FOAMit is a tradename of INNOVATIVE CLEANING EQUIPMENT, INC, which company will be referred to in these Standard Terms of Sale as “FOAMit”. All sales by FOAMit are subject to the following Standard Terms of Sale. The term “Goods” refers to the equipment, products or other items being sold or manufactured by FOAMit. The term “Customer” refers to the person or entity purchasing Goods from FOAMit.
- Agreement. If these terms constitute an acceptance, the acceptance is expressly conditioned on Customer’s assent to any additional or different terms contained in this Agreement (as defined below). FOAMit objects to and will not agree to any terms that are additional to or different from these terms. If these terms constitute an offer, FOAMit expressly limits acceptance to the terms of the offer. If Customer has not otherwise agreed to these terms, Customer’s acceptance of delivery of, or full or partial payment for, the Goods will constitute Customer’s acceptance of these terms. The contract (or contracts) formed by these terms and any other terms agreed upon by FOAMit in writing constitute a final, complete and exclusive statement of the terms of the parties’ agreement (collectively, the “Agreement” or this “Agreement”).
- Orders. Customer may order Goods in writing or by email or over the phone. Customer is responsible for determining whether the ordered Goods are suitable for Customer’s needs. All orders are subject to final approval by FOAMit. Orders may not be changed or canceled without the written approval of FOAMit. Order pricing is good for 90 days. After 90 days, pricing is subject to change.
- Prices and Other Terms. The prices of Goods will be as quoted or verbally stated by FOAMit or its representatives. Quoted prices expire after 30 days or such other period as may be stated in writing and except as quoted, prices can be changed without notice. Unless otherwise agreed in writing by FOAMit, prices quoted are F.O.B. (Uniform Commercial Code term) FOAMit’s shipping point and are exclusive of all federal, state, provincial, local or other taxes and charges of any kind, including without limitation sales, excise, use and property taxes and all import and export duties, tariffs, licenses, permits and fees levied on FOAMit, whether or not invoiced by FOAMit. Customer shall reimburse FOAMit for any such taxes and charges that are paid by FOAMit. Customer may not offset or recoup any claim against amounts due FOAMit. Quoted prices are based on the specifications, delivery terms, and other criteria set forth in or referred to verbally, in the quote or in this Agreement, and any changes may result in an increase in price. All quoted prices are in U.S. dollars. FOAMit reserves the right to increase its prices upon notice to Customer to reflect increases in FOAMit’s costs. Stenographical or clerical errors are subject to correction. Please be advised, FOAMit has unilaterally adopted a Minimum Advertised Price Policy that can be viewed online at https://foamit.com/minimum-advertised-price-policy/
- Payment Terms. Unless otherwise agreed in writing by FOAMit, full payment of the purchase price is due at time of order. If credit is approved, payment terms will not exceed 30 days from the date of FOAMit’s invoice, without discount. Customer shall notify FOAMit in writing of any dispute with any invoice (along with substantiating documentation) within 30 days from Customer’s receipt of such invoice. Customer will be deemed to have accepted each invoice for which FOAMit does not receive written notification of disputes within such 30 day period, and Customer waives any right to dispute each invoice for which Customer did not provide written notification of disputes within such 30 day period. If at any time FOAMit determines that Customer’s financial condition or credit rating does not merit a sale on credit, FOAMit may require advance payment. A finance charge of 1.5% per month (or, if lower, the maximum rate permitted by law) may be assessed on all past due accounts, and FOAMit will be entitled to suspend performance under this or any other agreement with Customer until Customer’s account is fully paid. FOAMit will be entitled to the payment of all expenses (including actual attorney fees and costs) incurred in the collection of any delinquent account. FOAMit may establish a credit limit for Customer, and if FOAMit does establish a credit limit, such credit limit will be subject to change at any time without notice. In light of unprecedented supply chain disruptions globally, effective May 7, 2021, FOAMit is implementing a temporary 4% surcharge on all orders.
- Cancellation and Restocking Fee(s): Due to the nature of our custom order manufacturing process, ALL orders are subject to a fifteen percent (15%) restocking or cancellation fee.
