MIELE, INC. Terms and Conditions of Sales and Delivery
Miele, Inc. is the "Seller" for all transactions contemplated herein. Any person purchasing or offering to purchase Products from Seller is herein referred to as the "Purchaser," "Products" shall mean all products and related accessories
and attachments (including replacements thereof, or spare or replacement parts) sold by Seller.
2.1 Seller’s issuance of any form is expressly made conditional upon Purchaser’s agreement to, and acceptance that, the terms and conditions of sale and delivery herein, notwithstanding the terms of such form, shall constitute
the sole and exclusive agreement (the "Contract") between Seller and Purchaser. Such agreement and acceptance shall be deemed given unless Purchaser notifies Seller in writing of the specific objection to any such term or
condition within five business (5) days following the receipt of this form by Purchaser and prior to delivery of the Product.
2.2 Seller’s acceptance of Purchaser’s order shall not constitute an acceptance of printed provisions on Purchaser’s order form, or any other form or document supplied by Purchaser, which are different from or additional to these
Terms and Conditions unless specifically accepted in writing by an authorized officer of Seller, and such different or additional terms or conditions are hereby expressly rejected and are rendered null, void and of no effect.
These Terms and Conditions herein may not be modified, amended, waived, superseded, or rescinded, except by a written agreement signed by an authorized officer of Seller.
III. Material Furnished by Seller
All drawings, specifications, blueprints, measurements, manuals and other material furnished to Purchaser by Seller hereunder are subject to modification and are not binding unless so stated in writing by Seller. Seller reserves the
right to correct clerical and typographical errors of any line. Seller reserves the right to modify, improve or discontinue Products, or to change specifications, at any time, without notice.
4.1 All prices quoted are subject to change and are not binding on Seller unless so stated in writing by Seller. Written price quotes shall be valid for thirty (30) days from the date of such quote, unless a different time period is
stated on the quotation form. In addition, Seller reserves the right to change prices after delivery of the Products and before full payment is received, to reflect changes in import duties, surcharges, currency parity or other
governmental action which affect the cost of the Products.
4.2 Freight, insurance, packing and any such other costs incurred in respect of the Products are not included in the price unless otherwise stated in the quotation or order confirmation. In addition, any governmental sales, use,
value added or similar taxes which are assessed against the Products or in connection with the sale of the Products are not included in the price, unless otherwise agreed in writing by the parties.
5.1 Delivery of the Products shall be made ex works Seller’s Warehouse or such other location as Seller, in its sole discretion may, from time to time, designate. Delivery shall be deemed complete when Seller places the Products
at the disposal of Purchaser at Seller’sWarehouse, such other location as Seller may designate, or upon delivery to a common carrier.
5.2 Delivery dates furnished by Seller are estimates only. They shall not operate to bind Seller to ship or deliver the Products on the dates indicated. Seller reserves the right to make partial deliveries of the Products and to submit
separate invoices to Purchaser for each such partial delivery. If Purchaser shall default in the obligations in regard to any partial delivery, Seller, in addition to any other legal or equitable remedies available to it, may suspend
any additional partial deliveries unless and until Purchaser shall have cured such default.
5.3 Delivery dates are subject to change for any cause which interferes with Seller’s production, supply or transportation of the Products (whether or not caused or contributed to by Seller’s negligence or fault), including, but not
limited to, any event of Force Majeure enumerated in Article XI hereof.
5.4 In the event that Seller fails to comply with designated binding delivery dates, makes partial deliveries, or fails to perform its obligations in accordance with any binding time limits herein set forth, Seller shall not incur any liability
whatsoever for any indirect, consequential, incidental or special damages (including without limitation claims for loss or profits or customers’ claims arising out of, or relating to, changes in delivery dates, partial shipments or
untimely performance) which may be incurred by Purchaser.
