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GENERAL TERMS AND CONDITIONS – SUPPLIER

MILLER CONTRACTING SERVICES, LLC

1.      Applicability.

This Purchase Order (the “Order”) and these Terms and Conditions – Supplier (“Terms”) (collectively, this “Agreement”) comprise the entire agreement between the parties with respect to the subject matter contained herein.  This Agreement prevails over any proposal, acknowledgment, invoice, quote or other writings with respect to the subject matter contained herein.  Any additional terms, any other proposal, acknowledgment, invoice or other writing will not become a part of this Agreement unless both parties so agree in writing.  Supplier’s fulfillment or other performance under any Order constitutes acceptance of this Agreement.

2.      Delivery of Goods and Performance of Services.

  • Supplier (as identified in the Order) shall deliver the Goods in the quantities and on the date(s) specified in the applicable Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Supplier shall notify Miller Contracting Services, LLC (“Miller”) immediately of any situation that may delay or threaten to delay the timely delivery of any Order. All or any portion of any Order may, at Miller’s option, be canceled without liability to Miller if delivery is not made as or when specified in the Order and these Terms.
  • Supplier shall deliver all Goods to the address specified in the Order (the “Delivery Point”) during Miller’s normal business hours or as otherwise instructed by Miller. Supplier shall pack all goods for shipment according to Miller’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition.
  • Supplier shall provide the Services to Miller as described and in accordance with the dates or time periods set forth in the Order and the terms hereof.
  • Supplier acknowledges that time is of the essence with respect to the performance of Supplier’s obligations hereunder, including the delivery of the Goods and performance of the Services.

3.      Shipping Terms; TITLE AND RISK OF LOSS.

Delivery of Goods shall be made [DPU (lncoterms 2020)] [FOB (UCC Terms)] the Delivery Point. The Order number must appear on all shipping documents, shipping labels, invoices, correspondence, and any other documents pertaining to the Order.  Title and risk of loss passes to Miller upon delivery of the Goods to the Delivery Point.

4.      Inspection and Rejection of Nonconforming Goods.

Miller has the right to inspect the Goods on or after the Delivery Date. Miller, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines that all or any portion of the Goods are nonconforming or defective. If Miller rejects any portion of the Goods, Miller has the right, effective upon written notice to Supplier, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Miller requires replacement of the Goods, Supplier shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including transportation charges for the return of the non-conforming or defective Goods and the delivery of replacement Goods. If Supplier fails to timely deliver replacement Goods, Miller may (i) replace them with comparable goods from a third party, and (ii) charge Supplier the cost thereof. In addition to the remedies set forth in this Section and available to Miller under applicable law, Miller may terminate this Agreement pursuant to Section 13. Any inspection or other action by Miller under this Section shall not reduce or otherwise affect Supplier’s obligations under this Agreement, and Miller shall have the right to conduct further inspections after Supplier has carried out its remedial actions.

5.      Price.

The price of the Goods or Services is the price stated in the Order (the “Price”). If no price is included in the Order, the Price shall be the price set out in Supplier’s published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees, and applicable taxes, including all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Miller.

6.      PAYMENT TERMS.

Supplier may only invoice Miller for the cost of expenses or materials that Miller pre-approved in writing (email shall suffice). Each invoice submitted by Supplier must (i) break-out all taxes in the invoice from the Price, (ii) reference the correct Miller purchase order number, (iii) invoices for Services provided on a time and/or material basis shall contain detailed time entries with hours worked, personnel performing the work, cost of materials or goods used to perform the work, and nature of the work performed. Miller shall pay all correctly invoiced amounts due to Supplier within thirty (30) days from Miller’s receipt of such correctly issued invoice, except for any amounts disputed by Miller in good faith. All payments hereunder shall be made in US dollars and made by ACH or check, unless otherwise approved by Miller. Without prejudice to any other right or remedy it may have, Miller reserves the right to set off, at any time, any amount owing to it by Supplier against any amount payable by Miller to Supplier.

