Automation Terms of Sale - MillerWelds

Terms and Conditions of Sale

1. Acceptance. Miller Welding Automation and/or Jetline Engineering (“Seller”) are selling products (“Products”) and/or services (“Services”) and the customer purchasing from Seller is referred to as (“Purchaser”). These terms and conditions of sale (“Terms”), any Seller quotation, acknowledgment or invoice and all documents incorporated by specific reference herein or therein (“Seller Documents”) and together with these Terms, the (“Agreement”), constitute the complete terms governing the sale of Products and Services. SELLER HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY PURCHASER, WHETHER OR NOT CONTAINED IN ANY OF PURCHASER’S BUSINESS FORMS OR IN PURCHASER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS WILL BE OF NO EFFECT. No site usage agreement or any other click through agreement on a website will have any binding effect whether or not Seller clicks on an “ok,” “I accept,” or similar acknowledgment. Commencement of any work by Seller or Purchaser's acceptance of delivery of the Products and/or Services will manifest Purchaser's assent to the Agreement. Additional or different terms applicable to a particular sale may be specified in the body of a Seller Document or agreed to in writing by the parties. In the event of a conflict, the following order of precedence will apply: (a) terms agreed to in writing and executed by an authorized officer of Seller; (b) Seller Document terms; (c) these Terms.

2. Quotations. Quotations are only valid in writing and for 30 days from the date of the quotation. All quotations are subject to change or withdrawal without prior notice to Purchaser. Quotations are made subject to approval of Purchaser’s credit. Seller may refuse orders and has no obligation to supply Products or Services unless Seller issues an order acknowledgement or upon the shipment of Products or commencement of Services. 

3. Prices and Payment Terms. Prices are in U.S. Dollars and are subject to change without notice. All orders are accepted subject to Seller’s price in effect at time of order. Prices do not include any sales, use, value-added or other taxes, import duties, license fees or like charges (“Fees”) related to the sale, importation or use of Products or Services, and Purchaser is responsible for those Fees. If Seller is subsequently required to pay any Fees, Purchaser shall fully defend and indemnify Seller therefor. Terms of payment are 30 days from the date of Seller’s invoice or shall be made as progress payments as stated in Seller’s applicable quotation. Overdue invoices will incur interest at the rate of 1.5% per month, or at the maximum rate allowable by governing law. Purchaser’s inspection rights herein will not affect the payment terms. Under no circumstances will Purchaser have a right of set-off. If Purchaser fails to make any payment as required, Purchaser agrees to indemnify Seller for all associated costs incurred by Seller, including reasonable attorney fees and court costs.  Minimum order is $250.00 net for domestic shipments. If Seller accepts an order for less than $250, Seller may apply processing fees to such order(s) (such fees are currently $25 but may vary), such processing fees are not refundable under any circumstances, even if the order is cancelled or returned (each of which require Seller’s written authorization). Non–standard product will be subject to minimum order quantities and lead times as specified by Seller.  

4. Credit Approval. All shipments are subject to credit approval by Seller. Seller may invoice Purchaser and recover for each shipment as a separate transaction. If, in Seller’s sole judgment, Purchaser’s financial condition is or becomes unsatisfactory, then Seller may, without prejudice to any of its other remedies: (a) defer or decline to make any shipments except upon receipt of satisfactory security or cash payments in advance; and/or (b) terminate any or all of Purchaser’s purchase orders. 

5. Cancellation or Modification. Once Seller has accepted a purchase order or begun taking actions with respect to a purchase order, Purchaser cannot cancel or modify that purchase order except with Seller’s written consent. In such event, Purchaser will be liable for cancellation or modification charges and all costs incurred for the order or in connection with the cancellation or modification. No cancellations will be permitted for any sales items. Purchaser agrees that, due to the complex nature of welding systems, Seller may modify or alter the specifications of the Products after Seller has accepted Purchaser’s order.

