MIRO Industries, Inc.
Standard Sales Terms and Conditions
Unless otherwise specifically agreed to in writing by MIRO Industries, Inc. (“MIRO”), these Sales Terms and Conditions shall apply to any and all orders placed by any Purchaser for products or services of MIRO. In these Sales Terms and Conditions, the party to whom MIRO’s Quotation, Sales Order, or Invoice is addressed is referred to as the “Purchaser.”
1. ACCEPTANCE. MIRO’s acceptance of all orders and all offers and sales by MIRO are subject to and expressly conditioned upon Purchaser’s assent to the terms and conditions of these Sales Terms and Conditions. Purchaser’s acceptance of any offer by MIRO must be made on such terms and conditions exactly as offered by MIRO. Any of Purchaser’s terms and conditions which are different from or in addition to those contained in these Sales Terms and Conditions shall be of no effect unless specifically agreed to in writing by MIRO.
Commencement of performance or shipment shall not be construed as acceptance of any of Purchaser’s terms and conditions which are different from or in addition to those contained in the Agreement. If a contract is not earlier formed by mutual agreement in writing, acceptance by Purchaser of products or services furnished by MIRO pursuant hereto shall be deemed Purchaser’s assent to all of the terms and conditions of these Sales Terms and Conditions.
These Sales Terms and Conditions shall be governed by the laws of the State of Utah as if made and any transactions contemplated hereby are to be performed entirely within such state, without reference to its conflicts of laws principals. Purchaser submits to the exclusive personal jurisdiction of United States Federal District Court in Salt Lake City, Utah or Utah State Courts located in Salt Lake City, Utah (the “Utah Courts”). Purchaser agrees that the Utah Courts have subject matter jurisdiction over all claims and disputes and agrees that venue for resolution of any claims or dispute properly lies in the Utah Courts.
2. ORDERS AND PRICES. Proposals for MIRO to supply products or services to Purchaser are valid for 30 days from issuance unless otherwise agreed to by MIRO in writing. Orders may not be cancelled or modified, either in whole or part, without MIRO’s express written consent. If MIRO consents to any order modification or cancellation, it may impose an order modification or cancellation fee. All prices are as stated in MIRO’s proposal or quote and specifically override any prices referenced in Purchaser’s purchase order. Prices for orders for immediate shipment are prices in effect at time of receipt of order. Qualifying orders specifying future delivery will be invoiced at prices and terms in effect at time of shipment. Unless otherwise agreed to in writing by MIRO, the prices stated in any proposal provided by MIRO are in U.S. dollars and do not include installation, assembly, engineering, freight, transportation, removal of any existing roofing material or supports, insurance or any sales, use, excise or other taxes, duties, fees or assessments imposed by any jurisdiction.
All applicable taxes will be paid by Purchaser, unless Purchaser provides MIRO with appropriate tax exemption certificates, and if Purchaser requests that MIRO ship products to Purchaser’s customer, Purchaser must provide MIRO with a valid resale certificate or other valid exemption certificate for its customer, and Purchaser hereby indemnifies MIRO for all taxes, costs, fees, expenses, penalties, and other charges if Purchaser cannot provide adequate evidence that it remitted the applicable sales tax to the destination state. Any amounts paid at any time by MIRO that are the responsibility of Purchaser shall be reimbursed to MIRO upon demand. All prices and other terms are subject to correction for typographical or clerical errors.
3. TERMS OF PAYMENT. All payments shall be in U.S. dollars. Purchaser shall pay for products in cash upon delivery, unless an earlier or later time for payment is specified in the order acknowledgement (in which case payment shall be due at the time so specified). Each shipment shall be considered a separate and independent transaction and payment for each shipment shall be due accordingly.
MIRO may, at its option, elect to extend credit to Purchaser. Purchaser shall take no discounts for early payment. If MIRO extends credit to Purchaser, invoices will be issued upon shipment and payment shall be due in full within thirty (30) days from the invoice date or such other date as may be specified on the Invoice. MIRO reserves the right to change the amount of or withdraw any credit extended to Purchaser.
Unless otherwise specified in these Sales Terms and Conditions or agreed to in writing by MIRO, amounts owed for services will be invoiced upon completion of the work. Payment of such invoices is due within thirty (30) days from the invoice date.
Amounts not paid when due shall be subject to interest at the rate of one and one-half percent (1½%) per month or, if less, the maximum rate permitted by law.
