COUNTERTOPSMART LLC

BUYER - TERMS OF SERVICE

(Issued October 2016)


Background. CountertopSmart LLC, a Delaware limited liability company ("CountertopSmart," "our," "us," or "we"), provides a proprietary service (including a web-based portal and a mobile application, collectively, the "Service") that is designed to connect buyers ("Buyers") and suppliers ("Sellers") of natural stone countertop pieces in reduced size formats, which are appropriate for smaller countertop projects and certain other home construction or renovation products (collectively, the "Products"), and to facilitate transactions among Buyers and Sellers who use the Service (together, "Users").

Buyers may include (without limitation) individual consumers, designers or contractors. Sellers may include (without limitation) fabricators or wholesale yards. To be clear, the Service itself does not include the provision or acquisition of Products themselves or the installation of any Products – in general, we are technology and marketplace provider, not a buyer or supplier of Products. However, from time to time we may also act as a participant within our own marketplace. When we do this, CountertopSmart will be identified on the applicable purchase document as the supplier [or the buyer].

Acceptance. These terms of service (this "Agreement") sets forth the legally binding terms for your use of the Service as a Buyer. Separate terms apply to any use of the Service as a Seller.

By clicking the "I AGREE" button or using the Service, you ("you") agree, effective as of such date (the "Effective Date"), to be bound by this Agreement. You also agree to our Privacy Policy and consent to the practices concerning data collection, transmission and use set forth therein, which is hereby incorporated by reference into this Agreement.

You are only authorized to use the Service if you agree to abide by all applicable laws and this Agreement. Please read this Agreement carefully and save it. If you do not agree with it, you should discontinue use of the Service immediately.

  1. License Terms. The Service is licensed, not sold, to you. CountertopSmart reserves all rights in and to the Service not expressly granted to you under this Agreement. This license granted to you is limited to a nontransferable license to use the Service for your own internal purposes.

  1. Restrictions on Use of the Service. You may not rent, lease, lend, sell, redistribute, or sublicense the Service. You are solely responsible for actions taken via your account. You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service, any updates, or any part thereof (except to the extent that any foregoing restriction is prohibited by applicable law or to the extent permitted by the licensing terms governing use of any open-sourced components included with the Service). Any attempt to do so is a violation of the rights of CountertopSmart and its licensors. You may not use the Service for any use other than its intended use.

  1. Buyer Eligibility. In order to qualify as a Buyer, you must be at least 18 years of age. If CountertopSmart has previously removed you as a Buyer or terminated your account, you are not eligible to use the Service to make purchases from a Seller.

  1. Buyer Promises. As a Buyer, you agree that you will (i) conduct yourself at all times in accordance with this Agreement and applicable law, (ii) as a condition to ordering Products via the Service, link your CountertopSmart account with a valid credit card or other authorized payment method ("Payment Method"), (iii) pay for the Products that you order via the Service, and (iv) comply with all applicable law at all times.

  1. Holds.

    1. The Hold Process. Before purchasing a Product, you will have the option to place it on "hold." Once you place a Product on hold, you will have seven (7) days (or such other time that may be specified in the Service) ("Hold Period") to view the Product in person at the Seller's place of business. Buyer must "Accept" or "Decline" the held Product during the Hold Period. It is up to the Buyer to arrange for a suitable, agreed upon time to view and formally "Accept" or "Decline" the Product with the Seller. Buyer may waive the Hold Period and "accept" the Product at any time. Once a Product is "accepted" it is considered a final sale.

    1. Hold Limitations. Buyers using the homeowner/non-trade portal will be limited to three (5) holds at any given time. Buyers who are trade professionals using the contractor/designer/architect' portal will be limited to five (7) holds at any given time. Buyers who are brick and mortar showrooms will be limited to seven (7) holds at any given time and the Hold Period will only extend forty-`eight (48) hours.

  1. Purchases. The Payment Method will automatically be processed, and the Product will be considered purchased, upon Buyer's acceptance of the held Product. All purchases are final. If Buyer fails to accept or decline the held Product within the Hold Period, the Product will be returned to the Seller's inventory and the Buyer will be required to pay a "restocking fee" to CountertopSmart. The restocking fee is subject to change and the terms of the restocking fee will be stated prior to Buyer placing the Product on hold.

    1. Shipping.

      1. Using a Third Party Carrier: If Buyer chooses to use a third party carrier to transport a Product from the Seller, Buyer may be subject to additional terms and conditions, including any terms imposed by the carrier. Buyer is solely responsible for resolving any claims related to damaged or delayed Product with the applicable carrier.

