Terms And Conditions Of Supply

DEFINITIONS

The following terms shall have the meanings set forth below:

1. “Agreement” means these general terms and conditions of supply, the proposal, and the order confirmation document issued by Miller Sales & Engineering Inc.;
2. “Buyer” means the person to whom the proposal is addressed;
3. “Proposal” means the commercial proposal addressed to the Buyer by Miller Sales & Engineering in connection with the Supply;
4. “Purchase Order” means a document issued by the Buyer as an offer to purchase goods or services from Miller Sales & Engineering in accordance with the proposal; and
5. “Supply” means the sale of goods or the provision of services to the Buyer by Miller Sales & Engineering.
6. “In Writing” means either by a written letter delivered via mail or an email delivered using the internet.

AGREEMENT

1. Supply. The Buyer hereby engages Miller Sales & Engineering for the supply as described in the Proposal.
2. Duration. The duration of this Agreement shall be as indicated, if applicable, in the Proposal. In the absence of such indication, this Agreement shall expire upon the completion of the Supply or when Miller Sales & Engineering has fully performed the Supply in accordance with the terms of this Agreement.
3. Validity Period of the Proposal. The validity period of the Proposal shall be as indicated on the Proposal itself. The Buyer may request an extension of this validity period. Any request for an extension must be made in writing and received by Miller Sales & Engineering before the expiration of the validity period of the Proposal.

ORDER ACCEPTANCE

1. Effect of the Purchase Order. No purchase order submitted by the Buyer shall be deemed accepted by Miller Sales & Engineering unless and until it is confirmed in writing by Miller Sales & Engineering.
2. No Obligation to Accept the Purchase Order. Miller Sales & Engineering has no contractual obligation to accept a purchase order from any Buyer who has not provided Miller Sales & Engineering with satisfactory references. At any time, if Miller Sales & Engineering is not satisfied with the Buyer’s creditworthiness, it may notify the Buyer in writing that no further credit will be extended to the Buyer unless the situation is rectified within ten (10) business days.
3. Acceptance of the Purchase Order. The Buyer shall be bound by the provisions of this Agreement upon the written acceptance of the purchase order by Miller Sales & Engineering. Whether or not the Purchase Order or this Agreement is signed, the Buyer shall be deemed to have accepted the terms and conditions of this Agreement (including these General Terms and Conditions of Supply) by submitting a Purchase Order referring to the Proposal.

PRICE

1. Currency and Taxes. All prices are expressed in the currency indicated on the Proposal and exclude applicable taxes and duties unless expressly stated otherwise in the Proposal.
2. Installation and Start-up Costs. Unless expressly stated otherwise in the Proposal, the price of installation, installation assistance, and/or start-up services is not included in the scope of the Supply. Such services may be offered by Miller Sales & Engineering under a separate agreement.
3. Credit Check. Miller Sales & Engineering reserves the right to verify the Buyer’s creditworthiness.
4. Delivery Charges. Delivery charges are the responsibility of the customer unless otherwise specified in the contract.

PAYMENT TERMS

1. Payment Terms. The payment terms are those indicated in the Proposal. In the absence of a specific payment schedule, the Buyer agrees to pay for the Supply as invoiced by Miller Sales & Engineering. Invoices are due and payable as indicated on them, from the date of invoicing, subject to Miller Sales & Engineering’s continued credit approval. The Buyer agrees to pay interest on all overdue amounts at the rate of 1% per month (maximum 10% per year).
2. Dispute of an Invoice Item. In the event of a dispute over an item on an invoice, the Buyer must promptly pay all other undisputed items on the invoice.
3. Default in Payment. In the event of default in payment, the Buyer shall be liable for all collection costs incurred by Miller Sales & Engineering, including reasonable legal fees. Additionally, in the event of non-payment in accordance with section 5.1, Miller Sales & Engineering reserves the right to suspend the provision of services or the delivery of undelivered goods until payment is received.