In the event of the bankruptcy or insolvency of Purchaser, or the filing of any proceeding by or against Purchaser under any bankruptcy, insolvency or receivership law, or in the event Purchaser makes an assignment for the benefit of creditors, MIRO may, at its election and without prejudice to any other right or remedy, exercise all rights and remedies granted MIRO in Section 8 as in the case of a default by Purchaser under these Sales Terms and Conditions.
MIRO may, at its option, factor any invoice or assign the right to collect payment on any invoice to any party without prior notice or consent of Purchaser.
4. DELIVERY, TITLE AND RISK OF LOSS. Unless otherwise agreed to in writing by MIRO, products shall be shipped FOB MIRO’s manufacturing facility in Heber City, Utah or FOB any designated MIRO inventory site to any location designated by Purchaser and shall be deemed delivered to Purchaser when delivered to the transportation company at the shipping point. Purchaser acknowledges and agrees that any price quotes provided by MIRO relating to freight or transportation charges shall be a courtesy estimate only. Unless otherwise agreed to in writing by MIRO, all actual freight or transportation charges and expenses shall be added to the invoice and paid by Purchaser, including the cost of any insurance against loss or damage in transit which MIRO may obtain in its subjective discretion. MIRO reserves the right to ship products freight collect. MIRO hereby reserves, and Purchaser hereby grants to MIRO, a purchase money security interest in all products purchased under these Sales Terms and Conditions, together with all proceeds thereof, including insurance proceeds. Such security interest secures all of Purchaser’s obligations arising under these Sales Terms and Conditions, and any other agreements between Purchaser and MIRO, until all amounts due MIRO hereunder have been paid in full. Purchaser agrees upon MIRO’s request to sign appropriate financing statements evidencing MIRO’s security interest.
Subject to the security interest reserved to MIRO, title and risk of loss and/or damage to products shall pass to Purchaser upon delivery of the products to the transportation company at the shipping point. Confiscation or destruction of or damage to products shall not release, reduce or in any way affect the liability of Purchaser. In the event Purchaser rejects or revokes acceptance of any products for any reason, all risk of loss and/or damage to such products shall nonetheless remain with Purchaser unless and until the same are returned at Purchaser’s expense to such place as MIRO may designate in writing.
All products must be inspected upon receipt and claims filed by Purchaser with the transportation company when there is evidence of shipping damage, either concealed or external.
5. PRODUCTS AND SERVICES. Purchaser acknowledges and agrees that products supplied by MIRO may require some assembly. Unless MIRO has agreed in writing to provide installation services, Purchaser assumes full responsibility for the proper installation of any products supplied by MIRO, including without limitation, assembly, adaptation of roof slope, location, engineering and method of installation. Installation guidelines are available from MIRO upon request.
Unless otherwise agreed to in writing by MIRO, MIRO has no firsthand knowledge about the nature of the location where the products are to be installed or any physical conditions or difficulties which might be encountered during installation. Accordingly, any proposals for MIRO to supply products or services, including without limitation, engineering services related to products supplied by MIRO, are based solely on representations and information provided to MIRO by Purchaser. In the event MIRO supplies services to Purchaser in connection with the sale of products, MIRO shall be entitled to rely on Purchaser’s representations regarding job site conditions and measurements and MIRO shall not be liable to Purchaser for any claim for an adjustment in price, design deficiency, or any misunderstanding by MIRO, if such claim directly or indirectly arises from Purchaser’s failure to correctly estimate measurements, conditions, or other factors where the products may be installed.
MIRO may, in its sole subjective discretion, modify the design, specifications, or the manufacturing process of any of its products in any manner without notice.
6. PERFORMANCE. MIRO will make a reasonable effort to observe the dates specified in its proposal or such later dates as may be agreed to by Purchaser for delivery or other performance, but MIRO shall not be liable for any delay in delivery or failure to perform due to acceptance of prior orders, strike, lockout, riot, war, fire, acts of God, accident, delays caused by any subcontractor or supplier or by Purchaser, technical difficulties, failure or breakdown of machinery or components necessary for order completion, inability to obtain or substantial rises in the price of labor or materials or manufacturing facilities, curtailment of or failure to obtain sufficient electrical or other energy supplies, or compliance with any law, regulation, order or direction, whether valid or invalid, of any governmental authority or instrumentality thereof, or due to any circumstances or any causes beyond its reasonable control, whether similar or dissimilar to the foregoing and whether or not foreseen. As used herein, “performance” shall include, without limitation, fabrication, shipment, delivery, assembly, installation, testing and warranty repair and replacement, as applicable.
