Millboard Inc - Terms & Conditions of Sale

 

1. Acceptance of Terms

The purpose of these Terms and Conditions of Sale (the "Terms") is to govern the sale of products (the "Goods") manufactured by Millboard Inc. ("Millboard") to purchaser identified on a Quotation, schedule, or any other ordering document (collectively, "Ordering Document") (such purchaser, the "Buyer"). The accompanying Ordering Document 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. In the event of any conflict or inconsistency between the provisions of these Terms and the provisions of any Ordering Document, the provisions of the Ordering Document shall prevail to the extent of such conflict or inconsistency.

 

2. Quotations and Order Acceptance

Quotations shall expire and shall be void thirty (30) days from date of the Quotation, unless otherwise specified in the Quotation. The Quotation may be modified or withdrawn by Millboard at any time before Millboard’s receipt of Buyer's conforming Order (defined below); provided, however, Millboard reserves the right upon written notice to Buyer to correct any typographical or clerical errors made in an Quotation before or after receipt of Buyer's conforming acceptance (whereby, if exercised by Millboard, Millboard shall provide Buyer an opportunity to accept or reject Millboard 's corrected offer). Millboard may choose not to accept Orders at its sole discretion.

 

3. Delivery

1. Goods will be delivered within a reasonable time after the receipt and acceptance of Buyer's Order. Millboard shall not be liable for any delays, loss, or damage in transit. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
2. Unless otherwise agreed in writing by the parties, Millboard shall deliver the Goods to Millboard’s location (the "Delivery Point") using Millboard’s standard methods for packaging and shipping such Goods, and delivery shall be made FOB (origin).  The risk attached to the Goods shall pass to the Buyer at the time of delivery. Buyer shall take delivery of the Goods within three days of Millboard’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
3. Millboard 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.
4. If for any reason Buyer fails to accept delivery of any of the Goods or if Millboard is unable to deliver the Goods on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Millboard, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).

 

4. Non-Delivery

1. The quantity of any installment of Goods as recorded by Millboard on dispatch from Millboard's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
2. Millboard shall not be liable for any non-delivery of Goods (even if caused by Millboard's negligence) unless Buyer gives written notice to Millboard of the non-delivery within ten (10) business days of the date when the Goods would in the ordinary course of events have been received.
3. Any liability of Millboard 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.

 

5. Reservation of Title and Security Interest

Title in the Goods shall transfer to Buyer upon the later of a) Millboard’s receipt of all amounts, including interest and costs, Buyer owes to Millboard under or in connection with the Agreement; and (b) delivery of the Goods to the Delivery Point. Before payment has been made in full, the Buyer shall not have the right to fully or partially pledge the Goods to third parties. Buyer shall further not have the right to transfer ownership of the Goods, other than in accordance with its normal activities or the normal use of the Goods. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Millboard 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 Delaware Uniform Commercial Code.

 

6. Inspection and Rejection of Nonconforming Goods

1. Buyer shall inspect the Goods within 2 days of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Millboard in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Millboard. "Nonconforming Goods" means only the following: (i) product shipped is different than identified in Buyer's purchase order; or (ii) product's label or packaging incorrectly identifies its contents. 
2. If Buyer timely notifies Millboard of any Nonconforming Goods, Millboard shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to the facility the Goods came from or as otherwise specified by Millboard in writing. If Millboard exercises its option to replace Nonconforming Goods, Millboard shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point.
3. Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Millboard.

 

7. Price

1. Buyer shall purchase the Goods from Millboard at the prices (the "Prices") set forth in Millboard's published price list in force as of the date that Millboard accepts Buyer's purchase order. The agreed-upon price for Goods shall be described in a purchase order delivered by Buyer to Millboard in response to a Quotation (“Order”).  If the Prices should be increased by Millboard before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Millboard on the basis of such increased prices. 
2. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Millboard's income, revenues, gross receipts, personnel, or real or personal property or other assets. 

 

8. Payment Terms

1. Unless otherwise provided in an Ordering Document, the purchase price must be paid in full, by wire transfer or other cash-equivalent funds, or by waiting until a check has cleared, before Goods will be shipped to Buyer. 
2. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily based on a 30-day month and compounded monthly. Buyer shall reimburse Millboard for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Millboard does not waive by the exercise of any rights hereunder), Millboard shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for fourteen (14) days following written notice thereof.
3. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Millboard, whether relating to Millboard’s breach, bankruptcy, or otherwise.

