1. PURCHASE OF PRODUCTS.
CreateSmart LLC agrees to provide Customer all of the Products described in the Order Confirmation. Customer shall provide Compensation for the Products to
CreateSmart LLC as described in the Order Confirmation. The parties hereto acknowledge the sufficiency of the mutual consideration provided by the parties
pursuant to this Agreement. Product warranties shall not include items (i) required as a result of Customer’s fault (including, without limitation, failure
to comply with this Agreement or instructions or procedures provided by CreateSmart LLC), (ii) the acts of any third party, or (iii) outside the scope of
the description of Products set forth on the Order Confirmation or the mutual agreement of the parties. If Customer desires for CreateSmart LLC to provide
products or services not described in the Order Confirmation, Customer shall submit such request in writing to CreateSmart LLC, and CreateSmart LLC, in its
sole discretion, may decide whether to accommodate such request (and the additional pricing that may be associated with such accommodations). Risk of loss
with respect to the Products shall pass to Customer upon shipment. Customer is responsible for all shipping charges. The purchase referenced on the Order
In this agreement (a) “Agreement” shall mean this agreement, which includes the these Terms and Conditions and the Order Confirmation, (b) “Compensation” means the compensation described on the Order Confirmation, (c) “Confidential Information” shall have that
meaning set forth in Section 3 herein, (d) “Customer” means the entity or person(s) described on the Order Confirmation, (e) “ Order Confirmation” is the confirmation sent via email to Customer upon finalization of the order from Company’s website, containing among
other things, the product purchased, pricing, etc. and (f) “Products” means the CreateSmart LLC Products identified on the Order
CreateSmart LLC may disclose to Customer certain non-public information relating to CreateSmart LLC’s business, including, without limitation, technical,
marketing, financial, personnel, planning, and other information that is marked confidential, or which the Customer should reasonably know to be
confidential given the nature of the information and the circumstance of disclosure (“Confidential Information”). Customer agrees that it
will not disclose CreateSmart LLC’s Confidential Information except (a) to the employees, contractors, advisors or agents of the Customer to the extent
that they need to know that Confidential Information for the purpose of performing the Customer’s obligations under this Agreement or performing their
obligations to the Customer, and who are bound by confidentiality terms with respect to that Confidential Information no less restrictive than those
contained in this Section 3; or (b) as required to be disclosed by law, to the extent required to comply with that legal obligation, provided that the
Customer will promptly notify CreateSmart LLC of such obligation.
CREATESMART LLC WARRANTS TO CUSTOMER THAT THE PRODUCTS ARE IN WORKING CONDITION, FREE FROM MATERIAL DEFECT, AND WILL CONTINUE TO BE SO FOR A PERIOD OF SIX
(6) MONTHS AFTER INITIAL PURCHASE BY CUSTOMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CREATESMART LLC MAKES NO OTHER WARRANTY OF ANY KIND
WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS, ALL OF WHICH ARE HEREBY DISCLAIMED BY CREATESMART LLC AND EXCLUDED FROM
THIS AGREEMENT. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING WARRANTIES WILL BE FOR CREATESMART LLC, AT ITS OPTION, TO EITHER REPAIR OR
REPLACE THE DEFECTIVE PRODUCT. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, CREATESMART LLC SHALL NOT BE RESPONSIBLE FOR ANY WARRANTY CLAIMS
TO THE EXTENT SUCH CLAIMS ARE BASED UPON (A) THE IMPROPER ACTIONS OR OMISSIONS OF CUSTOMER (INCLUDING, WITHOUT LIMTIATION, FAILURE TO FOLLOW CREATESMART
LLC’S INSTRUCTIONS OR OPERATING MANUALS, NEGLIGENCE, OR MISUSE OF THE PRODUCTS), (B) THE FAULT OF ANY THIRD PARTY EQUIPMENT OR FACTOR, ACCIDENT, ETC., (C)
THE RESULT OF ANY EXTERNAL FACTORS NOT CAUSED BY CREATESMART LLC, INCLUDING, BUT NOT LIMITED TO, THEFT, ARSON, AN ACT OF GOD, OR AN ACT OR OMISSION BY ANY
THIRD PARTY, (D) ANY CHANGE OR MODIFICATION OF THE PRODUCT OR COMPONENT THEREOF MADE BY CUSTOMER OR ANOTHER PARTY NOT AUTHORIZED BY CREATESMART LLC IN
WRITING; AND (E) CUSTOMER’S USE OF THE PRODUCT IN A MANNER OUTSIDE OF THE AUTHORIZED SCOPE OF USE.
