY FOREIGN COUNTRY (i) IN VIOLATION OF ANY OF THE UNITED STATES EXPORT CONTROL LAWS OR REGULATIONS, AND (ii) WITHOUT FIRST OBTAINING THE EXPRESS WRITTEN CONSENT OF MORRELL INSTRUMENTS.
QUOTATION TERMS AND CONDITIONS
1. Any purchase orders issued by buyer (“Buyer”) pursuant to this quotation, including without limitation, these terms and conditions (collectively “Quotation”) must be in writing. All orders received by Morrell Instruments Inc. (“Morrell Instruments”) for products under this quotation (“Products”) shall be subject to Morrell Instruments' approval and acceptance, and Morrell Instruments reserves the right to reject any purchase order in whole or in part. No purchase order shall be deemed accepted by Morrell Instruments unless acknowledged by Morrell Instruments in writing by an authorized representative of Morrell Instruments at its Melville, NY headquarters. Morrell Instruments reserves the right without prior notice to discontinue the sale of any Products, to change any Products and Product specifications, to allocate any Products, and to cancel any accepted purchase order to the extent of any back-order Products. All sales of Products under this Quotation shall be subject to the terms and conditions contained in this quotation, and any purchase order or other business form which contains terms or conditions which are in addition to, in conflict with, or inconsistent with, the terms and conditions contained in this Quotation are hereby rejected and such terms and conditions are of no force and effect.
2. Buyer’s credit terms shall be established in each instance with Morrell Instruments and Morrell Instruments reserves the right to refuse to ship any orders accepted by it if at any time, in Morrell Instruments’ opinion, Buyer's credit standing becomes impaired or unsatisfactory to Morrell Instruments. Standard payment terms are net thirty (30) days after the invoice date. Any payments made to Morrell Instruments for Products after the due date shall be deemed past due and, where not prohibited by local regulations, interest may be charged to Buyer on the past due amount at the lower of a rate of one (1%) percent per month or the maximum rate allowed by law until paid in full.
3. All price quotations for Products provided hereunder are valid for thirty (30) days from date of Quotation unless otherwise stated in this Quotation. Except as stated above in this Section 3, Morrell Instruments reserves the right without prior notice to change prices, charges, and the terms and conditions of purchase of all Products. Any tax or other charges imposed by federal, state, or other government authority on the Products referred to in this Quotation shall be paid by Buyer in addition to the quoted price.
4. Cancellation of the purchase order by Buyer can only be made with Morrell Instruments’ written consent. Cancelled orders may be subject to a 15% restocking fee. The restocking fee for orders in transit is 30%. Cancellations of special orders, custom orders, or specific equipment requiring special factory orders will not be accepted at any time.
5. A. All shipments are F.O.B. Morrell Instruments’ U.S.A. facility from which Products are shipped. Freight charges are for the account of Buyer and will be added to the invoice unless otherwise stipulated by Morrell Instruments. TITLE AND RISK OF LOSS TO PRODUCTS TRANSFER TO BUYER UPON DELIVERY TO THE CARRIER. Dates of delivery are determined from the date of Morrell Instruments’ acceptance of any purchase order or purchase orders by Buyer and are estimates of approximate dates of delivery, not a guaranty of a particular date of delivery. Morrell Instruments shall not be liable for failure or delay in shipping products under this Quotation for any reason whatsoever. All claims for damage, carton shortage, pilferage, or non-delivery must be made by Buyer to the delivering carrier as Morrell Instruments is not responsible for such claims. Upon request of the Buyer, Morrell Instruments will cooperate in presenting the claim to the carrier providing Morrell Instruments is notified (i) in the case of damage, carton shortage, or pilferage, within three (5) working days after receipt of shipment and the proper claim exception has been noted on the delivery receipt; (ii) in the case of damage or pilferage not readily apparent at the time of delivery, within ten (10) days after receipt of shipment and shipment is left intact until examination is made by carrier; and (iii) in the case of non-delivery, in writing within ten (10) days from date of invoice.
B. Morrell Instruments may ship in installments and shall render a separate invoice for each installment, and Buyer shall pay each such invoice when due, without regard to subsequent shipments. Each installment shall be deemed a separate sale. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept delivery of remaining installments.
6. Buyer shall promptly inspect all products and notify Morrell Instruments in writing of any claims for damages within twenty (20) days of receipt of Product. In the absence of such notification, Products will be deemed accepted upon installation or confirmed delivery if no installation is to be provided, and a waiver by Buyer of any and all such claims.
7. All Products are sold without return privileges. If Morrell Instruments consents to return of Products, Morrell Instruments’ return procedure must be followed.
8. Buyer will be supplied with environmental specifications for certain Products, such as specifications for power, water, and HVAC. It is the Buyer’s responsibility to ensure that the location intended for such Product meet these specifications prior to delivery of the Product. Failure on the part of the Buyer to fully prepare the intended location to meet such specifications shall not be deemed reason for non-payment of any invoice.
