Miltera terms and conditions
MILTERA TERMS AND CONDITIONS v5
THIS SALES AGREEMENT (the “Agreement”) sets forth the terms and conditions that apply to all
supply of goods and services by Miltera as listed on the attached quotation (“Quotation”),
subsequently ordered via a purchase order (a “PO”) issued by Customer to Miltera, confirmed by
sales order (“Sales Order”) issued by Miltera to Customer, and subsequently billed by means of
invoice (“Invoice”) issued by Miltera to Customer. As used in this Agreement, "Customer" means the
entity identified on the face of the Quotation as "Customer" and its subsidiaries and affiliates, and
"Miltera" means Miltera Machining Research Corp. and its subsidiaries and affiliates. Customer and
Miltera hereby agree as follows:
1. SERVICES & DELIVERABLES.
Miltera agrees to perform the services ("Services") and/or provide the goods or deliverables
described in Quotation (collectively referred to as "Goods"), in accordance with the terms and
conditions in this Agreement. Upon issuance of a PO, Customer shall be bound by the provisions of
this Agreement, whether Customer acknowledges or otherwise signs this Agreement or the PO,
unless Customer objects to such terms in writing prior to issuing a PO for the Quotation. This
Agreement may not be added to, modified, superseded, or otherwise altered, except by a writing
signed by an authorized Miltera representative. Any terms or conditions contained in any PO, or
other communication of Customer which are inconsistent with the terms and conditions of this
Agreement, are hereby rejected.
2. VALIDITY.
The prices contained on this Quotation are valid for a period of thirty (30) days. POs issued after
this time may not be accepted without an updated Quotation. Completion times are quoted as of
date PO is received by Miltera.
3. DELIVERY.
Delivery of Goods shall be made pursuant to the schedule, via the carrier, and to the place specified
on the applicable Order Confirmation. All items are FOB Miltera unless otherwise specified. Customer
will arrange and pay for all transport and customs/duties for all Goods and Services from FOB point
unless otherwise specified. Miltera reserves the right to bill for any Goods returned or refused at the
point of delivery. Customer will indemnify Miltera with respect to any expenses, duties, penalties,
damages, settlements, costs or attorney's fees incurred by Customer in connection with Customers
failure to properly transport Goods from FOB point. Miltera shall not be subject to any charges or
other fees as a result of delivery delays.
4. IDENTIFICATION, RISK OF LOSS, & DESTRUCTION OF GOODS.
Customer assumes all risk of loss once title transfers to Customer. Title to the Goods shall pass to
Customer upon departure of Goods from point of FOB.
5. PAYMENT.
5.1. As full consideration for the performance of the Services, delivery of the Goods and the
assignment of title to Customer as provided in this Agreement, Customer shall pay Miltera the
amount agreed upon and specified in the Invoice provided pursuant to the relevant Sales Order.
Applicable taxes and other charges such as shipping costs, duties, customs, tariffs, imposts, and
government-imposed surcharges are the sole responsibility of Customer unless otherwise stated in
writing. Payment must be made Net30 (within 30 days) unless otherwise stated in writing. Payment
not received in full during this timeframe are subject to 2% per month financing charge.
5.2. If Customer disputes the accuracy of an Invoice (a "Billing Dispute"), Customer will not later than
fifteen (15) days following the date of such Invoice, notify Miltera in writing of the nature of the
Billing Dispute. Customer must continue with payment despite the value of the disputed amount or
payment will be considered past due during Customer’s investigation. Miltera will make commercially
reasonable efforts to completely resolve the Billing Dispute within thirty (30) days following the date
on which Miltera received Customer’s initial Billing Dispute. If the parties are unable to resolve the
Billing Dispute within such thirty (30) day period, it will be resolved pursuant to Section 26 below.
6. WARRANTIES.
For the first thirty (30) days following shipment of the Goods (“Warranty Period”), Miltera warrants
that all Goods delivered shall meet the tolerances that are expressly marked on the customer’s
drawing as a critical dimension (“Critical Dimension”) requiring 100% inspection (“Warranty”).