- Delivery and Delay; Acceptance. Unless otherwise agreed by FOAMit in writing, the Goods are sold F.O.B. (Uniform Commercial Code term) FOAMit’s shipping point. Risk of loss to the Goods shall pass to Customer upon delivery of the Goods to the carrier and Customer has the responsibility for filing claims for loss or damage in transit. Unless Customer has notified FOAMit in writing that Customer has rejected the Goods within 10 days after receipt, Customer shall be deemed to have accepted the Goods. Shipping dates are estimates only and FOAMit is not liable for any delay in shipment. FOAMit may ship all of the Goods at one time or in portions from time to time. FOAMit has the right to determine the method of shipment and routing, unless otherwise directed by the Customer. All deliveries are subject to modifications or cancellation due to events beyond FOAMit’s control. Any claims for shortages must be made within 5 business days of delivery to Customer.
- Returns. Customer may not return Goods without prior written approval from FOAMit and issuance of a Return Materials Authorization number. If FOAMit decides to accept returned Goods, FOAMit may impose conditions and fees for such returns, including without limitation restocking fees, and Customer will be responsible for all shipping charges. Goods not approved for returns will be shipped freight collect to the Customer or disposed of at Customer’s request.
- Customer’s Obligations. Customer agrees that (a) before using the Goods, Customer shall determine the suitability of the Goods for Customer’s intended use and shall assume all risk and liability whatsoever in connection with that determination; (b) Customer shall use the Goods in accordance with any instructions included with the Goods or otherwise communicated to Customer; and (c) Customer shall use the Goods in accordance with the requirements of all applicable federal, state, provincial, local and other laws, rules and regulations. Customer further agrees that it will not remove or change any safety devices, warnings or operating instructions placed on the Goods by FOAMit.
- Warranty; Limitations. FOAMit warrants that the Goods shall be free from defects in material and workmanship under proper and normal and recommended use for a period of 1 year from the date of shipment. Goods shall be considered defective only if a defect exists that materially impairs the value of the Goods to Customer and does not comply with FOAMit’s specifications (or, if none, does not comply with normal industry tolerances or standards). Goods shall not be defective if the Goods comply with Customer’s instructions or if the Goods have been modified, have been subject to misuse or neglect or if the Goods are not operated in a typical fashion. In accordance with the terms of this limited warranty (“Warranty”), FOAMit will, at its option, either replace any such defective Goods or parts thereof or issue Customer a credit for the purchase price of the defective Goods, provided that written notice of the defect is received by FOAMit within 30 days of the appearance of such defect and within the 1-year warranty period. If notice is not given by the required deadlines set forth in this paragraph, any claim for breach of warranty is waived and FOAMit shall not be liable. Upon receipt of notice of a possible defect in the Goods, FOAMit shall issue instructions for their disposition. No Goods shall be returned to FOAMit without its prior consent. Transportation charges for return and replacement under the Warranty will be borne by FOAMit if the Goods are defective. Under no circumstances will FOAMit’s liability exceed the purchase price of the defective Goods.
THE TERMS ABOVE SET FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY DEFECTIVE GOODS OR ANY BREACH OF WARRANTY. EXCEPT AS SET FORTH IN THE PARAGRAPH ABOVE, FOAMit MAKES NO WARRANTIES AS TO THE GOODS AND, IN PARTICULAR, MAKES NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS. FOAMit shall have no tort liability to Customer with respect to any of the Goods and shall not be liable for consequential or incidental damages arising from any product defect, delay, nondelivery, recall or other breach. Customer shall have no right of rejection or of revocation of acceptance of the Goods.
- Indemnification. Customer shall indemnify and hold FOAMit harmless (and defend FOAMit if so requested) with respect to any claim, loss, damage, judgment, liability or expense (including attorney’s fees and costs) suffered or incurred by FOAMit as a result of, or in connection with, (a) any act, omission or use of the Goods by Customer, its employees or customers or the end users; (b) any negligence or intentional misconduct by Customer; (c) any breach of this Agreement by Customer; (d) any modification of the Goods by Customer; or (f) FOAMit’s compliance with Customer’s instructions (for example, Customer directing FOAMit to change hose colors).
- Intellectual Property; FOAMit Property. FOAMit is the sole and exclusive owner of all intellectual property and all intellectual property rights relating to the Goods or any improvements to the Goods, all packaging and other materials associated with the Goods, and all manufacturing, packaging or other processes associated with the Goods or any improvements to the Goods.