      1. Arranging Pickup from a Seller's Facility. Any transport arranged between the Buyer and Seller wherein Buyer arranges to have Product picked up from the Seller shall be an agreement between the two parties and will not in any way involve CountertopSmart. Most Sellers will not allow for the pickup of Product with a vehicle not equipped with an A-Frame designed to handle the transport of stone slabs. CountertopSmart recommends against Buyer arranging for pickup and strongly advises using a third party carrier.

      1. No Liability. CountertopSmart will not be liable for any claims related to Products damaged during shipment.

    1. Inspection and Acceptance. The purpose of the Hold Period is to provide a timeframe that allows the Buyer to personally inspect the Product for its physical properties, including but not limited to color, size, suitability, and damage. Most stone pieces whether in the form of a brand new slab or a remnant piece will have chips, scratches, fissures, discoloration. Countertop fabricators, as a matter of normal everyday business operations, have techniques to fill, polish, buff and otherwise remediate any slight damage that a piece of stone might contain. It is important that Buyer discuss with the Seller the process of remediating any noticeable damage before "Accepting" a Product through the Service. Buyer is solely responsible for making any arrangement with the Seller of the Product regarding repairs of any chips, scratches, fissures or any type of damage. CountertopSmart will not have any liability whatsoever for any damaged or irregular Product. We recommend that Buyers make note of any damage prior to "Accepting" the Product and discuss damage remediation with the party responsible for installing the Product. Once a Product is "Accepted", the sale will be final and neither CountertopSmart, nor the Seller, will be obligated to honor any requests for changes, refunds or returns from Buyer.

    1. Installation. The Buyer shall be solely responsible for arranging installation of the Products with Buyer's preferred installer. CountertopSmart will not be responsible for the installation of any Product, including without limitation any issues (legal or otherwise) arising in connection with the installation of such Products. Any complaints arising from incorrect installation must be directed to the party responsible for fabrication and installation of the countertop.

  1. Buyer Acknowledgements. Buyer acknowledges that each Seller is an independent operator unaffiliated with CountertopSmart and that CountertopSmart has no responsibility for and makes no guarantees regarding Sellers or Products. Sellers are solely responsible for all aspects of any Products ordered. Buyer further acknowledges that CountertopSmart retains a portion of the payments made for such Products, but solely as a processing fee for facilitating the transactions envisioned hereby, and not as payment for Products. CountertopSmart does not guarantee that any Seller will fulfill any Product ordered via the Service. Buyer solely accepts all risks related to interacting with and transacting with Sellers.

  1. Payment. Buyer hereby authorizes CountertopSmart to charge its Payment Method on file with the fees associated with each order that it places via the Service. You acknowledge that, should you dispute any charge that appears on your credit or debit card statement related to your use of the Service to pay for an order placed or owed payment, any chargeback for such charge shall apply to the applicable Seller and CountertopSmart shall not be liable to you for such chargeback.

  1. Taxes. Buyer acknowledges and agrees that as between CountertopSmart and Buyer, it shall be responsible for bearing the cost of any sales or comparable taxes associated with purchases it makes from a Seller via the Service.

  1. Supplemental Terms. To enjoy certain aspects of the Service, additional terms may apply. We will present supplemental terms and conditions for review and acceptance at the time that you undertake such activity within the Service, and any such supplemental terms (each, "Supplemental Terms") shall become a part of this Agreement. In the event of any conflict between the terms hereof and any Supplemental Terms, the Supplemental Terms shall govern with respect to the matters contemplated thereby.

  1. Terms of Purchase and Sale of Products. The Service may allow Buyers and Sellers to establish certain terms and conditions of purchase and sale of Products, e.g. price, installation terms and delivery dates. Such terms and conditions, as supplemented by applicable law, shall comprise the terms of purchase and sale of Products for any transaction facilitated via the Service. When CountertopSmart itself acts as a Seller, our standard terms and conditions of sale will be provided and will govern the order unless otherwise agreed.

  1. Disputes Among Users and Release of CountertopSmart. The Service is designed to create a marketplace for Products and to facilitate transactions among Sellers and Buyers. Unless it is acting as a Seller, CountertopSmart does not provide Products, nor does it guarantee any Products ordered via the Service, or payment therefor. EACH USER IS SOLELY RESPONSIBLE FOR ITS INTERACTIONS AND TRANSACTIONS WITH OTHER USERS OF THE COUNTERTOPSMART SERVICE, AGREES TO LOOK SOLELY TO SUCH OTHER USERS FOR ANY CLAIM, DAMAGE OR LIABILITY ASSOCIATED WITH ANY TRANSACTION COMMISSIONED VIA THE SERVICE AND ANY PRODUCT, AND EXPRESSLY WAIVES AND RELEASES COUNTERTOPSMART FROM ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF ANY ACT OR OMISSION OF ANY SUCH USER, INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO PERSONAL INJURY OR DESTRUCTION OF PROPERTY. COUNTERTOPSMART RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO MONITOR DISPUTES BETWEEN USERS, INCLUDING WITHOUT LIMITATION DISPUTES OVER REMNANT PIECE OWNERSHIP.

