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Lavley Wholesale Agreement

1. GENERAL TERMS:

The terms and conditions stated herein shall govern all wholesale sales of products made by Platinum Elephant, Inc. /DBA/ Lavley (“Lavley”), regardless of the terms and conditions stated in any purchase order submitted by the purchaser ("Purchaser"). Lavley hereby disclaims and rejects any terms and conditions appearing in a purchase order from Purchaser that are in addition to, or inconsistent with, the terms and conditions stated herein. Any such additional or inconsistent terms and conditions shall not be a part of the contract and shall not be binding on Lavley. These terms and conditions are subject to change at any time without prior written notice by Lavley. Please review these terms and conditions in their entirety prior to engaging in any transaction with Lavley.

2. CERTIFICATION:

To qualify to open a wholesale account with Lavley, Purchaser must certify and document that it is in the business of reselling products to its customers or to the public. For documentation purposes, Lavley requires that Purchaser provide a state-issued Resale Certificate to Lavley at the time of order. If Purchaser does not have a Resale Certificate, Purchaser may still establish a wholesale account by providing a signed W9 form to Lavley. For those customers located in the state of NY, sales tax will be applied for those wholesale accounts who do not have a state issued Resale Certificate on file with Lavley.

3. TAXES AND OTHER CHARGES:

Purchaser is responsible for all sales, VAT, or related taxes applicable to the purchase of Lavley products. Lavley will add such taxes to the invoice and Purchaser will be responsible for payment of such taxes, unless Purchaser provides to Lavley a valid exemption certificate or other document acceptable to the authority imposing the tax.

4. OWNERSHIP/INTENDED USE:

Lavley' products are intended and manufactured SOLELY for direct consumption by the Purchaser and/or for resale purposes. Purchaser shall resale Lavley’s products “as-is”, without re-packaging any products or otherwise infringing upon Lavley’s registered trademarks, copyrights, and other intellectual property. Purchaser shall use Lavley’s products in accordance with the aforementioned intended use.

All intellectual property is and shall continue to be the property of Lavley or its content suppliers and is protected under applicable copyright, patent, trademark, and other proprietary rights. Any copying, redistribution, use or publication by Purchaser of any such content is prohibited, except as expressly permitted in this Agreement. Under no circumstances will Purchaser acquire any ownership rights or other interest in any content by or through Purchaser’s purchase of products.

Purchaser further acknowledges and agrees that the purchased products contain proprietary and confidential information that is the property of Lavley and its licensors and is protected by applicable intellectual property and other laws. No rights or title of to any of the products used in connection with any Service is provided, transferred or assigned to Purchaser. Purchaser further acknowledges and agrees that content contained in advertisements or information presented to Purchaser through any Service or advertisers is protected by copyright, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Lavley or advertisers, Purchaser agrees not to modify, rent, lease, loan, sell, distribute or create derivative works based on the products, in whole or in part.

5. PURCHASE ORDERS:
Unless otherwise specified, no Lavley products will be shipped until Purchaser has submitted a written purchase order. Purchase orders shall state: the Lavley products ordered, including SKUs, if applicable; quantity; requested delivery dates; billing address; shipping address; and shipping instructions.

 6. CANCELLATIONS:
Purchaser's purchase orders shall not be subject to cancellation, changes or reductions in amount, or suspension of deliveries except upon Lavley’s prior written consent and upon terms which indemnify Lavley against loss.

 7. QUOTATIONS:
Unless otherwise stated, all Lavley quotations are valid for a period of ninety (90) days from the date of quotation.

 8. DELIVERY TERMS:
Title to and risk of loss of goods shall pass to the Purchaser upon delivery F.O.B. at Lavley’s warehouse to an agent of the buyer including a common carrier, notwithstanding any prepayment or allowance of freight by the Purchaser.

Unless otherwise requested in writing by Purchaser, all freight and handling charges will be prepaid by Lavley and, when applicable, added to the invoice plus a convenience markup at Lavley’s discretion, unless otherwise arranged by the Purchaser with Lavley.

 9. DELIVERY DATE:
Any date of delivery furnished by Lavley to Purchaser is determined from the date of Lavley’s receipt of Purchaser's purchase order and its agreement to payment terms as shown below. This date is only an estimate of the date of delivery and is not a guarantee of a particular delivery date. Lavley shall not be liable for a failure or delay in shipment.

 10. ERRORS OR OMISSIONS:
Errors or omissions in any Lavley quotation, acceptance, specification or other document shall be subject to correction at Lavley’s discretion.

 11. PAYMENT TERMS:
Payment terms are governed by the Payment Agreement between Lavley and the Purchaser, which shall be subject to submission of a valid Business Credit Application by the Purchaser. If no Payment Agreement is in place, all orders must be fully paid in advance prior to shipment. Notwithstanding any Payment Agreement, except as otherwise agreed upon by Lavley and the Purchaser, all first-time/initial orders from any Purchaser must be fully paid in advance prior to shipment. If Lavley reasonably believes that Purchaser’s financial condition compromises the ability to make timely payment per this paragraph, Lavley may delay or postpone the delivery of products and condition shipment of products on full or partial advance payment or letter of credit.

 12. SHIPPING METHOD:
Unless otherwise requested in writing by Purchaser, all Lavley products will be shipped by whatever means and carrier that Lavley considers to be the most appropriate method of transportation.

 13. PRODUCT CONTROL:
Unless otherwise specified upon Lavley’s acceptance of purchase order, all products are produced in accordance with Lavley’s standard production processes. Specifications provided in Lavley’s literature are subject to change without notice.  Lavley reserves the right to add, delete, alter of modify products at its discretion.

 14. PURCHASER'S DUTIES:
By accepting delivery of any Lavley product, the Purchaser agrees to use that product only for its Intended Use. The Purchaser assumes, without limitation, all risk of injury, damage, or otherwise arising out of any use other than the Intended Use of a Lavley product.

 15. RESALE:
The Purchaser agrees to assume all liability arising out of any use other than the Intended Use of a Lavley product by any third party who has directly or indirectly obtained the product from the Purchaser. In addition, the Purchaser agrees to indemnify, defend, and hold harmless Lavley against all inquiries, claims, damages, actions, causes of action, injuries, and litigation arising out of any use other than the Intended Use of a Lavley product purchased by the Purchaser.

 16. NOTIFICATION OF COMPLAINTS:
Purchaser shall notify Lavley within five (5) business days of receipt of Lavley products regarding any defect or deficiency therein, including questions regarding the invoice, mis-shipments or lost or damaged shipment. Failure to provide such notice to Lavley shall be deemed acceptance of such Lavley products as complete and satisfactory to Purchaser.

 17. WARRANTIES:
Lavley products are sold on an "AS IS" basis. LAVLEY SHALL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, EVEN IF LAVLEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Lavley's liability, if any, for defective products, is limited to replacement, repair or refund of the defective Goods, at Lavley's option.

 18. RETURNS:
Purchaser shall contact Lavley for the return of damaged Lavley product. Purchaser shall obtain the appropriate forms and approval from Lavley prior to returning product.  Items returned without proper Lavley forms will be delayed in processing.  Lavley, at its discretion, may charge a restocking fee for products returned for reasons other than warranty or exchange.

 20. DISPUTE RESOLUTION:
Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. The arbitrator(s) shall not have the authority to modify any provisions of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.

 21. GOVERNING LAW:
Colorado law, excluding its choice of law rules, shall be controlling for all purposes regarding any claim or dispute between Lavley and Purchaser. The sole and exclusive forum for any action commenced by Purchaser shall be in a state or federal court in Colorado.