Terms and Conditions

GENERAL

1. Unless otherwise expressly agreed in writing by a duly authorized representative of Rotobrush International LLC, a Delaware limited liability company (hereinafter “Rotobrush”), these terms and conditions supersede all other communications and agreements and notwithstanding any conflicting or different terms and conditions in any order or acceptance of Purchaser, all sales and shipments shall be governed exclusively by these terms and conditions.  Paragraph headings are for purposes of convenience only.  “Products” as used herein shall include products, parts and accessories furnished by Rotobrush.  Orders shall be subject to acceptance at                     Rotobrush’s principal corporate office at 612 East Dallas Road, Suite 400, Grapevine, Texas  76051.

DELIVERY TERMS

2. Unless otherwise agreed in a writing signed by Rotobrush, Products are delivered F.O.B. Rotobrush’s Texas factory or warehouse.  Where the scheduled delivery of Products is delayed by Purchaser or its customer or by reason of any of the contingencies referred to in Paragraph 5, below, Rotobrush may deliver such Products by moving them to storage and storing them for the account of and at the sole risk of Purchaser.  Shipping dates are approximate and are based upon prompt receipt of all necessary information and approvals from Purchaser.  Rotobrush reserves the right to make delivery in installments.  It is the customer’s responsibility to contact Rotobrush regarding any missing components from their order within 30 days of receipt of their product; otherwise, the customer forfeits their rights to have any missing parts replaced by Rotobrush.

TITLE AND RISK OF LOSS

3. The Products sold shall remain the personal property of Rotobrush until fully paid for in cash, and Purchaser agrees, if requested by Rotobrush, to execute a security agreement covering the Products sold and to perform all acts, including but not limited to the execution and filing of UCC-1 financing statements, which may be necessary to perfect and assure retention of title to such Products by Rotobrush.  Notwithstanding any agreement with respect to passage of legal title to the Products, risk of loss and damage shall pass to Purchaser and delivery shall be deemed to be complete upon the Products’ arrival at the points set forth in Paragraph 2, above, or upon moving into storage, whichever occurs first.

PAYMENT

4. If Purchaser fails to pay any invoice when due, Rotobrush may defer deliveries under this or any other contract with Purchaser, except upon prior receipt of satisfactory security for or cash in payment of any such invoice.  Failure on the part of Purchaser to pay invoices when due shall at the option of Rotobrush constitute a default under the Purchaser’s arrangement with Rotobrush and subject Purchaser to termination in addition to all other remedies Rotobrush may have under any Dealership Agreement, these Conditions of Sale, or applicable law.  If in the judgment of Rotobrush the financial condition of Purchaser at any time prior to delivery does not justify the terms of payment specified, Rotobrush may require payment in advance or cancel any outstanding order, whereupon Rotobrush shall be entitled to receive reasonable cancellation charges.  If delivery is delayed by Purchaser, payment shall become due on the date Rotobrush is prepared to make delivery. Should manufacture be delayed by Purchaser, pro rata payments shall become due if and to the extent required of Rotobrush by its contracts with the manufacturer.   All installment deliveries shall be separately invoiced and paid for without regard to subsequent deliveries.  Delays in delivery or nonconformities in any installment shall not relieve Purchaser of its obligations to accept and pay for remaining installments.A service charge equal to the lesser of:  (i) one and one-half percent (1½%) per month for an annual rate of eighteen (18%) percent, or (ii) the highest rate allowed by law, shall be charged on all overdue accounts of Purchaser with Rotobrush.

   
   FORCE MAJEURE

   5. Rotobrush shall not be liable for loss, damage, detention, or delay, nor be deemed to be in default for causes beyond its reasonable control or from fire, strike or other concerted action of workers, any act or omission of any governmental authority or of Purchaser, compliance with import or export regulations, currency restrictions, insurrection or riot, embargo, delays or shortages in transportation, or inability to obtain necessary engineering talent, labor, material, or manufacturing facilities from usual sources.  In the event of delay due to any such cause, the date of delivery will be postponed by such length of time as may be reasonably necessary to compensate for the delay.

   LIMITED WARRANTY

   6. Rotobrush warrants to Purchaser that the Products manufactured by Rotobrush or its affiliates shall be free from defects in material and workmanship for a period of twelve (12) months from the date of purchase to the first user, or eighteen (18) months from the date of purchase from Rotobrush’s factory, whichever occurs first, limited to 30 days from the date of purchase for purchased replacement components, except that Roto-Vision and IC Cam products are warranted as free from defects in material and workmanship for a period of ninety (90) days from the date of purchase to the first user.

   Should any failure to conform with this warranty develop prior to or after delivery of the Products during the specified periods under normal and proper use and provided the Products have been properly stored, installed, handled, and maintained by Purchaser and first customer, Rotobrush shall, if given prompt notice by Purchaser, repair or replace such nonconforming Products.  Should Purchaser fail to comply in any respect with the provisions of this paragraph, Rotobrush shall have no obligation in respect of the repair or replacement as provided in this paragraph.

   Repaired or replaced Products are warranted only for the remainder of the original warranty period above.