Otherwise Miltera in no way warrants that Goods are free from defects and shall conform to any
applicable specifications or any statements of purpose. SPECIFICALLY, MILTERA DOES NOT WARRANT
THAT THE GOODS AND SERVICES WILL MEET CUSTOMER REQUIREMENTS, THAT ITS FUNCTION WILL
BE FAILURE FREE, OR THAT ANY PROBLEMS OR DEFECTS WILL BE CORRECTED. THE GOODS AND
SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, MILTERA SPECIFCALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, OR INFRINGEMENT. IF APPLICABLE LAW DOES NOT ALLOW THE
EXCLUSION OF IMPLIED WARRANTIES, SUCH WARRANTIES ARE LIMITED TO FIFTEEN (15) DAYS
FROM THE SHIPMENT DATE OF THE GOODS.
7. INSPECTION.
Customer shall have a period of thirty (30) days after receipt of Goods or Service deliverables to
inspect them for conformity of the Critical Dimension(s). If Goods tendered do not wholly conform
with the provisions hereof, Customer shall notify Miltera in writing of the nature of the nonconformance
and follow the procedures for Billing Dispute as per Section 5.2.
8. INDEPENDENT CONTRACTOR.
Miltera is interested only in the results obtained under this Agreement; the manner and means of
achieving the results are subject to Customer’s sole control. Customer is an independent contractor
for all purposes, without express or implied authority to bind Miltera by contract or otherwise.
Neither Customer nor its employees, agents or subcontractors ("Customer’s Affiliates") are agents or
employees of Miltera, and therefore are not entitled to any employee benefits of Miltera, including
but not limited to, any type of insurance. Customer shall be responsible for all costs and expenses
incident to performing its obligations under this Agreement. Customer and Customer’s Affiliates shall
observe the working rules of all Miltera premises when on such premises.
9. CUSTOMER RESPONSIBLE FOR TAXES AND RECORDS.
Customer shall be solely responsible for filing the appropriate federal, state and local tax forms and
paying all taxes or fees, including estimated taxes and employment taxes, due with respect to
Customer’s payment under this Agreement. Customer further agrees to provide Miltera with
reasonable assistance in the event of a government audit. Miltera shall have no responsibility to pay
or withhold from any payments received under this Agreement, any federal, state, or local taxes or
fees.
10. INSURANCE.
Customer shall be solely responsible for maintaining such adequate health, auto, workers'
compensation, unemployment compensation, disability, liability, and other insurance, as is required
by law or as is the common practice in Customer’s trades or businesses.
11. INDEMNITY.
Customer shall indemnify, hold harmless, and at Miltera’s request, defend Miltera, its officers,
directors, customers, agents and employees, against all claims, liabilities, damages, losses, and
expenses, including attorneys' fees and cost of suit arising out of or in any way connected with the
Goods or Services provided pursuant to a PO, including, without limitation, (i) any claim based on the
death or bodily injury to any person, destruction or damage to property, or contamination of the
environment and any associated clean up costs, (ii) Customer failing to satisfy the Internal Revenue
Service's guidelines for an independent contractor, (iii) any claim based on the negligence,
omissions, or willful misconduct of Customer or any of Customer’s Affiliates, and (iv) any claim by a
third party against Miltera alleging that the Goods or Services, the results of such Services, or any
other products or processes provided pursuant to a PO, infringe a patent, copyright, trademark,
trade secret, or other proprietary right of a third party, whether such are provided alone or in
combination with other products, software, or processes. Customer shall not settle any such suit or
claim without Miltera’s prior written approval. Customer agrees to pay or reimburse all costs that
may be incurred by Miltera in enforcing this indemnity, including attorneys' fees.