Purchaser agrees that any delay in delivery or failure to deliver or perform any part of these Sales Terms and Conditions shall not be grounds for Purchaser to terminate or refuse to comply with any provisions hereof and no penalty of any kind shall be effective against MIRO for such delay or failure.
7. ACCEPTANCE. All products delivered hereunder shall be deemed accepted by Purchaser as conforming to these Sales Terms and Conditions, and Purchaser shall have no right to revoke any acceptance, unless written notice of the claimed nonconformity is received by MIRO within thirty (30) days of delivery thereof. Notwithstanding the foregoing, any use of a product by Purchaser, its agents, employees, contractors or licensees, for any purpose, after delivery thereof, shall constitute acceptance of that product by Purchaser.
Invoiced overages and product shortages must be reported within 30 days of invoice date. Any discrepancy not reported within 30 days will not be considered for an adjustment. MIRO will not receive or credit any products returned without MIRO’s consent.
Unless otherwise agreed to in writing by MIRO, Purchaser may not cancel or return any custom assembly products specially manufactured by MIRO for Purchaser.
8. DEFAULT AND TERMINATION. Purchaser may terminate these Sales Terms and Conditions if MIRO materially defaults in the performance of its obligations hereunder and fails to cure such default within sixty (60) days after written notice thereof from Purchaser. Such termination shall be Purchaser’s sole remedy in the event of a default by MIRO.
Purchaser shall be deemed in material default under these Sales Terms and Conditions if Purchaser fails to pay any amounts when due hereunder, cancels or attempts to cancel these Sales Terms and Conditions prior to delivery or refuses delivery or otherwise fails to perform any of its obligations hereunder or fails to pay MIRO any sums due under any other agreement or otherwise. In the event of a material default by Purchaser, MIRO may, upon written notice to Purchaser, (1) suspend its performance and withhold shipments, in whole or in part, (2) terminate these Sales Terms and Conditions, (3) declare all sums owing to MIRO immediately due and payable, and/or (4) recall products in transit, retake same and repossess any products held by MIRO for Purchaser’s account, without the necessity of any other proceedings, and Purchaser agrees that all products so recalled, taken or repossessed shall be the property of MIRO, provided that Purchaser is given credit therefor. Exercise of any of the foregoing remedies by MIRO shall not preclude exercise of any of the others, and neither the existence nor exercise of such remedies shall be construed as limiting, in any manner, any of the rights or remedies available to MIRO under the Uniform Commercial Code or other laws.
9. PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS. The sale of products or provision of services hereunder does not convey any express or implied license under any patent, copyright, trademark or other proprietary rights owned or controlled by MIRO, whether relating to the products sold, drawings or depictions that may accompany products or the provision of services, any manufacturing process, or any other matter. All rights under any such patent, copyright, trademark or other proprietary rights are expressly reserved by MIRO. Without MIRO’s prior written consent, Purchaser shall not make any use of any drawings or depictions that may accompany MIRO’s products or provision of services. Furthermore, Purchaser agrees not to infringe, directly or indirectly, any patents, copyrights, trademarks, or other proprietary rights of MIRO.
10. 20-Year Limited Warranty
When installed in accordance with MIRO Industries specifications instructions using only MIRO materials, MIRO will warrant its support systems for 20 years from the date of installation to operate properly and against damaging the roof membrane. Any modifications, substitution or use of other material other than MIRO products will void the warranty.
MIRO’s liability under this warranty and buyer’s sole and exclusive remedy will be to provide replacement product free of charge. MIRO’s total liability for sale of this product shall in no event exceed the original cost of the product. MIRO shall not be liable for costs of labor to install product.
LIMITATIONS: This warranty is not a maintenance agreement or an insurance policy, and does not obligate MIRO to repair leaks if determined to be a result of the following:
- Building design, installation, or construction error.
- Damage to the roofing system by any natural disaster including, but not limited to, floods, lightning, hail, earthquakes, hurricane rated winds, etc.
- Structural movement below the roof membrane and flashings.
- Misuse of roof services, abuse, vandalism, civil disobedience, acts of war, exposure to damaged chemicals including, but not limited to, solvents, oils and acids.
