Standard Terms of Purchase

FOAMit is a tradename of INNOVATIVE CLEANING EQUIPMENT, INC, which company will be referred to in these Standard Terms of Purchase as “FOAMit”. These Standard Terms of Purchase are part of each purchase order that FOAMit issues. In these Standard Terms of Purchase, “Seller” means the seller named in the purchase order, “goods” and “services” mean the goods or services that FOAMit is purchasing from Seller as described in the purchase order, “Agreement” means the agreement or contract formed pursuant to the purchase order, “order” means the purchase order, and “Affiliate” means a parent company, subsidiary, a company under common control or ownership or another related company.

1. Agreement. The Agreement includes the terms of any written agreement between FOAMit and Seller in which they have agreed that these Standard Terms of Purchase will apply to FOAMit’s purchases from Seller. If for any reason, however, no such agreement applies to FOAMit’s purchase from Seller under the order, then (a) the order is FOAMit’s offer to buy the goods and/or services described in the order, and FOAMit rejects any earlier offers to sell those goods and/or services made by Seller; (b) if the order nevertheless is in legal effect an acceptance of an earlier offer by Seller, then FOAMit’s acceptance is conditional upon Seller’s assent to all of these Standard Terms of Purchase that are additional to or different from the terms of Seller’s offer; and (c) by signing and returning a copy of the order or by accepting the order electronically or by shipping the goods or performing the services, Seller accepts FOAMit’s offer, as set forth in the order, and agrees and assents to, all of these Standard Terms of Purchase.
2. Price and Payment. FOAMit shall not be required to pay any sales, use or other taxes arising because of FOAMit’s purchase from Seller that are as a result of resale by FOAMit to its customers. FOAMit’s payment of the purchase price does not indicate its acceptance of the goods or services. Payment terms, including discount periods, shall run from the date of Seller’s invoice. FOAMit is not obligated to pay for any finance charges or collection expenses in connection with Seller’s invoices.
3. Delivery and Force Majeure. Unless FOAMit agrees otherwise in writing, Seller shall deliver the goods DDP (Incoterms) FOAMit’s facility identified in the order. Seller is responsible for any damages to the goods during transport unless FOAMit transports the goods. Time of delivery is of the essence, and FOAMit’s stated delivery date shall not be extended or excused for any reason, including anything that Seller cannot control.
4. Excess, Installment and Early Deliveries. If Seller delivers more goods than FOAMit ordered, then, unless FOAMit agrees otherwise in writing, FOAMit shall not have to pay for the excess. Unless FOAMit agrees otherwise in writing, Seller shall deliver all of the goods in a single delivery. FOAMit’s acceptance of a delivery that contains less than the required quantity shall not relieve Seller of its obligation to deliver the balance of the ordered goods at the price and on the other terms that the order specifies. FOAMit’s acceptance of an early delivery shall not change the payment terms.
5. Export and Import Requirements; Drawback and Refund Rights. Seller shall prepare, maintain and, to the extent that that applicable law, regulation or customs authority requires it to do so, submit to the applicable customs authorities, all information and documentation that is necessary to comply with the applicable customs and export and import requirements of each country from which the goods will be exported and each country into which they will be imported, and Seller shall comply with all other applicable customs requirements. Whenever FOAMit requests it to do so, Seller shall promptly furnish to FOAMit copies of that information and documentation. Seller is solely responsible for complying with all technical compliance and country of origin requirements of each country into which the goods are to be imported. Seller assigns and transfers to FOAMit all transferable customs duty and tax drawback or refund rights relating to the goods, including rights developed by substitution and rights that Seller acquires from its suppliers. Seller shall promptly inform FOAMit of each such right and, upon FOAMit’s request, shall promptly provide to FOAMit all documents and information that are required for FOAMit to obtain each such drawback and refund.
6. Inspection and Tests. If FOAMit determines that Seller’s quality control procedures are deficient, FOAMit may elect to terminate the order, return all goods related to the quality control issue and receive a refund, if any, for pre-payment of goods.