  1. Non-contravention. You agree not to circumvent the Service for the purpose of avoiding the processing fees imposed by CountertopSmart.

  1. Representations About Your Information and Consent Regarding Use of Your Information. You represent and warrant that all information that you provide in connection with the Service will be current, true, accurate, supportable and complete. If you submit comments, suggestions, ratings, or other feedback regarding the Service, Sellers, Buyers, or your experience ("Feedback"), you agree that we will be free to use such Feedback for any purpose and without restriction or obligation to you.

  1. Consent to Receive Messages. YOU CONSENT TO RECEIVE COMMERCIAL E-MAIL MESSAGES AND MESSAGES FROM OR ON BEHALF COUNTERTOPSMART AND OUR PARTNERS, AND ACKNOWLEDGE AND AGREE THAT YOUR PRIMARY EMAIL ADDRESSES AND OTHER INFORMATION MAY BE USED BY COUNTERTOPSMART FOR THE PURPOSE OF INITIATING COMMERCIAL E-MAIL MESSAGES.

  1. Third-Party Services and Materials.

    1. Aside from connecting you with other Users, the Service may enable access to third-party products and services (collectively and individually, "Third-Party Services"). Use of Third-Party Services may require your acceptance of additional terms of service. You agree to comply with any such terms. Further, information you make available to Third Party Services is subject to the privacy policies of such third parties. You agree that you will use the Third Party Services at your sole risk.

    1. One such Third-Party Service is our payment processing partner. CountertopSmart uses [Stripe Payment Processing] as its third party service provider for payment services (e.g. card acceptance, merchant settlement, and related services). By buying via the Service, you agree to be bound by [processor's] Privacy Policy and further hereby consent and authorize CountertopSmart to share any information and payments instructions you provide with other third party service provider(s) to the minimum extent required to complete your transactions.

    1. The Service and/or Third-Party Services may display, include, or make available content, data, information, applications, or materials from third parties ("Third-Party Materials"), or provide links to third-party websites. You acknowledge and agree that CountertopSmart is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Materials or websites. CountertopSmart does not warrant or endorse and will not have any liability or responsibility to you or any other person for any Third-Party Services, Third-Party Materials or websites.

  1. Content.

    1. CountertopSmart does not claim any ownership rights in any text, images, photos, video, sounds, links, works of authorship, project information, or any other materials that you post to the Service (collectively, "Your Content"). After posting Your Content to the Service, you continue to retain all ownership rights in the same, and subject to any licenses granted by you (including in our Privacy Policy), you continue to have the right to use Your Content in any way you choose. By posting any of Your Content on or through the Service, you hereby grant to CountertopSmart a non-exclusive, fully-paid, royalty-free, fully sublicensable, transferable, irrevocable worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of and distribute the same (in whole or in part) in connection with the provision of the Service and its features. You represent and warrant that: (i) you own Your Content or otherwise have the right to grant the license set forth in this section, and (ii) the posting of Your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person or entity.

    1. The Service may also contain content of our licensors, including other Users ("Third Party Content"). "Third Party Content" and "Your Content" is collectively referred to as the "Content". Third Party Content is protected by copyright and other laws, and our licensors own and retain all rights in Third Party Content. Neither CountertopSmart nor our licensors grant you any other licenses, express or implied, to the intellectual property of CountertopSmart or licensors, including to Third Party Content, and you may not otherwise copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any of Third Party Content.

  1. Modifications. We may modify the terms of this Agreement from time to time. Any modification shall be effective when we notify you of the modification (via an update delivered through the Service or via email or other notification) and you subsequently use the Service.

  1. Limitations on Availability. The Service is not available at all times, in all languages or in all geographies. CountertopSmart makes no representation will achieve any particular uptime, or that the Service is appropriate or available for use in any particular location. Use of the Service is void where prohibited.

  1. Termination. This Agreement is effective until terminated by you or CountertopSmart. Your rights hereunder will terminate automatically without notice from CountertopSmart if you fail to comply with any term(s) of this Agreement. Upon termination, you shall cease all use of the Service. You acknowledge that CountertopSmart may restrict, modify, or terminate your account, without liability, for its convenience, or if you violate this Agreement or any law, rule, or regulation. In no event will CountertopSmart be liable for the removal or disabling of access to the Service. CountertopSmart may also impose limits on the use or access to the Service, in any case and without notice or liability.

