Policies
MILLENNITEK STANDARD TERMS AND CONDITIONS OF SALE
The terms and conditions of sale (these “Terms”) are the only terms that govern the sale of services (“Services”) or goods (“Goods”) by MillenniTEK LLC (“Seller”) to the Buyer (as defined on the attached invoice). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. The accompanying invoice (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Notwithstanding anything to the contrary contained in this Agreement, Seller may, from time to time change the Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Confirmation.
1. Payment. Buyer shall pay all invoiced amounts due to Seller within thirty (30) days after the date of Seller’s invoice. Seller reserves the right, among other remedies, either to terminate this Agreement or to suspend further deliveries upon failure of Buyer to make any payment pursuant to this Agreement or any other agreement between the parties hereto. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise. If, in the judgment of Seller, Buyer’s ability to comply with its obligations with the Terms becomes impaired, Seller may, in its sole discretion, refuse to deliver any Goods or Services except for cash on delivery or, at Seller’s option, prepayment of the total price; and Seller may demand immediate payment in full in cash for all Goods and Services previously delivered hereunder as well as reimbursement for any costs and expenses associated with collection of such payment as required hereunder. A late charge of one and one-half percent (1.50%) per month (but not in excess of the lawful maximum) will be imposed automatically on all past due balances, prorated on a daily basis for each day that payment is due.
2. Sales Confirmation. The Sales Confirmation will be applicable only to those Goods or Services within ninety (90) days from the date of this Agreement. The remaining portion of the Goods and Services for which payment remains outstanding will be subject to the prices in effect at the time of payment.
3. Additional Processing of Goods. If under the terms herein Buyer is required to supply Seller with articles/goods for further processing, Buyer shall supply articles/goods meeting the specifications referenced in the Sales Confirmation. Seller shall not be responsible for any claims with respect to any articles/goods furnished to Seller which do not conform to such specifications. Any tooling or fixtures will remain the property of Seller and will be available for use on subsequent orders.
4. Title. Title and risk of loss of Goods shipped hereunder shall pass to Buyer upon delivery to a carrier at Seller’s plant or such other specified location. In addition to the prices quoted on the Sales Confirmation, Buyer shall pay Seller, pursuant to the terms set forth in Section 1 herein, the amount of all taxes, excises and/or other governmental charges (except taxes on or measured by net income) that Seller may be required to pay with respect to the services performed or articles sold hereunder. All transportation charges for Goods processed or manufactured by Seller shall be for the account of Buyer.
5. Limited Warranty. Seller warrants that at the time of delivery each of the Goods and/or Services supplied under this Agreement will meet Seller’s applicable standard specifications for such Goods and/or Services in effect at that time or such other specifications as have been expressly agreed upon with Buyer and referenced on the face of this Agreement. THERE ARE NO EXPRESS WARRANTIES BY SELLER OTHER THAN THOSE SPECIFIED IN THIS PARAGRAPH 5. NO WARRANTIES BY SELLER (OTHER THAN WARRANTY OF TITLE) SHALL BE IMPLIED OR OTHERWISE CREATED INCLUDING BUT NOT LIMITED TO WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS EXPRESSLY DISCLAIMED HEREIN. Without limiting the generality of the foregoing, Buyer assumes all risk and liability for the results obtained by the use of any Goods processed or sold hereunder in any manufacturing processes or in combination with any other substances or articles.
6. Inspection. Buyer shall make an examination both as to quantity of Goods delivered and as to the quality of Service performed hereunder immediately upon receipt of the Goods processed or sold hereunder or as to any Services rendered. Failure of Buyer to give written notice of any claims within thirty (30) days after receipt of the Goods or performance of the Services shall be an unqualified acceptance of the Goods and Services described hereunder and
a waiver by Buyer of all claims with respect thereto. No claims against Seller of any kind, whether based on warranty, contract, negligence or other legal theory, shall be greater in aggregate amount than the price charged by Seller to process or sell the Goods or perform the Services in respect of which such claims are made. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
7. Buyer’s Obligations Regarding Services. With respect to the Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Seller may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
8. Buyer’s Obligations Regarding Goods. Seller does not, by reason of the performance of Services or sale of Goods described herein, grant Buyer any right to use the Goods processed or sold hereunder in the practice of any process or in combination with any other materials under any patent of Seller or any third party covering such process or combination. Buyer assumes all responsibility for determining whether relevant patents exist covering the processing or use of any articles processed or sold hereunder. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
9. Seller’s Security Interest. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Tennessee Uniform Commercial Code.
10. Force Majeure. Neither party shall be liable for its delay or failure to perform hereunder (except Buyer with respect to making payments as required pursuant to Section 1 herein) due to contingencies beyond its control, including but not limited to, acts of God, fires, floods, wars, sabotage, accidents, labor disputes or shortages, governmental laws, ordinances, rules and regulations, whether valid or invalid (including but not limited to, priorities, requisitions, allocations and price adjustment restrictions), electrical power, equipment or transportation or any other similar or different contingency. If Seller cannot, due to any of the aforesaid contingencies, supply Buyer’s total demand for any Services or Goods ordered hereunder, Seller may allocate its available production capacity of such Services or Goods among Buyer and Seller’s other customers (including its internal components) on any basis which it deems to be fair and reasonable, without any liability for any failure of performance that may result. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered. Buyer acknowledges and agrees that the remedies set forth in Error! Bookmark not defined.10 are Buyer’s exclusive remedies for any non-delivery of Goods. Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only.
11. Governing Law/Jurisdiction. The validity, interpretation and performance of this Agreement shall be governed in accordance with the laws of the State of Tennessee, without reference to its conflicts of laws principles. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Tennessee in each case located in the City of Knoxville and County of Knox, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
12. Amendment/Modification. No amendment or modification by Buyer of these terms and conditions shall be valid unless accepted in writing by one of Seller’s officers or managers and, without limiting the generality of the foregoing, no such modification shall be effected by the acknowledgment or furnishing of purchase order forms containing other or different terms or conditions, whether or not signed by any representative of Seller, all of which are expressly rejected herein.
13. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
15. Buyer Authorization. Buyer, through and/or by its designated agents who have entered into this Agreement, represents and warrants that Buyer has authority to enter into this agreement and any person who verbally ordered the Goods sold hereunder or is signing this agreement on Buyer’s behalf has been duly authorized to execute or enter into said agreement for Buyer.
16. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) 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.
17. Confidentiality. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
18. 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.
19. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
20. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
21. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law/Jurisdiction and Survival.