7. Representations, Warranties And Agreements About Seller. Seller represents and warrants to FOAMit, and agrees, that (a) Seller has, and shall maintain at all times, all necessary or required licenses, permits, experience, qualifications, expertise, and authority to enable it to perform its obligations under the Agreement; (b) the Agreement is the valid and binding obligation of Seller, enforceable against Seller in accordance with its terms; (c) Seller is and, at the time of each order will be, solvent; and (d) Seller is and shall continue to be in compliance with all equal employment and affirmative action provisions of Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”), Section 503 of the Rehabilitation Act of 1973 and all implementing regulations under that Order, VEVRAA and Section 503.
8. Representations, Warranties And Agreements About the Goods and Services. Seller represents and warrants to FOAMit, and agrees, that (a) the goods shall be new; (b) the goods and services shall be merchantable, of good material, workmanship and quality, fit for the purposes for which FOAMit intends them and free from all faults and defects; (c) the goods and services shall conform to any samples, drawings, specifications, performance criteria standards or other requirements that are referred to in the order or that FOAMit has otherwise specified or agreed to in writing; (d) the goods, their design, manufacture, packaging, labeling, branding and sale and the services shall comply with all applicable federal, state and local laws, regulations, standards and orders, including, without limitation, the Fair Labor Standards Act of 1938 and the Occupational Safety and Health Act of 1970, the Federal Toxic Substances Act, as amended; (e) Seller shall promptly furnish to FOAMit all information and copies of documents (including, but not limited to, complaints, inquiries, test or inspection results and warnings) that Seller receives from an end-user of the goods, a government agency, an employee or agent of Seller or any other person or source and that suggests or indicates that the goods may not conform to the requirements of this paragraph; and (f) Seller has and follows, and will continue to have and follow, adequate quality and security procedures that will assure that the goods and services will comply with the foregoing warranties, representations and agreements. If FOAMit requests it, then Seller shall give FOAMit certificates of compliance with applicable laws and regulations. FOAMit’s approval of a sample, drawing, specification or standard shall not relieve Seller of any of its warranties under this paragraph, including, without limitation, its warranties of merchantability, fitness and compliance with laws. Seller’s warranties extend to future performance of the goods and services and survive inspection, tests, acceptance and payment and shall be considered to have been given not only to FOAMit but also to FOAMit’s customers and to end-users of the goods.
9. Indemnity. Seller shall defend, indemnify and hold FOAMit, its Affiliates and their respective directors, officers, employees, agents and representatives (FOAMit and the other entities and persons referred to collectively as ”FOAMit Indemnified Parties”) harmless from and against any claims, liabilities, losses, damages, fines, penalties, assessments and expenses (including, without limitation, actual attorneys’ fees) brought against or incurred by any FOAMit Indemnified Parties arising out of or related to (a) any breach by Seller of any of its warranties to, or agreements with, FOAMit; (b) any defect or alleged defect in design, workmanship or manufacture of the goods, or any defect or alleged defect in the services; (c) any claim that any of the goods or services infringes any patent, trademark, copyright or other intellectual property right, anywhere in the world; (d) any death, injury or damage to any person or property alleged to have been caused by the goods or services or by Seller’s manufacture of the goods or performance of the services; (e) any product recall of FOAMit’s products caused in whole or in part by any defective goods or services by Seller or otherwise by Seller’s fault; or (f) FOAMit’s enforcement of these Standard Terms of Purchase or the Agreement, including without limitation FOAMit’s actual attorney fees incurred in any lawsuit or legal dispute between FOAMit and Seller (unless Seller is the prevailing party in such lawsuit or legal dispute).
