Terms of Sale – Animal Creek Technologies, Inc.

Products

Terms & Conditions of Sale

This product sales agreement (“Agreement”) is made this day between ANIMAL CREEK TECHNOLOGIES, INC. dba ANIMAL CREEK , (herein referred to as “ANIMAL CREEK,”) and you as the customer and purchaser of Products hereunder (“CUSTOMER”).

Recitals.

ANIMAL CREEK offers certain mechanical and technology products for sale online through its website.

CUSTOMER desires to purchase products from and through the website.

Product purchases on the website are subject to certain terms & conditions of sale (the “Terms of Sale”).

ANIMAL CREEK and CUSTOMER desire to adopt these Terms of Sale for the purpose of ANIMAL CREEK providing products to CUSTOMER (the “Purpose”).

Therefore, in return for the consideration set forth below, ANIMAL CREEK and CUSTOMER enter into this Agreement for the Terms of Sale.

Order and Acceptance

Applicability.The products sold or subject to this Agreement include various mechanical and technology products (the “Product(s)”), the item, or a list of which is set forth in the “List of Products” or “Price List” attached as Exhibit A and incorporated hereto by this reference. Particular Products subject hereto are those stated in CUSTOMER’S purchase order(s) or ANIMAL CREEK’S confirmation of order. The parties to this Agreement (“Parties”) agree that the sale of Products hereunder are made subject to, deemed to include and are governed by these Terms of Sale, and that the Terms of Sale are hereby included and by this reference incorporated into the List of Products, Price List, quotation or bid, purchase order, confirmation of order, bill of lading, email or other sales-related document (collectively, “Sale Document[s]”). CUSTOMER agrees that these Terms of Sale are, and shall be deemed, accepted by CUSTOMER upon ANIMAL CREEK’S receipt from CUSTOMER of one or more of the above Sales Documents or any other writing or conduct evidencing the intent to purchase or lease the Products. CUSTOMER’S right to purchase and receive delivery of Products is expressly conditional upon these Terms of Sale. ANIMAL CREEK hereby objects to and rejects any term or condition stated in CUSTOMER’S documents, including, for example, a purchase order, email, or form, which terms and conditions are additional to, different from or inconsistent with those set forth in ANIMAL CREEK’S Sales Documents. In the event of conflict between any of the Sales Documents, or between the Sales Documents and CUSTOMER’S order, the terms of this Agreement shall apply.

Additional Terms for Product Sales

Animal Creek Limited Product Warranty

The Products sold hereunder are of two types:

Products specially manufactured for ANIMAL CREEK which ANIMAL CREEK sells as its own Product (“ANIMAL CREEK Product”). And,

Products manufactured and offered for sale by third parties (“Third Party Products”).

All Products, whether ANIMAL CREEK Products or Third Party Products, shall conform to the specifications stated for the Product. Otherwise, ANIMAL CREEK Products are sold “AS IS” without warranty of any kind.

2. Third Party Manufacturer Warranty, Terms and Conditions

Any warranty of Third Party Products shall be solely provided by the third party manufacturer. CUSTOMER shall address any concerns about Third Party Products to that manufacturer. ANIMAL CREEK shall pass through to CUSTOMER the Third Party Product manufacturer’s warranties for each product and agrees to facilitate utilization of the manufacturer’s product return policies. In no event will ANIMAL CREEK provide product return or warranty coverage beyond that provided by the Manufacturer.

Any and all Products which are accepted for return are subject to ANIMAL CREEK’s Fifteen Percent (15%) restocking fee.

