Terms and Conditions

These Standard Terms and Conditions (together with the Purchase Order and any change order submitted by MMC, this “Contract”) shall govern the purchase of services and/or goods by MILLER MILLING COMPANY, LLC (“MMC”) from the party to whom the Purchase Order is addressed (the “Contractor”) and shall replace and supersede any terms and conditions presented by Contractor or any sales quotations, order acknowledgements, or similar forms unless otherwise specified in on the face of the purchase order issued by MMC with respect to hereto (the “Purchase Order”). No change to this Contract is binding upon MMC unless it is in writing, specifically states that it amends this Contract and is signed by an authorized representative of MMC.

  1. ACCEPTANCE: This Contract is not binding on MMC until Contractor accepts the Purchase Order in writing. If Contractor does not accept the Purchase Order in writing or provide written notice that it has commenced performance within 5 days of Contractor’s receipt of the Purchase Order, such Purchase Order will lapse. MMC may withdraw a Purchase Order any time before it is accepted by Contractor.
  2. DELIVERY: All goods and services shall be delivered to the address specified in the Purchase Order during MMC’s normal business hours or as otherwise instructed by MMC. Contractor shall deliver the goods and/or services in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties. All deliveries shall be F.O.B. destination (as specified in the Purchase Order) with all transportation and handling charges paid by the Contractor, unless specified otherwise on the face of the Purchase Order. Responsibility and liability for loss or damage remain with the Contractor until final inspection and acceptance, when responsibility passes to MMC except as to latent defects, fraud and Contractor’s warranty obligations. All goods shall be packed for shipment according to MMC’s instructions or, if there are no instructions, in a manner sufficient to ensure that the goods are delivered in undamaged condition. The Purchase Order number must appear on all shipping documents, shipping labels, invoices, correspondence and any other documents pertaining to a Purchase Order. MMC may terminate a Purchase Order, in whole or in part, at any time with or without cause for undelivered goods on 15 days’ prior written notice to Contractor.
  3. QUANTITY: If Contractor delivers more or less than the quantity of goods ordered, MMC may reject all or any excess goods. Any such rejected goods shall be returned to Contractor at Contractor’s risk and expense. If MMC does not reject the goods and instead accepts the delivery of goods at the increased or reduced quantity, the price for the goods shall be adjusted on a pro-rata basis. Unless specified otherwise, Contractor shall include all components, hardware and parts necessary for complete and proper assembly, installation and operation of goods.
  4. INSPECTIONS: Goods and services furnished under this Contract are subject to inspection and test by MMC at times and places determined by MMC. If MMC finds goods or services furnished to be incomplete or not in compliance with this Contract, MMC, at its sole discretion, may either reject the goods or services, require Contractor to correct any defects without charge, or negotiate with Contractor to sell the goods or services to MMC at a reduced price, whichever MMC deems appropriate under the circumstances. If Contractor is unable or refuses to cure any defects within a time deemed reasonable by MMC, MMC may reject the goods or services and cancel this Contract in whole or in part.
  5. WARRANTIES: Unless specified, Contractor shall deliver goods that are new, unused and produced from current production inventory. Contractor warrants all goods delivered to be free from defects in labor, material, and manufacture and to be in compliance with specifications in any solicitation document. All implied or expressed warranty provisions of the Uniform Commercial Code are incorporated into this Contract. Contractor is in compliance with and shall comply with all applicable laws, regulations and ordinances. All warranties run to MMC. The rights and remedies under this Contract are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity. Any applicable statute of limitations runs from the date of MMC’s discovery of the noncompliance of any goods or services with the foregoing warranties.
  6. INVOICES: Contractor shall send invoices to MMC for goods and services accepted by MMC to the contact and address specified in the Purchase Order. Contractor shall include in each invoice: (a) the Purchase Order number; (b) the quantity of goods ordered, the quantity of goods delivered, the date goods were delivered, the price per unit; (c) a detailed description of any services performed, the dates services were performed, the rate or rates for services performed, and the total cost of services; and (d) the total amount due and any payment instructions, including mailing address. MMC shall pay all properly invoiced amounts due to Contractor within 30 days after MMC’s receipt of such invoice, except for any amounts disputed by MMC in good faith. MMC shall pay Contractor for services performed at the prices and rates specified in this Contract. Contractor shall look solely to MMC for payment of all amounts MMC owes to Contractor. Without prejudice to any other right or remedy it may have, MMC reserves the right to set off at any time any amount owing to it by Contractor against any amount payable by MMC to Contractor.
  7. INDEMNITY: Contractor shall defend, indemnify and hold harmless MMC and MMC’s parent company, their subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees and MMC’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and 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 the products, goods and/or services purchased from Contractor or Contractor’s negligence, willful misconduct or breach of this Contract. Contractor shall, at its expense, defend, indemnify and hold harmless MMC and any Indemnitee against any and all Losses arising out of or in connection with any claim that MMC’s or Indemnitee’s use or possession of the goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Contractor shall not enter into any settlement without MMC’s or Indemnitee’s prior written consent. Upon MMC’s request, Contractor shall provide a certificate of insurance evidencing Contractor’s adequate insurance coverage.
  8. FORCE MAJEURE: Neither MMC nor Contractor shall be held responsible for delay or default caused by fire, riot, act of nature, terrorist acts, or other acts of political sabotage, or war where such cause was beyond, respectively, MMC’s or Contractor’s reasonable control. Contractor shall make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon cessation of the cause, diligently pursue performance of its obligations under this Contract. However, if a default or delay due to a force majeure event continues for an unreasonable time, as determined by MMC, then MMC is entitled to terminate this Contract.
  9. GOVERNING LAW: All matters arising out of or relating to this Contract shall be governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Minnesota.
  10. NOTICE: Unless otherwise specified, any notice pursuant to this Contract shall be validly given if in writing and delivered to the other party via e-mail, fax, or by registered or certified mail, postage prepaid, to the respective addressees of Contractor and MMC as designated between the parties.
  11. SEVERABILITY; WAIVER: The invalidity, illegality or enforceability of any provision of this Contract shall not affect the validity, legality or enforceability of any other provision of this Contract, which shall remain in full force and effect and shall be liberally construed in order to effectuate the purpose and intent of this Contract. No waiver by any party of any of the provisions of the Contract shall be effective unless explicitly set forth in writing and signed by the party so waiving.
  12. ASSIGNMENT/SUBCONTRACT/SUCCESSORS: Contractor shall not assign, sell, transfer, or subcontract rights, or delegate responsibilities under this Contract, in whole or in part, without the prior written approval of MMC, and any attempt by Contractor to assign, sell, transfer, or subcontract rights or delegate responsibilities under this Contract, without first acquiring written approval of MMC, is and shall be void.