MILLER PRODUCTS COMPANY
GENERAL TERMS AND CONDITIONS OF SALE
EFFECTIVE November 1, 2017
1. Application. These General Terms and Conditions of Sale (the “General Terms”) apply to all proposals and quotations submitted by Miller Products Company and all purchase orders received by Miller Products Company. These General Terms control, unless expressly stated otherwise, in the event of (i) any conflict between a proposal or quotation submitted by Miller Products Company, or (ii) a purchase order received by Miller Products Company.
2. Formation. A written quotation issued by Miller Products Company is an offer to sell. The Buyer (as indicated on the applicable order acknowledgement) will be deemed to have accepted the provisions of these General Terms and an agreement (the “Agreement”) will be formed by placing a purchase order or giving instructions to Miller Products Company respecting the manufacture, assortment, or delivery of the goods (the “Goods”) covered by such purchase order or instructions (including instructions to bill and hold), and the subsequent acceptance of the Agreement by Miller Products Company.
3. Integration and Modification.
a. Revocation. The Agreement supersedes all previous quotations and agreements pertaining to the Goods.
b. Complete Integration. The Agreement is a final, complete and exclusive statement of the Agreement between Buyer and Miller Products Company.
c. Modification. Miller Products Company is willing to negotiate written changes to these General Terms when signed by an authorized Miller Products Company employee. Miller Products Company reserves the right to make an adjustment in the price of the Goods to cover the costs of such changes.
4. Prices, Payment and Risk of Loss.
a. Prices. Prices contained in individual written quotations or proposals are firm only for a period stated therein and otherwise for 30 days from the date of the quotation. Prices do not include taxes and Buyer must pay all applicable sales or other taxes levied. All prices are in United States dollars and all payments must be paid in United States dollars at the location specified in the Miller Products Company invoice. Miller Products Company will only accept payments via cash, check, credit card, ACH, EFT and wire transfer (if requested by Buyer).
b. Risk of Loss and Title. The Agreement is for a shipment contract and, unless otherwise stated in a writing signed by Miller Products Company, the Goods will be delivered F.O.B. Miller Products Company’s dock. Whether or not Miller Products Company prepays shipping charges, risk of loss passes to Buyer upon tender of the Goods to a carrier and Buyer is responsible for selecting its preferred freight carriers and is responsible for their performance.
c. Shipping and Packaging. Except as otherwise provided in the Agreement, Miller Products Company will not be responsible for any freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges arising out of the performance of the Agreement.
d. Export/Import Fees. All export and import duties, fees, permits, licenses, etc. for Goods to be delivered outside of the United States will be solely the responsibility of Buyer.
e. Invoices. Invoices may be rendered separately for each shipment (including any early shipment) made by Miller Products Company. Buyer must pay all invoices net 30 days after Buyer’s receipt of an invoice from Miller Products Company. Miller Products Company reserves the right to charge a monthly late payment fee of 1.5% per month for each month a payment is outstanding beyond its due date.
5. Manufacturing. Buyer acknowledges and agrees that Miller Products Company may elect to manufacture Goods for supply under the Agreement or to procure such Goods from third-party subcontractors or suppliers, and that the sources for such Goods may include countries outside the United States.
6. Shipping and Delivery.
a. Shipping dates. Shipping Dates are estimates based on Miller Products Company’s present engineering and manufacturing capacity and scheduling, and may be revised by Miller Products Company upon receipt or scheduling of Buyer’s order. All shipping dates are approximate and will be computed from the date of entry of the order on Miller Products Company’s books. Timely delivery is dependent on Buyer providing Miller Products Company with the minimum lead time quoted by Miller Products Company and Miller Products Company’s prompt receipt from Buyer of a written purchase order or acceptance, letter of credit, down payment and other conditions as specified in the Agreement, and of all drawings, information and approvals convenient or necessary to provide the Goods and/or to grant any credit terms in the Agreement.
b. Delayed Shipment. If shipment of any Goods or other performance by Miller Products Company is delayed at the request of or due to the fault of Buyer, Miller Products Company may at its option hold the Goods at the place of manufacture or elsewhere at the risk and expense of Buyer from the time it is ready for shipment.
c. Delayed or Failed Delivery. All inspection, delivery and other dates for Miller Products Company’s performance are estimates only.