Product Warranty Disclaimer

ANIMAL CREEK MAKES NO WARRANTIES OF ANY KIND FOR, ABOUT OR WITH REGARD TO THE PRODUCT(S). ANIMAL CREEK DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCT(S) INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, THAT THE PRODUCT(S) WILL PERFORM ACCORDING TO THE STANDARDS OF TRADE OR CUSTOMER’S EXPECTATIONS, SUITABILITY, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

Limitation of Remedy

CUSTOMERS EXCLUSIVE REMEDY FOR NON-CONFORMING OR DEFECTIVE PRODUCT(S) HEREUNDER IS REPAIR, REPLACEMENT, OR REFUND AS DETERMINED BY ANIMAL CREEK IN ITS SOLE DISCRETION. NO MONETARY RECOVERY IS AVAILABLE FROM ANIMAL CREEK FOR WARRANTY CLAIMS. IN ANY CASE, IN NO EVENT SHALL ANIMAL CREEK’S LIABILITY TO ANY CUSTOMER EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT THAT IS THE BASIS FOR THE PARTICULAR CLAIM.

ANIMAL CREEK SHALL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST OR DAMAGED DATA, AND LOSS OF BUSINESS OPPORTUNITY), HOWEVER CAUSED, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR IN ANY WAY CONNECTED TO THESE TERMS OF SALE, EVEN IF ANIMAL CREEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT PROVIDE AN ADEQUATE REMEDY.

THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, INFRINGEMENT OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, CONTRIBUTION, RECOUPMENT OR OTHERWISE.

Shipment and Risk of Loss for Product Sales

All shipments of Products by ANIMAL CREEK to CUSTOMER will be FOB point of shipment. Insurance coverage, transportation costs and all other expenses applicable to shipment from ANIMAL CREEK to CUSTOMER’S identified point of delivery will be the responsibility of the CUSTOMER. Risk of loss shall pass to the CUSTOMER upon delivery of the Products to the common carrier (regardless of who pays such common carrier) or the CUSTOMER’S representative at ANIMAL CREEK’S point of shipment.

Product Security Interest

CUSTOMER hereby grants ANIMAL CREEK a security interest in and to the Products as security and collateral for payment in full of the purchase price of the Products. CUSTOMER authorizes ANIMAL CREEK to file or record a UCC-1 Financing Statement or any other document it deems necessary to perfect this security interest.

Permitting Compliance for Product Sales

CUSTOMER will obtain all licenses, permits and approvals required by any governmental agency, foreign or domestic, having jurisdiction over the transaction. CUSTOMER hereby agrees to indemnify ANIMAL CREEK for any claim under this provision as further stated below in Sections C3 and C8.

Terms Applicable to All Sales

Price, Performance and Payment

The prices set forth in any of the Sales Documents are exclusive of all applicable taxes, duties, licenses, and tariffs levied upon the sale, purchase or delivery of the Products which remain the CUSTOMER’S obligation. Prices quoted are firm for thirty (30) days unless otherwise provided in the Sales Documents. Unless expressly provided to the contrary, items designated as estimates are not binding commitments to sell at the estimated price or to deliver on the estimated schedule. Payment for Products is due thirty (30) days from the date of the invoice issued to the CUSTOMER. In the event CUSTOMER chooses to finance the purchase of Products from a third party finance or leasing company, CUSTOMER remains liable for payment to ANIMAL CREEK for all Products purchased until ANIMAL CREEK receives complete payment from such finance or leasing company. CUSTOMER shall timely pay the invoice price for Products accepted by CUSTOMER and shall not withhold payment of the entire amount of an invoice because some of the Products are not accepted. All payments will be made in US currency. Out of pocket expenses will be charged as incurred, including transportation costs and storage fees, including those incurred for Products not delivered as scheduled because CUSTOMER is not ready, willing and able to receive them. CUSTOMER shall pay interest in the amount of one and one half percent (1.5%) per month, or the maximum allowed by law whichever is lower, on any outstanding balance owed.

