TERMS & CONDITIONS
Last updated September 10, 2015
TABLE OF CONTENTSÂ Â
4. LIMITED WARRANTY – DISCLOSUREÂ Â Â Â
5. DISCLAIMERÂ Â Â Â Â Â
6. SOLE REMEDY Â Â
7. CONSEQUENTIAL DAMAGES / HOLD HARMLESSÂ Â Â
1. GENERAL
All sales, proposals and agreements shall be governed by the following terms and conditions. Prior course of dealings, trade usage and verbal agreements not reduced to a writing signed by NEXTHERMAL, to the extent that they differ from, modify, add to or detract from the contract, shall not be binding on NEXTHERMAL. There are no agreements, promises or understandings, either verbal or written that are not fully expressed herein. No statements, recommendations, or assistance by either party has been relied upon by either party or shall constitute a waiver by either provision hereof.
2. HOW DO WE USE YOUR INFORMATION?
- Quoted delivery dates and lead times are approximate.
- Risk of loss or damage will pass to the purchaser on delivery of the goods to the designated carrier.
- The purchaser’s written request to delay delivery will be honored by NEXTHERMAL only if feasible (as determined in NEXTHERMAL’S sole discretion), but in the event of delayed delivery at purchaser’s request, payment shall be due when the goods are completed. For goods that are completed but delayed at the purchaser’s request, title will pass to purchaser when goods are completed. Delayed items will be stored at the purchaser’s expense (at then-current market rates) and risk of loss on damages will pass to the purchaser upon completion.
- NEXTHERMAL shall not be responsible for delay in shipment or non-fulfillment of any order due to accidents,
strikes, material shortages, or other cause beyond control of NEXTHERMAL. - Unless otherwise agreed to by NEXTHERMAL and purchaser in writing, it is presumed that time is not of the essence.
3. PRICE AND PAYMENT
- Prices are exclusive of freight, packaging costs or any tax now or hereafter imposed upon the sale of
products herein involved. - Freight and packaging will be charged at NEXTHERMAL’s actual cost. NEXTHERMAL will select the mode of shipment consistent with the lowest cost and best service as determined by NEXTHERMAL in its sole discretion, which NEXTHERMAL does not warrant.
- The terms of payment for products shipped within the United States of America to purchasers with approved credit shall be 1% discount for payments made within ten (10) days of the invoice date. No discount shall apply to amounts invoiced for freight, tax or packing.
- For products shipped overseas, unless special agreement, payment is due immediately on receipt of Proforma invoice before production of the parts.
- The terms to purchasers who have not been approved for credit are C.O.D. for standard products and advance cash
for orders of special or non-standard products. - Purchasers may establish credit by submitting to NEXTHERMAL the names, addresses and telephone numbers of three (3) favorable commercial references or by evidence of a satisfactory Dun & Bradstreet credit rating. When any payment is not paid on or before its due date, purchaser agrees to pay a late charge on the sum outstanding from the due date for receipt or payment to the actual date of receipt of payment, at a rate of 1.5% per
month on the unpaid balance. If a payment is not paid on or before its due date, purchaser agrees that NEXTHERMAL may cease performance under any and all of purchaser’s purchase orders whether or not related to the late payment.
4. LIMITED WARRANTY - DISCLOSURE
NEXTHERMAL warrants that the goods, or work performed by NEXTHERMAL shall be free from defects in material and workmanship. NEXTHERMAL’S obligations hereunder are contingent upon purchaser giving NEXTHERMAL prompt notice of the subject defects. NEXTHERMAL makes no warranty as to experimental or
developmental goods or goods not manufactured by NEXTHERMAL, provided that as to goods not manufactured by NEXTHERMAL, NEXTHERMAL, to the extent permitted by NEXTHERMAL’s contract with its supplier shall assign to purchaser any rights NEXTHERMAL may have under any warranty of the supplier thereof. NEXTHERMAL’S warranties are herein above set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of, NEXTHERMAL’s rendering of technical advice or service in connection with purchaser’s order of the goods furnished hereunder. This warranty shall be in effect for one year after delivery date of shipping or the subject NEXTHERMAL product to the purchaser.
5. DISCLAIMER
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY. IMPLIED WARRANTIES OF FITNESS AND MERCHANTABILITY SHALL NOT APPLY. NEXTHERMAL’S WARRANTY OBLIGATIONS AND THE PURCHASER’S REMEDIES THEREUNDER (EXCEPT AS TO TITLE) ARE SOLELY EXCLUSIVELY STATED HEREIN.
