TERMS & CONDITIONS
Last updated January 10, 2025
1. GENERAL
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
For manufactured goods under contract, NEXTHERMAL warrants that the goods, or work performed by NEXTHERMAL shall be free from defects in material and workmanship for a period of one (1) year from manufacture.
Goods not manufactured by 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 makes no warranty of performance of the goods that are manufactured to customer specifications to meet a functional expectation regardless of NEXTHERMAL design or technical involvement. Purchaser has full responsibility to ensure appropriate testing for suitability for the end use of the goods supplied.
No product claimed by the Purchaser to be defective within the above warranty will be accepted for return, replacement or credit without the written authorization (RMA) of NEXTHERMAL, which authorization must be given in advance of Purchasers return of said product.
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.
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 all the following are completed:
- NEXTHERMAL is promptly notified within 30 days in writing upon discovery by Purchaser that such goods failed to conform to this contract with a detailed explanation of any alleged deficiencies,
- Such goods are returned to Seller, F.O.B. NEXTHERMAL’s plant
- NEXTHERMAL’s examination of such goods shall disclose to NEXTHERMAL’s satisfaction that such alleged deficiencies exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing.
If such goods are found non-conforming, NEXTHERMAL shall reimburse the 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 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. PURCHASER'S PROPERTY
Where Purchaser had delivered to NEXTHERMAL parts, equipment, material, jigs, fixtures, wiring or any other item for use by NEXTHERMAL in manufacturing, processing, assembling or modification of products for Purchaser, the Purchaser’s property shall be considered personal property and title and the right to possession shall vest in NEXTHERMAL until all payments hereunder (including deferred payments, whether evidenced by notes or otherwise) are accomplished.
Purchaser agrees to perform all acts necessary to perfect and maintain such right and title in NEXTHERMAL.
NEXTHERMAL shall not be liable for loss or damage to Purchaser’s property in its possession
10. PATENT INDEMNITY
To the extent that items delivered hereunder are manufactured pursuant to detailed specifications or designs furnished by the Purchaser, Purchaser agrees to indemnify NEXTHERMAL and hold NEXTHERMAL harmless from all legal expenses which may be incurred as well as all damages and costs which may be finally assessed against NEXTHERMAL in any action for infringement of any United States Letters Patent by such items delivered hereunder.
NEXTHERMAL agrees promptly to inform the Purchaser of any claim for liability made against NEXTHERMAL with respect to such items and NEXTHERMAL agrees to cooperate with Purchaser in every way reasonably available to facilitate the defense against such claim.
11. TOOLING, WOOD PATTERNS, AND PERMANENT MOLDS
Applicable customer charges for tooling – including wood patterns, permanent molds and all other types of tooling for manufacturing a good to a customer specification – represent only a portion of the total cost of the related tools, therefore NEXTHERMAL retains ownership over said tooling.
NEXTHERMAL will maintain all tooling used to produce the Purchaser’s heaters at no cost to Purchaser, except when the cost of repairing such tooling exceeds a reasonable amount solely determined by NEXTERMAL.
The cost associated with storing infrequently used tooling may become prohibitive. NEXTHERMAL therefore reserves the right to dispose of said tooling at a time deemed appropriate by NEXTHERMAL. If new tooling becomes necessary, it is the responsibility of Purchaser to pay a tooling charge for the new tool.
NEXTHERMAL will accept Purchaser’s special tooling at our plant, sent freight prepaid. See paragraph titled “Purchaser’s Property”.
12. PATENT RIGHTS
To the extent that NEXTHERMAL develops a new process while designing a product on behalf of Purchaser, the rights to the new process and/or product including patent rights shall remain with NEXTHERMAL.
13. 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.
14. 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.
15. 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.
16. 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.
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.
17. 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.