 

9. Limited Warranty

1. Millboard warrants that on delivery the Goods shall conform in all material respects with their description; and be free from material defects in design, material and workmanship.
2. Subject to clause 9(c), if:
   
   1. the Customer gives notice in writing to Millboard within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Section 9(a);
   2. Millboard is given a reasonable opportunity of examining such Goods; and
   3. the Customer (if asked to do so by Millboard) returns such Goods to Millboard’s place of business at the Customer’s cost, Millboard shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
3. Millboard shall not be liable for the Goods’ failure to comply with the warranty set out in Section 9 (a) in any of the following events:
   
   1. the Customer makes any further use of such Goods after giving notice in accordance with clause 9(b);
   2. the defect arises because the Customer failed to follow Millboard’s oral or written instructions as to the transportation, storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
   3. the defect arises as a result of Millboard following any drawing, design or specification supplied by the Customer;
   4. the Customer alters or repairs such Goods without the written consent of Millboard;
   5. the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal ; or
   6. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
4. Millboard warrants that all Goods supplied to the Buyer under this Agreement shall be covered by the manufacturer's standard product warranty in effect at the time of delivery. The terms and conditions of such product warranty shall apply directly between the Millboard and the end user/customer of the Goods. The Buyer shall make no other warranties, express or implied, on behalf of the Manufacturer.
5. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9(A), MILLBOARD MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
6. Millboard shall not be liable for a breach of the warranty set forth in Section 9(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Millboard within ten (10) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Millboard is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Millboard) returns such Goods to Millboard's place of business at Millboard 's cost for the examination to take place there; and (iii) Millboard reasonably verifies Buyer's claim that the Goods are defective.
7. Millboard shall not be liable for a breach of the warranty set forth in Section 9(a) if: (i) Buyer makes any further use of such Goods after giving notice; (ii) the defect arises because Buyer failed to follow Millboard's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Millboard.
8. Subject to Section 9(d) and Section 9(e) above, with respect to any such Goods during the Warranty Period, Millboard shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Millboard so requests, Buyer shall, at Millboard’s expense, return such Goods to Millboard.
9. THE REMEDIES SET FORTH IN SECTION 9(F) SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9(A). 

 

10. Returns and Refunds

(a)    Millboard will accept returns for full pallets only, subject to the following conditions: (i) Goods are not designated as final sale or non-returnable; (ii) the return is made within 14 days of delivery; (iii) valid proof of purchase is provided; and (iv) Goods are returned in their original condition. 
To initiate a return, email our Returns Department at inquiries@millboard.com    to obtain authorization before shipping your Goods. No returns of any type will be accepted without prior Millboard authorization. All returns are subject to a 20% restocking fee. Refunds will be for the purchase price of the returned Goods, less the original shipping and handling costs and the restocking fee.  Refunds are processed within approximately 30 business days of our receipt of your merchandise. Buyer's refund will be credited back to the same payment method used to make the original purchase.
MILLBOARD OFFERS NO REFUNDS ON ANY GOODS DESIGNATED AS NON-RETURNABLE.

 

11. Limitation of Liability

1. IN NO EVENT SHALL MILLBOARD 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.
2. IN NO EVENT SHALL MILLBOARD'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
3. The limitation of liability set forth in Section 11(b) above shall not apply to (i) liability resulting from Millboard's gross negligence or willful misconduct; or (ii) death or bodily injury resulting from Millboard’s acts or omissions.

 

12. Compliance with Law

Buyer shall comply with all applicable laws, regulations, and ordinances relevant to this Agreement. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all customs, export and import laws, regulations, and rules of all jurisdictions involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Millboard may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.

 

13. Termination

In addition to any remedies that may be provided under these Terms, Millboard may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for 14 days after Buyer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) 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.

 

14. Waiver

No waiver by Millboard of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Millboard. 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.

 

15. Confidential Information

All non-public, confidential or proprietary information of Millboard, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Millboard 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 Millboard in writing. Upon Millboard's request, Buyer shall promptly return all documents and other materials received from Millboard. Millboard 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.

 

16. Force Majeure

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Millboard hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in t; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other  events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 5 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 days following written notice given by it under this Section 16, either party may thereafter terminate this Agreement upon 30 days' written notice.

 

17. Assignment

Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Millboard, which consent may be withheld in Millboard’s sole discretion. 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.

 

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. 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 Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall apply.

 

21. Jurisdiction

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 Minnesota in each case located in the City of Minneapolis and County of Hennepin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

 

22. Dispute Resolution and Binding Arbitration

BUYER AND MILLBOARD ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT BUYER WOULD HAVE IF IT WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
Any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number or arbitrators shall be one. The place of arbitration shall be Minneapolis, Minnesota, United States of America. The language of the arbitration shall be English.

 

23. Notices

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

 

24. 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.

 

25. 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: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction/Arbitration and Survival.

 

26. Amendment and Modification

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

Millboard Inc T&Cs August 2024 V1.0