SHIPPING AND BILLING
A. Packing slips must accompany each shipment of goods.
B. Seller agrees to describe the goods on the bill of lading or other shipping receipt and, if instructions are issued by Miller, to route shipment in accordance with those instructions; otherwise Seller shall route the goods in a manner at the least cost to Miller.
C. Invoices shall not be considered overdue as long as Miller has not received the goods.
D. No interest shall be paid on invoices rendered for the goods.
E. Invoices and the original bill of lading must be mailed to Miller on the day the goods are shipped. The discount period on invoices subject to a discount will begin on the date Miller receives the discount invoice.
1. ACCEPTANCE: This purchase Order (the “Order”) expressly limits acceptance to the terms herein. Any additional or different terms proposed by the Seller are objected to and not accepted by Miller. This Order and all of the terms and conditions contained herein will be accepted by a written expression of acceptance or by the beginning of performance hereunder. The terms and conditions contained in this order constitute a complete and exclusive statement of such terms and no prior or oral agreement shall in any way modify, change or add to the terms and condition hereof.
2. DELIVERY: TIME IS OF THE ESSENCE. In accepting this order the Seller agrees to perform and make deliveries as required hereby. Deliveries are to be made both in quantities and at time specified in delivery schedules furnished by Miller and Seller’s obligation to deliver goods pursuant to such delivery shall not be excused by its inability to obtain materials, supplies, or labor from its usual sources. Time is of the essence for this Order, and failure to deliver goods or render services within the time specified shall constitute a default. Miller may reject such goods or services and cancel this Order. The acceptance of late or defective goods shall not be deemed a waiver by the Miller of its right to cancel the Order. Miller will have no liability for payment for material or goods delivered to Miller in excess of quantities specified in the delivery schedules. Miller may from time to time change the delivery schedules or temporarily delay or suspend scheduled shipments.
3. INSPECTION AND ACCEPTANCE: All goods and services are received subject to Miller’s inspection and acceptance or rejection within a reasonable time; such reasonable time being not less than ten business days after receipt at Miller’s premises. The Seller shall provide and maintain an inspection system covering subject matter of the Order which is acceptable to Miller. Miller source inspection shall not constitute a waiver of any Miller rights. Defective or non-conforming goods shall be held for Seller’s instruction at Seller’s risk. Payment for goods and services hereunder shall not constitute an acceptance thereof nor will acceptance discharge Seller’s responsibility hereunder.
4. WARRANTY: Seller warrants that for the period of one year or such other period specified on the face of this Order following acceptance, that the goods shall be free from any defects in design, material and workmanship and shall conform and perform in accordance with the description, specifications and sample of this Order whether furnished by the Seller or specified by Miller. Goods shall be fit for the purposes intended, shall be of merchantable quality, shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, as amended, and shall be free of any liens, encumbrances, and security interests. Seller also warrants that any services will be performed in a workmanlike manner to Miller’s satisfaction. Additionally, if goods furnished hereunder contain one or more manufacturer’s warranties Seller hereby assigns these warranties to Miller and Miller’s customers and all warranties shall survive inspection, acceptance of goods and services and payment. Goods not meeting warranties will at Miller’s option, be returned, repaired, adjusted or replaced by Seller at no cost to Miller or Miller’s customers.
5. CHANGES: Miller shall have the right at any time by written Order of an authorized contracting official of Miller to make changes to this Order including but not limited to changes in drawings, design, specifications, materials, packaging, time and place of delivery and method of transportation. If any such changes cause an increase or decrease in cost or the time required for performance, an equitable adjustment may be made and this Order may be modified in writing accordingly provided the Seller submits its claim for adjustment in writing within thirty (30) calendar days after receipt of written change order and Miller agrees in writing.
6. TERMINATION FOR CONVENIENCE OF MILLER: Miller reserves the right to terminate this Order or any part of it for Miller’s sole convenience. In the event of such termination Seller shall immediately stop all work hereunder and shall cause any of its suppliers or subcontractors to cease any such work. Miller’s liability to Seller with respect to such terminated work shall be limited to: (1) Seller’s purchase price of all components not usable in Seller’s or Seller’s subcontractors operations or marketable to Seller’s other customers, plus (2) the actual cost incurred by Seller in procuring and manufacturing goods not usable in Seller’s or Seller’s subcontractor’s operations. Seller shall not be paid for any work done after receipt of notice of termination, or for any costs incurred by Seller’s suppliers or subcontractors which Seller could have reasonably avoided, nor shall Miller be liable for any loss of profits on the Order or portion thereof so terminated or suspended, nor for any charges. Seller shall not unreasonably anticipate requirements of this Order.