Protection of Proprietary Information

(a) Confidential Information. Information provided by ANIMAL CREEK to CUSTOMER about any and all of its Product(s), including special features, design or product developments, which are not generally known to the public and which have economic value to ANIMAL CREEK, is proprietary to ANIMAL CREEK and is and shall be treated by CUSTOMER as confidential (“Confidential Information”). Information designated as confidential by either party whether before or after the effective date of these Terms of Sale shall be held in strict confidence and disclosed or used only for the Purpose defined herein. The failure of a party to designate Information as confidential at the time of its disclosure shall not bar a later designation of the information as Confidential Information. Except as required by law, no Confidential Information shall be disclosed without the prior written consent of the party designating the information as confidential. If either party is legally required to disclose any Confidential Information of the other party, the party so required shall notify the other party immediately and shall cooperate in seeking a reasonable protective order. This Section shall not apply to information, which is (i) in the public domain, (ii) already known to the recipient, (iii) developed independently or (iv) received from a third party without similar restriction and without breach of this or a similar agreement.

(b) Any trade secret as defined by the Arizona Uniform Trade Secrets Act (the “Act”) shall receive and be entitled to the protections of the Act and CUSTOMER shall not disclose or use the trade secret except as necessary to perform according to the Purpose of this Agreement.

Export Control Laws and Federal Regulations

(a) Export and Re-Export. CUSTOMER agrees to comply with all applicable export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce. CUSTOMER covenants that it will not, either directly or indirectly, sell, export (including without limitation any deemed export as defined by applicable law), re-export, transfer, divert, or otherwise dispose of any Product or Service deliverable to any country (or national thereof) subject to antiterrorism controls, U.S. embargo, encryption technology controls, or to any other person, entity (or utilize any such person or entity in connection with the activities listed above), or destination prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. CUSTOMER certifies, represents and warrants that no Product shall be used for any military or defense purpose, including, without limitation, being used to design, develop, engineer, manufacture, produce, assemble, test, repair, maintain, modify, operate, demilitarize, destroy, process, or use military or defense articles. CUSTOMER acknowledges that it is not relying on ANIMAL CREEK for any advice or counseling on export or import control requirements. CUSTOMER agrees to indemnify, to the fullest extent permitted by law, ANIMAL CREEK from and against any fines, penalties and reasonable attorney fees that may arise as a result of CUSTOMER’S breach of this Section.

(b) Government Business. Companies which do business with the federal government or work on a federal project for a company that is doing business with the federal government are subject to certain federal regulations. These federal regulations require without limitation Debarment Certification, a Debarment Statement and Certification Regarding Lobbying (collectively, “Federal Regulations”). Where applicable these Federal Regulations are incorporated into these Terms of Sale by this reference.

Cancellation of Order

The purchase of Products may be cancelled by CUSTOMER only upon written approval of ANIMAL CREEK, prior to their delivery or shipment, and pursuant to Section 8 herein, upon terms that indemnify ANIMAL CREEK against all losses related to such cancellation.

Additional Contractual Rights for Default

If CUSTOMER defaults in performance of any obligation under any of the Sales Documents, including the payment of any amount due, ANIMAL CREEK may, at its option, suspend performance, require prepayment, or terminate its performance and collect payment for all Products provided up to the date of termination as well as damages caused by the default.

Attorney Fees

CUSTOMER shall reimburse ANIMAL CREEK for any and all expenses including, without limitation, reasonable attorney fees, costs and legal expenses that ANIMAL CREEK pays or incurs in protecting and enforcing the rights of ANIMAL CREEK under any of the Sales Documents, including without limitation these Terms of Sale. In the event a dispute between the parties arises out of this Agreement, the prevailing party shall be awarded its reasonable attorneys fees, costs and litigation-related expenses.

Publication

Nothing contained in these Terms of Sale shall be interpreted so as to prevent ANIMAL CREEK from publicizing its business relationship with CUSTOMER or the nature of the Products sold to CUSTOMER.

Indemnification

CUSTOMER agrees to repay, defend at its expense, and to indemnify and hold harmless ANIMAL CREEK, its officers, directors, owners and employees (collectively, the “ANIMAL CREEK COMPANY”) from any damages caused by CUSTOMER’S breach of these Terms of Sale or any Sales Document, including without limitation wrongful cancellation of order or any third party claim arising from CUSTOMER’S conduct.