  1. Disclaimer of Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE, AND THE TRANSACTIONS YOU CONDUCT THROUGH THE SAME ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. COUNTERTOPSMART HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE, AND THE TRANSACTIONS YOU CONDUCT THROUGH THE SAME, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. COUNTERTOPSMART DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED THEREIN OR THE TRANSACTIONS YOU UNDERTAKE THROUGH THE SAME WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COUNTERTOPSMART OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

  1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL COUNTERTOPSMART BE LIABLE FOR (I) PERSONAL INJURY (INCLUDING ANY INJURY SUSTAINED AT A SELLER'S PLACE OF BUSINESS), (II) ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF COUNTERTOPSMART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY DAMAGES WHATSOEVER ARISING OUT OF TRANSACTIONS YOU CONDUCT WITH THIRD PARTIES THROUGH THE COUNTERTOPSMART SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL COUNTERTOPSMART'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY CAUSED BY COUNTERTOPSMART) EXCEED THE GREATER OF: (a) THE TOTAL AMOUNT THAT COUNTERTOPSMART HAS BEEN PERMITTED TO RETAIN AS A RESULT OF TRANSACTIONS BETWEEN YOU AND OTHER USERS PROCESSED THROUGH THE COUNTERTOPSMART SERVICE IN THE SIX (6) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM, OR (b) $100.00. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  1. Compliance with Law, Export and Other Restrictions. To the extent you choose to use the Service, you agree to comply with any applicable laws, including but not limited to applicable local laws. You may not use or otherwise export or re-export it except as authorized by United States law and the laws of the jurisdiction in which the Service was accessed.

  1. Miscellaneous. The laws of the State of Texas, excluding its conflicts of law rules, govern this license and your use of the Service. Your use thereof may also be subject to other local, state, national, or international laws. This Agreement constitutes the entire agreement between you and CountertopSmart regarding the Service. The failure of CountertopSmart to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. "CountertopSmart" and all associated logos displayed within the Service are trademarks of CountertopSmart or its licensors. This Agreement operates to the fullest extent permissible by law. CountertopSmart may freely transfer or assign this Agreement and any of its rights or obligations hereunder. You may not transfer or assign this Agreement or any of your rights or obligations hereunder without the prior written consent of CountertopSmart, and any attempt to do so shall be null and void. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.

  1. Contact Us. CountertopSmart can be reached at: [[email protected]].

TERMS APPLICABLE TO DIRECT SALES BY COUNTERTOPSMART

LANGUAGE TO BE RE-ITERATED AT ORDER PLACEMENT


By placing an order through the Service, I ratify and confirm the Terms of Service agreement (the "Agreement") that governs my use of the Service, and acknowledge that the seller with whom I am contracting for the provision or goods and/or services -- and not CountertopSmart -- is solely responsible for the fulfillment of such order.

COUNTERTOPSMART TERMS AND CONDITIONS OF SALE


CountertopSmart LLC, a Delaware limited liability company ("CountertopSmart," "our," "us," or "we"), and the party acknowledging this Agreement ("Buyer") agree that the terms and conditions contained herein shall govern the purchase of the specified products by Buyer and shall supersede any and all other terms and conditions of purchase and sale (including those contained in Buyer's purchase invoice or purchase invoice acknowledgment) unless mutually agreed upon in writing, provided that for the avoidance of doubt, nothing herein shall affect the CountertopSmart Terms of Service, which shall continue to apply to Buyer's use of the Service (as distinguished from the goods purchased hereby).

1. PAYMENT TERMS AND CONDITIONS

1.1 Prices. Prices for products sold directly by CountertopSmart to Buyer (collectively, "CS Products") are those indicated by CountertopSmart. Prices shown are in US dollars, unless otherwise expressly indicated. Prices do not include any taxes, customs duties or tariffs. When CountertopSmart has the legal obligation to pay or collect any such taxes, the appropriate amount shall be charged to and paid by Buyer to CountertopSmart. If Buyer is exempt from any such taxes, Buyer must provide CountertopSmart with a valid exemption upon request.

1.2 Delivery. Delivery shall be as indicated on the face of CountertopSmart's invoice. Any specified shipment or delivery dates are estimates only. The delivery term shall be EXW destination (Incoterms 2010) unless designated otherwise, meaning Buyer will pay all delivery and shipment charges.

1.3 Payment. Except as may be specifically authorized in writing by CountertopSmart, Buyer will pay CountertopSmart for all CS Products up front, upon ordering the CS Products. All payments are to be made in U.S. dollars. If at any time Buyer is delinquent in any payment, or is otherwise in breach of the Terms of Service or these terms, CountertopSmart may, in its discretion, withhold shipment of any order. Payment not received when due will be subject to a late payment service charge of 1.5% per month or, if less, the maximum rate allowed by law.

1.4 Title, risk of loss. Title to and risk of loss of all CS Products shipped within the U.S. passes from CountertopSmart to Buyer upon the CS Products being made available to Buyer or Buyer's designee at the indicated shipping address.

