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MORRIS Material Handling, Inc.
315 W. Forest Hill Avenue
Oak Creek, WI 53154
Ph: (800) 933-3001
MORRIS MATERIAL HANDLING, INC. (“MMH”)
STANDARD TERMS AND CONDITIONS OF SALE |
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1. APPLICABILITY. The sale of any and all MORRIS goods and/or services shall be conditioned upon, and subject to the following terms and conditions which shall form an integral part of any agreement therefor. Buyer’s acceptance of any offer made by MORRIS for the sale of its goods and/or services is expressly made subject to the terms and conditions stated herein. None of the terms and conditions contained herein may be added to, modified, superseded or otherwise altered except as revised in writing by MORRIS and all orders received by MORRIS shall be governed only by the terms and conditions contained herein, notwithstanding any terms and conditions which may be found in any purchase order, release order, or any other form issued by the Buyer. MORRIS hereby objects to said terms and conditions and notifies Buyer that they are rejected.
2. PRICE. The prices identified in the attached quotation shall remain firm for a period of thirty (30) days from the date of the quotation. The price for all goods and/or services released for delivery by Buyer after thirty (30) days from the date of quotation are subject to any increase in price that may occur between thirty-one (31) days following the date of quotation and the date Buyer releases shipment. Quotations provided are priced based on Buyer’s purchase of the entire scope of goods and/or services identified therein. If less than the entire scope of goods and/or services identified in the quotation is ordered by Buyer, prices may vary. MORRIS shall bill Buyer to the extent of services provided, or for the quantity of goods shipped should MORRIS be unable for any reason to provide and/or ship the entire scope of goods and/or services quoted. Prices quoted by MORRIS are exclusive of all taxes (except taxes levied on Morris’ income) including federal, state and local use, sales, property or similar taxes, and Buyer shall pay all such taxes in full or shall reimburse MORRIS for any such taxes paid by MORRIS.
3. SCOPE OF GOODS AND SERVICES. The goods and/or services provided by MORRIS pursuant to the quotation shall, at the express request of Buyer, be limited exclusively to those good and/or services expressly identified therein. As a result, MORRIS does not assume responsibility and/or liability for the failure to provide any other goods and/or services. Modifications, additions or deletions to or from the scope referenced in the quotation shall only be effective if evidenced in a writing signed by MORRIS. The sale of any and all goods and/or services affected by such modification, addition or deletion shall be subject to these same Terms and Conditions of Sale whether or not referenced therein.
4. MINIMUM CHARGE. All goods and/or services supplied by MORRIS are subject to a one-hundred dollar minimum charge. If the total quantity of goods and/or services purchased by Buyer (excluding freight charges) results in a charge of less than one-hundred dollars ($100.00) MORRIS reserves the right to charge Buyer the difference between the price of the goods and/or services purchased and one-hundred dollars ($100.00) as an additional charge for the goods and/or services purchased.
5. PAYMENT TERMS. All MORRIS invoices shall be paid by Buyer within fifteen (15) days of the date of invoice. A late charge equivalent to the lesser of 1-1/2% per month (18% per annum) or the maximum rate allowed by law will be assessed on all unpaid invoices or invoices not paid in accordance herewith. Buyer shall reimburse MORRIS any and all expenses, regardless of their nature or type, related in any way to Morris’ collection of invoices not paid in accordance herewith. These expenses shall include, but are not limited to, any attorney fees incurred by MORRIS in the enforcement of this agreement or any term thereof.
6. CREDIT APPROVAL. All orders are subject to Buyer credit approval by MORRIS. MORRIS reserves the right to refuse shipment of any and all goods and/or services identified in any quotation, to modify the Payment Terms identified therein or in paragraph 5 hereof or to cancel without penalty or charge any contract formed and concerning the goods and/or services identified in its quotation if, in its sole discretion and for any reason whatsoever, MORRIS requests and is unable to secure acceptable payment assurances from Buyer for the goods and/or services identified in the quotation.
