Terms and Conditions of Sale
Miller Felpax Corporation, dba: Miller Ingenuity
1155 East 8th Street, P.O. Box 558, Winona, MN 55987
PURCHASE TERMS AND CONDITIONS
ACCEPTANCE OF THIS DOCUMENT. BUYER’S ORDER IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS (“TERMS”) CONTAINED IN THIS DOCUMENT. ANY TERM OR CONDITION STATED BY BUYER IN ANY PRIOR PROPOSAL, ON BUYER’S ORDER FORM, OR IN OTHERWISE ACKNOWLEDGING OR PLACING THIS ORDER IS DEEMED BY SELLER TO BE A MATERIAL ALTERATION OF THIS DOCUMENT AND IS HEREBY REJECTED BY SELLER, AND SUCH TERM OR CONDITION SHALL BE TOTALLY INAPPLICABLE TO BUYER’S ORDER UNLESS SPECIFICALLY AGREED TO IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. 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.
1. Price and Payment Terms. The price of goods will be as specified on the order accepted by Seller, and is on an as-delivered basis. Payment in full must be received by Seller without setoff not later than thirty (30) days from the date of invoice, unless specified otherwise on the order accepted by Seller. Buyer will reimburse Seller for all costs and expenses, including reasonable attorneys’ fees, incurred in the collection of amounts past due. In the event of Buyer’s bankruptcy or insolvency, or any proceeding brought by or against Buyer under bankruptcy or insolvency laws, Seller may cancel any order (or portion of any order) then outstanding and Buyer will reimburse Seller for its cancellation charges. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall also be entitled to suspend the delivery of any order (or portion of any order) then outstanding if the payment by Buyer of any invoices becomes more than twenty (20) days past due, or the credit limit extended by Seller to Buyer is exceeded.
2. Taxes, Re-Export. Any federal, state or other governmental tax, fee or charge on or with respect to the sale, purchase, delivery or use of the goods and/or services sold hereunder will be paid by Buyer in addition to the purchase price. In the event Seller is required to pay any such tax, fee, or charge, Buyer will promptly reimburse Seller. Certain goods are subject to international export control regulations. Buyer will be responsible for compliance with such regulations in connection with the export of goods to end users.
3. Delivery, Shipment, and Risk of Loss. The delivery periods will commence when Seller has accepted a completed purchase order and/or applicable documents required to effect shipment. All scheduled or quoted delivery dates are approximate and Seller will not be liable for failure to deliver goods by the scheduled delivery date. Goods will be packaged in accordance with Seller’s standard procedures, except as otherwise provided on the order accepted by Seller. The method of shipment will be at Buyer’s election, as specified by Buyer on the order accepted by Seller, and any additional expense of the method or route of shipment requested by Buyer will be borne by Buyer. All goods furnished hereunder will be shipped F.O.B. point of shipment (the “Delivery Point”), and possession and risk of loss in such goods will pass to Buyer upon Seller’s delivery to the carrier at the Delivery Point. When the risk of loss has passed to Buyer, Buyer must obtain remedy for freight losses, shortages or damages from the carrier, and/or applicable insurers, and Seller is not responsible for any such freight losses, shortages or damages. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the goods at the Delivery Point. If, for any reason other than Buyer’s exercise of its inspection rights in accordance with these Terms, Buyer fails to accept delivery of any of the goods within ten (10) days after the date that the goods have been delivered at the Delivery Point, or if Seller is unable to deliver the goods at the Delivery Point within ten (10) days after Buyer’s order is placed because Buyer has not provided appropriate instructions, documents, licenses or authorizations, then Seller may cancel the orders for such goods (or any portion of the orders) and impose reasonable cancellation and restocking charges, and for those orders that Seller does not cancel: (a) risk of loss to the goods shall pass to Buyer, (b) the goods shall be deemed to have been delivered, and (c) Seller, at its option, may store the goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4. Inspection, and Acceptance. Buyer must inspect goods delivered or warranty repairs performed within fifteen (15) days from the date of receipt of the goods or completion of the warranty repairs, as the case may be, and within such period of time must send Seller a written notice fully specifying any respects in which said goods or repairs are nonconforming. Failure to send said written notice will constitute a waiver of Buyer’s claims for all nonconformities that an inspection, whether or not in fact carried out, should have discovered. Buyer is deemed to have accepted goods delivered hereunder on the Terms set forth herein unless within fifteen (15) days of the date of receipt of said goods Buyer sends Seller a written notice of rejection which provides detailed grounds for rejection. No order may be canceled or altered by Buyer except on terms and conditions acceptable to Seller, as evidenced by Seller’s written consent, and Seller may impose reasonable cancellation and restocking charges. Buyer may not reject goods merely on the basis of planned installment shipments. If Buyer timely notifies Seller of any nonconforming goods or repairs, Seller shall, in its sole discretion, (a) replace such nonconforming goods or cure such nonconforming repairs with conforming goods or repairs, or (b) credit or refund the price for such nonconforming goods or the cost for such nonperforming repairs, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer acknowledges and agrees that the remedies set forth in this section are Buyer’s exclusive remedies for the delivery of nonconforming goods or repairs.