10. Changes. FOAMit may at any time, by written notice to Seller, change the order or the Agreement as to (a) specifications for the goods or services; (b) time or place of delivery; (c) method of packing or shipment; or (d) quantity of the goods or extent of the services. If this causes a change in Seller’s cost or time of performance, then an equitable adjustment as determined by FOAMit shall be made in the price or time for delivery or performance, or both, if Seller gives FOAMit a written request for an adjustment within 10 days after FOAMit notifies Seller of the change.
11. Termination.FOAMit may terminate the order or the Agreement, in whole or in part, at any time and for any reason by written notice to Seller stating the extent and effective date of termination. When Seller receives notice of termination under the preceding sentence, Seller shall, unless otherwise directed by FOAMit, stop work and acquisition of materials under the Agreement and protect property in Seller’s possession in which FOAMit has or may acquire an interest. Termination under this paragraph shall terminate only Seller’s obligation and right to deliver goods or provide services under any provision of the Agreement other than this paragraph and shall not terminate or impair Seller’s other obligations, or any of FOAMit’s rights, under the Agreement.
12. FOAMit’s Remedies; Termination for Breach; Limitation of Liability. Without limiting other rights and remedies available to it, FOAMit may, at its option, (a) return nonconforming goods to Seller, at Seller’s risk and expense, and require Seller either to give FOAMit full credit against the price or promptly to repair or replace the goods at Seller’s risk and expense; (b) retain nonconforming goods and set off losses against any amount that FOAMit owes Seller; or (c) repair or replace nonconforming goods and charge Seller with the expense. If at any time (i) Seller defaults in the performance of any of Seller’s obligations to FOAMit under the Agreement or under any other agreement between Seller and FOAMit, (ii) Seller repudiates the Agreement, or (iii) a warranty or representation that Seller made to FOAMit in or in connection with the Agreement is false or misleading in a material respect, then FOAMit may terminate the Agreement, in whole or part, without liability to Seller and Seller shall not have any right to recover any additional amounts under the Agreement. Further, Seller shall promptly pay to FOAMit all damages that FOAMit incurred as a result of the termination and as a result of the event or circumstance on the basis of which FOAMit terminated. If FOAMit does terminate the Agreement, then Seller, if and to the extent that FOAMit demands, shall immediately deliver to FOAMit all finished and unfinished goods and all work-inprocess and raw materials that Seller acquired for use in the manufacture or processing of the goods and all designs, drawings, specifications and software that FOAMit is purchasing from Seller under the Agreement, including all work-in-process, all source, object and pseudo codes, all preexisting programs intended to be incorporated in the software and all intellectual property rights in the foregoing. FOAMit’s payment of part or all of the purchase price shall not be a precondition to Seller’s obligation to make the delivery. After Seller has made the delivery and FOAMit has determined its damages (including, without limitation, any cost of “cover” or of completing the manufacture or processing of the goods), then FOAMit will pay to Seller any excess of (A) any unpaid part of the purchase price properly allocable to any conforming goods, work-in-process and raw materials that Seller delivered to FOAMit over (B) FOAMit’s damages. FOAMit’s termination under this paragraph shall terminate only Seller’s obligation and right to deliver goods or provide services other than as this paragraph requires and shall not terminate or impair Seller’s other obligations, or any of FOAMit’s rights, under the Agreement. In addition to FOAMit’s rights described in these Standard Terms of Purchase, FOAMit has all of the other rights and remedies that the law gives to buyers, including the right to recover incidental and consequential damages that result from Seller’s breach. FOAMit shall not lose any right just because it does not exercise it. FOAMit shall have the full statutory period of limitations to bring any action that arises out of FOAMit’s agreement with Seller. A reasonable time for FOAMit to notify Seller of any breach is not less than two years from when FOAMit discovers the breach. Under no circumstances will FOAMit be liable to Seller for any loss of profits or for any other consequential, incidental, indirect, punitive or other special damages.