1.4 Inspection and Acceptance. Upon delivery, Buyer shall thoroughly inspect each delivery of CS Products to ensure all items are received, are correct and are not damaged. Buyer shall promptly notify the applicable third party carrier (not CountertopSmart) of any shortages, damaged Products or other discrepancies, but in any case no later than 48 hours after receipt (the "Acceptance Period"). Buyer represents, warrants and covenants that any agents or contractors of Buyer performing inspection and acceptance have authority to act on Buyer's behalf with respect to inspection and acceptance of the Products. Once the Acceptance Period passes, all sales will be final and CountertopSmart will not be obligated to honor any requests for changes, refunds or returns from Buyer.

2. RETURNS

2.1

Returns of CS Products will be accepted within 20 days of delivery, provided that the following criteria are met: (a) CS Products are shipped back to CountertopSmart within twenty (20) days of the date of delivery to the delivery address entered by the Buyer at the time of purchase, (b) Buyer completes a return form (either through the online "Customer's Portal" or in a physical copy) in its entirety and includes such form with the return. Buyer is responsible for all return postage. CountertopSmart reserves the right to refuse any return for any reason. Upon CountertopSmart's acceptance of the return, Buyer's Payment Method will be refunded within a reasonable period of time.

3. LIMITED WARRANTY; LIMITATION OF LIABILITY

3.1 CountertopSmart warrants that Buyer shall receive good and marketable title to the CS Products and that upon delivery the CS Products will conform to their applicable specifications, if any.

3.2 COUNTERTOPSMART SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO ANY PERSON FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM USE OF THE CS PRODUCTS, EVEN IF COUNTERTOPSMART IS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

3.3 EXCEPT AS REQUIRED BY LAW, IN NO EVENT WILL COUNTERTOPSMART'S LIABILITY IN CONNECTION WITH CS THE PRODUCTS EXCEED THE AMOUNTS ACTUALLY PAID FOR THE CS PRODUCTS GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE.

3,4 THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

3.5 NO OTHER WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CS PRODUCTS ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND COUNTERTOPSMART HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PARTICULAR PURPOSE. COUNTERTOPSMART DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT, THAT THE CS PRODUCTS WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS RELATED THERETO WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COUNTERTOPSMART OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE CS PRODUCTS OR OTHER PRODUCT PURCHASED FROM COUNTERTOPSMART PROVE DEFECTIVE, YOUR SOLE REMEDY IS TO RETURN THE CS PRODUCTS OR OTHER PRODUCT IN UNUSED CONDITION IN ACCORDANCE WITH THE TERMS HEREOF. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

3.6 No action may be brought or arbitration demanded by Buyer at any time more than twelve (12) months after the occurrence of facts giving rise to the cause of the action.

4. GENERAL

4.1 Force Majeure. Neither party shall be liable for delays or failure to meet its obligations hereunder due to causes beyond the party's reasonable control, provided the nonperforming party promptly notifies the other party of the nonperformance and takes all reasonable steps to recommence performance promptly.

4.2 Applicable Law. This agreement shall be governed by and construed in accordance with the laws of the United States and the State of Texas. The parties agree that the United Nations Conventions on Contracts for the International Sale of CS Products are specifically excluded.

4.3 Miscellaneous. No alteration, amendment, waiver, cancellation or any other change in any term or condition contained herein shall be valid or binding on either party unless the same shall have been mutually assented to in writing by both parties. The failure of either party to enforce at any time any of the provisions hereof, or the failure to require at any time performance by the other party of any of the provisions hereof, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. The remedies stated herein are in addition to all other remedies at law or in equity. Any notice required or permitted to be given by either party hereunder shall be in writing and shall be personally delivered or sent by commercial courier service, or by first class mail (certified or registered), or by telecopy confirmed by first class mail (registered or certified), to the other party at its address first set forth above, or such new address as may from time to time be supplied hereunder by the parties hereto. Unless otherwise expressly provided, no provisions hereof are intended or shall be construed to confer upon or give to any person or entity other than CountertopSmart or Seller any rights, remedies or other benefits under or by reason hereof. The Agreement represents the negotiated agreement of the parties, with the advice and assistance of counsel, and shall not be construed against either party as the drafter thereof.


COUNTERTOPSMART LLC

SELLER - TERMS OF SERVICE

(Issued October 2016)


Background. CountertopSmart LLC, a Delaware limited liability company ("CountertopSmart," "our," "us," or "we"), provides a proprietary service (including a web-based portal and a mobile application, collectively, the "Service") that is designed to connect buyers ("Buyers") and suppliers ("Sellers") of natural stone countertop pieces in reduced size formats appropriate, which are appropriate for smaller countertop projects and certain other home construction or renovation products (collectively, the "Products"), and to facilitate transactions among Buyers and Sellers who use the Service (together, "Users").

