THIS WHOLESALE CUSTOMER AGREEMENT (the “Agreement”) is by and between Cali Bamboo LLC, a California limited liability company with a principal office located at 662 Encinitas Blvd, Encinitas, CA 92024 (“Supplier”, “we”, or “us”) and [name], a(n) [state of incorporation] [type of entity], with offices located at [address] (“Wholesale Customer”, “you” or your”).

THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE ["I ACCEPT"]] BUTTON BELOW (the “Effective Date”). BY CLICKING ON THE ["I ACCEPT"] BUTTON BELOW YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACT AS AN AUTHORIZED RESELLER OF SUPPLIER'S PRODUCTS.

ARTICLE I

DEFINITIONS

“Affiliate” means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of more than fifty (50%) of the voting securities of such Person, by contract or otherwise.

“Intellectual Property Rights” means Supplier’s trademarks, service marks, trade dress, trade names, designs, logos, corporate names and domain names, together with all of the goodwill associated therewith.

“Law” means any and all statutes, laws, ordinances, regulations, rules, codes, orders, constitutions, treaties, common laws, judgments, decrees, and other requirements and rules of law of any federal, state, local or foreign government or political subdivision thereof, applicable to a party’s performance of this Agreement.

“Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

“Product(s)” means the wide range of Supplier’s flooring and decking products, as shown on Supplier’s website at https://www.califloors.com/, as amended from time to time.

“Product Sale Requirements” means the standard set of terms and conditions, product warranties (which vary by Product), and specific installation instructions pursuant to which Supplier sells the Products

ARTICLE II

WHOLESALE CUSTOMER'S OBLIGATIONS

Section 2.01 Wholesale Customer’s Duties Regarding Product Sale Requirements. You may only purchase Products from us on a wholesale basis and resell the Products to end-user customers, either as a retailer, dealer, contractor/installer or otherwise, in accordance with the terms and conditions contained in this Agreement.

(a) You shall, either before, or at the time of, every separate sale of Products to a customer, communicate to your customer the Product Sale Requirements for the Products being purchased, which Product Sale Requirements can be found at the following Uniform Resource Locators (“URLs”):

• https://www.califloors.com/terms-conditions
• https://www.califloors.com/flooring-warranty
• https://www.califloors.com/decking-warranty
• https://www.califloors.com/flooring-installation
• https://www.califloors.com/decking-installation

(b) For the avoidance of doubt, you are not required to communicate Supplier’s flooring warranty and installation instructions to your customers solely purchasing decking Products. We may revise, amend or supplement the Product Sale Requirements and the corresponding URLs at any time by providing notice thereof to you in accordance with this Agreement.

(c) You may comply with the obligation set forth in Section 2.01(a) in any commercially reasonable manner, including but not limited to: (i) providing your customers with printed copies of the applicable Product Sale Requirements at the time of purchase (ii) providing your customers with printed documentation containing the URLs of the applicable Product Sale Requirements at the time of purchase; (iii) at the conclusion of the purchase of the Products, sending the customer an e-mail containing the text of the applicable Product Sale Requirements, or links to the URLs of the applicable Product Sale Requirements; or (iv) any combination of the foregoing methods. It is solely your responsibility to ensure that you are communicating the most recent Product Sale Requirements to your customers.

(d) During the sales process, you must inform your customers, either verbally or in an e-mail, that the customer’s failure to strictly adhere to the instructions and directives contained in the Product Sale Requirements may either invalidate the customer’s warranty for the Products, lead to improper and unsatisfactory installation, or cause the Products to fail to perform in the manner intended by Supplier.

(e) You may, in conformity with the terms and conditions set forth at califloors.com return Products ordered from Supplier for a refund. Such returns will be subject to the restocking fees and shipping costs set forth in Exhibit “A” hereto. We reserve the right to amend Exhibit “A”, at any time, on 30 days’ prior written notice to you.

ARTICLE III

TERM

Section 3.01 This term of this Agreement (the “Term”) shall commence as of the Effective Date and shall continue thereafter until terminated in accordance with Article VIII hereof.