9. Morrell Instruments will defend, indemnify, and hold Buyer harmless from any costs or damages as a result of any third party action or claim brought against Buyer in any court of competent jurisdiction based on an allegation that a Product furnished by Morrell Instruments hereunder constitutes an infringement of a United States patent or copyright of a third party, provided Morrell Instruments is notified promptly in writing of such action or claim, shall have sole control of the defense or settlement of any such action or claim, and shall receive the full cooperation of Buyer in its defense or settlement of any such action or claim. This indemnification shall apply only to actual costs and damages awarded against Buyer and incorporated in a judgment by a court of last resort finding that such Product constitutes an infringement. In no event shall Morrell Instruments be responsible for any special, indirect, incidental, or consequential damages of any kind whatsoever incurred by Buyer or for any costs or settlements incurred without Morrell Instruments’ prior written consent. In the event a final injunction shall be obtained against Buyer’s use of a Product by reason of such infringement or in the event, in Morrell Instruments’ opinion, a Product is likely to become the subject of an action or claim of such infringement, Morrell Instruments will, at its option, (i) procure for Buyer the right to continue using the Product, (ii) replace or modify the Product so that it becomes noninfringing, or (iii) give Buyer a credit for the Product at an amount based on a depreciated straight line basis over the lifetime of the Product as shall be determined by Morrell Instruments. In no event shall Morrell Instruments have any other liability to Buyer as the foregoing states Morrell Instruments’ entire liability for any patent or copyright infringement action or claim. THIS INDEMNIFICATION SHALL NOT APPLY TO ANY PRODUCT THAT IS MODIFIED OR ALTERED IN ANY MANNER WHATSOEVER BY ANY PARTY OTHER THAN MORRELL INSTRUMENTS.
10. OTHER THAN THE WARRANTIES SET FORTH IN THE WARRANTY CARD THAT ACCOMPANIES THE PRODUCT, THE “CLICK WRAP” OR “SHRINK WRAP” END USER LICENSE AGREEMENT THAT GOVERNS THE USE OF SOFTWARE PRODUCT, OR THIS QUOTATION, IF ANY, AS THE CASE MAY BE, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGMENT, NOR ANY OBLIGATION OR LIABILITY FOR CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE OR INCIDENTAL DAMAGES ON THE PART OF MORRELL INSTRUMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS QUOTATION, MORRELL INSTRUMENTS’ LIABILITY ON ANY CLAIM OF ANY KIND ARISING FROM OR RELATING DIRECTLY OR INDIRECTLY TO THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR OR USE OF ANY PRODUCTS FURNISHED BY MORRELL INSTRUMENTS SHALL IN NO CASE EXCEED THE PRICE APPLICABLE TO THE PRODUCT OR PART THEREOF WHICH GIVES RISE TO THE CLAIM. IN NO EVENT SHALL MORRELL INSTRUMENTS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
11. This Quotation is personal to Buyer, and Buyer cannot assign or transfer, in whole or in part, its rights or obligations under this quotation nor can Buyer appoint any other person or entity to act for or instead of it.
12. The failure to enforce at any time any of the provisions of this Quotation shall in no way be construed to be a waiver of such provisions, nor in any way affect the validity of this Quotation or the right thereafter to enforce one or more of the provisions thereof.
13. This Quotation constitutes the entire agreement between Morrell Instruments and Buyer superseding all prior agreements, if any, in connection with the sale of Products listed in this Quotation. Neither this Quotation nor any provisions hereof may be modified, waived, amended, or discharged except by an instrument in writing signed by both Morrell Instruments and Buyer.
14. If at the time of purchase of Products there is a contract in place between Morrell Instruments Inc. and any organization under whose auspices the Buyer is legally eligible to purchase Products, Buyer’s purchase order is placed under said contract, then, the terms in the contract shall take precedence over this Quotation. In such case however, this Quotation shall continue to take precedence over and supersede any additional or conflicting terms and conditions set forth in the Buyer’s purchase order or in any other communication from the Buyer and not included in said contract.
15. THIS QUOTATION IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS QUOTATION, THE BREACH OR TERMINATION THEREOF, THE RELATIONSHIP OF THE PARTIES AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES SHALL BE FINALLY DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ARBITRATION SHALL BE CONDUCTED IN NEW YORK CITY UNLESS THE PARTIES AGREE IN WRITING OTHERWISE. ANY AWARD, ORDER OR JUDGMENT RENDERED PURSUANT TO SUCH ARBITRATION SHALL BE FINAL, SHALL INCLUDE THE REASONABLE ATTORNEYS' FEES OF THE PREVAILING PARTY, SHALL NOT INCLUDE PUNITIVE DAMAGES AND MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. EACH PARTY AGREES TO SUBMIT TO THE JURISDICTION OF ANY COURT SITTING IN NEW YORK STATE FOR PURPOSES OF THE ENFORCEMENT OF ANY SUCH AWARD, ORDER OR JUDGMENT.
16. Notices given pursuant to this Quotation shall be in writing and shall be deemed given when the same are mailed postage prepaid by registered or certified mail, return receipt requested, or shipped by a nationally recognized overnight courier with tracking capability, shipping prepaid, in the case of Buyer, to Buyer at the address set forth on the face of the Quotation and in the case of Morrell Instruments, to Morrell Instruments Inc., Attention Order Fulfillment Manager, 502 Walt Whitman Rd, Melville, NY 11747; or such other addresses as may be designated in writing by either party and sent in accordance with this Paragraph.
17. If any of the provisions of this Quotation shall be determined to be invalid for any reason, the remaining provisions shall not thereby be invalidated and such remaining provisions shall to the extent practicable remain in full force and effect.
18. BUYER SHALL NOT, DIRECTLY OR INDIRECTLY, TRANSMIT, DELIVER, SEND OR EXPORT ANY PRODUCT TO ANY FOREIGN COUNTRY (i) IN VIOLATION OF ANY OF THE UNITED STATES EXPORT CONTROL LAWS OR REGULATIONS, AND (ii) WITHOUT FIRST OBTAINING THE EXPRESS WRITTEN CONSENT OF MORRELL INSTRUMENTS.