7.      Supplier’s Obligations Regarding Services.

Supplier shall:
  • on or before the date on which performance of the Services is to start, obtain, and at all times during the term of this Agreement, maintain in effect, all necessary licenses and, and comply with all laws, applicable to the provision of the Services;
  • comply with all rules, regulations, and policies of Miller, including security procedures;
  • maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Supplier in providing the Services in such form as Miller shall approve and make such records available to Miller upon request;
  • obtain Miller’s written consent, which shall not be unreasonably withheld or delayed, prior to entering into agreements with or otherwise engaging any person or entity, excluding Supplier’s employees but including all subcontractors and affiliates of Supplier, to provide any Services to Miller (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Miller’s approval shall not relieve Supplier of its obligations under this Agreement, and Supplier shall remain primarily liable for the performance of each such Permitted Subcontractor and for its compliance with all of the terms and conditions of this Agreement as if it was Supplier’s own employee. Nothing contained in this Agreement shall create any contractual relationship between Miller and any Supplier subcontractor or supplier, including any Permitted Subcontractor;
  • require each Permitted Subcontractor, prior to the performance of any Services, to be bound in writing by the Confidentiality provisions of this Agreement, and, upon Miller’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in form and substance reasonably satisfactory to Miller;
  • be responsible for the acts and omissions of its employees and Permitted Subcontractors, and indemnify Miller for any cause of action threatened or brought against Miller by or against Supplier’s employees and/or Permitted Subcontractors; and
  • ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by Miller.

8.      Change ORDERS.

Miller may at any time, by written instructions and/or drawings issued to Supplier (each, a “Change Order”), Order changes to the Goods or Services. Unless otherwise agreed upon by the parties, Supplier shall within ten (10) days of receipt of a Change Order submit to Miller a firm cost proposal for the Change Order. If Miller accepts such cost proposal, Supplier shall proceed with the changed Goods or Services subject to the cost proposal and the terms and conditions of this Agreement. Supplier acknowledges that a Change Order may or may not entitle Supplier to an adjustment in Supplier’s compensation or the performance deadlines under this Agreement.

9.      Warranties.

  • Unless otherwise agreed upon by the parties or unless Supplier’s standard terms are more favorable, Supplier warrants to Miller that for a period of twelve (12) months from the Delivery Date, all Goods will: (i) be free from any defects in workmanship, materials, and design; (ii) conform to all applicable specifications, drawings, designs, samples, and other requirements; and (iii) be free and clear of all liens, security interests or other encumbrances. Supplier further warrants to Miller that for a period of twelve (12) months from the Delivery Date, all Goods and Services provided by Supplier will comply with all applicable federal, state and local laws and regulations. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods or Services by Miller.
  • Supplier warrants to Miller that it shall perform the Services (i) using personnel having suitable skill, experience and qualifications and who are licensed, certified, and accredited as required by applicable law; and (ii) in a professional and workmanlike manner in accordance with best industry standards for similar services.
  • The warranties set forth in this Section 9 are cumulative and in addition to any other warranty provided at law or in equity. Any applicable statute of limitations runs from the date of Miller’s discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Miller gives Supplier notice of any such noncompliance, Supplier shall, at its own cost and expense, promptly, as applicable, (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including transportation charges for the return of the defective or nonconforming goods to Supplier and the delivery of repaired or replacement Goods to Miller; and (ii) repair or re­perform the affected Services.

10.    Indemnification.

Supplier shall, at its expense, defend, indemnify and hold harmless Miller and its affiliates, and its and their respective officers, directors, agents, representatives, successors, and assigns (each individually or collectively, “Indemnitee”), from and against any and all actions, causes of action, suits, claims, demands, damages, liabilities, losses, penalties, costs, and expenses (including reasonable attorneys’ fees and disbursements and court costs, the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers) (collectively, “Losses”) arising out of or occurring in connection with (i) the Goods and/or Services purchased from Supplier, (ii) Supplier’s negligence, willful misconduct or breach of this Agreement; or (iii) any claim that Miller’s or any Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Supplier shall not enter into any settlement for a cause of action or potential cause of action related to any Indemnitees without Miller’s prior written consent.

11.    Insurance.

Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury, personal injury and damage to property in amounts sufficient to protect Miller in the event of such injury or damage, which coverage will comply with any and all applicable laws, regulations or orders. Supplier further will maintain such additional types and limits of insurance as are customary for a company of similar size and similar operations to Supplier in the jurisdiction or jurisdictions in which Supplier’s operations take place.