7. TERMINATION FOR CAUSE: Miller may also terminate this Order or any part of it in the event of any default by Seller. Seller shall be in default if (a) Seller fails to comply with any part of the terms and conditions of this Order; (b) Seller makes late deliveries or delivers goods which are defective or which do not conform in any respect to the requirements stated in this Order; (c) Seller fails to provide Miller, upon request, with adequate assurances of future performance; (d) Seller is insolvent or unable to meet its obligations as they become due; or (e) Seller files or has filed against it a petition in bankruptcy, or is the subject of reorganization or other insolvency proceeding. The above enumerated events all shall be causes for permitting Miller to terminate this Order for cause. In the event of termination for cause, Miller shall not be liable to Seller for any amount other than for goods accepted for which payment has not yet been received by Seller and Seller shall be liable to Miller for any and all damages sustained by reason of the default which gave rise to the termination. If it should be determined that Miller has improperly terminated this Order for cause; such termination shall be deemed a termination for the convenience of Miller.
8. TITLE AND RISK OF LOSS: Title to goods purchased under this Order shall pass to Miller upon delivery of the goods to the F.O.B. location unless otherwise specified herein. If the goods ordered call for additional services such as installation or if the goods must meet operating specifications, then the risk of loss shall not pass to the Miller until such additional services are performed or the goods achieve operating specifications.
9. IDENTIFICATION TO CONTRACT: The Seller shall affix suitable identification to all existing goods and such other goods as soon as they become existing goods as relating to this Order. If Miller provides Seller with molds, tooling, materials or equipment owned by Miller such molds, tooling, materials or equipment shall immediately be identified as the property of the Miller.
10. ASSIGNMENT: Seller shall not assign any right or interest under this Order (except monies due or to become due) nor delegate any obligation under this Order without the express written consent of Miller. Any such attempted assignment or delegation by Seller shall be void and ineffective. Any assignment of monies by Seller shall be void and ineffective to the extent that (a) Seller fails to give Miller at least thirty (30) days prior written notice of such assignment; and (b) such assignment attempts to impose upon Miller obligations to the assignee in addition to the payment of monies or to preclude Miller from dealing solely and directly with Seller in all matters pertaining to this Order, including the negotiation of amendments, or settlements of charges due hereunder.
11. PROPRIETARY INFORMATION: Unless expressly agreed in writing, any confidential or proprietary information, blueprints, drawings, specifications, special dies, molds, patterns, jigs, fixtures and any other property furnished or paid for by Miller for use in the performance hereunder shall be and remain the property of the Miller.
12. USE OF MILLER’S NAME: Seller shall not in any advertising, sales promotion materials, press release or any publicity matters use the name of Miller any affiliate or subsidiary of Miller or any version thereof or language from which the connection of said names be implied without Miller’s written approval.
13. APPLICABLE LAW/ARBITRATION: All matters regarding the construction, interpretation and performance of this Order shall be governed by the laws of the State of Minnesota and any controversy that cannot be settled directly by the parties hereto shall be settled by arbitration held in Minneapolis, Minnesota, in accordance with the rules then prevailing of the American Arbitration Association and judgment upon the award rendered may be entered in any court jurisdiction thereof.
14. INDEPENDENT CONTRACTOR/COMPLIANCE WITH LAWS: All goods, work or services provided by Seller or Seller’s subcontractors pursuant to this Order shall be as an independent contractor and not as an employee or agent of Miller. All persons furnished by Seller are so furnished as Seller’s employees or agents, and, in the performance of the requirements of this Order. Seller shall give all stipulations, representations and certificates required by and shall be responsible for compliance with all executive orders, laws, rules, regulations, Federal, State, and local. Seller’s acceptance of this Order and furnishing goods and services hereunder shall constitute certification by Seller of such compliance as Miller shall request. Seller agrees to indemnify and hold harmless and defend Miller against any claims or lawsuits arising out of Seller’s failure to comply with such laws, rules or regulations.