6. Inspection / Non-Conforming Shipments. Purchaser may inspect Products for a period of 15 business days after delivery (“Inspection Period”). Purchaser must notify Seller in writing of any nonconforming Products within the Inspection Period and afford Seller a reasonable opportunity to inspect such Products and cure any nonconformity. If Purchaser fails to provide Seller such written notice within the Inspection Period, Purchaser will be deemed to have accepted the Products. Purchaser may not return any Product without Seller’s prior written authorization. Any return authorized by Seller must be made in accordance with Seller’s return policies. Purchaser will be responsible for all costs associated with returns of Products and will bear the risk of loss, unless Seller agrees otherwise in writing or determines that the Products do not conform to the applicable terms of sale. Any variation in quantities shipped over or under those ordered (not to exceed 10%) will constitute compliance with Purchaser’s order, and the stated price per item will continue to apply. 

7. Delivery.  Unless otherwise agreed upon by the parties in writing, all Products will be shipped FOB Seller’s facility (Incoterms 2010). Shipping dates are approximate and are based upon prompt receipt of all necessary information from Purchaser. Seller may ship items in a single or multiple shipments. Title to the Products and risk of loss shall pass to Purchaser upon delivery in accordance with the applicable shipping term. Purchaser assumes all risk and liability for loss and use or misuse by third parties who acquire or use the Products illicitly after delivery. Purchaser must notify Seller and the delivering carrier within 5 business days from date of receipt of Products, of any damage or shortage, and afford Seller a reasonable opportunity to inspect the Products. Any loss occasioned by damage or shrinkage in transit will be for Purchaser’s account, and claims for such loss must be made solely against the carrier. 

8. Warranty. Components or parts manufactured directly by Miller Electric Mfg. Co. are subject to Miller’s True Blue® Warranty set forth at www.millerwelds.com/support/warranty. Seller does not make any warranties for components or parts not manufactured directly by Jetline Engineering, Miller Welding Automation, and Panasonic Welding Systems Company; such components or parts are subject to the warranty terms of the respective manufacturer. Components and parts manufactured by Jetline Engineering, Miller Welding Automation, and Panasonic Welding Systems Company are subject to the following warranty terms.  
Seller warrants to Purchaser that the components or parts manufactured by Seller or Panasonic Welding Systems Company shall be free from defects in material and workmanship, and shall conform to the Seller’s specifications for the following periods:

a. 12 months from the date of shipment of the Products for components and equipment manufactured by Panasonic Welding Systems Company including robot manipulator, controller and connecting cables; external axis components (external axis base unit, servo amplifiers, motors, connecting cables and pre-engineered positioners); peripheral devices (high voltage touch sensors, thru arc seam trackers); welding power sources (internally built into the robot controller cabinet); wire feeders (separated design or integrated design, i.e. Active Wire Feeder); or

b. 12 months from date of shipment of the Products for equipment manufactured by Miller Welding Automation.

c. 36 months from date of shipment of the Products for equipment manufactured by Jetline Engineering except for the CyclomaticTM product line which is covered for 12 months from the date of shipment.

In the event of a breach of the warranties set forth above, Seller will, at Seller’s option and as Seller’s sole liability and Purchaser’s sole remedy, repair, replace or credit Purchaser’s account for, any Product that fails to conform to the above warranty, provided that (i) during the applicable warranty period Seller is promptly notified in writing upon discovery of such failure with a detailed explanation of any alleged deficiencies; (ii) Seller is given a reasonable opportunity to investigate all claims; and (iii) Seller’s examination of such Product confirms the alleged deficiencies and that the deficiencies were not caused by accident, misuse, neglect, improper installment, unauthorized alteration or repair or improper testing. No Products may be returned to Seller until inspection and approval by Seller. All warranty work performed shall be FOB Seller’s facility (Incoterms 2010) and freight for returned Products shall be paid for by Purchaser. 
The above warranty against defects does not apply to: (1) consumable components or ordinary wear items including but not limited to torches, wire drive (such as drive rolls, inlet and outlet guides), welding torch items (such as contact tips, nozzles, insulators and  liners); or (2) defects due to (i) failure to install and perform maintenance set forth in Product documentation, (ii) the use of components, parts, peripherals, attachments, accessories, or perishable tooling not approved by Seller, (iii) accident, misuse, neglect, abuse, mishandling, misapplication, modification, alteration, acts of God, or (iv) improper installation, service or maintenance.