Governing Law; Venue and Jurisdiction

This Agreement including the Sales Documents shall be interpreted, enforced, and governed under the laws of the State of Arizona without regard to conflict of law principles. The U.N. Convention on the International Sale of Goods (”CISG”) shall not apply to sales between ANIMAL CREEK and the CUSTOMER. Venue and jurisdiction shall be in the Downtown Division of the Superior Court of Maricopa County in Phoenix, Arizona.

No Waiver

The failure of either party to insist upon strict performance of any of the provisions of the Terms of Sale will not be deemed a waiver of any breach or default.

Remedies

The remedies expressly provided to ANIMAL CREEK hereunder are not exclusive of other claims or remedies. ANIMAL CREEK reserves the right to all remedies available at law or in equity.

Injunctive Relief

CUSTOMER acknowledges that the Confidentiality, Non-Disparagement and Non-Injurious Falsehood covenants stated in Sections C2 and C16 of this Agreement each serve a valuable and reasonable economic purpose, and that any violation of these covenants will cause irreparable harm and immeasurable damage to ANIMAL CREEK. Therefore, CUSTOMER agrees that upon CUSTOMER’S material breach of either of these Sections C2 or C16, or other restrictive covenant of this Agreement, ANIMAL CREEK shall be entitled to injunctive or other equitable relief, with reasonable bond, restraining CUSTOMER from violating the Confidentiality, Non-Disparagement, Non-Injurious Falsehood or other restrictive covenant of this Agreement.

Severability

If any provision of these Terms of Sale is unenforceable as a matter of law, it shall be deemed severed herefrom and all other provisions will remain in effect.

Excusable Delay

ANIMAL CREEK will not be liable for any delay or failure of performance whatsoever due to acts of God, earthquakes, shortage of Products or supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics or other circumstances beyond ANIMAL CREEK’S control.

Claims Limitation Period

Any claim, whether in contract or tort, by CUSTOMER against ANIMAL CREEK arising out of this Agreement, its formation, relian or from or in connection with ANIMAL CREEKS sale of Products or related services hereunder cannot be filed, made or maintained unless filed within one (1) year of the occurrence of the event giving rise to the claim.

Non-Disparagement of Person or Trade or Injurious Falsehood

CUSTOMER agrees that during the term of this Agreement, and at any time after the termination of the Agreement, CUSTOMER must not make, or cause his principals, agents, affiliates, or representatives to make or communicate to any person not employed by ANIMAL CREEK any statements that are intended or have the effect of causing a person not to do business with ANIMAL CREEK or any negative, uncomplimentary or derogatory statement about ANIMAL CREEK that would tend to disparage, slander, ridicule, degrade, harm or injure ANIMAL CREEK, any business relationship of ANIMAL CREEK or any principal, manager, investor officer, member, or other employee of ANIMAL CREEK or its affiliates. The prohibitions of this provision shall include but not be limited to any written statement or letter, verbal statement, or conversation either electronic or in person, including without limitation statements to business associations, government agencies, all forms of electronic, Internet or Online communication, including any online or internet website, emails, statements via social media, including Facebook, Twitter, any blog, chat site, “flamings,” posts on purported neutral sites for ANIMAL CREEK review, posts on review sites such as Angie’s List or the Better Business Bureau, or any other statement in any format, in any other public or private forum. Likewise, ANIMAL CREEK will not make such statements regarding CUSTOMER.

Entire Agreement

This Agreement and the Terms of Sale supersede all prior or current written or oral statements, representations, negotiations, agreements and understandings not stated in these Terms of Sale. The principals of the parties to this Agreement are sophisticated and knowledgeable business people, relying on their own investigation of the matter, and are not relying on any representation by the other party not stated herein.

Acceptance and Agreement by the Parties

Pursuant to this Agreement the Sales Documents including the Terms of Sale are accepted by CUSTOMER as follows:

(A) By CUSTOMER’S clicking or choosing to mark the box “I agree.”

(B) By CUSTOMER’S placing of an order with ANIMAL CREEK to purchase Products or

Acceptance is deemed to occur upon the occurrence of one of these events whether or not such order is confirmed as written by ANIMAL CREEK.