ELEVATED OUTDOOR LIVING – STANDARD TERMS AND CONDITIONS OF SALE

Acceptance of Terms: Capitalized terms are defined below. Unless other terms are specified in Seller’s Quotation or Invoice, the following Standard Terms and Conditions of Sale (“Terms”) will govern the offer and sale of all Goods provided by Seller to Buyer. Any terms and conditions of sale (other than the economic terms of the Order) that may be contained in any purchase order or other form provided by Buyer will be without force and effect, regardless of when or how received by Seller. By placing an Order, Buyer accepts these Terms, and the sale and delivery by Seller of Goods will be conclusively presumed to be subject to these Terms. “Buyer” and “Seller” are identified on the Quotation or Invoice. “Goods” are all equipment, products, goods, or materials listed on a Quotation or Invoice and specifically do not include assembly or installation or any services, fees, permits, or other costs related to the Goods. A “Quotation” is the Seller-provided offer of sale of the Goods incorporated on the reverse hereof, attached hereto, or provided herewith, and is issued by Seller to Buyer.  A Quotation is valid for a period of 30 days from the date of issue, unless extended, in writing, by Seller. “Order” means Buyer’s commitment to purchase Goods from Seller. An “Invoice” is a written invoice for Goods provided by Seller to Buyer for Orders accepted by Seller in writing or by Seller’s performance.

Orders. Seller has the right to accept or reject any Order in its sole discretion and acceptance may be subject to Buyer’s credit approval and other conditions required by Seller. Buyer will not have the right to cancel an Order, in whole or in part, without Seller’s prior written consent.

Prices and Taxes. “Prices” are those set forth in the Quotation or, if not included in the quotation, Seller’s published price schedules. Prices and these Terms are subject to change without prior notice. Unless specifically stated, Prices do not include sales, use, excise or other similar taxes or duties (“Taxes”), or shipping, delivery, freight or other similar charges (“Freight”). Buyer will pay any and all clearance charges, broker’s fees, Taxes, Freight, and other amounts payable in connection with the Goods from and after they have been made available to Buyer. If Seller is required to pay any Taxes or Freight on the Goods furnished hereunder for any reason, Buyer will promptly reimburse Seller for all such amounts.

Payment. Buyer will pay all Invoices within 15 days from date of Invoice or upon shipment, whichever is earlier, via such other means of payment designated by Seller. Payment will not be deemed to have been received until Seller has cleared funds for the entire Invoice amount. If Seller makes Goods available to Buyer in lots, Seller has the right to Invoice Buyer for each lot and Buyer will pay all such Invoices as provided herein. Buyer will make all payments due in full without any deduction, whether by way of set-off, counterclaim, discount, abatement or otherwise. If Buyer fails to pay Seller any sum when due, Buyer will be liable to pay interest at an annual rate equal to the lesser of (a) 18% per annum, accruing on a daily basis until payment is made; or (b) the maximum amount permitted by applicable law.

Delivery and Acceptance. Seller will make the Goods available to Buyer at Seller’s designated shipping location and Buyer will arrange, coordinate, and pay all freight, insurance, and other shipping expenses, as well as any special packing expenses. Buyer is deemed to have accepted the Goods upon shipment unless Buyer notifies Seller at time of shipment of any loss, damage, shortage, or other nonconformity. In the absence of receipt of such notice, Buyer will have no right to reject the Goods and will be required to pay the Invoice price for such Goods. Seller will not accept any returns of Goods under any circumstances without Seller’s prior written authorization.

Risk and Title. The risk of loss or damage to the Goods will pass to Buyer when the Goods are made available to Buyer or its agents. Title to the Goods will pass to Buyer when Seller has received payment in full of the Invoice price of the Goods. Until title has passed to Buyer, Buyer will hold the Goods on a fiduciary basis as Seller’s Bailee. Buyer represents that it has adequate insurance to cover the risk of loss or damage described in this paragraph. Seller warrants that title to the Goods passes to Buyer upon Seller’s receipt of payment in full for such Goods.

Security Interest. Buyer grants Seller a security interest in the Goods in the amount of the unpaid balance of the Price until paid in full. Seller will have the right to file a financing statement for such security interest and Buyer, upon request by Seller, will sign any such statement or other documentation that Seller deems necessary to protect Seller’s security interest.

Limited Warranty. Seller warrants to Buyer that the Goods will be free from defects in materials and workmanship for a period of one (1) year from the date of shipment, subject to the below exclusions and limitation of Seller’s obligations and Buyer’s remedies (the “Limited Warranty“). The Seller’s Sole Obligation and the Buyer’s Sole Remedy in the event of a defect covered by the Limited Warranty will be, at Company’s option, to replace the defective Goods (or any component thereof) with new or refurbished components. ExclusionsThe foregoing Limited Warranty does not apply if Buyer has not paid for the Goods in full, and does not extend or apply to (i) any defects or losses due to misuse, accident, abuse, neglect, normal wear and tear, improper assembly and installation, failure to maintain, improper application, or matters caused by the negligence or misconduct of Buyer or any third party; and (ii) equipment that is sold “AS IS” as identified on any Quotation or Order.  Seller will endeavor to pass through any component manufacturers’ warranties; provided that any warranty administration or other cost not covered by the manufacturer for manufacturer’s warranty will be the at the sole expense of the Buyer.