Purchaser and/or the operator of the Products are in full control of the weld process. Seller makes no warranty regarding the quality or the success of the welds on the Products due to factors under Purchaser’s and/or operator’s control including but not limited to welding procedures, material types, material coatings, joint/part fit, part geometry, metallurgy, welding gases, proper machine/process maintenance, and operator skill. 

EXCEPT AS SET FORTH ABOVE, SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE).

9. Service Warranty. Seller warrants the Services shall conform to any mutually agreed upon specifications or statements of work. Purchaser’s sole remedy, and Seller’s sole liability, for a breach of the foregoing warranty is for Seller, at its option, to re-perform the Services or credit Purchaser’s account for such Services.

10. Limitation of Liability and Remedies. SELLER WILL NOT BE LIABLE, AND PURCHASER WAIVES ALL CLAIMS AGAINST SELLER, FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, DOWN TIME, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON SELLER’S NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. IN NO EVENT WILL SELLER’S LIABILITY IN CONNECTION WITH THE AGREEMENT OR SALE OF SELLER’S PRODUCTS OR SERVICES EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS OR SERVICES AS TO WHICH THE CLAIM IS MADE. 

11. Training.  Purchaser agrees to properly train all persons, including employees, subcontractors and transferees, who may use or handle Products sold hereunder. All users of the Products are required to read and adhere to the applicable user manuals and safety instructions. Purchaser shall indemnify Seller for all costs incurred with respect to claims for personal injuries and property damage in connection with the use of Products by any person without property training. Seller may provide Purchaser with training upon request, provided, however, any training provided by Seller will not affect Purchaser's obligations set forth above. If Seller includes training credit(s) in a bundled sale with equipment to Purchaser (“Bundled Sales”) or if Purchaser purchases training credit(s) as a standalone purchase, any such credit(s) are valid for a period of one year from the date of the applicable sale for standalone purchases or, for Bundled Sales, one year from the date of shipment of the equipment. Any training credit(s) not used within the applicable year are automatically forfeited.  

12. Product Use. Purchaser is solely responsible for determining if a Product is fit for a particular purpose and suitable for Purchaser’s method of application. Accordingly, and due to the nature and manner of use of Seller’s Products, Seller is not responsible for the results or consequences of use, misuse or application of its Products. All physical properties, statements and recommendations are either based on the tests or experience that Seller believes to be reliable, but they are not guaranteed.

13. Ownership of Intellectual Property. All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights and other information or intellectual property disclosed or otherwise provided to Purchaser by Seller and all rights therein (collectively, “Intellectual Property”) will remain the property of Seller and will be kept confidential by Purchaser in accordance with these Terms. Purchaser has no claim to, nor ownership interest in, any Intellectual Property, and such information, in whatever form and any copies thereof, shall be promptly returned to Seller upon request from Seller. Purchaser acknowledges that no license or rights of any sort are granted to Purchaser hereunder in respect of any Intellectual Property, other than the limited right to use Seller’s Products or receive the Services purchased from Seller. 