7. DELIVERY TERMS AND DELAYS. Unless otherwise identified in the quotation, all shipments within the United States are F.O.B. Morris’ plant or warehouse and title to and all risk of loss with respect to any goods shipped shall pass to Buyer when such goods are delivered to the carrier at such plant or warehouse. Unless otherwise identified in the quotation, all shipments outside the United States are F.C.A. Morris’ plant, warehouse or dock, as defined by Incoterms 2000, and title to and all risk of loss with respect to any goods shipped shall pass to Buyer when such goods are delivered to the carrier at such plant, warehouse or dock.
a. Delivery. All dates of shipment and delivery identified by MORRIS are approximate. MORRIS shall not be liable for delay in or failure to make shipment by any identified date for any reason whatsoever including, but not limited to, causes beyond its reasonable control such as strikes, fires, floods, epidemics, quarantine restrictions, severe weather, freight embargoes, allocation orders issued by or to the account of the government, acts of God, or public enemy, war, riot, delays in transportation or the inability to obtain necessary labor, materials or manufacturing facilities.
b. Freight Charges. Any reference to freight charges contained in the quotation is an estimate. MORRIS is not responsible for any differences that may occur between freight estimates contained in the quotation and actual freight charges applicable at the time of shipment.
c. Packaging. Unless otherwise identified in the quotation, the quoted price for any goods referenced therein does not include the cost for export or special packaging of the goods. Buyer shall assume those extra costs associated with such packaging.
d. Cost of Goods. Unless otherwise stated in the quotation, Buyer shall pay all cost increases MORRIS is assessed for materials incorporated into goods and/or services, including but not limited to steel, copper, and fuel surcharges, to the extent such increases exceed those estimated costs used by MORRIS to develop the quotation by ten-percent (10%) and which occurs subsequent to the issuance of the quotation, but prior to the delivery of the goods and/or services.
e. Site Condition. Buyer warrants that the installation site shall be ready and adequate for Morris’ delivery of the goods and/or services (including adequate power to the crane, free and clear access, aligned runway beams, etc.) and all obstructions shall be removed prior to delivery. Buyer shall assume all extra costs associated with Morris’ inability to install any goods due to Buyer’s failure to comply with this provision. MORRIS in no way warrants the sufficiency of the site for the goods and/or services referenced in the quotation.
8. WARRANTIES.
a. Products manufactured by MORRIS and/or its affiliates (“MORRIS Products”). MORRIS warrants that all MORRIS Products conform in all material respects to the description of Products identified in the quotation to Buyer and will be free from defects in material and workmanship for one (1) year from date of shipment to Buyer. Repair and replacements do not extend the original warranty provided with the product at the time of sale as stated in the MORRIS Standard Product Warranty revision in effect on the date of sale a copy of which is attached to this quotation and incorporated by reference as if fully rewritten herein or otherwise available upon request of Buyer.
b. Services. MORRIS warrants that all services will conform in all material respects to the description of services identified in the quotation and will be performed in a good, workmanlike manner.
c. Products manufactured by manufacturers other than MORRIS and/or its affiliates (“Competitor Products”). Competitor Products supplied by MORRIS to Buyer are not warranted by MORRIS. Competitor Products may be warranted separately by their respective manufacturers and MORRIS shall, to the extent possible, assign to Buyer whatever rights to Buyer MORRIS may obtain under any such warranties.
WARRANTY OF DEFECTIVE OR INCORRECT PARTS IS LIMITED TO THE REPLACEMENT OF THOSE PARTS. MORRIS DOES NOT ACCEPT ANY LABOR COSTS UNDER ANY CIRCUMSTANCES.
THE FOREGOING REPRESENTS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY MORRIS TO BUYER WITH RESPECT TO THE GOODS AND/OR SERVICES PROVIDED UNDER THE QUOTATION AND IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. WARRANTY REMEDIES. Buyer's sole and exclusive remedy for Morris’ breach of the foregoing warranties during the warranty period shall be, at Morris’ sole discretion, Morris’ repair and/or replacement of the defective or nonconforming service and/or repair and/or replacement of any defective product or component part thereof provided that MORRIS is given notice within seventy-two (72) hours of any claimed nonconformance or defect and the defective part or component part thereof, if applicable, is made available for inspection or, at the request of MORRIS and at its expense, delivered to MORRIS. In the event that any warranty claim involving defective products or component part thereof arises after MORRIS stops exclusively performing crane inspection and/or maintenance services for Buyer, MORRIS shall not be liable for the cost, including labor costs, of dismantling and installing replacement parts or for any other expense connected therewith.
BUYER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS OR LIMITATIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. BUYER SHALL BE ENTITLED TO NO OTHER REMEDY REGARDLESS OF THE FORM OF CLAIM OR CAUSE OF ACTION, WHETHER BASED IN AGREEMENT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
10. LIMITATION OF DAMAGES. MORRIS SHALL HAVE NO LIABILITY TO BUYER WITH RESPECT TO THE SALE OF PRODUCTS OR PROVISION OF SERVICES UNDER THE QUOTATION FOR LOST PROFITS OR FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND WHETHER ARISING IN CONTRACT, TORT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF MORRIS WAS ADVISED OF THE POSSIBILITY OF SUCH LOST PROFITS OR DAMAGES. MORRIS’ DIRECT DAMAGES ARE LIMITED TO THE CONTRACT PRICE. IN NO EVENT SHALL MORRIS BE LIABLE TO BUYER FOR ANY DAMAGES WHATSOEVER IN EXCESS OF THE TOTAL PRICE PAID BY BUYER FOR GOODS AND/OR SERVICES REFERENCED IN THE QUOTATION.