- Failure of the owner to promptly notify MIRO in writing of the claim, which prevents reasonable inspection and verification, and the failure of written approval from MIRO for change in building usage, modification or additions of items to the existing roof.
- Failure to properly inspect, adjust and maintain the supports and pads on an annual basis.
MIRO hereby disclaims and assumes no responsibility for incidental or consequential damage to the structure, its contents, loss of time, profits, energy or any inconvenience from any type of roof leak or damage.
In the event of a damage or leak in the roofing system caused by MIRO pipe supports, the building owner must promptly notify MIRO in writing within ten (10) days after discovery of the leak or damage and no longer than one (1) year after the onset of actual damage. Regular maintenance is required to keep this warranty in full force and effective. (See MIRO Industries specification sheets.)
This warranty becomes effective only upon full payment to MIRO for all MIRO products and services, a complete installation and inspection of MIRO products, and MIRO’s authorized signature below.
Transfer of Warranty: This warranty may only be transferred by the building owner to a subsequent purchaser of the property by giving not less than ten (10) days written notice to MIRO of such transfer, MIRO has opportunity to inspect and recertify the roofing system, and respond to the building owner and the purchaser.
MIRO Industries, Inc.
11. Return Policy
(1) If a reasonable error in purchase designation has occurred by purchaser; (2) if MIRO products have not been used, damaged, or placed upon the roof, and (3) if such stock is marketable; purchaser may request such product be returned; but only if purchaser meets the above three requirements, pays all return shipping charges, and pays a 25% restocking return charge. Custom orders of specially manufactured items are not returnable. No returns are allowed at distributor discount sales, broken case quantity sales or without a return number.
12. LIMITATION OF LIABILITY AND CLAIMS. If MIRO, in its sole discretion, approves a claim covered under the Limited Warranty, MIRO’s sole obligation will be to repair or replace defective items with items of comparable value to the extent commercially practicable. THE FOREGOING WILL CONSTITUTE THE EXCLUSIVE REMEDY FOR THE LIMITED WARRANTY. MIRO’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE SHALL IN NO EVENT EXCEED THE AMOUNT, IF ANY, RECEIVED BY MIRO HEREUNDER. LIABILITY OF MIRO IS LIMITED TO THE ABOVE, AND IN NO EVENT WILL MIRO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ECONOMIC, LOSS OF PROFITS, OR OTHER DAMAGES OF ANY KIND WHATSOEVER. This provision is applicable to claims for breach of warranty, tortious conduct, or any other cause of action asserted against MIRO.
13. ENTIRE AGREEMENT. these Sales Terms and Conditions constitutes the entire agreement of the parties and supersedes all prior negotiations, proposals, agreements and understandings, whether oral or written, relating to the products to be purchased hereunder or otherwise relating to the subject matter of these Sales Terms and Conditions. Any representation, warranty, course of dealing or trade usage not expressly contained or referenced herein shall not be binding on MIRO.
14. ATTORNEY’S FEES. In the event of default in payment of the purchase price or any part thereof, Purchaser agrees to pay MIRO’s expenses, including reasonable attorney’s fees and court costs, incurred by MIRO in enforcing payment thereof.
15. ASSIGNMENT. Purchaser shall not assign or transfer any rights or claims under these Sales Terms and Conditions without the prior written consent of MIRO, and any purported assignment made without such consent shall be void. These Sales Terms and Conditions shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties.
16. GENERAL. No modification, amendment, rescission, waiver or other change in these Sales Terms and Conditions shall be binding on MIRO unless agreed to in writing by MIRO. The invalidity or unenforceability, in whole or in part, of any provision herein shall not affect the validity or enforceability of any other provision herein. Failure or delay on the part of either party to exercise any right, power, privilege or remedy herein shall not constitute a waiver thereof. The section headings contained herein are for convenience of reference only and are not to be used in the construction or interpretation of these Sales Terms and Conditions. In the event that any of the terms or conditions of these Sales Terms and Conditions modify or conflict with any provisions, terms, or conditions noted on any Quotation, Sales Order, or Invoice, these terms shall control.
17. NOTICES. Notice to MIRO under these Sales Terms and Conditions or any transaction contemplated hereby must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address below or to such other address (including facsimile or email) that MIRO may designate from time to time, and will be effective upon receipt.
MIRO Industries, Inc.
844 South 430 West
Heber City, UT 84032