14. Use of Trademarks and Trade Names. Purchaser shall not use, directly or indirectly, in whole or in part, Seller’s name, or any other trademark or trade name that is now or may hereafter be owned by Seller (collectively the “Trademarks”), as part of Purchaser’s corporate or business name, or in any way in connection with Purchaser’s business, except in a manner and to the extent authorized herein or otherwise approved by Seller in writing. Purchaser hereby acknowledges Seller’s ownership of the Trademarks and the goodwill associated therewith. Purchaser shall not infringe upon, harm or contest the validity of any Trademarks. Purchaser shall be entitled to use the Trademarks only in connection with the promotion or sale of the Authorized Products pursuant to the terms of the Agreement. Purchaser shall reproduce the Trademarks exactly as specified by Seller. Purchaser shall not use the Trademarks in combination with any other trademarks or names. Purchaser agrees that it will not register or attempt to register any Trademark or any colorable imitation thereof (including any non-English language variation thereof), or use such Trademarks for any products or for any purposes other than those set forth in the Agreement. Purchaser shall not at any time during or after termination of the Agreement use in its business any other trademark that is similar to or in any way resembles the Trademarks so as to be likely to cause deception or confusion with the Trademarks. Purchaser shall provide reasonable cooperation to Seller with respect to any efforts of Seller to protect, defend or enforce its rights to the Trademarks. Should Purchaser cease being an authorized customer of Seller for any reason, Purchaser shall immediately discontinue any formerly permitted use of Seller’s name or the Trademarks.

15. Confidential Information. All information furnished or made available by Seller to Purchaser in connection with the subject matter hereof shall be held in confidence by Purchaser. Purchaser agrees not to use (directly or indirectly), or disclose to others, such information without Seller’s prior written consent. The obligations in this section will not apply to any information that: (a) at the time of disclosure was or thereafter becomes generally available to the public by publication or otherwise through no breach by Purchaser of any obligation herein; (b) Purchaser can show by written records was in Purchaser’s possession prior to disclosure by Seller; or (c) is legally made available to Purchaser by or through a third party having no direct or indirect confidentiality obligation to Seller with respect to such information.  

16. Audit. Unless agreed to in writing by an officer of Seller, neither Purchaser nor any Purchaser representative, may examine or audit Seller’s cost accounts, books or records of any kind or any matter, or any other data that Seller, in its sole discretion, considers confidential or proprietary.

17. Infringement and Indemnification. Except as set forth below, Seller agrees to defend and indemnify Purchaser against any claims, costs, damages, liability and expenses resulting from actual patent, trademark or copyright infringement, misappropriation of confidential information, or violation of any other Intellectual Property right, domestic or foreign that may arise from the sale of Seller’s proprietary Product to Purchaser as such pertains to the subject matter of the Agreement (each, a “Claim”); provided, however, (a) Purchaser supplies Seller written notice of such Claim immediately after the Purchaser has notice of such Claim, (b) Purchaser cooperates with Seller in the defense and settlement of such Claim; and (c) Purchaser allows Seller the right to defend and settle such Claim at Seller’s expense If a suit or claim results in any injunction or order that would prevent Seller from supplying any part or Product falling under the Agreement, or if the result of such a suit or claim would, in the reasonable opinion of Seller, otherwise cause Seller to be unable to supply such parts or Products, Seller may do one or more of the following: (i) secure an appropriate license to permit Seller to continue supplying those parts or Products; (ii) modify the appropriate part or Product so that it becomes non-infringing; (iii) replace the appropriate part or Product with a non-infringing but practically equivalent part or Product; or (iv) if Seller cannot reasonably accomplish the actions specified in subsections (i) – (iii), then in Seller’s sole discretion, Seller may discontinue selling the part or Product without any further liability to Purchaser. Notwithstanding the foregoing, Seller shall have no liability or duty to defend and indemnify Purchaser against any Claim relating to: (1) the use of any part or Product, (2) the combination of any part or Product with any other part or product not supplied by Seller, or (3) any part or Product or process that is designed or specified by Purchaser.

18. Seller Employees. Seller sales and service employees do not have the training or authority to make legal representations or enter into any agreements or execute any Purchaser documents affecting legal responsibilities or waiving legal rights, including those regarding the transfer of intellectual property rights or related to privacy laws. Any such representations, agreements or documents will not be binding on Seller or such Seller employees.

19. Service Terms. The following terms and conditions apply to any on-site Services provided by Seller:

A. Services will be provided at Seller’s then current service rates.

B. Purchaser shall prepare the site for the Services. If the site is not prepared for the Services upon Seller service personnel’s arrival at the agreed upon time and date for Services, Seller may charge Purchaser for any delay and/or travel time at Seller’s regular service rates.