5. Software License.
(a) Certain software may be loaded onto or otherwise distributed in relation to products and its related documentation (collectively and individually "Software"). Subject to the Terms of this Document, Seller hereby grants to Buyer solely for its internal use, a royalty-free (except for the cost of the products), worldwide, non-exclusive, non-transferrable (except in the event of the sale or other transfer of title to the related product, in which case Buyer shall have no license upon transfer of title and recipient of the title of the related product shall have the license herein subject to the Terms), perpetual right and license to use the Software solely in relation to the specific product with which it was provided by Seller, in object code form only (the “Licensed Use”).
(b) Buyer's access and use of the Software, are expressly subject to Buyer's compliance with the Terms of this Document and all applicable laws, rules, and regulations. To access the Software or some of the resources they have to offer, Buyer may be asked to provide certain registration details, passwords, user names, or other information (“Credentials”). Buyer is solely responsible for the security and confidentiality of its Credentials. Buyer shall notify Seller promptly of any unauthorized use of Credentials of which Buyer becomes aware. Buyer is solely responsible for all actions taken by Buyer, its employees, agents, and others accessing or using the Software, through Buyer's Credentials. It is a condition of Buyer's Licensed Use that all the information Buyer provides to Seller used to create Credentials, will be correct, current, and complete. Seller has the right to refuse Buyer access to the Software, or any of their resources, and to terminate or suspend Buyer's access at any time including without limitation if Seller believes the information Buyer provides is not correct, current, or complete or Buyer is in breach of these Terms. Buyer's access and use of the Software may be restricted to specific or limited numbers of users, or specific or limited numbers of products and Buyer may not exceed, subvert, or otherwise violate those limitations.
(c) The Terms of this Document shall apply to all follow-on versions, all updates, upgrades, error corrections, and bug fixes to the Software provided by Seller, but except as set forth in this Document, Seller shall have no obligation to provide such follow-on versions, updates, upgrades, error corrections, or bug fixes. Except as set forth herein, Seller reserves all other rights in and to the Software and no implied licenses are granted by Seller. Seller retains all title to and ownership of the Software.
(d) Buyer shall not: access or use any portion of the Software, not expressly licensed to Buyer; disassemble, decompile or otherwise reverse engineer all or any portion of the Software; use the Software for any unlawful purposes; export the Software in violation of U.S. laws or regulations; except as permitted by these Terms, sublicense, relicense, distribute, disclose, rent or lease the Software, or any portion thereof, or to share any Credentials, for third party use; or use the Software to develop any software application which uses the Software in whole or in part.
(e) Buyer understands that the Software may be subject to an End User License Agreement ("EULA") that places additional restrictions on individual users. To the extent these Terms are inconsistent with the terms of the EULA, these Terms shall control.
(f) This Section applies to all acquisitions of this Software by or for the federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the federal government. The government hereby agrees that the Software qualify as "commercial" computer software within the meaning of the acquisition regulations applicable to this procurement. The Terms shall apply to the government’s use and disclosure of this Software, and shall supersede any conflicting contractual terms and conditions. If these Terms or the license granted hereunder fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government agrees to return the Software to Seller.
(g) Seller is the sole owner (except to the extent owned by third-party licensors) of all right, title and interest in and to the Software and each component thereof, all modifications, bug fixes, enhancements, or upgrades thereto, including without limitation all patents, trademarks, copyrights, trade secrets, and other intellectual property rights ("Intellectual Property Rights") with respect thereto. Buyer hereby assigns to Seller all right, title, and interest including all Intellectual Property Rights in and to all suggestions or feedback provided by Buyer regarding the Software.
(h) The products and/or Software may collect through their use, information regarding their operation, the conditions in their environment, their setup, signals and transmissions, and other information (collectively and individually "Data"). Buyer hereby grants to Seller a non-exclusive, world-wide, royalty-free, sublicensable, transferable, license to access, use, display, reproduce, distribute, modify and create derivative works of the Data.
Warranties, and Limitations. Seller warrants that (a) with regards to hardware components, the goods sold hereunder will be free from defects in materials and workmanship under normal installation, use, and service, for a period of eighteen (18) months from the date of shipment, or twelve (12) months from the date the parts are placed into service, whichever occurs first, and (b) with regards to Software components, the Software is configured to function substantially in conformance with the written specifications and instructions provided by Seller to Buyer (if any) for a period of ninety (90) days from the date of delivery to Buyer; provided, that this warranty is void if the goods are damaged as a result of: (i) misuse, abuse, neglect, accident, improper handling or use, or improper electrical voltages or currents; (ii) unauthorized repair, alteration or maintenance or other repair made without the prior written consent of Seller; (iii) any use in violation of Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the goods; (iv) Buyer’s use of the goods after Buyer’s claim or notice of a claim on the foregoing limited warranty; or (v) the destruction or alteration of the serial number located on or connected to the goods. If there is a valid and timely warranty claim under this Section 6, Seller shall, in its sole discretion, (A) replace such nonconforming goods or cure such nonconforming repairs with conforming goods or repairs, or (B) credit or refund the price for such nonconforming goods or the cost for such nonperforming repairs, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer acknowledges and agrees that the remedies set forth in this section are Buyer’s exclusive remedies for the delivery of nonconforming goods or repairs.