ARTICLE IV

INTELLECTUAL PROPERTY RIGHTS; OWNERSHIP

Section 4.01 Grant of Limited License to Wholesale Customer. We grant to you, during the Term set forth in the Agreement, a worldwide, non-exclusive, non-transferable, royalty-free, irrevocable license and right to access and use the Intellectual Property Rights for the sole purpose of promoting and marketing the Products for sales to your customers.

Section 4.02 Supplier’s Ownership of Intellectual Property Rights.Supplier is and shall at all times remain, the sole and exclusive owner of all right, title and interest in and to the Intellectual Property Rights. You shall have no right or license to use any Intellectual Property Rights except solely during the Term of the Agreement, and then only to the extent reasonably necessary to promote and market the Products for sales to your customers. All other rights in and to the Intellectual Property Rights are expressly reserved by us.

ARTICLE V
REPRESENTATIONS AND WARRANTIES

Section 5.01 Representations and Warranties of the Parties. Each party represents and warrants to the other party that:

(a) It is duly organized, validly existing and in good standing as a limited liability company, corporation or other entity as represented herein under the Laws of its jurisdiction of incorporation, organization or chartering;

(b) It has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;

(c) When executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and

(d) Its execution of this Agreement does not constitute a breach or violation of, or default under any agreement or other instrument, whether written or oral, express or implied, by which such party is bound.

Section 5.02 No Implied Warranties.EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT.

ARTICLE VI

INDEMNIFICATION

Section 6.01 Indemnification by Wholesale Customer. You agree to defend, indemnify and hold harmless Supplier and its Affiliates, and each of Supplier’s and its Affiliates’ respective officers, directors, members, managers, employees, agents, representatives, successors and permitted assigns from and against all liabilities, losses, damages, deficiencies, costs, experts costs, payments, penalties, fines, amounts paid in settlement or other expenses (including, without limitation, interest which may be imposed therewith and the reasonable fees and expenses of investigation and counsel) (collectively, “Losses”) arising out of or resulting from any third party claim, suit, action or proceeding (each, an “Action”) caused by, or resulting from: (i) your breach of any representation, warranty or obligation made by you or imposed on you in this Agreement; (ii) if you install any Products for your customers, or cause any Products to be installed for your customers by your designated installation representative, your failure to follow, or failure to cause to be followed by your designated installation representative, Supplier’s installation instructions for the Products as referenced in Section 2.01; or (iii) your violation of applicable Law.

Section 6.02 Indemnification by Supplier. Supplier shall defend, indemnify and hold harmless you and your Affiliates, and each of your and your Affiliates’ respective officers, directors, members, managers, employees, agents, representatives, successors and permitted assigns Indemnitees from and against all Losses caused by, or resulting from: (i) Supplier’s breach of any representation, warranty or obligation of Supplier set forth in this Agreement; (ii) any Action alleging that any of the Intellectual Property Rights, or your use thereof, infringes any intellectual property right of a third party; provided, however, that Supplier shall have no obligations under this Section 6.02 with respect to Actions to the extent arising out of your use or alteration of the Intellectual Property Rights in a manner that is not permitted by Section 4.01 of this Agreement; or (iii) a violation by Supplier of applicable Law.

Section 6.03 Indemnification Procedure. The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party's sole cost and expense. The indemnifying party shall promptly take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party's sole cost and expense. The indemnifying party shall not settle any Action in a manner that adversely affects the rights of the indemnified party, or that requires the indemnified party’s admission or monetary payment, without the indemnified party's prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party's failure to perform any obligations under this Section 6.03 shall not relieve the indemnifying party of its obligations under this Section 6.03 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.