Buyers may include (without limitation) individual consumers, designers or contractors. Sellers may include (without limitation) fabricators or wholesale yards. To be clear, the Service itself does not include the provision or acquisition of Products themselves or the installation of any Products – in general, we are technology and marketplace provider, not a buyer or supplier of Products.

Acceptance. These terms of service (this "Agreement") sets forth the legally binding terms for your use of the Service as a Seller. Separate terms apply to any use of the Service as a Buyer.

By clicking the "I AGREE" button or using the Service, you ("you") agree, effective as of such date (the "Effective Date"), to be bound by this Agreement. You also agree to our Privacy Policy and consent to the practices concerning data collection, transmission and use set forth therein, which is hereby incorporated by reference into this Agreement.

You are only authorized to use the Service if you agree to abide by all applicable laws and this Agreement. Please read this Agreement carefully and save it. If you do not agree with it, you should discontinue use of the Service immediately.

  1. License Terms. The Service is licensed, not sold, to you. CountertopSmart reserves all rights in and to the Service not expressly granted to you under this Agreement. This license granted to you is limited to a nontransferable license to use the Service for your own internal purposes.

  1. Restrictions on Use of the Service. You may not rent, lease, lend, sell, redistribute, or sublicense the Service. You are solely responsible for actions taken via your account. You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service, any updates, or any part thereof (except to the extent that any foregoing restriction is prohibited by applicable law or to the extent permitted by the licensing terms governing use of any open-sourced components included with the Service). Any attempt to do so is a violation of the rights of CountertopSmart and its licensors. You may not use the Service for any use other than its intended use.

  1. Seller Eligibility. In order to qualify as a Seller, you must be at least 18 years of age and maintain current licensing, certification or other requirements and qualifications in your jurisdiction that are applicable to your business. If CountertopSmart has previously removed you as a Seller or terminated your account, you are not eligible to use the Service to sell Products to Buyers. CountertopSmart reserves the right to ban any Seller for any reason, including but not limited to Seller attempting to bypass the Service, directing Buyers to Products not selected them through the Service, attempts to use images from the Service in any manner not in connection with the Service or repeated complaints.

  1. Seller Promises. As a Seller, you agree that you will (i) conduct yourself at all times in accordance with this Agreement and applicable law, (ii) as a condition to selling Products via the Service, link your CountertopSmart account with a valid credit card or other authorized payment method ("Payment Method"), (iii) allow Buyers to visit your facility to view Products placed on hold, and (iv) comply with all applicable law at all times.

  1. Holds. Before purchasing a Product, a Buyer will have the option to place it on "hold." Once a Buyer Places a Product on hold, the Buyer will have seven (7) days (or such other time that may be specified in the Service) ("Hold Period") to view the Product in person at the Seller's place of business. When one of your Products is placed on hold by a Buyer, you will be responsible for arranging for a suitable, agreed upon time for the Buyer to view the Product at your place of business. Buyer may waive the Hold Period and "accept" the Product at any time. Once a Product is "accepted" it is considered a final sale.

  1. Purchases. The Payment Method will be automatically processed, and the Product will be considered purchased, upon Buyer's acceptance of the held Product. All purchases are final. If Buyer fails to accept or decline the held Product within the Hold Period, the Product will be returned to the Seller's inventory without any compensation paid to Seller.

    1. Shipping. In the instance that a Purchaser chooses to have the sold remnant piece shipped to a fabricator other than the Seller, and unless notified otherwise by CountertopSmart, it is the Seller's responsibility to arrange shipping with, and to ship to, the destination fabricator within 72 hours from the first business day after the purchase of the remnant piece. For this service the Seller will be compensated $75, or an amount determined by CountertopSmart.

    1. Inspection and Acceptance. The purpose of the Hold Period is to provide a timeframe that allows the Buyer to personally inspect the Product for its physical properties, including but not limited to color, size, suitability, and damage. The Seller will be responsible with arranging with the Buyer to fill, polish, buff and otherwise remediate any damage that a piece of stone might contain. Buyers are instructed to discuss with the Seller the process of remediating any noticeable damage before "Accepting" a Product through the Service. Seller is solely responsible for making arrangements with the Buyer regarding repairs of any chips, scratches, fissures or any type of damage. CountertopSmart will not have any liability whatsoever for any damaged or irregular Product. We recommend that Buyers make note of any damage prior to "Accepting" the Product and discuss damage remediation with the party responsible for installing the Product.

    1. Installation. The Buyer shall be solely responsible for arranging installation of the Products with Buyer's preferred installer. CountertopSmart will not be responsible for the installation of any Product, including without limitation any issues (legal or otherwise) arising in connection with the installation of such Products. Any complaints arising from incorrect installation must be directed to the party responsible for fabrication and installation of the countertop.