5. LIMITATION OF LIABILITY AND INDEMNIFICATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, CREATESMART LLC’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT, OR AT LAW WITH
RESPECT TO ANY PRODUCTS PROVIDED TO CUSTOMER (WHETHER NEGLIGENT OR OTHERWISE), WILL BE LIMITED TO THE TOTAL FEES PAID (LESS ANY REFUNDS OR CREDITS) BY
CUSTOMER TO CREATESMART LLC IN THE PRECEDING TWELVE (12) MONTHS. IN NO EVENT WILL CREATESMART LLC BE LIABLE TO CUSTOMER UNDER, IN CONNECTION WITH, OR
RELATED TO THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT,
PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT CREATESMART LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES ACKNOWLEDGE AND AGREE
THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE A CONDITION AND MATERIAL CONSIDERATION FOR THEIR ENTRY INTO THIS AGREEMENT. CUSTOMER SHALL INDEMNIFY
CREATESMART LLC AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM ANY LOSS, DAMAGE, COST OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING
FROM (A) ANY ACTIONS OR OMISSIONS OF CUSTOMER, INCLUDING, WITHOUT LIMITATION, CUSTOMER’S BREACH OF THIS AGREEMENT OR FAILURE TO FOLLOW THE INSTRUCTIONS OF
CREATESMART LLC RELATED TO THE PRODUCTS, (B) NON-COMPLIANCE WITH ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, OR (C) ANY CLAIM ALLEGING DAMAGE TO
PROPERTY OR INJURY TO PERSON OR DEATH THAT RESULTS FROM THE CREATESMART LLC PRODUCTS. THIS INDEMNITY SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS
6.1. CreateSmart LLC’s relationship with the Customer under this Agreement shall be that of an independent contractor, and nothing in this Agreement or the
arrangements for which it is made shall make CreateSmart LLC, or anyone furnished or used by CreateSmart LLC in the provision of Products, an employee,
joint venture, partner, or servant of the Customer.
6.2. All Compensation due to CreateSmart LLC shall be paid in accordance with the terms set forth on the attached Order Confirmation. CreateSmart LLC may
charge Customer a late fee with respect to any overdue balances. In addition, CreateSmart LLC may charge Customer interest on the outstanding balance of
any overdue fees, charges or expenses at a rate equal to 1.5% per month or the highest rate permitted by applicable law, whichever is lower. A service
charge will be assessed with respect to any returned or dishonored checks of Customer. Customer will reimburse CreateSmart LLC for all reasonable costs
incurred (including reasonable attorneys’ fees) in collecting past due amounts owed by Customer. All payment obligations will survive termination or
expiration of this Agreement. Customer acknowledges and agrees that CreateSmart LLC may cease providing Products (or related services) under this Agreement
during any period in which the Customer has not paid any amounts due to CreateSmart LLC. Any action of any kind arising out of or in any way connected with
this Agreement, other than collection of outstanding payment obligations by CreateSmart LLC must be commenced within one (1) year of the date upon which
the cause of action accrued.
6.3. CreateSmart LLC may terminate this Agreement immediately at any time upon notice to Customer. In such instance, CreateSmart LLC shall only be
responsible to Customer to provide Products for which Customer has already paid CreateSmart LLC.
6.4. This Agreement shall be governed by and construed in accordance with the laws of North Carolina, exclusive of its rules governing choice of law and
conflict of laws.