11. DISCLAIMER (Inspection Services). Notwithstanding any representation made by any party to the contrary in any other verbal or written communication, the performance of any crane (or component) inspection under the quotation by MORRIS and the preparation of the report derived therefrom are conditioned upon and evidence of Buyer’s acknowledgment and acceptance of these additional terms, conditions and disclaimers:
a. At the request of Buyer, the scope of any crane (or component) inspection performed by MORRIS is limited exclusively to a search for readily observable defects apparent on the crane and on those crane component parts identified in the inspection scope accompanying this quotation that are safely and conveniently accessible to the inspecting technician. MORRIS shall not dismantle the crane or the crane components to be inspected, nor shall it use any ultrasonic or other technical means to inspect and detect latent or non-observable defective conditions in the crane or its components. Notwithstanding the performance of this inspection and regardless of any representation made in any report to the contrary, including the inspection report prepared by MORRIS, latent or non-observable defects may exist or may form on the subject crane or its components on, or following the date of inspection and the Buyer is hereby notified of the potential existence thereof. The use of a crane possessing any defect, including latent or non-observable defects, may result in catastrophic crane failure potentially causing damage to property or injury or death to persons in, on or around the subject crane.
b. The conditions identified during the crane (or component) inspection and reported by MORRIS in the report derived therefrom are representative of the conditions of the subject crane and its components as they appeared during the inspection. These conditions can and will change immediately following operation of the subject crane (and its components) after which MORRIS shall not be liable for the accuracy or completeness of the inspection or the information contained in the report derived therefrom.
c. The decision concerning whether or not to repair, or replace the crane or any deficient component of the subject crane lies exclusively with the Buyer. By completing the inspection and preparing the inspection report MORRIS expressly recommends that Buyer authorize the repair and/or replacement of the crane or any component identified during the inspection or listed in the report derived therefrom as deficient in any manner or degree prior to operating the subject crane. MORRIS hereby notifies Buyer that failure to do so may result in catastrophic crane failure causing damage to property or injury or death to persons in, on or around the subject crane.
12. NON-SOLICITATION. Buyer agrees that during Morris’ performance of the work referenced in the quotation and for a period of one (1) year thereafter Buyer shall not directly or indirectly solicit, entice, approach, offer employment to, or employ in any capacity any employee of MORRIS associated in any way with Morris’ performance of the work referenced in said quotation. For purposes of this paragraph the term “employee” means any individual actively employed by MORRIS at the time the quotation is accepted and associated in any way with Morris’ performance of the work referenced therein. The terms of this paragraph shall be binding on the Buyer, its parents, subsidiaries, affiliates, successors and assigns.
13. CONFIDENTIALITY. Without limitation, Buyer shall not, at any time disclose to any other person or entity any information relating to the business of MORRIS, including without limitation, plans and specifications and any other inventions, devices, formulas, processes, programs, software, listings, print-outs, documentation, notes, charts, manuals, programming aids, source codes, object codes, compilations, technology, know-how, price lists, costs, policies, techniques, trade practices, accounting methods, methods of operation or other data that MORRIS considers confidential, and trade secrets of every kind relating to Morris’ business, whether or not patentable or copyrightable. Such information shall remain the exclusive property of MORRIS and shall be returned to MORRIS upon request at any time.