12. CONFIDENTIALITY.
Customer may acquire knowledge of Miltera Confidential Information (as defined below) in
connection with Miltera’s performance hereunder and agrees to keep such Miltera Confidential
Information in confidence during and following termination or expiration of this Agreement. "Miltera
Confidential Information" includes but is not limited to all information, whether written or oral, in any
form, including without limitation, information relating to the research, development, products,
methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel
data, Related Items (as defined in Section 13, below), and other material or information considered
proprietary by Miltera relating to the current or anticipated business or affairs of Miltera which is
disclosed directly or indirectly to Customer. In addition, Miltera Confidential Information means any
third party's proprietary or confidential information disclosed to Customer in the course of providing
Services or Goods to Customer. Miltera Confidential Information does not include any information (i)
which Customer lawfully knew without restriction on disclosure before Miltera disclosed it to Customer,
(ii) which is now or becomes publicly known through no wrongful act or failure to act of Customer,
(iii) which Customer developed independently without use of the Miltera Confidential Information, as
evidenced by appropriate documentation, or (iv) which is hereafter lawfully furnished to Customer by
a third party as a matter of right and without restriction on disclosure. In addition, Customer may
disclose Miltera Confidential Information that is required to be disclosed pursuant to a requirement
of a government agency or law so long as Customer provides prompt notice to Miltera of such
requirement prior to disclosure. Customer agrees not to copy, alter, or directly or indirectly disclose
any Miltera Confidential Information. Additionally, Customer agrees to limit its internal distribution of
Miltera Confidential Information to Customer’s Affiliates who have a need to know, and to take steps
to ensure that the dissemination is so limited, including the execution by Customer’s Affiliates of
nondisclosure agreements with provisions substantially similar to those set forth in this Agreement.
In no event will Customer use less than the degree of care and means that it uses to protect its own
information of like kind, but in any event not less than reasonable care to prevent the unauthorized
use of Miltera Confidential Information. Customer further agrees not to use the Miltera Confidential
Information except in the course of performing hereunder and will not use such Miltera Confidential
Information for its own benefit or for the benefit of any third party. The mingling of the Miltera
Confidential Information with information of Customer shall not affect the confidential nature or
ownership of the same as stated hereunder. Customer agrees not to design or manufacture any
products incorporating Miltera Confidential Information without Miltera’s express written consent in
each instance. All Miltera Confidential Information is and shall remain Miltera property. Upon Miltera’s
written request or the termination of this Agreement, Customer shall return, transfer, or assign to
Miltera all Miltera Confidential Information, including all Related Items.
13. OWNERSHIP OF RELATED ITEMS.
For purposes of this Agreement, "Related Items" includes, without limitation, all software or computer
programs, CAM programs, G-Code or machine tool code, manufacturing or machining processes and
techniques, procedures, process improvements, fixtures, tooling, tool design, fixture designs, work in
progress, and Service deliverables. Goods manufactured by Miltera and sold to Customer and
designs thereof do not constitute Related Items. All Related Items shall at all times be and remain
the sole and exclusive property of Miltera. Customer hereby agrees to irrevocably assign and
transfer to Miltera and does hereby assign and transfer to Miltera all of its worldwide right, title, and
interest in and to the Related Items including all associated intellectual property rights. Miltera will
have the sole right to determine the treatment of any Related Items, including the right to keep it as
trade secret, execute and file patent applications on it, to use and disclose it without prior patent
application, to file registrations for copyright or trademark in its own name, or to follow any other
procedure that Miltera deems appropriate. Customer agrees: (a) to disclose promptly in writing to
Miltera all Related Items in its possession; (b) to assist Miltera in every reasonable way, at Miltera’s
expense, to secure, perfect, register, apply for, maintain, and defend for Miltera’s benefit all
copyrights, patent rights, mask work rights, trade secret rights, and all other proprietary rights or
statutory protections in and to the Related Items in Miltera’s name as it deems appropriate; and (c)
to otherwise treat all Related Items as Miltera Confidential Information as described above. These
obligations to disclose, assist, execute, and keep confidential survive the expiration or termination of
this Agreement. All tools and equipment supplied by Miltera to Customer shall remain the sole
property of Miltera. Customer will ensure that Customer’s Affiliates appropriately waive any and all
claims and assign to Miltera any and all rights or any interests in any Related Items created in
connection with this Agreement. Customer irrevocably agrees not to assert against Miltera or its
direct or indirect customers, assignees, or licensees any claim of any intellectual property rights of
Customer affecting the Related Items.