DELIVERY

1. Estimated Delivery Time. The delivery time mentioned in the Proposal constitutes Miller Sales & Engineering’s best estimate at the time of submission of the Proposal. Every effort will be made to meet delivery deadlines upon acceptance of the order by the Buyer.
2. Failure to Take Delivery. If the Buyer fails to take delivery of the ordered goods, or any part thereof, or fails to provide the necessary instructions, documents, licenses, consents, or authorizations to enable the delivery of the goods on the scheduled date, Miller Sales & Engineering shall have the right, upon notice to the Buyer, to store or have the goods stored. Delivery shall then be deemed to have taken place, and the Buyer shall pay Miller Sales & Engineering all associated costs and expenses, including storage and insurance fees.
3. Incoterms. Delivery shall be made in accordance with the deadlines specified in the Proposal. The version of the Incoterms applicable shall be the one in effect at the date of the Proposal.
4. Transfer of Title. The goods remain the property of Miller Sales & Engineering until the Buyer has made full payment.

MODIFICATIONS AND CANCELLATIONS

1. Requests for Modifications. The Buyer has the right to make changes to the specifications and drawings of the goods or services covered by the Agreement. The Buyer may formalize this change by sending written notice to Miller Sales & Engineering. If Miller Sales & Engineering believes that such a change affects the price or delivery date of the supply, it will inform the Buyer in writing within ten (10) business days of receiving the modification request. No modification described in a change request shall take effect until it has been agreed upon in writing by Miller Sales & Engineering and the Buyer.
2. Suspension Pending Agreement. Miller Sales & Engineering shall suspend any work related to or affected by a modification request until the Buyer and Miller Sales & Engineering mutually agree in writing on the necessary adjustments to the supply conditions, including the contract price and/or the applicable performance or delivery schedule(s), to reflect the effect of such change. The Buyer shall then pay Miller Sales & Engineering all costs related to the work in progress up to the date of suspension of the work.
3. No Cancellation Without Agreement. No order accepted by Miller Sales & Engineering may be cancelled by the Buyer without Miller Sales & Engineering’s written consent, provided that the Buyer fully indemnifies Miller Sales & Engineering for any loss, costs (including the cost of labor and materials used), damage, charges, and expenses incurred by Miller Sales & Engineering as a result of the cancellation.
4. Returns and Cancellations for Convenience.
   1. Prior authorization from Miller Sales & Engineering is required before any return of Products to obtain credit. Miller Sales & Engineering reserves the right to grant or refuse this authorization at its sole discretion. If a return is accepted, a return authorization form will be provided and must be clearly affixed to the Products returned by the Customer (freight prepaid only). All returned Products must be in re-sellable condition, in their original containers and/or packaging, and will be subject to inspection and restocking fees, determined by an authorized representative of Miller Sales & Engineering. The transportation costs for the return shall be borne by the Customer.
   2. Unless otherwise stipulated in the Agreement, the Customer shall not have the right to cancel the Agreement for Convenience.
   3. If the Agreement provides that the Customer may cancel for convenience and the Customer decides to exercise this right of cancellation, in whole or in part, for the parts of the Agreement not yet performed as of the effective date of the cancellation, Miller Sales & Engineering shall cease all cancelled work, place no further orders related to the cancelled work, and retain, protect the material acquired for the cancelled work or intended for it, the work in progress, and the completed goods, and dispose of such material and goods in accordance with the Customer’s instructions. As part of this cancellation for convenience, the Customer agrees to pay Miller Sales & Engineering:
      1. the amounts provided in the cancellation schedule if such a schedule is included in the Agreement;
      2. if no cancellation schedule is included in the Agreement, the sum of the following amounts:
         1. the higher of the Work actually performed, in whole or in part, before termination and for which Miller Sales & Engineering has not yet been paid (including, without limitation, the cost of supplies and inventory, payment for work in progress, as well as Products and components supplied or manufactured not yet delivered to the Customer as of the termination date, as well as the profit realized and overhead costs up to the termination date) and the next milestone payment; plus
         2. all other costs and expenses incurred by Miller Sales & Engineering as a result of this termination of the Agreement, including, without limitation, demobilization costs, costs related to the removal of work and available material, interest on late payments, as well as any cancellation payment or fee related to a subcontract. For clarity, Miller Sales & Engineering shall be entitled to all lost profits, any contribution to overhead costs, as well as all indirect, incidental, or other damages resulting from this cancellation.