13. FOAMit’s Property. Any designs, drawings, specifications, methods of manufacture, intellectual property, documents and other information and any tooling, equipment or other property that FOAMit furnishes to, or acquires from, Seller in connection with Seller’s manufacture of the goods or performance of the services (“FOAMit Property”) are and shall at all times be FOAMit’s sole and exclusive property. Seller shall (a) maintain the FOAMit Property in good condition; (b) mark the FOAMit Property “PROPERTY OF FOAMit”; (c) not commingle the FOAMit Property with property of Seller or third parties; (d) allow FOAMit to inspect and examine the FOAMit Property at any time; and (e) return the FOAMit Property to FOAMit upon its request.
14. Government Contracts. If FOAMit will use the goods or services covered by the order in connection with a contract with the United States or other government, then all terms and conditions that the government contract or any law or regulation requires to be included in any contract formed pursuant to the order (“Government Terms”) are incorporated in the order by reference. If a provision of the order is inconsistent with a Government Term, then the Government Term shall control.
15. Insurance. Seller agrees to maintain the insurance coverage set forth below starting as or the date of the first Agreement between the parties band continuing until four (4) years after the later of (a) expiration or termination of the last Agreement between the parties; or (b) the last date that Seller provided goods or services to FOAMit. Insurance required to be provided by this Section shall be primary and without right of contribution or subrogation from insurance carried by FOAMit, and name FOAMit as an additional insured (except for workers’ compensation and professional liability). The required insurance includes the following:
    • Workers’ Compensation Insurance in accordance with statutory requirements.
    • Employers’ Liability Insurance with a minimum of $1,000,000 each occurrence.
    • Comprehensive General Liability Insurance (occurrence form) including premises, contractual liability, products liability, completed operations, independent contractors, broad form property damage and coverage for damage caused by explosion, collapse or structural injury and damage to underground utilities with the following minimum limits of liability:
      • Bodily injury: $2,000,000 each occurrence
      • Property damage: $2,000,000 each occurrence
    • Comprehensive Automobile Liability Insurance including coverage for all owned, non-owned and hired automobiles used by Seller in the performance of the Services with the following minimum of liability:
      • Bodily injury $2,000,000 each occurrence
      • Property damage $2,000,000 each occurrence
      • Errors & Omissions/Professional Liability Insurance $2,000,000 each occurrence.
      • Product recall insurance $1,000,000 per occurrence
      • Umbrella and/or Excess Insurance with a minimum limit of $10,000,000 in the aggregate to apply in excess of coverage outlined above.
16. Prepayment. If FOAMit pays any part of the purchase price of the goods before Seller delivers them to FOAMit, then (a) title (but not risk of loss) to each item of the goods shall pass to FOAMit upon identification of the item to the Agreement; (b) to the extent necessary to protect FOAMit’s title to the goods, Seller grants FOAMit a security interest in the goods to secure Seller’s obligation to deliver them to FOAMit and all of Seller’s other present and future obligations to FOAMit; and (c) Seller shall obtain from each person that holds a security interest in or lien upon the goods a written agreement releasing that security interest or lien or subordinating it to FOAMit’s interest in the goods.
17. Confidentiality and Non-Use. Seller shall not sell or offer to sell or otherwise provide to anyone other than FOAMit any goods made in accordance with any drawings, designs or specifications that FOAMit furnishes to Seller or that incorporate, embody or are made in accordance with any of FOAMit’s intellectual property. Seller shall maintain the confidentiality of, and shall not disclose or use or permit to be disclosed or used or to be viewed by any third party (including any of Seller’s suppliers), the goods, any designs of or specifications for the goods, any FOAMit Property or any information concerning FOAMit’s business, operations or activities, including, without limitation, information concerning FOAMit’s present or proposed products, product developments, plans, strategies, finances, know-how, sales, customers and marketing or sales techniques (“Confidential Information”), except that Seller may disclose Confidential Information to a third party (other than a competitor of FOAMit or an Affiliate of a competitor) to the extent disclosure is necessary in order for Seller to perform its obligations under the Agreement. If Seller breaches or threatens to breach this paragraph, then FOAMit’s remedies at law will be inadequate. Therefore FOAMit shall have the right of specific performance or injunctive relief, or both, in addition to any and all other remedies and rights at law or in equity, and FOAMit’s rights and remedies shall be cumulative.