C. Purchaser shall provide Seller with advance notice of any rules, regulations, statutes and requirements applicable to the Services, including any required permits and licenses that are applicable to Purchaser’s local jurisdiction.

D. Seller may refuse, without any liability, to provide Services and to allow Seller service personnel to suspend Services or vacate any site where, in Seller’s opinion, performance of Services would pose a risk to the safety of any person. In such event, Purchaser is responsible for payment of any delay and/or travel time at Seller’s regular service rates.

E. Purchaser is solely liable for all damages or injuries caused or contributed to by Purchaser that may occur on the site, except to the extent damages or injuries are directly caused by the gross negligence or willful misconduct of Seller service personnel. 

20. Compliance. Purchaser agrees to comply with all federal, state, local and foreign rules, regulations, ordinances and laws applicable to Purchaser’s obligations hereunder and Purchaser’s use of the Products and Services, including import/export laws, labor laws and anti-corruption laws.

21. Relationship of the Parties. Nothing in the Agreement or the course of dealing of the parties may be construed to constitute the parties hereto as partners, joint venturers or as agents for one another or as authorizing either party to obligate the other in any manner.

22. Force Majeure. Seller will not be responsible for failure to perform in a timely manner under the Agreement when its failure results from events beyond its reasonable control (an event of “Force Majeure”), including acts of God, epidemics, acts of war whether declared or undeclared, blockades, labor disputes (whether of Seller’s employees or the employees of others), raw material shortages and material increases in costs of raw materials. In the event of Force Majeure, the time for performance will extend for such time as reasonably necessary to enable Seller to perform. 

23. Assignment; Binding Effect. No assignment of any rights or interest or delegation of any obligation of Purchaser under the Agreement or Purchaser’s purchase order may be made without Seller’s prior written consent. Any attempted assignment will be void. Seller may assign the Agreement or otherwise transfer its rights and/or obligations under the Agreement. The Agreement will inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns.

24. Waiver. In the event of any default by Purchaser, Seller may decline to ship Products or provide Services. If Seller elects to continue shipping or otherwise fails to insist upon strict compliance with the Agreement, Seller’s actions will not constitute a waiver of Purchaser’s default or any other existing or future default, or affect Seller’s legal remedies.

25. Bankruptcy. If either party becomes insolvent, is unable to pay its debts when due, files for or is the subject of involuntary bankruptcy, has a receiver appointed or has its assets assigned, the other party may cancel any unfulfilled obligations hereunder.

26. Limitation of Actions/Choice of Law/Litigation Costs. Any dispute arising out of or related to the Agreement will be governed by and construed according to the laws of the state of Illinois and litigated exclusively in a state or federal court located in Cook County, Illinois. The parties hereto expressly release and waive any and all rights to a jury trial and consent to have any dispute heard solely by a court of competent jurisdiction.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement. If either party commences litigation or mutually agreed upon alternative dispute resolution concerning any provision of the Agreement, the prevailing party is entitled, in addition to the relief granted, to a reasonable sum for their attorney’s fees in such litigation or mutually agreed upon alternative dispute resolution, provided that if each party prevails in part, such fees will be allocated in the manner as the court or arbitrator determines to be equitable in view of the relative merits and amounts of the parties’ claims.

27. Survival. Any provisions in the Agreement which, by their nature, extend beyond the termination or expiration of any sale of Products or Services, will remain in effect until fulfilled.

28. Severability. If any provision herein is held to be unlawful or unenforceable, the remaining provisions herein will remain in effect.

29. Integration and Modification. The Agreement constitutes the entire agreement between Seller and Purchaser with respect to the Products and Services covered by the Agreement, and supersedes any prior agreements, understandings, representations and quotations with respect thereto. No modification hereof will be of any effect unless in writing and signed by the party to be bound thereby. 

Updated March 7, 2017