14. NONINTERFERENCE WITH BUSINESS.
Customer agrees not to unlawfully interfere with the business of Miltera in any manner, and further
agrees not to solicit or induce any employee or independent contractor to terminate or breach an
employment, contractual, or other relationship with Miltera during the period ending two years after
the termination or expiration of this Agreement.
15. TERMINATION.
Miltera may terminate this Agreement upon written notice to Customer if Customer fails to perform or
otherwise breaches this Agreement, files a petition in bankruptcy, becomes insolvent, or dissolves.
Miltera shall cease to perform Services and/or provide Goods under this Agreement on the date of
termination specified in such notice. In the event of such termination, Customer shall be liable to
Miltera for those Services performed and Goods completed whether shipped or not through the date
of termination, less appropriate offsets. Upon the expiration or termination of this Agreement for any
reason: (i) each party will be released from all obligations to the other arising after the date of
expiration or termination, except for those which by their terms survive such termination or
expiration; and (ii) Customer will promptly notify Miltera of all Miltera Confidential Information in
Customer possession and, at the expense of Customer and in accordance with Miltera’s instructions,
will promptly deliver to Miltera all such Miltera Confidential Information.
16. SURVIVAL OF OBLIGATIONS.
Any obligations and duties that by their nature extend beyond the expiration or termination of this
Agreement shall survive the expiration or termination of this Agreement.
17. FORCE MAJEURE.
Neither party will be liable for any failure to perform, including failure to perform Services or
complete Goods, caused by circumstances beyond its reasonable control including, but not limited to,
acts of God, acts of war, government action or accident, provided it promptly notifies the other party
and uses reasonable efforts to correct its failure to perform.
18. SEVERABILITY.
If any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be affected or impaired
thereby.
19. REMEDIES.
If Customer breaches this Agreement, Miltera shall have all remedies available by law and at equity.
Customer acknowledges and agrees that the obligations and promises of Customer under this
Agreement are of a unique, intellectual nature giving them particular value. Customer’s breach of any
of the promises contained in this Agreement will result in irreparable and continuing damage to
Miltera for which there will be no adequate remedy at law and, in the event of such breach, Miltera
will be entitled to seek injunctive relief, or a decree of specific performance. The Customer’s sole and
exclusive remedy and Miltera’s sole and exclusive liability hereunder shall be, upon the Customer’s
postage prepaid return of the Goods within the Warranty Period, at Miltera’s sole option,
replacement or repair of the Goods that do not meet the Warranty. NEITHER MILTERA NOR ITS
LICENSORS SHALL BE LIABLE TO THE CUSTOMER FOR ANY LOST PROFITS; ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR SIMILAR DAMAGES; OR ANY CLAIMS OR
DEMANDS BROUGHT AGAINST THE CUSTOMER, HOWEVER CAUSED AND UNDER ANY THEORY OF
LIABILITY, EVEN IF MILTERA OR ITS LICENSORS WERE ADVISED OF THEIR POSSIBILITY. THE
CUSTOMER AGREES THE GOODS OR SERVICE FEE REFLECTS THIS ALLOCATION OF RISK. SOME
JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO THE CUSTOMER. In no
case shall Miltera’s aggregate liability exceed one hundred U.S. currency dollars (U.S. $100.00). If
any remedy provided is determined to have failed of its essential purpose, all limitations of liability
and exclusions of damages set forth herein shall remain in full force and effect.
20. ATTORNEYS' FEES.
In any action to enforce this Agreement, the prevailing party shall be entitled to recover all court
costs and expenses and reasonable attorneys' fees, in addition to any other relief to which it may be
entitled.
21. LIMITATION OF LIABILITY.
IN NO EVENT SHALL MITLERA BE LIABLE TO CUSTOMER OR CUSTOMER’S AFFILIATES, OR ANY THIRD
PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF,
OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT MILTERA WAS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
22. ASSIGNMENT/WAIVER.
Customer may not assign this Agreement or any of its rights or obligations under this Agreement,
without the prior written consent of Miltera. Any assignment or transfer without such written consent
shall be null and void. A waiver of any default or of any term or condition of this Agreement shall not
be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
23. NONEXCLUSIVE AGREEMENT.
This is not an exclusive agreement. Miltera is free to perform Services or provide Goods of a similar
nature to other companies unless otherwise agreed to.
