Perdue Terms and Conditions

TERMS AND CONDITIONS OF SALE

1. Applicability

(a) These terms and conditions of sale (these “Terms”) are attached to and incorporated by reference into the quote or order confirmation (“Order”) issued or generated by Perdue Furniture SD, LLC, a Delaware limited liability company (“Perdue,” “we,” “us,” or “our”) to the customer named in the Order (“Customer”). These Terms are the only terms that govern the sale of furniture (the “Furniture”) by Perdue to its Customer. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Furniture covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

(b) (b) These Terms and all Orders (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its order confirmation or such terms. Fulfillment of Customer’s order does not constitute our acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.

2. Delivery

(a) Customer shall be responsible for (i) unloading and receiving all Furniture at the Delivery Point (defined below), including providing all necessary equipment and labor, and (ii) all loading costs.

(b) CUSTOMER ACKNOWLEDGES AND AGREES TO INDEMNIFY, DEFEND, RELEASE, AND HOLD PERDUE AND ITS SUBSIDIARIES AND AFFILIATES, AND EACH OF THE FOREGOING ENTITIES’ EMPLOYEES, CONTRACTORS, AND AGENTS (COLLECTIVELY, “AGENTS”), HARMLESS FROM ANY EXPENSES, LOSSES, COSTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS), JUDGMENTS, SETTLEMENTS, DAMAGES, AWARDS, INTERESTS, FINES, AND LIABILITIES OF WHATEVER KIND THAT PERDUE AND/OR ITS SUBSIDIARIES OR AFFILIATES, OR EACH OF THE FOREGOING ENTITIES’ AGENTS, MAY INCUR AS A RESULT OF, ARISING OUT OF, OR IN RELATION TO CUSTOMER’S UNLOADING AND RECEIVING ANY FURNITURE AT THE DELIVERY POINT.

(c) Unless otherwise agreed in writing by the parties, Furniture will be delivered directly from our facilities to the address provided in the Order (the “Delivery Point”) using Perdue’s standard delivery methods, subject to availability of finished Furniture. A Perdue representative will contact Customer using the contact information specified in the Order 24-48 hours prior to the delivery date specified in the Order (“Delivery Date”) to confirm the delivery and schedule an appointment.

(d) If for any reason Customer fails to accept delivery of any Furniture on the Delivery Date, or as otherwise agreed between the parties, or if Perdue is unable to deliver the Furniture at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) Customer shall be charged a restocking fee and required to provide a down payment for the next Order equal to 50% of the Order’s total price; (ii) risk of loss to the Furniture shall pass to Customer; (iii) the Furniture shall be deemed to have been delivered; and (iv) Perdue, at its option, may store the Furniture until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).

(e) Perdue may, in its sole discretion, without liability or penalty, make partial shipments of Furniture to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of an Order.

3. Title and Risk of Loss

Title and Risk of Loss. Title and risk of loss pass to Customer upon delivery of the Furniture at the Delivery Point. As collateral security for the payment of the purchase price of the Furniture, Customer hereby grants to Perdue a lien on and security interest in and to all of the right, title, and interest of Customer in, to, and under the Furniture, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the [STATE] Uniform Commercial Code.

4. Amendment and Modification

These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.

5. Inspection and Rejection of Nonconforming Furniture.

(a) Customer shall inspect the Furniture within 3 days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Furniture unless it notifies Perdue in writing of any Nonconforming Furniture during the Inspection Period and furnishes such written evidence or other documentation as required by Perdue. “Nonconforming Furniture” means only the following: (i) product shipped is different than identified in Customer’s Order; or (ii) product’s label or packaging incorrectly identifies its contents.

(b) If Customer timely notifies Perdue of any Nonconforming Furniture, Perdue shall, in its sole discretion, (i) replace such Nonconforming Furniture with conforming Furniture, or (ii) credit or refund the Price for such Nonconforming Furniture, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Furniture to Perdue’s facility located at 2415 Creek Drive, Rapid City, SD 57703. If Perdue exercises its option to replace Nonconforming Furniture, Perdue shall, after receiving Customer’s shipment of Nonconforming Furniture, ship to Customer the replaced Furniture to the Delivery Point, at Customer’s risk of loss.

(c) Customer acknowledges and agrees that the remedies set forth in Section 5(b) are Customer’s exclusive remedies for the delivery of Nonconforming Furniture. Except as provided under Section 8(b), all sales of Furniture to Customer are made on a one-way basis and Customer has no right to return Furniture purchased under this Agreement to Perdue.