12.    Compliance with LawS.

Supplier shall comply with all applicable laws, regulations and ordinances. Without in any way limiting the foregoing, Supplier shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Supplier shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Supplier. Supplier assumes all responsibility for shipments of Goods requiring any government import clearance. Miller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on any of the Goods.

13.    Termination.

In addition to any remedies that may be provided under these Terms, Miller may terminate this Agreement with immediate effect upon written notice to the Supplier, either before or after the acceptance of the Goods or the Supplier’s delivery of the Services, if Supplier has not performed or complied with any of these Terms, in whole or in part. If the Supplier 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, then Miller may terminate this Agreement upon written notice to Supplier. If Miller terminates this Agreement for any reason, Supplier’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Miller prior to the termination.

14.    Waiver.

No waiver, omission or delay on the part of Miller in requiring performance by Supplier or in exercising any right hereunder shall operate as a waiver of any provision hereof or of any right hereunder, and the waiver, omission or delay in requiring performance or exercising any right hereunder on one occasion shall not be construed as a bar to or waiver of such performance or right on any future occasion.

15.    Force Majeure.

Neither party shall be responsible or liable to the other party for any failure or delay in such party’s (the “Impacted Party”) performance under this Agreement due to a Force Majeure Event. A “Force Majeure Event” shall mean the reasonably demonstrated occurrence of any act or event beyond the reasonable control of, and not the result of the fault or negligence of, the Impacted Party that prevents the Impacted Party from performing its obligations under this Agreement, in full or part, and the Impacted Party is unable to avoid or overcome with the exercise of due diligence (including the expenditure of commercially reasonable sums). So long as the foregoing conditions are satisfied, a Force Majeure Event may include storms, nuclear emergency, natural disasters, acts of God, drought, flood, earthquake, fire, explosion, lightning, epidemic, war, riot, sabotage, terrorism or threat of terrorism, strike, lockout, epidemic or pandemic. During any such Force Majeure Event by Supplier, Miller may elect to purchase any Goods or Services under an Order elsewhere and, at Miller’s sole option, to reduce the quantity of Goods or Services deliverable under an Order.

16.    Assignment.

Supplier shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Miller. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Supplier of any of its obligations hereunder. Notwithstanding anything herein to the contrary, Miller shall have the right to assign this Agreement, without the consent of Supplier, to (i) any entity controlling, controlled by or under common control with Company; (ii) any entity acquiring all or substantially all of the assets of Miller, whether by purchase, merger or otherwise.

17.    Relationship of the Parties.

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement 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.

18.    Governing Law.

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Illinois, without giving effect to its principles of conflict of laws.

19.    Notices.

Whenever, by the terms of this Agreement, notice, demand or other communication shall or may be given to either party, the same shall be in writing, shall reference this Agreement, and shall be addressed to the other party at its address set forth in the Order, or to such other address or addresses as shall from time to time be designated by written notice by either party to the other in accordance with this Section. All notices shall be sent by delivery by Federal Express or other comparable courier service providing proof of delivery, and shall be deemed duly given upon the date of actual receipt (or, if such date is not a business day, on the next succeeding business day).

20.    Severability.

If any term or provision of this Agreement or the application thereof to any person or circumstance shall to any extent be held invalid or unenforceable, the remainder of this Agreement or the application thereof to any person or circumstance shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

21.    SURVIVAL.

The following provisions of this Agreement shall remain in full force and effect after the expiration or earlier termination of this Agreement:  Section 9 (Warranties), Section 10 (Indemnification), Section 11 (Insurance), Section 12 (Compliance with Laws), Section 14 (Waiver), Section 16 (Assignment), Section 17 (Relationship of the Parties), Section 18 (Governing Law), Section 21 (Survival), and Section 23 (Limitation of Liability).

22.    Amendment and Modification.

These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.

23.    Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MILLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR MULTIPLE DAMAGES (INCLUDING DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF THE FORM OF ACTION AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF THE FORM OF ACTION, MILLER’S LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE VALUE OF THE ORDER GIVING RISE TO SUCH LIABILITY.