15. EQUAL OPPORTUNITY: Seller will not maintain segregated facilities or discriminate against any employees or applicants for employment because of age, race, color, religion, sex or national origin. Seller further agrees to take affirmative action to ensure that applicants are employed and that employees are treated fairly during employment without regard to their age, race, color, religion, sex or national origin. The Seller further represents and agrees that it does and will comply with all Equal Employment Opportunity Laws and Executive Orders and the rules, regulations and relevant orders of the Secretary of Labor which are incorporated in every non-exempt contract between Seller and Miller and Seller will obtain identical certification from proposed subcontractors prior to award of subcontracts which are not exempt from the provisions of the Executive Order requiring the Equal Opportunity clause.
16. PRESENCE ON MILLER’S PREMISES: If this Order covers the performance of labor of operation of a motor vehicle or use or transfer of goods or involves the presence of Seller’s agents, servants, employees, subcontractors or representatives at premises owned, leased or controlled by Miller or at which Miller is performing services or doing work for others. Seller agrees to defend and indemnify Miller against all liabilities, claims or demands for injuries or damage to any person or property arising out of the performance of this Order and to defend and indemnify Miller against all liabilities, claims or demands for injuries or damage to any person or property arising out of the performance of this Order and to defend and indemnify Miller against all liabilities, claims, or demands for injuries to Seller’s agents, servants, employees or representatives of every nature and description to the extent and magnitude caused by seller. Seller shall, prior to commencement or performance, transmit to Miller a certificate of insurance affirming that Seller has the following types of insurance and minimum limits: (1) Workers Compensation ($500,000) and related insurance and/or bonds required by law of the State in which the work is to be performed: (2) Commercial General Liability Insurance ($1,000,000): (3) Automobile liability insurance ($1,000,000). The certificate of insurance shall name Miller as an additional insured and contain a clause that the policy cannot be changed or materially altered without at least thirty (30) days notice to Miller.
17. INDEMNIFICATION: Seller shall hold Miller harmless and indemnify Miller from and against all liability, loss, damages, actions, judgments, costs, attorneys’ fees and expenses sustained or incurred by or against Miller to the extent and magnitude caused by reason of Seller’s breach of a warranty, by reason of Seller’s breach of any term of this order, or by reason of personal injury to or death of any person, or damage to any property, arising out of or occurring because of any act or omission of Seller, its employees, agents or subcontractors, in the fulfillment of this Order.
18. INFRINGEMENT: Seller will indemnify Miller and Miller’s customers for any loss, damage, expense or liability that may result from any patent, trademark, copyright or trade secret infringement which is based upon the performance of this Order utilizing goods of Seller’s origination, design or selection. This provision shall not apply to goods manufactured solely in accordance with Miller’s specifications.
19. FORCE MAJEURE: Neither party shall be responsible for any delay or failure in performance of any part of the Order to the extent that such delay or failure is due to causes beyond the control and without the fault of negligence of the party whose performance is affected, including, but not limited to, acts of God, the public enemy or the government, strikes, fires, floods, explosions, embargoes or unusually severe weather. If any such cause occurs, the party delayed or unable to perform shall give immediate notice to the other party. In the event that Seller’s performance is delayed for a period of ten (10) or more days. Miller may elect to cancel this Order at no cost to Miller other than for goods accepted and for which payment has not yet been received by Seller.
20. TAXES: Any federal tax, sate or local sales or use tax must be separately stated and itemized. It is understood that unless such taxes are separately stated and itemized no such taxes are included in the amount billed. Tax exemption certificates acceptable to the taxing agency or other evidence of exemption will be furnished in lieu of payment of any such taxes so invoiced.
21.The failure of either party to claim a breach of any term, right, privilege or condition of this Order or failure to enforce any of the provisions on one or more occasions, or any course of dealings of the parties, shall not be construed as a waiver of any subsequent breach of such terms, rights, privileges or conditions hereunder.
22. PARAGRAPH HEADINGS: Paragraph headings are provided for convenience and shall not be used to interpret this Order.
23. SEVERABILITY: In the event that one or more of the provisions contained in this Order shall for any reason be held to be unenforceable in any respect under the laws of the jurisdiction governing this Order, such unenforceability shall not affect any other provisions of this Order, but this Order shall then be construed as if such unenforceability provision or provisions, shall have never been present in this Order.
24. ENTIRE AGREEMENT: This order constitutes the entire agreement of the parties and shall not be modified or rescinded except by a writing signed by duly authorized representatives of the parties.