ARTICLE VII
LIMITATION OF LIABILITY

Section 7.01 Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7.02, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Section 7.02 Exclusions from Limitation of Liability The exclusions and limitations in Section 7.01 shall not apply to:

(a) damages or other liabilities arising out of or relating to your failure to comply with your obligations under Article IV (Intellectual Property Rights; Ownership);

(b) a party's indemnification obligations under Article VI (Indemnification); and

(c) damages or other liabilities arising out of or relating to a party's gross negligence, willful misconduct, intentional acts, or violation of applicable Law.

ARTICLE VIII
TERMINATION; EFFECT OF TERMINATION

Section 8.01 Termination Without Cause. Either party, in its sole discretion, may terminate this Agreement at any time without cause by providing at least thirty (30) days' prior written notice to the other party.

Section 8.02 Termination for Cause. Either party may terminate this Agreement, effective upon written notice to the other party, or as otherwise set forth in this Agreement, in the event (a) of a material breach of this Agreement, provided that such breach has remained uncured for at least ten (10) days after the non-breaching party provided the breaching party written notice of the breach, or (b) either party (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

Section 8.03 Parties’ Obligations Upon Termination. Upon expiration or termination of this Agreement for any reason, you may sell off your remaining inventory of Products, but you will not be able to order any additional Products from us. Unless this Agreement has been terminated by us pursuant to Section 8.02, we will honor any orders placed by you prior to the date of expiration or termination.

Section 8.04 Survival. The rights and obligations of the parties set forth in Article I, Section 2.01(d), Article IV, Article V, Article VI, Article VII, Article VII, Section 8.03, Article IX and Article X, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

ARTICLE IX
DISPUTE RESOLUTION

Section 9.01

(a) Scope of Arbitration. Each party agrees that, except as otherwise set forth in this Agreement, any disputes between you and Supplier, or claims that the parties may have against each other that arise from or relate to your purchase, installation or use of any Products or services manufactured, sold or distributed by Supplier, your use of any website or online service we operate, or any other aspect of your relationship with us, that are not resolved informally will be resolved by binding arbitration, rather than in court, except: (1) that either party may assert claims in small claims court if such claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; (2) that either party may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents), and (3) to the extent limited judicial proceedings or judicial review is otherwise expressly authorized by subsections (a)(1) or (d) of this Section 9.01.

(b) Arbitration Rules and Forum. Either party may begin an arbitration proceeding by filing a petition requesting arbitration with JAMS at its San Diego, California office, see https://www.jamsadr.com/locations/. The arbitration will be conducted by JAMS under its rules and pursuant to this Agreement. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/;all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com (under the Rules/Clauses tab), or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral
forum.

(c) Arbitration and Attorneys’ Fees. Payment of all filing, administration, and arbitrator fees will be governed by JAMS’ rules. Each party will pay its own costs and attorneys’ fees and will initially pay 50% of all arbitration fees and costs payable to JAMS. However, in the arbitrator’s award, the arbitrator shall allocate attorneys’ fees and expenses to the prevailing party in a way that bears a reasonable relationship to the outcome of the arbitration with the party prevailing on more issues, or on issues of greater value or gravity, recovering a relatively lager share of its legal fees and expenses.

(d) Arbitrator Powers. You and Supplier both agree that any argument that any part of the waiver of class, consolidated and representative claims set forth in subsections (a)(1) and (i) of this Section 9.01 is unenforceable, unconscionable, void, or voidable may be decided only by a court of competent jurisdiction and not by an arbitrator. Otherwise, the arbitrator, and not any federal, state, or local court or agency, shall have exclusive
authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any other part of this Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of each party hereto. The arbitration proceeding cannot be consolidated with any other matters or joined with any other proceedings or parties, except with respect to any proceedings against Supplier and/or you brought by any party who purchased Products from you, or any counterclaim arising therefrom. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to a party under applicable law, the arbitral forum’s rules, and this Agreement. The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on the parties hereto, except that the arbitrator shall not have the power to commit errors of law or legal reasoning, and the parties agree that any injunctive award may be vacated or corrected on appeal by either party to a court of competent jurisdiction for any such error. Each party will bear its own costs and fees on any such appeal.