24. NOTICES.
Except for Quotations, POs, and Sales Orders which may be sent by local mail, facsimile transmission,
or electronically transmitted, all notices required or permitted by this Agreement must be in writing
addressed to the authorized representative(s) of the other party. Notice will be deemed given (i)
when delivered personally; (ii) when sent by confirmed facsimile; (iii) one day after having been sent
by commercial overnight carrier specifying next-day delivery with written verification of receipt; and
(iv) three days after having been sent by first class or certified mail postage prepaid. A copy of any
notice sent to Miltera must also be sent simultaneously to Miltera’s General Counsel at Madorin,
Snyder LLP, 55 King Street West, 6th Floor, P.O. Box 1234, Kitchener, Ontario, N2G 4G9 Canada.
25. COMPLIANCE WITH LAWS.
Customer will comply with all applicable laws and regulations (including, without limitation, the
applicable laws, orders, policies, and regulations of the U.S. Government / Canadian Government and
U.S. Customs / Canadian Customs relating to import and export and re-export of commodities,
technical data and software, privacy, labor and employment, environmental protection, toxic
substances management, pollution prevention, waste disposal, and anti-corruption) and will defend
and hold Miltera harmless from any expense or damage resulting from its violation or alleged
violation of any such law or regulation in the performance of this Agreement.
26. GOVERNING LAW.
This Agreement and the rights and obligations of the parties will be governed by and construed and
enforced in accordance with the laws of the Province of Ontario as applied to agreements entered
into and to be performed entirely within Ontario between Ontario residents, without regard to
conflicts of law principles. The parties expressly agree that the provisions of the United Nations
Convention on Contracts for the International Sale of Goods will not apply to this Agreement or to
their relationship.
27. DISPUTE RESOLUTION, JURISDICTION AND VENUE.
If there is a dispute between the parties (whether or not the dispute arises out of or relates to this
Agreement), the parties agree that they will first attempt to resolve the dispute through one senior
management member of each party. If they are unable to do so within sixty (60) days after the
complaining party's written notice to the other party, the parties will then seek to resolve the dispute
through non-binding mediation conducted in the territory of the receiving party. Each party must
bear its own expenses in connection with the mediation and must share equally the fees and
expenses of the mediator. If the parties are unable to resolve the dispute within sixty (60) days after
commencing mediation, either party may commence litigation in the provincial/state or federal courts
in the jurisdiction of the receiving party. The parties irrevocably submit to the exclusive jurisdiction of
those courts and agree that final judgment in any action or proceeding brought in such courts will be
conclusive and may be enforced in any other jurisdiction by suit on the judgment (a certified copy of
which will be conclusive evidence of the judgment) or in any other manner provided by law. Process
served personally or by registered or certified mail, return receipt requested, will constitute adequate
service of process in any such action, suit or proceeding. Each party irrevocably waives to the fullest
extent permitted by applicable law (i) any objection it may have to the laying of venue in any court
referred to above; (ii) any claim that any such action or proceeding has been brought in an
inconvenient forum; and (iii) any immunity that it or its assets may have from any suit, execution,
attachment (whether provisional or final, in aid of execution, before judgment or otherwise) or other
legal process.
28. ENTIRE AGREEMENT/MODIFICATION.
This Agreement is the complete, final, and exclusive statement of the terms of the agreement
between the parties and supersedes any and all other prior and contemporaneous negotiations and
agreements between them relating to the subject matter hereof. This Agreement may not be varied,
modified, altered, or amended except in writing signed by the parties. The terms and conditions of
this Agreement shall prevail notwithstanding any variance with the terms and conditions of any
acknowledgment or other document submitted by Customer. Notwithstanding the foregoing, this
Agreement will not supersede or take the place of any written agreement that is signed by both
parties and covers the same subject matter as this Agreement or its related Pos.