6. Price

(a) Customer shall purchase the Furniture from Perdue at the price set forth in the Order (the “Price”) or as set forth in Perdue’s published price list in force as of the date of the Order.

(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs, and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Perdue’s income, revenues, gross receipts, personnel, or real or personal property or other assets.

7. Payment Terms

(a) Customer shall pay all invoiced amounts due to Perdue according to the terms set out in the Order Customer shall make all payments hereunder in US dollars.

(b) Customer shall pay interest on all late payments at the lesser of 25% APR or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Perdue for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Perdue does not waive by the exercise of any rights hereunder), Perdue shall be entitled to suspend the delivery of any Furniture if Customer fails to pay any amounts when due hereunder and such failure continues for 15 days following written notice thereof.

(c) Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Perdue, whether relating to Perdue’s breach, bankruptcy, or otherwise.

8. Limited Warranty

(a) Perdue warrants to Customer that for a period of (i) five years, if Customer is a Hotel Customer (defined below) and (ii) one year, if Customer is not a Hotel Customer, from the date of shipment of the Furniture (“Warranty Period”), such Furniture will materially conform to Perdue’s published specifications in effect as of the date of manufacture and will be free from material defects in material and workmanship. “Hotel Customer” means any Customer held out to the public as an inn, hotel, motel, public lodging house, or building where sleeping accommodations are furnished for hire to transient guests.

(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8(A), PERDUE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE FURNITURE, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR (c) WARRANTY OF TITLE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

(c) Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Furniture. Third-Party Products are not covered by the warranty in Section 8(a). For the avoidance of doubt, PERDUE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

(d) Perdue shall not be liable for a breach of the warranty set forth in Section 8(a) unless: (i) Customer gives written notice of the defect, reasonably described, to Perdue within 30 days of the time when Customer discovers or ought to have discovered the defect; (ii) Perdue is given a reasonable opportunity after receiving the notice to examine such Furniture and Customer (if requested to do so by Perdue) returns such Furniture to Perdue’s place of business at Perdue’s cost for the examination to take place there; and (iii) Perdue reasonably verifies Customer’s claim that the Furniture are defective.

(e) Perdue shall not be liable for a breach of the warranty set forth in Section 8(a) if: (i) Customer makes any further use of such Furniture after giving such notice; (ii) the defect arises because Customer failed to follow Perdue’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Furniture; or (iii) Customer alters or repairs such Furniture without the prior written consent of Perdue.

(f) Subject to Sections 8(d) and 8(e) above, with respect to any such Furniture during the Warranty Period, Perdue shall, in its sole discretion, either: (i) repair or replace such Furniture (or the defective part) or (ii) credit or refund the price of such Furniture at the pro rata contract rate provided that, if Perdue so requests, Customer shall, at Perdue’s expense, return such Furniture to Perdue.

(g) THE REMEDIES SET FORTH IN SECTION 8(F) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND PERDUE’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(A).

9. Limitation of Liability

(a) IN NO EVENT SHALL PERDUE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PERDUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL PERDUE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO PERDUE FOR THE FURNITURE SOLD HEREUNDER.

(c) The limitation of liability set forth in Section 9(b) above shall not apply to (i) liability resulting from Perdue’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Perdue’s acts or omissions.

10. Compliance with Law

Customer shall comply with all applicable laws, regulations, and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.

11. Termination

In addition to any remedies that may be provided under these Terms, Perdue may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement and such failure continues for 15 days after Customer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

12. Waiver

No waiver by Perdue of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Perdue. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

13. Force Majeure

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Perdue hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; and (g) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 7 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 90 days following written notice given by it under this Section 13, the other party may thereafter terminate this Agreement upon 7 days’ written notice.

14. Assignment

Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Perdue. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.

15. Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

16. No Third-Party Beneficiaries

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

17. Governing Law

This Agreement is governed by the laws of the State of Delaware without reference to any conflict of laws principles that would require the application of the laws of any other jurisdiction.

18. Submission to Jurisdiction

Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of South Dakota in each case located in the City of Rapid City and County of Pennington, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

19. Notices

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

20. Severability

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

21. Survival

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Limited Warranty, Limitations of Liability, Governing Law, Submission to Jurisdiction, and Survival.