- NO CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (A) FOAMIT SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS OR LOST REVENUE, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE GOODS; AND (B) IN ADDITION TO THE PROVISIONS OF THE PRECEDING CLAUSE, CUSTOMER AGREES THAT THE AGGREGATE LIABILITY OF FOAMIT FOR ANY AND ALL TYPES OF LIABILITIES RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE GOODS SHALL NOT EXCEED IN THE AGGREGATE THE PRICE PAID BY THE CUSTOMER TO FOAMIT FOR THE GOODS AT ISSUE THAT RESULTED IN ALLEGED LIABILITY TO FOAMIT.
- Termination; Obligations on Termination. (a) Either party shall have the right to terminate this Agreement without reason or cause by giving the other party 10 days advance written notice of such termination. (b) Either party may terminate this Agreement immediately by written notice to the other party, if such other party breaches this Agreement in a material manner. (c) Either party may terminate this Agreement immediately by written notice to the other party if the other party becomes insolvent, becomes subject to a voluntary or involuntary bankruptcy proceeding, becomes subject to a receivership proceeding, has its assets come under the control of a trustee, custodian or other third party or otherwise becomes subject to any other insolvency proceeding. (d) Upon the termination of this Agreement for any reason, Customer shall, within 10 days after FOAMit’s demand, pay FOAMit for any Goods ordered before the effective date of termination.
- Remedies of FOAMit. FOAMit’s rights and remedies shall be cumulative and may be exercised from time to time. Customer shall reimburse FOAMit for actual attorney’s fees and costs incurred by FOAMit in collecting any amounts owing to FOAMit or in otherwise enforcing FOAMit’s rights under this Agreement. No waiver by FOAMit of any breach by Customer shall be effective unless in writing nor operate as a waiver of any other breach of the same term thereafter. FOAMit shall not lose any right because it has not exercised it in the past.
- Applicable Law and Venue. This Agreement shall be governed by and interpreted according to Michigan law, without regard to conflict of laws principles. Any lawsuit arising out of this Agreement, the Goods shall be brought in a federal or state court whose district includes Kent County, Michigan, and Customer irrevocably consents that such court shall have personal jurisdiction and venue over Customer and waives any objection that such court is an inconvenient forum. Any action that Customer brings against FOAMit for breach of this Agreement or for any other claim that arises out of or relates to the Goods must be brought within one (1) year after the cause of action accrues.
- Force Majeure. FOAMit shall not be liable for any loss, damage, delays, changes in shipment schedules or failure to deliver caused by accident, strike, fire, riot, civil commotion, insurrection, war, weather, embargo, inability to obtain transport, government requirements, acts of God or other activities beyond FOAMit’s reasonable control (collectively, a “Force Majeure Event”). Additionally, Customer acknowledges and agrees that, in the event of a Force Majeure Event, FOAMit may increase the price to Customer due to effects of the Force Majeure Event.
- Miscellaneous; Confidentiality. If any provision of this Agreement is found to be invalid or unenforceable under any law, the provision shall be ineffective to that extent and for the duration of the invalidity or unenforceability, but the remaining provisions shall be unaffected. Customer shall not assign any of its rights nor delegate any of its obligations under this Agreement without prior written consent of FOAMit. This Agreement shall be binding upon and inure to the benefit of FOAMit and Customer and each of their legal representatives, successors and assigns. FOAMit is acting as an independent contractor in the provision of Goods hereunder and nothing herein shall be construed to constitute Customer and FOAMit as principal and agent, joint venturers or partners, nor shall any similar relationship be deemed to exist between them. Each party will maintain as secret and confidential, and will not disclose to any person or entity without the other party’s written consent, any confidential information of the other party; provided, however, that the foregoing shall not apply to confidential information that (a) is publicly known at the time of disclosure to the receiving party; (b) becomes public knowledge without breach by the receiving party; (c) is known to the receiving party at the time of the disclosure and is not subject to any restriction which would be violated by its disclosure; (d) is lawfully obtained, without restriction which would be violated by the disclosure by the receiving party, from a third party not affiliated with the disclosing party; or (e) is independently developed by employees of the receiving party who have not had access to the confidential information or by third parties unrelated to the disclosing party.