14. INDEMNIFICATION. MORRIS SHALL NOT BE LIABLE FOR AND BUYER SHALL RELEASE, INDEMNIFY AND HOLD MORRIS, OR ANY ENTITY AFFILIATED IN ANY WAY THEREWITH, HARMLESS FROM ANY CLAIMS, DEMANDS, DAMAGES REGARDLESS OF THEIR TYPE INCLUDING, BUT NOT LIMITED TO, DIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL, ACCOUNTS, GRIEVANCES, LOSSES AND EXPENSES, WHETHER KNOWN OR UNKNOWN, PRESENT OR FUTURE, ANY AND ALL LIABILITY, OF AND FROM ANY AND ALL MANNER OF ACTIONS, CAUSE[S] OF ACTIONS, ALL SUITS IN LAW, IN EQUITY, OR UNDER STATUTE, STATE OR FEDERAL, OF WHATEVER KIND OR NATURE, THIRD PARTY ACTIONS, INCLUDING SUITS FOR CONTRIBUTION AND/OR INDEMNITY ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF ACTS OR OMISSIONS OF THE BUYER, ITS AGENTS OR EMPLOYEES AND RELATING IN ANY WAY TO THE GOODS AND/OR SERVICES PROVIDED UNDER THE QUOTATION OR THE EQUIPMENT RELATED THERETO, INCLUDING, BUT NOT LIMITED TO BUYER’S USE, INSTALLATION, INCORPORATION OR SELECTION THEREOF AND CAUSES (FOR INSPECTION SERVICES): (I) OUTSIDE THE SCOPE OF THE INSPECTION AS IDENTIFIED IN PARAGRAPH 9.B. HEREOF, (II) ANY CONDITION THAT OCCURS FOLLOWING THE CRANE'S USE AFTER AN INSPECTION AS IDENTIFIED IN PARAGRAPH 9.C. HEREOF, (III) FAILURE OF BUYER TO REPAIR OR REPLACE ANY DEFECTIVE CRANE OR COMPONENT AS IDENTIFIED IN PARAGRAPH 9,D HEREOF OR ANY OTHER CAUSE IDENTIFIED HEREIN OR THAT MAY BE REASONABLY INFERRED HEREFROM EXCEPT TO THE EXTENT CAUSED BY THE SOLE NEGLIGENCE OF MORRIS.
14. SURVIVAL. Each of the paragraphs hereof intended for the benefit of MORRIS shall survive expiration or termination of the services or delivery of the goods outlined in the quotation.
15. ENTIRE AGREEMENT. These Standard Terms and Conditions of Sale, the quotation together with the MORRIS Standard Warranty in effect on the date of sale represent the entire agreement between MORRIS and Buyer. THESE TERMS AND CONDITIONS AND THE PRICES SET OUT IN THE QUOTATION SPECIFICALLY RECOGNIZE THE ALLOCATION OF THE RISKS OF PERFORMANCE OF THE PARTIES AS WELL AS THE LIMITATION OF LIABILITY AND DAMAGES AND THE RECOVERY OF COLLECTION COSTS, AND THE PARTIES EXPRESSLY AGREE THAT THESE LIMITATIONS ON REMEDIES, RESPONSIBILITY FOR COLLECTION COSTS, AND OBLIGATIONS TO INDEMNIFY ARE ESSENTIAL PARTS OF THE AGREEMENT BETWEEN THEM AND ARE SPECIFICALLY BARGAINED FOR. Any purchase order or other document issued by Buyer shall be deemed to (I) be solely for the record keeping convenience of the Buyer and (ii) confirm these terms and condition and not add to, delete from, or otherwise change or modify these terms and conditions or those contained in the quotation.
16. SEVERABILITY. The partial or complete invalidity of any one or more provisions hereof shall not affect the validity or continuing force and effect of any other provision. If any portion of this Agreement shall be determined to be invalid or unenforceable, that portion shall automatically be modified to the extent necessary to make it valid. Notwithstanding the foregoing, such original determination of invalidity or unenforceability shall not affect any other portion of this Agreement and such other portions shall remain in full force and effect.
17. GOVERNING LAW; JURISDICTION. Any controversy arising out of or related to these Terms and Conditions of Sale, the quotation, the provision or goods and/or services thereunder, or any contract between MORRIS and the Buyer shall be construed and governed by the laws of the State of Ohio, including Article 2 of the Uniform Commercial Code as codified in Ohio Revised Code Chapter 1302, notwithstanding conflicts of law principles. Any action arising from or related to these Terms and Conditions of Sale, the quotation, the provision or goods and/or services thereunder, or any contract between MORRIS and the Buyer shall be instituted and litigated in any state court located in Clark County, Ohio, or in any federal court with jurisdiction over Clark County, Ohio. MORRIS and the Buyer hereby irrevocably consent to the jurisdiction of the courts of Clark County, Ohio.
18. NUCLEAR LIABILITY. In the event that the work, goods and or services provided by MORRIS and/or otherwise identified herein or in the quotation are provided, used, or otherwise employed in, on or around a facility generating and/or otherwise employing in any manner nuclear, radioactive or ionizing radiation whether as a fuel, product or any other substance, the Terms and Conditions of the MORRIS Nuclear Liability Addendum (Revision 010107) a copy of which is attached hereto or otherwise available upon request of Buyer and shall be incorporated as if fully rewritten herein. |
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