DISCLAIMER AND LIMITATION OF LIABILITY. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN THESE TERMS, SELLER AND ITS SUPPLIERS MAKE NO AND HEREBY DISCLAIM ANY OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE GOODS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE, OR TRADE. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT WILL SELLER OR ITS SUPPLIERS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, OR FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR ANY OTHER LOSS), AS A RESULT OF THE OFFER, SALE, OR USE OF GOODS UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, NEGLIGENCE, TORT, WARRANTY, OR OTHER WRONGFUL ACT OR OMISSION OF SELLER AND EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) SELLER’S TOTAL LIABILITY FOR ALL CLAIMS WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL PRICE PAID TO SELLER PURSUANT TO THE ORDER UNDER WHICH LIABILITY AROSE.

Indemnification. To the fullest extent permitted by applicable law, Buyer will defend, indemnify and hold harmless Seller, its subsidiaries, affiliates, parents, partners, their successors and assigns and each of their respective past and present directors, officers, employees, and agents (collectively “Seller Indemnitees”) from and against any and all losses, damages, liabilities, demands, claims, actions, judgments, charges, court costs, and legal or other expenses, including, without limitation, reasonable attorneys’ fees (“Liabilities”), which Seller Indemnitees may sustain, incur or become liable for in defending or compromising any suit, action, or other proceeding arising out of, related to, or in any way connected with Buyer’s purchase, sale, or use of the Goods, including, but not limited to, Buyer’s misuse of such Goods, environmental claims resulting from Buyer’s use of the Goods, or any other acts or omissions or willful misconduct or negligence, whether active or passive, on the part of Buyer; provided, however, Buyer will have no indemnity obligations under this paragraph for any Liabilities caused solely by the willful misconduct or negligence of a Seller Indemnitee.

Privacy Notice: Seller, acting as controller, collects certain personal data regarding Buyer, and, as applicable, Buyer’s employees and its representatives, as required for the purposes described below, including name, title, email address, phone number and mailing address (“Personal Data”). Such Personal Data will need to be provided in order for Seller to be able to manage Seller’s supply of Goods to Buyer. Seller may share Personal Data with its affiliates wherever located. Seller and its affiliates will collect and use Personal Data in accordance with applicable privacy and data protection laws, solely to communicate with Buyer regarding pending and potential supply activities, for customer management purposes, and for other legitimate business purposes concerning Buyer’s and Seller’s business relationship.

Miscellaneous. Attorney’s Fees. If either party brings any legal action against the other party to enforce these Terms, the prevailing party will be entitled to recover reasonable attorneys’ fees and costs from the non-prevailing party. Force Majeure. Seller will not be liable for failures or delays caused by events or circumstances beyond its reasonable control. Assignment. Buyer will not have the right to assign or transfer Quotations or Orders, in whole or in part, except with Seller’s prior written consent. Seller has the right to assign its rights, or to delegate or subcontract its obligations or any portion thereof, to any affiliate or successor to its business or the assets to which these Terms relate. Seller does not owe warranty to any third party under any circumstances whatsoever. Dispute Resolution and Governing Law.   These Terms will be governed by the laws of the State of South Dakota without reference to its conflicts of laws’ provisions; (ii) exclusive jurisdiction and venue for any action, suit or proceeding concerning the Goods or these Terms will be in the federal or state courts located in the City of Sioux Falls and County of Minnehaha, South Dakota; and (iii) each party submits to exclusive personal jurisdiction in the State of South Dakota for any such action, suit, or proceeding. Other.  Time for payment is of the essence. Buyer acknowledges that it has not been induced to purchase any Goods from Seller by any representation or warranty not expressly set forth herein. These Terms constitute the entire agreement of the parties and supersede all existing agreements and all other oral or written communications between the parties concerning the subject matter contained herein. None of the Terms may be added to, modified, superseded, or otherwise altered except by a written document signed by an authorized representative of Seller. Any waiver or failure to enforce any provision herein on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Section headings contained herein are intended for convenience of reference only and will not affect the interpretation of any provision. If any provision of these Terms is held to be prohibited or unenforceable, the parties will promptly substitute for the invalid provision a valid and enforceable provision which most closely approximates the intent and economic effect of the invalid provision and the remaining provisions will continue in full force and effect. Paragraphs in these Terms with headings “Limited Warranty”, “DISCLAIMER AND LIMITATION OF LIABILITY”, “Indemnification”, and “Miscellaneous” will survive shipment of the underlying Goods, or payment with respect to or any termination of any associated Quotation, Order, or Invoice.