VI. Title/Risk of Loss
Title and risk of loss or damage to the Products sold hereunder, whether delivered ex works or otherwise, shall pass to Purchaser when Seller places the Products at the disposal of Purchaser on a common carrier at Seller’s
Warehouse of such other location as Seller may designate. In the event that dispatch of the Products to a common carrier at the designated delivery location should be delayed for any reason beyond Seller’s control, risk of loss shall
pass to Purchaser at the time that the Product destined for delivery to Purchaser are set aside by Seller for dispatch to a common carrier or are in some other way marked by Seller, provided, however, that Seller hereby agrees to
insure such Products upon Purchaser’s written request and at Purchaser’s sole cost and expense.
VII. Grant of Security Interest
7.1 Purchaser hereby grants Seller a security interest in (or to the extent appropriate under applicable law reserves title for or grants to Seller a chattel mortgage in) any Products currently or hereafter held by Purchaser (including
any returned or repossessed Products) and in the proceeds thereof (including sale or insurance proceeds and accounts receivable), as well as in Purchaser’s rights as a seller of the Products under the applicable law, to secure
payment of the online purchase price for all Products currently, previously or hereafter sold by Seller to Purchaser and to secure all costs, expenses or other charges required to be paid by Purchaser to Seller pursuant to the
terms and conditions of this or any other similar Contract. Purchaser agrees to furnish to Seller all information requested by Seller in connection with the creation, perfection, preservation and enforcement of Seller’s security
interest (or reservation of title or mortgage) in the Products. Purchaser specifically agrees that Seller may file one or more financing statements or other documents necessary or appropriate in order to create, perfect, preserve
or enforce Seller’s security interest (or reservation of title or mortgage) in the Products pursuant to the Uniform Commercial Code and hereby authorizes Seller and any officer or other representative of Seller to prepare and file
UCC-1 Financing Statements on behalf of Purchaser and further irrevocably grants to Seller a power of attorney to execute such statements or documents in Purchaser’s name.
7.2 Upon any default by Purchaser hereunder, Seller shall have all the rights, remedies and privileges accorded to Seller, as a secured party, under applicable sections of the Uniform Commercial Code and any applicable state or
local laws. Seller’s reasonable costs and expenses (including, but not limited to, attorneys’ fees and court costs) for pursuing, searching for, receiving, taking, keeping, storing, advertising and selling the Products shall be paid
by Purchaser, who shall remain liable for any deficiency resulting from a sale of the Products and shall pay any such deficiency forthwith on demand. The reasonable costs and expenses (including, but not limited to, attorneys’
fees and court costs) of Seller incurred in defending against third party claims to the products shall also become part of the indebtedness. The requirement of reasonable notice of sale shall be met if such notice is mailed and
addressed to Purchaser at its address at least ten (10) days prior to the date of sale.
7.3 Purchaser shall protect the Products from the elements and from theft and vandalism, and shall insure the products for their full value against all risks customarily insured against in the industry. Other than in connection with
the sale of such Products to its customers (to the extent such products are sold by Purchaser to customers in the ordinary course of its business), Purchaser shall not remove the Product from the destination to which the
Products are being originally shipped without Seller’s prior written approval.
VIII. Terms of Payment
8.1 Purchaser shall pay to Seller the invoice price of the Products sold hereunder, in full and without any deduction offset of any kind whatsoever, within thirty (30) days of the date of the invoice, unless otherwise agreed in
writing by Seller.
8.2 Payment shall be made by cash, bank check, or confirmed irrevocable letter of credit (which shall be on terms satisfactory to Seller), provided, however, that payment shall not be deemed to have been made unless and until
such payments have been paid by the bank on which they are drawn. All bank charges in respect of said instructions shall be paid by Purchaser immediately following its notification of such charges.
8.3 If Seller, in its sole discretion, shall determine that the financial condition of Purchaser at any time jeopardizes Purchaser’s ability to perform its obligations under the Contract, Seller may require cash payments, immediate
payment of the entire balance, or additional security satisfactory to it, or all of the foregoing, before further performance by Seller. Purchaser’s failure timely and fully to pay any invoice in accordance with the terms hereof shall
operate to make all other outstanding invoices of Seller to Purchaser immediately due and payable and, at the discretion of Seller, shall be grounds for cancellation of any further performance by Seller under the Contact. The
receipt and acceptance by Seller of part payment shall not constitute a waiver of any of Seller’s rights set forth herein or provided by law, including, without limitation, the right to cancel. Interest on past due accounts will be
charged daily on past due amounts at the lesser of (a) a varying rate of two (2) percentage points per annum above the "prime rate" announced from time to time by the Wall Street Journal and (b) the maximum rate of interest
allowed by applicable law.