All other express warranties are hereby excluded and disclaimed. ALL IMPLIED WARRANTIES REGARDING THE PRODUCT, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED. NO ACTION, REGARDLESS OF FORM, MAY BE BROUGHT AGAINST SELLER MORE THAN TWELVE (12) MONTHS AFTER A CAUSE OF ACTION HAS ACCRUED. The limited warranty specified above will constitute the exclusive remedy with respect to any and all claims, losses or damages relating to or arising from the purchase, distribution and/or use of the goods. IN NO EVENT WILL SELLER OR ANY OTHER ENTITY AFFILIATED THEREWITH BE LIABLE FOR (A) ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE PURCHASE, DISTRIBUTION AND/OR USE OF THE GOODS, OR (B) DAMAGES OR LOSSES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, THAT EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER BY BUYER FOR THE GOODS SOLD HEREUNDER.
6. Custom and Usage. No course of performance or any course of dealing or usage of trade will vary the express Terms hereof.
7. Confidential and Proprietary Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, software (including without limitation source code, object, code, and markup language) business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by Seller in writing. Buyer understands and agrees that all copyright, trademark, patent, trade secret and other intellectual or proprietary rights in and to the goods are owned by Seller or its licensors and/or suppliers; and Buyer agrees not to infringe upon any of Seller’s rights in or to the foregoing.
8. Force Majeure. Seller will not be liable for any nonperformance or delay in performance in connection with the sale of goods or services hereunder, or for any damage, loss or expense suffered by Buyer by reason thereof, when such nonperformance or delay is, directly or indirectly, caused by, or in any manner arises from, fires, floods, accidents, riots, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, materials or supplies, transportation delays, acts by third parties (including terrorism), acts by Buyer, delay or nonperformance by Seller’s suppliers or contractors or any other cause or causes (whether or not similar in nature to any of those listed above) beyond Seller’s control.
9. Non-Waiver. Waiver by either Seller or Buyer of a breach by the other of any provision of this document will not be deemed a waiver of future compliance therewith, and such provision will remain in full force and effect.
10. Modification. This document is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms and conditions of their agreement which can be modified or rescinded only by a writing signed by both parties or their duly authorized agents.
11. Assignment. The order accepted by Seller may not be assigned by Buyer without the written consent to Seller, provided, that Seller may, without Buyer’s consent, assign such order to any entity controlled by, controlling or under common control with Seller, or to an entity that acquires all, or substantially all, of Seller’s assets.
12. No Third-Party Beneficiaries. None of the rights or obligations of the parties under these Terms are intended by the parties to benefit any third parties.
13. Governing Law. All questions relating to the legality, validity, enforceability, interpretation and performance of the order accepted by Seller, and this document, will be governed by the laws of the State of Minnesota, U.S.A. without regard to its conflict of laws principles; and the parties irrevocably consent to the exclusive jurisdiction of any federal district or state court in the State of Minnesota having subject matter jurisdiction in any suit, action, proceeding or other dispute arising under this document.
14. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate pending orders with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under these Terms and such failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment, (b) has not otherwise performed or complied with any of these Terms, in whole or in part, or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15. Compliance with Laws. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms. Buyer shall comply with all export and import laws of all countries involved in the sale of the goods under these Terms or any resale of the goods by Buyer. Buyer assumes all responsibility for shipments of goods requiring any government import clearance. Seller may terminate these Terms if any governmental authority imposes antidumping or countervailing duties or any other penalties on goods.
16. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms or the orders covered by these Terms.
17. Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
18. Relationship of Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms 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.
19. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the sales confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
OPT OUT OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND UCITA; UCC TO APPLY. BUYER AND SELLER HEREBY SPECIFICALLY AGREE AND DECLARE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THE GOODS AND/OR SERVICES THAT ARE THE SUBJECT OF THE ORDER ACCEPTED BY SELLER; AND, INSTEAD, THE UNIFORM COMMERCIAL CODE SHALL APPLY TO THE GOODS AND/OR SERVICES THAT ARE THE SUBJECT OF SUCH ORDER, AS MODIFIED BY THIS DOCUMENT. SOFTWARE LICENSED UNDER THIS AGREEMENT SHALL BE GOVERNED BY THE TERMS SET FORTH HEREIN AND THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AND ANY IMPLEMENTATIONS OF THE SAME SHALL NOT APPLY.