18. Intellectual Property. All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, trademarks, trade names, trade dress, service marks, names, software and other works and matters that Seller creates or develops in the course of Seller’s performance of the services or Seller’s design or development of the goods for FOAMit, including all proprietary rights in the foregoing (collectively, “Intellectual Property”) shall be FOAMit’s sole property, and Seller assigns, and agrees to assign, to FOAMit all right, title and interest that Seller now has or in the future acquires in the Intellectual Property. All copyrightable works that Seller creates or develops in the course of Seller’s performance of the services or Seller’s design or development of the goods for FOAMit shall be considered “works made for hire” within the meaning of the federal Copyright Act of 1976, as amended, and under the equivalent laws of any other country. To the extent that any such copyrightable work is not considered a “work made for hire,” it shall be the sole property of FOAMit, and Seller assigns, and agrees to assign, to FOAMit all right, title and interest that Seller now has or in the future acquires in it and in all copyright rights in it. Seller shall sign and deliver to FOAMit all assignments and other documents, and Seller shall take all other actions, that FOAMit requests for the purpose of perfecting FOAMit’s ownership of and title to the Intellectual Property and in any copyrightable work that is not considered a “work made for hire” and in all copyright rights in it.] If the goods or their design are subject to any pre-existing patent rights or other proprietary rights that Seller holds, then Seller grants to FOAMit an irrevocable, non-exclusive, royalty-free license of the patent rights and other proprietary rights to the extent necessary to enable FOAMit to modify, repair or rebuild any or all of the goods. This license is in addition to all licenses impliedly granted to FOAMit as a purchaser of the goods. Seller shall not use FOAMit’s name or any trademark, trade name, service mark or trade dress that FOAMit owns or that is licensed to FOAMit or to any Affiliate of FOAMit, without FOAMit’s express, written consent, and Seller shall not sell to anyone other than FOAMiT any goods bearing any such trademark, trade name, service mark or trade dress.
19. Other Terms. Seller shall not have and waives any security interest in or lien (including any statutory or common law lien) upon any FOAMit Property or the goods. Seller may not assign, delegate or subcontract any of its obligations under the order or the Agreement without FOAMit’s prior written consent. FOAMit may deduct, recoup and set off any amounts that FOAMit at any time owes to Seller under the Agreement from and against any damages or other amounts that Seller then owes to FOAMit, whether under the Agreement or otherwise and whether or not Seller shall have assigned to another (“Assignee”) its rights to receive amounts that FOAMit is required to pay under the Agreement. All such rights of an Assignee shall be subject to all of the terms of the Agreement and to all claims and defenses that FOAMit at any time has against Seller, whether arising under the Agreement or otherwise. FOAMit shall continue to have all of its rights under the Agreement even if it does not fully and promptly exercise them on all occasions. FOAMit’s failure to exercise, or FOAMit’s waiver of, a right or remedy on one occasion is not a waiver of that right or remedy with respect to any future occasion.
20. Applicable Law; Venue and Forum. The order and the Agreement shall be governed by, and interpreted according to, Michigan law, excluding the United Nations Convention on Contracts for the International Sale of Goods. Any disputes arising out of or related to the Agreement, the goods or the services shall be resolved exclusively by a state or federal court located in, or whose jurisdiction includes, Kent County, Michigan, and Seller irrevocably consents that such court shall have personal jurisdiction and venue over Seller and waives any objection that such court is an inconvenient forum.
21. Complete Agreement. Seller has not made any promises or representations to FOAMit, and FOAMit has not made any to Seller, that are not in the order. A change in, or waiver of, a provision of these Standard Terms of Purchase or the order must be contained in a writing signed by FOAMit.

W18404248