WARRANTIES—LIMITATION OF LIABILITY

The limited warranties of Miller Sales & Engineering applicable to Products and Services are set out, respectively, in Appendix B.1 and B.2 available on the website https://www.mseinc.net/. Notwithstanding any other provision of the Contract, the warranties of Miller Sales & Engineering set forth in these annexes: (1) are the only warranties applicable to the Work, and all other warranties, conditions, assurances, or similar obligations, whether express or implied, by fact or law (including any statute or regulation), custom or trade usage, or any transaction, including, without limitation, any implied warranty of quality, merchantability, fitness for use, fitness for a particular purpose, or otherwise, are excluded from the Contract and inapplicable, and (2) are the customer’s sole remedy arising from defective or deficient Work.

1. Warranty of Goods. The goods sold under the Contract will be covered by the warranty described in the Warranty Certificate(s) on the website https://www.mseinc.net/—Warranty Certificate(s).
2. Warranty Claim. In the event of a failure of a good sold by Miller Sales & Engineering due to defective materials or manufacturing defects during the warranty period, the Buyer must submit a written claim to Miller Sales & Engineering as soon as possible after discovering the defect. The request will then be evaluated. If a product sold by Miller Sales & Engineering is deemed non-defective or defective for reasons other than material or manufacturing defects, the Buyer will be informed and the warranty claim will be rejected. All costs related to the evaluation of the claim will be charged to the Buyer.
3. Service Warranty. Miller Sales & Engineering undertakes to provide services in a professional manner, in accordance with industry standards and all applicable laws, rules, and regulations. If the services provided do not comply with this warranty, Miller Sales & Engineering’s sole obligation and the Buyer’s exclusive remedy will be the performance of the services or, if commercially impracticable, the prompt reimbursement of the amounts paid by the Buyer for such services. Any warranty claim must be made within thirty (30) days following the performance of the services concerned.
4. Limitation of Liability. In no event shall Miller Sales & Engineering’s total liability to the Buyer exceed the amount paid by the Buyer under the Contract. This limitation shall apply regardless of the form of action, whether contractual, extracontractual, statutory, strict, or otherwise. The agreed-upon liability allocations and damage limitations represent the negotiated agreement between the parties, and Miller Sales & Engineering’s compensation reflects these allocations. Furthermore, in no event Miller Sales & Engineering shall be liable for any loss of profits, savings, or any other economic loss, nor for any consequential, incidental, indirect, special, or punitive damages (including, but not limited to, business interruption, loss of goodwill, or data) or for any claim against the Buyer by a third party, even if Miller Sales & Engineering has been advised of or could reasonably foresee the possibility of such damages.
5. Return of Materials or Pumps. Any request for the return of materials or pumps must be pre-authorized by Miller Sales & Engineering. Return fees may apply depending on the initial agreement at the time of sale or rental.
6. Exclusion of Warranties. The Buyer acknowledges that the only warranties offered for the goods and services purchased under this Contract are those specified in sections 8.1 and 8.3 above. The Buyer further acknowledges that, unless Miller Sales & Engineering is the manufacturer of the purchased products, the warranties are offered by the manufacturers of the products sold by Miller Sales & Engineering and not by Miller Sales & Engineering itself, which only manages warranty claims on behalf of the manufacturers. Miller Sales & Engineering and its divisions expressly disclaim any other warranties, express or implied, relating to the products or services, including, but not limited to, any warranty of title, accuracy, merchantability, or fitness for a particular purpose, non-infringement, or any warranty relating to third-party services. This disclaimer does not affect the terms of any manufacturer’s warranty.