9.1 Seller warrants that the Products shall be free from defects in workmanship and materials under normal use and service. If any failure to conform to this warranty is reported to Seller, in writing, (a) in the case of a nonconsumer
Purchaser within six (6) months after the delivery of the Product to such a Purchaser and (b) in the case of a consumer Purchaser, within one (1) year of the date of its purchase by such a Purchaser, Seller, upon
being satisfied of the existence of such non-conformity, will correct the same within a reasonable period of time, as Seller in its discretion shall elect, by repairing or causing the repair of the Product, by delivering a replacement
Product to Purchaser or by issuing a refund to such Purchaser. The warranty set forth in this section shall apply not only to the Products but also to any authorized repair or replacement units, parts and accessories and any
warranty or non-warranty repair or maintenance services. This warranty does not cover damage or defects caused by or resulting from (i) unauthorized repairs, service, maintenance, alterations or modifications to the Products,
(ii) negligence, accident, abuse, misuse, improper, unsuitable or abnormal usage or maintenance of the Products, (iii) failure to conform strictly to Seller’s specifications and instructions in connection with the installation,
operation, use, maintenance or repair of the Products, (iv) exposure of the Product to unreasonable temperatures or other environmental conditions or (v) maintenance and usage of the Product past the specified Product life.
Ordinary wear and tear shall not be considered a defect in workmanship or materials. EXCEPT FOR THE WARRANTY PROVIDED ABOVE AND AS SPECIFIED IN THIS ARTICLE, SELLER DISCLAIMS ANY AND ALL
OTHER EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTY OF MECHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The
remedies described above are Purchaser’s sole remedies in the event of any breach of the warranty provided above.
9.2 In the event that Purchaser discovers or learns that a Product does not conform to the warranty, Purchaser shall immediately notify Seller in writing of such non-conformity, specifying in reasonable detail the nature of the nonconformity.
If Seller is not provided with said written notification, Seller shall not be liable for any future damage which could have been avoided if Seller had been provided with immediate written notification.
9.3 No Products shall be returned without Seller’s prior written consent. Products which Seller consents to have returned shall be shipped by Purchaser at Purchaser’s risk and expense, freight prepaid, to Seller’s Warehouse or
such other location as Seller may designate.
The Contract is not subject to cancellation by Purchaser, other than in accordance with the terms of Paragraph 11.2 hereof. In the event that Purchaser purports to cancel the Contract in respect of any Products which have been
specially manufactured for Purchaser, Seller, in addition to all other remedies available to it under applicable law, shall be entitled to be reimbursed by Purchaser for all direct costs of labor, raw materials and parts purchased or
contracted to be purchased and overhead costs incurred by Seller in connection with the manufacture of such Products, and Purchaser agrees that Seller’s calculation of such costs shall be accepted. In addition, Seller shall have the
right to complete and sell to a third party any specially manufactured Products the order for which has been purportedly cancelled by Purchaser, without any further obligation or liability whatsoever to Purchaser.
XI. Force Majeure
11.1 The term "Force Majeure" is hereby defined as any cause not within the reasonable control of the party affected. Events of Force Majeure shall include, without limitation, earthquakes, lightning, storms, floods, or other acts of
God, strikes, lockouts, work stoppages or other labor or industrial disturbances, wars, blockades, quarantine restrictions, embargoes, insurrections, riots, epidemics, fires, civil disturbances, explosions, partial or entire failure of
production facilities, inability to obtain transportation, shortages of raw materials, governmental laws, ordinances, rules and regulations or temporary failure of electric power. Events of Force Majeure shall not include a
Purchaser’s mere inability to pay Seller for theProducts.