  1. Seller Acknowledgements. Seller acknowledges that CountertopSmart has no responsibility for and makes no guarantees regarding Buyers or Products. Sellers are solely responsible for all aspects of any Products ordered. Seller further acknowledges that CountertopSmart retains a portion of the payments made for such Products, but solely as a processing fee for facilitating the transactions envisioned hereby, and not as payment for Products. CountertopSmart does not guarantee that any Buyer will complete any purchase of Products, including Products that are placed on "hold." Seller solely accepts all risks related to interacting with and transacting with Buyers.

  1. Payment. As a processing fee for transactions conducted via the Service, CountertopSmart will retain a percentage of the final sale prices [excluding any sales taxes] of all Products sold by the Seller via the Service. The current fees are listed on the [the terms page] in the Seller portal of the Service. CountertopSmart reserves the right to charge Seller's Payment on file for fees associated with Product errors, omissions, damages and discrepancies, including without limitation delivering an incorrect Product or installing the incorrect Product. All fees under this Agreement are due and payable in U.S. dollars, are non-refundable and are exclusive of applicable sales, excise, use or similar taxes.

  1. Supplemental Terms. To enjoy certain aspects of the Service, additional terms may apply. We will present supplemental terms and conditions for review and acceptance at the time that you undertake such activity within the Service, and any such supplemental terms (each, "Supplemental Terms") shall become a part of this Agreement. In the event of any conflict between the terms hereof and any Supplemental Terms, the Supplemental Terms shall govern with respect to the matters contemplated thereby.

  1. Terms of Purchase and Sale of Products. The Service may allow Buyers and Sellers to establish certain terms and conditions of purchase and sale of Products, e.g. price, installation terms and delivery dates. Such terms and conditions, as supplemented by applicable law, shall comprise the terms of purchase and sale of Products for any transaction facilitated via the Service.

  1. Disputes Among Users and Release of CountertopSmart. The Service is designed to create a marketplace for Products and to facilitate transactions among Sellers and Buyers. CountertopSmart does not provide Products, nor does it guarantee any Products ordered via the Service, or payment therefor. EACH USER IS SOLELY RESPONSIBLE FOR ITS INTERACTIONS AND TRANSACTIONS WITH OTHER USERS OF THE COUNTERTOPSMART SERVICE, AGREES TO LOOK SOLELY TO SUCH OTHER USERS FOR ANY CLAIM, DAMAGE OR LIABILITY ASSOCIATED WITH ANY TRANSACTION COMMISSIONED VIA THE SERVICE AND ANY PRODUCT, AND EXPRESSLY WAIVES AND RELEASES COUNTERTOPSMART FROM ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF ANY ACT OR OMISSION OF ANY SUCH USER, INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO PERSONAL INJURY OR DESTRUCTION OF PROPERTY. COUNTERTOPSMART RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO MONITOR DISPUTES BETWEEN USERS, INCLUDING WITHOUT LIMITATION DISPUTES OVER REMNANT PIECE OWNERSHIP.

  1. Non-contravention. You agree not to circumvent the Service for the purpose of avoiding the processing fees imposed by CountertopSmart.

  1. Representations About Your Information and Consent Regarding Use of Your Information. You represent and warrant that all information that you provide in connection with the Service will be current, true, accurate, supportable and complete. If you submit comments, suggestions, ratings, or other feedback regarding the Application, the Service, Sellers, Buyers, or your experience ("Feedback"), you agree that we will be free to use such Feedback for any purpose and without restriction or obligation to you.

  1. Consent to Receive Messages. YOU CONSENT TO RECEIVE COMMERCIAL E-MAIL MESSAGES AND MESSAGES FROM OR ON BEHALF COUNTERTOPSMART AND OUR PARTNERS, AND ACKNOWLEDGE AND AGREE THAT YOUR PRIMARY EMAIL ADDRESSES AND OTHER INFORMATION MAY BE USED BY COUNTERTOPSMART FOR THE PURPOSE OF INITIATING COMMERCIAL E-MAIL MESSAGES.

  1. Third-Party Services and Materials.

    1. Aside from connecting you with other Users, the Service may enable access to third-party products and services (collectively and individually, "Third-Party Services"). Use of Third-Party Services may require your acceptance of additional terms of service. You agree to comply with any such terms. Further, information you make available to Third Party Services is subject to the privacy policies of such third parties. You agree that you will use the Third Party Services at your sole risk.

    1. The Service and/or Third-Party Services may display, include, or make available content, data, information, applications, or materials from third parties ("Third-Party Materials"), or provide links to third-party websites. You acknowledge and agree that CountertopSmart is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Materials or websites. CountertopSmart does not warrant or endorse and will not have any liability or responsibility to you or any other person for any Third-Party Services, Third-Party Materials or websites.