6.5. If legal action is commenced by either party to enforce or defend its rights under this Agreement, such action shall be brought only in a court
located in Wake County, North Carolina, and the parties agree to submit to the jurisdiction of such courts.
6.6. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing all
prior agreements, communications, understandings (both written and oral) regarding such subject matter. This Agreement may only be amended or modified by a
writing specifically referencing this Agreement which has been signed by authorized representatives of the parties.
6.7. CreateSmart LLC shall not be in default or breach by reason of any failure in performance of this Agreement, if such failure arises, directly or
indirectly, out of causes reasonably beyond the direct control or foreseeability of CreateSmart LLC, including but not limited to, default by
subcontractors or suppliers, failure of Customer to provide promptly to CreateSmart LLC accurate information and materials, as applicable, inclement
weather, acts of God or of a public enemy, acts of terrorism, United States or foreign governmental acts in either a sovereign or contractual capacity,
labor, fire, road icing or inclement conditions, flood, epidemic, restrictions, strikes and/or freight embargoes. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable, that provision shall be severed or reformed to be enforceable, and the remaining provisions hereof and
thereof shall remain in full force. No delay or omission by CreateSmart LLC in the exercise or enforcement of any of its powers or rights hereunder shall
constitute a waiver of such power or right. A waiver by CreateSmart LLC of any provision of this Agreement must be in writing and signed by such party, and
shall not imply subsequent waiver of that or any other provision. This Agreement may be executed in one or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument.
6.8. Customer agrees that its payment and other obligations under this Agreement are absolute and unconditional and not subject to any abatement,
reduction, setoff, defense, counterclaim, or recoupment due or alleged to be due as a result of any past or future claim that Customer may have against
CreateSmart LLC or any of CreateSmart LLC’s affiliates.
6.9. Except as otherwise provided herein, each party shall be responsible for the payment of its own expenses incurred in connection with this Agreement.
6.10. Customer agrees that it use its best efforts to cooperate with CreateSmart LLC.
6.11. Customer acknowledges and agrees that the Products purchased by Customer from CreateSmart LLC pursuant to this Agreement contain proprietary,
confidential and trade secret information of CreateSmart LLC. Therefore, Customer agrees not to allow the Products to be viewed, analyzed, studied or
inspected by any third party without CreateSmart LLC’s prior written consent. All proprietary notices incorporated in, marked on, or affixed to a
CreateSmart LLC Product shall not be altered, removed or obliterated. Customer shall not modify, reverse engineer, disassemble, reverse assemble or reverse
compile any CreateSmart LLC Product or part thereof. Customer agrees to be bound by all applicable third party terms. This Agreement may not be assigned,
transferred, delegated or pledged by Customer (whether by operation of law or otherwise) without CreateSmart LLC’s prior written consent. Any assignment,
transfer, delegation or pledge in violation of this Section shall be void and of no effect. This Section 6.11 shall survive the termination of this
6.12. All notices under this Agreement shall be in writing and delivered by overnight delivery service or certified mail, return receipt requested, to the
address of such party specified on the attached Order Confirmation or as specified by such party in writing to the other party after the date of this
Agreement. Notices delivered personally shall be deemed given upon documented receipt or refusal by recipient to accept receipt. Notwithstanding the
foregoing, all communications from Customer to CreateSmart LLC concerning any disputed debts or amounts owed to CreateSmart LLC by Customer, including,
without limitation, any instruments tendered as full or partial satisfaction of a debt or an account receivable, should be sent to CreateSmart LLC, Attn:
Disputed Debts, 3028 Kildaire Farm Rd, Cary NC 27518. All requests regarding returns and/or refunds shall be submitted to firstname.lastname@example.org
6.13. CreateSmart LLC shall use its commercially reasonable efforts to provide the Products to Customer promptly, provided, however, that CreateSmart LLC
shall not be liable to Customer for any delays in production or delivery associated with the Products.