11.2 The occurrence of Force Majeure shall not excuse either party from the performance of its obligations or duties under the Contract, but shall merely suspend such performance during the continuance of Force Majeure. The
party prevented from performing the obligations or duties because of Force Majeure shall promptly notify the other party hereto of the occurrence and particulars of such Force Majeure and shall provide the other party, from
time to time, with its best estimate of the duration of such Force Majeure and with notice of the termination thereof. Upon termination of Force Majeure the performance of any suspended obligation or duty shall promptly
recommence. If, however, Force Majeure shall prevent performance by either party for a period in excess of ninety (90) consecutive days, then so long as such Force Majeure is continuing, either party shall have the right to
deliver notice of that termination of the Contract to the other party, and the Contract shall terminate automatically at once upon the giving of such notice. Neither party shall be liable to the other party for any direct, indirect,
consequential, incidental or special damages arising out of or relating to the suspension or termination of any of its obligations under the Contract by reason of Force Majeure.
Purchaser agrees to defend, indemnify and hold Seller harmless from and against any and all costs, losses, expenses, damages, claims, liabilities or fines, including, but not limited to, attorneys’ fees and court costs, resulting from or
arising in connection with (i) any and all actual or alleged injuries to, or deaths of, persons and any and all damage to, or destruction of, property arising directly or indirectly from or relating to the Products sold pursuant to this form, or
any products or items manufactured using such Products, or (ii) any failure of Purchaser to perform any covenant contained herein; except for such costs, losses, expenses, damages, claims, liabilities or fines which directly are
caused by or result from Seller’s willful misconduct or gross negligence.
Purchaser covenants and agrees to install and maintain all appropriate safety warnings and instructions and all appropriate safety guards and features in connection with its or any customer’s use of the Products and to educate
appropriately its employees, agents and customers in the safe installation, repair, maintenance, and use of the Products.
Purchaser agrees that all specifications, data and other technical information furnished by Seller to Purchaser constitute the property of Seller, are furnished solely for the purpose of Seller’s performance hereunder and may not be
copied or made accessible to third parties without Seller’s prior written consent. Purchaser shall promptly return such specifications, data and other technical information and all copies thereof to Seller upon Seller’s request. Such
request may be made at any time prior to or after delivery of the Products. The obligations of Purchaser hereinabove set forth shall survive cancellation or completion of the Contract.
15.1 SELLER DISCLAIMS ANY AND ALL LIABILITY, WHETHER DIRECTLY OR BY WAY OF INDEMNITY, FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES, WHETHER BASED ON BREACH OF
CONTRACT, TORT, STRICT OR PRODUCTS LIABILITY, INFRINGEMENT OF PATENTS, TRADE SECRETS, TRADEMARKS, COPYRIGHTS OR OTHER PROPRIETARY RIGHTS, OR ANY OTHER LEGAL THEORY IN
CONNECTION WITH THE PURCHASE OR USE OF THEPRODUCTS.
15.2 The invalidity or unenforceability of any one or more of the terms and conditions of this form shall not affect the validity or enforceability of the remaining provisions hereof, and such remaining provisions shall remain in full force
15.3 The failure or omission of either party hereto to insist, in any instance, upon and performance by the other party of any term or condition of the form or any quotation or Seller’s acknowledgement or to exercise any of its rights
hereunder or thereunder shall not be deemed to be a modification of any term hereof or thereof or a waiver or relinquishment of the future performance of any such term or condition by such part, nor shall such failure or
omission constitute a waiver on the right of such party to insist upon future performance by the other party of any such term or condition.
15.4 Any controversy or claim arising out of or relating to the terms and conditions of the Contract, or the negotiation or breach thereof, shall be settled by arbitration in New York, New York, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The prevailing party in any such arbitration shall be
entitled to reimbursement of attorneys’ fees and disbursements and the arbitrators’ and arbitration tribunal’s costs from the losing party.
15.5 The Contract shall be governed by, and construed in accordance with, the law of the State of New Jersey without reference to its conflicts-of-law principles; provided, however, that the parties hereto expressly exclude the
application of the 1980 United Nations Convention on Contracts for the International Sales of Goods.
Status: February 2002