6. SOLE REMEDY
If the goods furnished by NEXTHERMAL fail to conform to NEXTHERMAL’s limited warranty, purchaser’s sole and exclusive remedy against NEXTHERMAL shall be (at NEXTHERMAL’s option) to repair, replace or credit purchaser’s account for any such goods which are returned by purchaser during the applicable warranty period set forth above, provided that (i) Seller is promptly notified in writing upon discovery by Purchaser that such goods failed to conform to this contract with a detailed explanation of any alleged deficiencies, (ii) such goods are returned to Seller, F.O.B. NEXTHERMAL’s plant, and (iii) NEXTHERMAL’s examination of such goods shall disclose to NEXTHERMAL’s satisfaction that such alleged deficiencies actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing. If such goods are non conforming, EXTHERMAL shall reimburse purchaser for the transportation charges paid by purchaser for such goods. If NEXTHERMAL elects to repair or replace such goods, NEXTHERMAL shall have a reasonable time to make such repairs or replace such goods.
7. CONSEQUENTIAL DAMAGES / HOLD HARMLESS
NEXTHERMAL SHALL NOT BE LIABLE, IN ANY EVENT, FOR ANY RECALL COSTS LOSS OF ANTICIPATED PROFITS, INCLUDING ANY LOSS BY REASON OF PRODUCTION SHUT DOWN, NON-OPERATION OR INCREASED EXPENSE OF OPERATION OF THE PURCHASER’S BUSINESS. THE REMEDIES SET FORTH HEREIN ARE PURCHASER’S EXCLUSIVE REMEDY FOR ANY CLAIM, WHETHER ARISING IN TORT OR CONTRACT, AND IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
PURCHASER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS NEXTHERMAL AND ITS AFFILIATED AND RELATED ENTITIES, AND THEIR OFFICERS, DIRECTORS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, STRICT LIABILITY CLAIMS, LAWSUITS, FINES, PENALTIES, JUDGMENTS, EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES), AND DAMAGES IN CONNECTION WITH PERSONAL INJURIES, DEATH, OR DAMAGE TO PROPERTY RESULTING FROM THE FAULTY OR IMPROPER INSTALLATION OF THE PRODUCT (INCLUDING, BUT NOT LIMITED TO, THE FAILURE TO INSTALL THE PRODUCT IN ACCORDANCE WITH THE INSTALLATION AND OPERATION GUIDELINE).
8. VOIDING OF WARRANTY
The herein stated express warranty shall be void and of no further effect if:
- The products have been subject to any accidents, faulty or improper installation (including, but not limited to,
failure to install the products in accordance with the provided Installation and Operation Guideline), improper maintenance or use. - The purchaser continued to use the product after discovery of a defect.
9. APPLICABLE LAW AND JURISDICTION
Any contract which is subject to these terms and conditions shall be interpreted and applied according to the law of Michigan whose courts shall also have exclusive jurisdiction for any litigation related to such contracts.
10. ARBITRATION
Any controversy or claim arising out of or relating to this contract shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. Any arbitration shall be conducted in Battle Creek, Michigan. The cost of any arbitration shall be borne evenly by the parties, and each party shall bear its own attorneys’ fees and other expenses in resolving any dispute related to this transaction. The parties agree that a court of competent jurisdiction may render judgment on and enforce and arbitration award. Either party may seek any interim or preliminary relief, necessary to protect its rights or property pending the completion of arbitration, in a court of competent jurisdiction. Any and all actions brought in a court shall be filed and maintained in the Circuit Court of Calhoun, County, Michigan or the federal district court for the Western District of Michigan. The parties specifically consent and submit to the jurisdiction and venue of any such state or federal court.
11. SEVERABILITY
If any part, portion or provision of this agreement is invalid, unconstitutional or unenforceable, the remaining parts, portions and provisions of this agreement shall remain in full force and effect.
12. ENTIRE AGREEMENT
This agreement constitutes the entire agreement between NEXTHERMAL and the purchaser with respect to the subject matter identified in this agreement, and no modification or revision to this agreement shall have any force and effect unless executed in compliance with the terms for modification described herein.
13. STRICT PERFORMANCE
The failure of NEXTHERMAL to insist on the strict performance of any condition, promise, agreement, or undertaking set forth herein shall not be construed as a waiver or relinquishment of the right to insist upon strict performance of the same condition, promise, agreement or undertaking at a future time.
14. HOW CAN YOU CONTACT US ABOUT THIS POLICY?
No right or interest in this agreement shall be delegated or assigned by purchaser without the written permission of
NEXTHERMAL. Any attempt at assignment or delegation shall be void unless made in conformity with this paragraph.
Purchaser warrants that it is purchasing for its own account and not as an agent.