7. Inspection, Testing and Rejection.
a. Testing. If the Agreement expressly provides for Buyer’s inspection and/or acceptance of the Goods, Miller Products Company’s standard test procedures conducted by Miller Products Company’s representative will be the criteria for inspection and/or acceptance, unless other specific procedures have been specified in the Agreement. On request, Miller Products Company will quote to Buyer additional charges required to conduct any additional procedures requested by Buyer which may be acceptable to Miller Products Company.
b. Rejection. All manuals, drawings, specifications, technical documentation, samples, prototypes and Goods will be deemed approved and/or accepted by Buyer if Buyer does not provide a written objection and/or rejection within seven days of receipt or other reasonable time established by Miller Products Company. If an item is rejected, notice must be given to Miller Products Company so that it will arrive no later than 10 days after receipt of the item by Buyer.
8. General Express Warranties.
a. General. Miller Products Company warrants to Buyer only, subject to the disclaimers and limitations of the Agreement, that Goods, to the extent manufactured by Miller Products Company, will be free from defects in materials and workmanship, excluding design, at the time of delivery, and will repair or replace Goods that fail due solely to manufacturing defects in materials and workmanship, which are discovered within the period of 12 months from the delivery date to Buyer. Under no circumstances will the warranty period extend beyond 12 months from the date of delivery of the alleged non-conforming or defective Goods to Buyer. When Buyer purchases to his own specifications, Miller Products Company will not be responsible for the design and fitting of Goods, and/or the function of Goods.
b. Disclaimer and Limitation of Express Warranties. There are no express warranties other than those contained in the Agreement, and they are not assignable. Any representations as to performance and other matters, except as contained in the Agreement, were for illustrative purposes only, and do not constitute a warranty.
9. Responsibility for Safety.
a. Buyer’s Obligations. Goods designed and manufactured by Miller Products Company are capable of being used in a safe manner, but Miller Products Company cannot guarantee their safety under all circumstances. Buyer must install and use the Goods in a safe and lawful manner in compliance with applicable health, safety, and environmental regulations and laws and general industry standards of reasonable care.
a. Third Parties. Buyer will indemnify Miller Products Company from any and all third-party claims, damages and expenses (including reasonable attorney fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract, statute or otherwise arising out of the production, use, storage, sale, processing or other disposition of the Goods, supplies or materials used in connection with the Goods, or parts manufactured with the Goods, if the action or inaction of Buyer or its employees, customers or agents, or Buyer’s design specifications, were a material or proximate cause of injuries or damages giving rise to claims against Miller Products Company. Miller Products Company is under no obligation to indemnify Buyer for any reason.
11. Proprietary Information.
a. Buyer’s Rights to Confidentiality. Buyer acknowledges that any information disclosed to Miller Products Company has not and will not be considered by Buyer to be confidential or a trade secret unless clearly and conspicuously noted on the disclosure, or in some other writing delivered to Miller Products Company at or prior to the time of the disclosure.
b. Miller Products Company’s Rights to Confidentiality. All proposals, plans and other information furnished by Miller Products Company, in any form, during bidding, negotiating and performing the Agreement, are confidential and the property of Miller Products Company, whether or not marked “Confidential”, and may not be shown or disclosed to any other bidder, and may not be shown or disclosed to any other third party or used by Buyer except as may be necessary for the selection or use of the Goods and Miller Products Company provides Buyer with written consent.
12. Default. If Buyer defaults in the performance of its obligations, if Buyer advises Miller Products Company that it will default in the performance of its obligations, or if any action is started by or against Buyer seeking the appointment of a trustee or receiver or the entry of an order for debtor’s relief for Buyer, Miller Products Company may cease performance of its obligations, recover the Goods in transit or delivered, disable delivered Goods, and otherwise enforce its remedies for Buyer’s default.
13. Choice of Law. The Agreement is governed, construed and enforced under the laws of the state of Iowa including the Uniform Commercial Code (UCC) in force on the initial date of the Agreement.
14. Jurisdiction. The state and federal district courts of Clarke County, Iowa have exclusive jurisdiction and venue over Buyer and Miller Products Company to resolve claims arising under or related to the Agreement, unless waived in a writing signed by Miller Products Company and subject to any right of arbitration which may be provided by the Agreement.