   When the nature of the defect is such that it is appropriate in the judgment of Rotobrush to do so, repairs will be made at the site of the Product.  Replaced Products become the property of Rotobrush.

   Repaired or replaced Products are warranted only for the remainder of the original warranty period above.

   When the nature of the defect is such that it is appropriate in the judgment of Rotobrush to do so, repairs will be made at the site of the Product.  Replaced Products become the property of Rotobrush.

   THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY, WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED.  Correction of nonconformities as provided above shall be Purchaser’s exclusive remedy and shall constitute fulfillment of all liabilities of Rotobrush (including direct, indirect, special, incidental, or consequential damages), whether in warranty, contract, tort, negligence, strict liability, or otherwise with respect to the quality of the Products delivered hereunder.

    

PURCHASER’S REPAIR OBLIGATIONS

7. Purchaser shall be obligated to provide repair services to owners of Products at Rotobrush’s reasonable written request from time to time, regardless whether Purchaser sold any such Product to such owner, and regardless whether any such Product shall be within or outside any applicable warranty period.  In the event that Rotobrush shall make any such written request, Purchaser shall be entitled to compensation from Rotobrush for such services at such reasonable rates as Rotobrush may set from time to time.

LIMITATION OF LIABILITY

8. IN NO EVENT WHETHER ON ACCOUNT OF PRODUCTS FURNISHED HEREUNDER, DELAYS IN DELIVERY THEREOF, OR SERVICES PERFORMED UPON OR WITH RESPECT TO SUCH PRODUCTS SHALL Rotobrush BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES including but not limited to loss of profits or revenue, loss of use of the Products or facilities or services, downtime cost, or claims of customers of the Purchaser for such damages.  Rotobrush’s liability on any claim whether in contract, tort (including but not limited to negligence), warranty, strict liability, or otherwise for any loss or damage arising out of, connected with, or resulting from these conditions of sale or the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, servicing, operation or use of any Product covered by or furnished under this contract shall in no case (except as provided in Paragraph 10) exceed the purchase price allocable to the Product or portion thereof which gives rise to the claim.

All causes of action against Rotobrush arising out of or relating to this contract or the performance hereof shall expire unless brought within one year of the time of accrual thereof.

TAXES AND FEES

9. The purchase price does not include any federal, provincial, state or local property, license, privilege, sales, service, use, excise, value added, gross receipts, or other like taxes which may now or hereafter be applicable to, measured by or imposed upon or with respect to this transaction, the Products, their purchase, sale, replacement, value, or use, or any services performed in connection therewith.  Purchaser agrees to pay or reimburse Rotobrush, its subcontractors or suppliers any such taxes which Rotobrush, its subcontractors or suppliers are required to pay, collect or which are to be withheld by Purchaser.  In the event that Purchaser fails to comply with any local law, Rotobrush may, at its sole option, comply with such law on behalf of Purchaser.  In no event shall such compliance by Rotobrush relieve Purchaser of any responsibility whatsoever, and Purchaser shall reimburse Rotobrush for all the costs of such compliance.

PATENT INDEMNITY

10. Rotobrush shall at its own expense defend any suits or

proceedings brought against Purchaser insofar as based on an allegation that Products furnished hereunder constitute an infringement of any claim of any patent of the United States of America, provided that such Products are manufactured by Rotobrush, are not supplied according to Purchaser’s detailed design, are used as sold by Rotobrush, Purchaser shall have made all payments then due hereunder, and Rotobrush is notified promptly in writing and given authority, information and assistance for the defense of said suit or proceeding; and Rotobrush shall pay all damages and costs awarded in any suit or proceeding so defended, provided that this indemnity shall not extend to any infringement based upon the combination of said Products or things not furnished hereunder unless Rotobrush is finally held by the appropriate governmental authority to be a contributory infringe..

Rotobrush shall not be responsible for any settlement of such suit or proceeding made without its written consent.  If in any suit or proceeding defended hereunder any Product is held to constitute infringement, and its use is enjoined, Rotobrush shall, at its option and its own expense, either:  replace said Products with noninfringing Products; or modify them so that they become noninfringing; or remove them and refund the purchase price and the transportation costs thereof.  THE FOREGOING STATES THE ENTIRE LIABILITY OF Rotobrush WITH RESPECT TO PATENT INFRINGEMENT.

To the extent that said Products or any portion thereof are supplied according to Purchaser’s detailed design or instructions, or modified by Purchaser, or combined by Purchaser with equipment or things not furnished

hereunder, except to the extent that Rotobrush is finally held to be a contributory infringer by the appropriate governmental authority, or are used by Purchaser to perform a process, or produce a product, and by reason of said design, instruction, a suit or proceeding is brought against Rotobrush, Purchaser agrees to indemnify Rotobrush in the manner and to the extent Rotobrush indemnifies Purchaser in this Paragraph 10 insofar as the terms hereof are appropriate.

TRADEMARKS

11. Except as provided below, Purchaser will not use nor authorize anyone else to use Rotobrush’s names or trademarks.  Any use which Purchaser makes of Rotobrush’s name or trademarks will inure to Rotobrush’s sole benefit, and Purchaser will accrue no rights in such name or trademarks.  Under no circumstances shall Purchaser use any of Rotobrush’s names or trademarks in Purchaser’s corporate or business name.