CONFIDENTIALITY

1. Confidentiality. The provisions of this Article 9 apply to the exchange of confidential information (as defined below) between the parties, unless a non-disclosure agreement or other similar agreement is already in effect between the parties as of the date of acceptance of the Buyer’s purchase order by Miller Sales & Engineering. The parties acknowledge that they may receive confidential and/or proprietary information relating to the other party’s business, including, without limitation, designs, presentations, drawings, diagrams, marketing information, know-how, and/or trade secrets, which are identified as confidential and/or proprietary at the time of disclosure or which a reasonable person would consider, by the nature of the information, to be confidential and/or proprietary (“Confidential Information”). The receiving party shall treat the Confidential Information as confidential and proprietary to the disclosing party and shall not disclose it, except to persons within its organization who need to know it to carry out the business relationship and who are bound by written confidentiality obligations no less protective of the disclosing party’s Confidential Information than those provided in this section. In the event of a confidentiality breach, the receiving party shall notify the disclosing party as soon as possible, but no later than three (3) business days after becoming aware of the breach. The receiving party shall be directly responsible for the acts or omissions of its directors, officers, employees, and subcontractors concerning these confidentiality obligations. The receiving party agrees to separate the disclosing party’s Confidential Information from the confidential information of others to avoid any commingling.
2. Exceptions. The confidentiality obligation provided in Article 9.1 does not apply to information that: (a) is or becomes generally known and accessible to the public within the industry without fault of the receiving party; (b) was known to the receiving party before the time of disclosure and was not subject to restrictions, as evidenced by the receiving party’s written records; (c) was independently developed by the receiving party, as evidenced by the receiving party’s written records; (d) was lawfully obtained from a third party with the right to make such disclosure without restriction; (e) is authorized to be published in writing by the disclosing party; or (f) must be disclosed by regulation.

INTELLECTUAL PROPERTY

The Buyer acknowledges that all plans, specifications, summaries, copies, reports, analyses, notes, drafts, compilations, studies, synopses, files, letters, memoranda, records, data, sketches, drawings, notebooks, programs, or any other written, electronic, photographic, or other material (including any disk or computer medium on which such documents or work products may be stored) created or delivered by Miller Sales & Engineering in connection with the Supply, as well as all intellectual property rights created, realized, designed, or otherwise arising from the performance of the Supply (collectively referred to as “Developments”) are and remain the exclusive property of Miller Sales & Engineering. Miller Sales & Engineering hereby grants the Buyer a non-exclusive, perpetual, worldwide, fully paid up, royalty-free license, without the right to sublicense, to use the Developments solely for the Buyer’s internal business purposes.

GENERAL PROVISIONS

1. Complete Agreement. These general terms and conditions of supply, together with the proposal and order confirmation issued by Miller Sales & Engineering, constitute the entire agreement between the parties concerning their subject matter and prevail over the preprinted terms of any purchase order, acceptance, acknowledgment, shipment, or other similar document issued or signed in connection with the Contract. This agreement supersedes and replaces all prior oral or written agreements, representations, negotiations, or agreements between the parties concerning this subject. No change, modification, supplement, or amendment to this Agreement shall be valid or binding unless executed in writing by both parties.
2. Entire Agreement. Without limiting the generality of the foregoing, no agreement or communication between the parties, whether written or verbal, including, without limitation, a call for tenders, a proposal, or any other document exchanged between the Parties up to the date of the Contract, inclusively, nor any information or data contained in general product documentation and price lists, or provision contained in purchase documents, purchase orders, work orders, acceptance documents, or other Client communications or forms, shall form part of the Contract, and none of the foregoing shall have any legal effect between the Parties unless expressly contained in the Contract.
3. Notices. Any notice provided under this Agreement shall be sufficient if in writing and delivered by a communication method providing sufficient evidence that the notice has been effectively delivered to the recipient.
4. Independent Contractors. The parties acknowledge that they are acting as independent contractors and that nothing in the Contract shall be construed to alter their status or create a partnership, joint venture, or agency of any kind between them. Miller Sales & Engineering is an independent contractor and is not an employee of the Buyer.
5. No Waiver. Any waiver by Miller Sales & Engineering of a provision of this Agreement must be in writing to be effective. A waiver of such provision shall not constitute a waiver of any other provision or a continuing waiver unless expressly stated otherwise in writing.
6. Severability. If any provision contained in this Agreement is found to be invalid or unenforceable, that provision shall, where possible, be interpreted, limited, or, if necessary, severed to eliminate such invalidity or unenforceability. In such a case, all other provisions contained herein shall remain valid and continue to bind the parties hereto.
7. Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations hereunder due to strikes, shortages, riots, insurrections, fires, floods, storms, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause beyond the reasonable control of such party.
8. Jurisdiction. The Contract, as well as any dispute or claim arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with the law of Arizona, and the court located in the judicial district of the state of Arizona (United States) shall have exclusive jurisdiction over any dispute related to the Agreement.