  1. Content.

    1. CountertopSmart does not claim any ownership rights in any text, images, photos, video, sounds, links, works of authorship, project information, or any other materials that you post to the Service (collectively, "Your Content"). After posting Your Content to the Service, you continue to retain all ownership rights in the same, and subject to any licenses granted by you (including in our Privacy Policy), you continue to have the right to use Your Content in any way you choose. By posting any of Your Content on or through the Service, you hereby grant to CountertopSmart a non-exclusive, fully-paid, royalty-free, fully sublicensable, transferable, irrevocable worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of and distribute the same (in whole or in part) in connection with the provision of the Service and its features. You represent and warrant that: (i) you own Your Content or otherwise have the right to grant the license set forth in this section, and (ii) the posting of Your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person or entity.

    1. The Service may also contain content of our licensors, including other Users ("Third Party Content"). "Third Party Content" and "Your Content" is collectively referred to as the "Content". Third Party Content is protected by copyright and other laws, and our licensors own and retain all rights in Third Party Content. Neither CountertopSmart nor our licensors grant you any other licenses, express or implied, to the intellectual property of CountertopSmart or licensors, including to Third Party Content, and you may not otherwise copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any of Third Party Content.

  1. Modifications. We may modify the terms of this Agreement from time to time. Any modification shall be effective when we notify you of the modification (via an update delivered through the Service or via email or other notification) and you subsequently use the Service.

  1. Limitations on Availability. The Service is not available at all times, in all languages or in all geographies. CountertopSmart makes no representation will achieve any particular uptime, or that the Service is appropriate or available for use in any particular location. Use of the Service is void where prohibited.

  1. Termination. This Agreement is effective until terminated by you or CountertopSmart. Your rights hereunder will terminate automatically without notice from CountertopSmart if you fail to comply with any term(s) of this Agreement. Upon termination, you shall cease all use of the Service. You acknowledge that CountertopSmart may restrict, modify, or terminate your account, without liability, for its convenience, or if you violate this Agreement or any law, rule, or regulation. In no event will CountertopSmart be liable for the removal or disabling of access to the Service. CountertopSmart may also impose limits on the use or access to the Service, in any case and without notice or liability.

  1. Disclaimer of Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE, AND THE TRANSACTIONS YOU CONDUCT THROUGH THE SAME ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. COUNTERTOPSMART HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE, AND THE TRANSACTIONS YOU CONDUCT THROUGH THE SAME, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. COUNTERTOPSMART DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED THEREIN OR THE TRANSACTIONS YOU UNDERTAKE THROUGH THE SAME WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COUNTERTOPSMART OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

  1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL COUNTERTOPSMART BE LIABLE FOR (I) PERSONAL INJURY (INCLUDING ANY INJURY SUSTAINED AT A SELLER'S PLACE OF BUSINESS), (II) ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF COUNTERTOPSMART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY DAMAGES WHATSOEVER ARISING OUT OF TRANSACTIONS YOU CONDUCT WITH THIRD PARTIES THROUGH THE COUNTERTOPSMART SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL COUNTERTOPSMART'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY CAUSED BY COUNTERTOPSMART) EXCEED THE GREATER OF: (a) THE TOTAL AMOUNT THAT COUNTERTOPSMART HAS BEEN PERMITTED TO RETAIN AS A RESULT OF TRANSACTIONS BETWEEN YOU AND OTHER USERS PROCESSED THROUGH THE COUNTERTOPSMART SERVICE IN THE SIX (6) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM, OR (b) $100.00. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  1. Compliance with Law, Export and Other Restrictions. To the extent you choose to use the Service, you agree to comply with any applicable laws, including but not limited to applicable local laws. You may not use or otherwise export or re-export it except as authorized by United States law and the laws of the jurisdiction in which the Service was accessed.

  1. Miscellaneous. The laws of the State of Texas, excluding its conflicts of law rules, govern this license and your use of the Service. Your use thereof may also be subject to other local, state, national, or international laws. This Agreement constitutes the entire agreement between you and CountertopSmart regarding the Service. The failure of CountertopSmart to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. "CountertopSmart" and all associated logos displayed within the Service are trademarks of CountertopSmart or its licensors. This Agreement operates to the fullest extent permissible by law. CountertopSmart may freely transfer or assign this Agreement and any of its rights or obligations hereunder. You may not transfer or assign this Agreement or any of your rights or obligations hereunder without the prior written consent of CountertopSmart, and any attempt to do so shall be null and void. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.

  1. Contact Us. CountertopSmart can be reached at: [(512) 517-2422], [[email protected]].