Except as provided below, Rotobrush hereby grants Purchaser the non-exclusive, nontransferable, royalty-free right to use Rotobrush’s trademark Rotobrush® and all authorized logos, designs and presentations (altogether constituting the “Trademark”) in connection with Purchaser’s sale of Products.  Purchaser will display the symbol “®” adjacent to Rotobrush’s federally registered trademarks at all times.

Except as may expressly be permitted by Rotobrush in a writing signed on its behalf by its authorized representative, Purchaser will not make any use or mention (whether human-readable or machine-readable) of the Trademark, or any part of the Trademark, on the Internet, on the World-Wide Web, or on any other publicly accessible or searchable computer network, node, or site.  In addition, Purchaser will refrain from using any technique designed to ensure or enhance the likelihood that any search engine (such as Alta Vista, AOL NetFind, Excite, HotBot, Infoseek, Lycos, WebCrawler, or Yahoo) will index, describe, or categorize Purchaser’s site as a Rotobrush International LLC or Rotobrush® site, or as a site at which goods of any such brand are available for purchase, whether by means of “meta tags,” “keywords,” or otherwise.

ASSIGNMENT

12. Any assignment of this contract, or any rights hereunder, without prior written consent of Rotobrush by a duly authorized representative thereof, shall be void.

AMENDMENT AND TERMINATION

13. Rotobrush may amend these Standard Conditions of Sale to Purchasers at will, with or without cause, on thirty (30) days’ notice to Purchaser.  Rotobrush may terminate these Standard Conditions of Sale to Purchasers at will, with or without cause, on one (1) day’s notice to Purchaser.  Any order or contract may be terminated by Purchaser only upon written notice and upon payment of reasonable and proper termination charges, including, but not limited to all costs identified to the order or contract incurred up to the date of notice of termination and all charges incurred by Rotobrush in respect of the termination, plus a fixed sum of 10% or, in the case of specially designed items, 15% of the final net selling price to compensate for disruptions in scheduling, planned production and other indirect costs.

CHOICE OF LAW AND SUBMISSION TO JURISDICTION

14. Except as may be provided to the contrary in a written, signed Dealership Agreement between Rotobrush and Purchaser, the validity and interpretation hereof will be governed by and construed and enforced in accordance with the laws of the State of Texas applicable to contracts negotiated and entered into therein.  Except as may be provided to the contrary in a written, signed Dealership Agreement between Rotobrush and Purchaser, Rotobrush and Purchaser hereby irrevocably appoint each other their respective agents for submitting to the jurisdiction of any court located in the County of Tarrant, Texas in any action arising out of any alleged breach hereof or in any way connected with the subject matter hereof, or performance of either party hereunder.  Rotobrush and Purchaser hereby irrevocably agree that any such action will be brought only in such a court and no other.

PARTIAL INVALIDITY

15. If any provision herein or portion thereof shall for any reason be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision or portion thereof, but these Standard Conditions of Sale to Purchasers shall be construed as if such invalid or unenforceable provision or portion thereof had never been contained herein.

REMEDIES

16. The remedies expressly provided for in these Standard Conditions of Sale to Purchasers shall be in addition to any other remedies which Rotobrush may have under the Uniform Commercial Code or other applicable law.

Indoor Wellness Insiders Affiliate Program

The Indoor Wellness affiliate program is available to all active Insiders members. An active Insiders membership can be obtained by enrolling into the yearly membership program with Rotobrush International. Please contact Michelle Landers for any membership information and membership fee questions- landersm@rotobrush.com.

Insiders members that are enrolled into the Indoor Wellness filter affiliate program receive support in the form of customized postcards, unique URLs and promotion codes in order to promote the filter subscription service. Rotobrush International operating as Indoor Wellness will handle all order processing, charging and shipping of filters set up through a subscription and ordered on www.indoorwellness.com.

With an active membership, affiliates receive a commission on each order that is placed through www.indoorwellness.com. The commission options are a percentage per order or a flat dollar amount per customer, these options will be reviewed and chosen when the affiliate enrolls into the Indoor Wellness filter program. Commission checks are issued quarterly by Rotobrush International.

Commission Checks-

Rotobrush International will issue checks quarterly for any commission amounts that exceed $50.00. Commission received during that quarter that do not meet the $50.00 requirement will be rolled over to the next quarter. Checks will be sent to the billing address and company name that is on file with Rotobrush International. This information will be verified prior to the check being mailed.

Active Membership-

You must maintain an active membership with the Indoor Wellness Insiders program in order to receive commission from filter orders and subscriptions. If your membership expires, the active subscriptions that are tied to your company will be forfeited. Re-enrolling later will not gain these customers back. For any questions regarding membership dates and pricing please contact Michelle Landers at landersm@rotobrush.com or call 1-800-535-3878.

New Subscriptions-

New filter subscriptions that are set up must be active 7 business days before being cancelled. If subscriptions are cancelled before 7 business days no commission will be issued for the subscription/customer.