Terms-And-Conditions

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 HOTSET, to the extent that they differ from, modify, add to or detract from the contract, shall not be binding on HOTSET. 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.

Deliveries

a.        Quoted delivery dates and lead times are approximate.

b.        Risk of loss or damage will pass to the purchaser on delivery of the goods to the designated carrier.

c.        The purchaser’s written request to delay delivery will be honored by HOTSET only if feasible (as determined in HOTSET’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 purchasers request, title will pass to purchaser when goods are completed. Delayed items will be stored at the purchasers expense (at then-current market rates) and risk of loss on damages will pass to the purchaser upon completion.

d.        HOTSET 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 HOTSET.

e.        Unless otherwise agreed to by HOTSET and purchaser in writing, it is presumed that time is not of the essence.

Price and Payment

a.       Prices are exclusive of freight, packaging costs or any tax now or hereafter imposed upon the sale of products herein involved.

b.        Freight and packaging will be charged at HOTSET’s actual cost. HOTSET will select the mode of shipment consistent with the lowest cost and best service as determined by HOTSET in its sole discretion, which HOTSET does not warrant.

c.        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 from overseas, payment is due immediately on receipt of invoice.

d.        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.

e.        Purchasers may establish credit by submitting to HOTSET the names, addresses and telephone numbers of three (3) favorable commercial references or by evidence of a satisfactory Dun & Bradstreet credit rating.

f.         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 HOTSET may cease performance under any and all of purchasers purchase orders whether or not related to the late payment.

Limited Warranty – Disclosure

HOTSET warrants that the goods, or work performed by HOTSET shall be free from defects in material and workmanship. HOTSET’S obligations hereunder are contingent upon purchaser giving HOTSET prompt notice of the subject defects. HOTSET makes no warranty as to experimental or developmental goods or goods not manufactured by HOTSET, provided that as to goods not manufactured by HOTSET, HOTSET, to the extent permitted by HOTSET’s contract with its supplier shall assign to purchaser any rights HOTSET may have under any warranty of the supplier thereof.  HOTSET’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, HOTSET’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 180 days after delivery date of shipping or the subject HOTSET product to the purchaser.

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. HOTSET’S WARRANTY OBLIGATIONS AND THE PURCHASER’S REMEDIES THEREUNDER (EXCEPT AS TO TITLE) ARE SOLEY EXCLUSIVELY STATED HEREIN.

Sole Remedy

If the goodsfurnished by HOTSET fail to conform to HOTSET’s limited warranty, purchaser’s sole and exclusive remedy against HOTSET shall be (at HOTSET’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. HOTSET’s plant, and (iii) HOTSET’s examination of such goods shall disclose to HOTSET’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, HOTSET shall reimburse purchaser for the transportation charges paid by purchaser for such goods. If HOTSET elects to repair or replace such goods, HOTSET shall have a reasonable time to make such repairs or replace such goods.

Consequential Damages / Hold Harmless

HOTSET 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 HOTSET 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).

Voiding of Warranty

The herein stated express warranty shall be void and of no further effect if:

a.        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.

b.        The purchaser continued to use the product after discovery of a defect.

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.

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.

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.

Entire Agreement

This agreement constitutes the entire agreement between HOTSET 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.

Strict Performance

The failure of HOTSET 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.

Assignment and Delegation

No right or interest in this agreement shall be delegated or assigned by purchaser without the written permission of HOTSET. 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.

SUPPLEMENTAL TERMS AND CONDITIONS

Confidential Information

For purposes of this Agreement, “Confidential Information” means any information provided by DISCLOSING PARTY in connection with the development of the Product or the delivery of any other product or service, or otherwise in connection with any other relationship between the parties, whether tangible or intangible, whether provided in writing or orally, and includes without limitation any and all engineering information, technical information, data, know-how or materials regarding DISCLOSING PARTY’s present and future business, finances, technology, operations, products and product specifications, customers, suppliers, inventions, improvements, know-how, trade secrets, research activities, marketing data and research, product costs, labor costs, customer satisfaction studies, and financial information, including sales and cost of sales figures, whether or not delivered before, on or after the date hereof.

The term “Confidential Information” shall not include information which (i) was already in the Receiving Party‘s possession on a non-confidential basis prior to its disclosure by the Disclosing Party; (ii) is independently developed or acquired by the Receiving Party not connected to its relationship with the Disclosing Party; (iii) is approved in writing by the Disclosing Party for the Receiving Party to publish or use; (iv) which the Receiving Party is required to disclose pursuant to an order or subpoena of a state or federal court or other tribunal having jurisdiction over the subject matter, provided the Receiving Party gives at least 15 days‘ prior written notice to the Disclosing Party so the Disclosing Party may seek a protective order; or (v) at the time of disclosure is generally available to and known by the public.

DISCLOSING PARTY may, from time to time, disclose to RECEIVING PARTY, or RECEIVING PARTY may learn or acquire in the course of its relationship with DISCLOSING PARTY, certain information which is Confidential Information. RECEIVING PARTY hereby covenants and agrees that it shall:

a.        keep the Confidential Information confidential and not disclose the Confidential Information to any other person or entity;

b.        not use the Confidential Information other than for the purpose of manufacturing the Product or as required pursuant to the terms of any other contractual relationship between the parties;

c.        treat confidentially all documents containing Confidential Information and mark the same as documents not to be copied or used without appropriate authorization;

d.        only reveal the Confidential Information to such of its officers, directors, agents, representatives, employees who need to know the Confidential Information for the purpose of developing the Product or as required pursuant to the terms of any other contractual relationship between the parties, who are informed of the confidential nature and who shall agree to act in accordance with the terms and conditions of this Agreement;

e.        take appropriate action, by agreement, instruction, or otherwise, to protect the Confidential Information from unauthorized publication, disclosure, or use, whether intentional or inadvertent, by any person under its control who may come into contact with or have access to the Confidential Information, including without limitation all its officers, directors, employees, representatives, agents, and other persons to whom it may deliver Confidential Information; and

f.         shall be responsible for any breach of this Agreement by its respective subsidiaries, affiliates, officers, directors, employees, representatives and agents.

The Confidential Information is and shall remain the property of DISCLOSING PARTY and RECEIVING PARTY acknowledges the same. RECEIVING PARTY acknowledges that Confidential Information disclosed to it hereunder is received subject to DISCLOSING PARTY’s patent, copyright and trademark rights in and to the same and further subject to all relevant intellectual property and other laws governing the same.

Any information derived from the Confidential Information by RECEIVING PARTY, including, but not limited to, engineering information, technical information, inventions, improvements, patent rights, trade secrets and “know how”, is and shall remain the exclusive property of DISCLOSING PARTY and RECEIVING PARTY acknowledges the same. Such information shall be deemed Confidential Information subject to the terms of this Agreement.

Upon demand, RECEIVING PARTY shall deliver to DISCLOSING PARTY all copies of the Confidential Information or destroy such materials, including all copies of its internally created notes and reports which incorporate or summarize any Confidential Information. Upon DISCLOSING PARTY’s request, RECEIVING PARTY shall provide a sworn affidavit that all such copies have been destroyed or returned, as provided for in this paragraph.

Nothing in this Agreement is intended to grant any rights to RECEIVING PARTY under any patent, copyright, trade secret or other intellectual property right nor shall this Agreement grant RECEIVING PARTY any rights in or to DISCLOSING PARTY’s Confidential Information.

RECEIVING PARTY hereby acknowledges that DISCLOSING PARTY does not make any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information and DISCLOSING PARTY hereby expressly disclaims any and all liability that may be based upon the Confidential Information.