(e) Form of Proceedings. For claims seeking damages in the amount of $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by a telephonic hearing, or by an in-person hearing as established by the JAMS rules. If you choose to proceed either by an in-person hearing or by telephone, we may choose to respond only by telephone or document submission. If your claim seeks damages greater than $10,000 but less than $25,000, you may choose whether the arbitration will be conducted by a telephonic hearing or by an in-person hearing as established by the JAMS rules. If you choose to proceed in person, we may choose to appear by telephone. If your claim seeks damages in excess of $25,000, the arbitration will be conducted by an in-person hearing, although witnesses may still appear telephonically or through deposition testimony if the parties stipulate, or if permitted by the arbitrator.

(f) Discovery Rights. Discovery in arbitrations of claims seeking damages of $10,000 or less will be governed by the JAMS rules. In addition to the discovery rights provided by the JAMS rules, if the claim seeks damages in excess of $10,000, each party shall be permitted to: (1) depose two percipient witnesses and one expert witness and (2) the parties shall be permitted to inspect the Product at issue in the arbitration via subpoena or inspection demand, in addition to any additional discovery stipulated to by the parties or permitted by the arbitrator.

(g) Effect of Arbitration Findings on Other Disputes. Both parties agree that any awards or findings of fact or conclusions of law made in an arbitration of a particular claim or dispute between them are made only for the purposes of that arbitration and may not be used by any other Person in any later arbitration of any dispute or claim involving Supplier. You and Supplier agree that in any arbitration of a dispute or claim, neither party will rely for preclusive effect on any award or finding of fact or conclusion of law made in any other arbitration of any dispute or claim to which either you or Supplier were a party. An award may be entered against a party who fails to appear at a duly noticed hearing.

(h) Waiver of Jury Trial. BOTH PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT) AND RECEIVE A JUDGE OR JURY TRIAL. The parties hereto are instead electing to have claims and disputes resolved by arbitration, except as specified in subsection (a) above. An arbitrator can award on an individual basis the same damages and individual relief as a court and must follow this Agreement as a court would.

(i) Waiver of Class, Consolidated and Representative Claims. ALL CLAIMS AND DISPUTES WITHIN THIS AGREEMENT MUST BE ARBITRATED
OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS ACTION
BASIS. If a court decides that applicable law precludes enforcement of any of limitations as to a particular claim for relief contained in this Section 9.01, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Supplier’s rights and obligations under this Agreement.

ARTICLE X

MISCELLANEOUS

Section 10.01 Relationship of the Parties. The relationship between the parties is that of supplier and customer. 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.

Section 10.02 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); or (c) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated above, or such other address as a party may provide to the other party in accordance with this Section 10.02.

Section 10.03 Entire Agreement.This Agreement, together with all exhibits, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any policy or procedure of Supplier referenced in this Agreement by use of a URL, this Agreement shall govern.

Section 10.04 Assignment. Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, that, upon prior written notice, either party may assign the Agreement to an Affiliate or to a successor of all or substantially all of the assets of the party through merger, reorganization, consolidation or acquisition. Unless otherwise agreed to by the parties in writing, no assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Section 10.05 Recitals; Headings; Interpretation. The recitals to this Agreement are incorporated herein and shall be deemed a part of this Agreement for all purposes whatsoever. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. This Agreement will be deemed to have been jointly drafted by the parties and in the event of any ambiguity in interpretation, the ambiguity will not be resolved by any rule of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the draftsman.

Section 10.06 Entire Agreement; Amendments; Waiver. Except as expressly set forth herein, this Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Section 10.07 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. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Section 10.08 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than those of the State of California.

Section 10.09 Injunctive Relief. Each party acknowledges that a breach by a party of Article V (Intellectual Property Rights; Ownership) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, notwithstanding Article IX, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

EXHIBIT “A”

RESTOCKING FEES AND SHIPPING COSTS

All product returns are subject to a 15% restocking fee (calculated as a percentage of the price paid by the Wholesale Customer for the corresponding products), plus return shipping costs.