DUNN-EDWARDS FOUNDATION 

CONSUMER ONLINE TERMS OF SALE (COTOS) 

1. Covered Sales. These Consumer Online Terms of Sale (“Consumer  Online Terms of Sale” or “COTOS”) govern all sales by Dunn-Edwards Foundation, a  California nonprofit public benefit corporation (“Foundation,” “us,” or “we”) of Products that are ordered by customers through Foundation’s website using the “Consumers shopping experience.” For purposes of this COTOS, “Customer” or “you” means a  customer that purchases Products from Foundation through a transaction that is governed by this COTOS. 

a. Controlling Agreement. This COTOS shall control over any  conflicting terms in any Order or any other document or communication from Customer. Neither Foundation’s acknowledgment of an Order or other document or communication  from Customer nor Foundation’s failure to object to conflicting terms in an Order or  other Customer document shall be deemed an acceptance of any conflicting terms or a  waiver of the provisions of this COTOS. 

b. Privacy Policy. Customer shall be bound by Foundation’s Privacy Policy (the “Privacy Policy”) (found at https://www.dunnedwards.com/about/privacy policy), in connection with any Customer access to or use of Foundation’s website; any  transactions that Customer may conduct thereon, or any other matters covered by the  Privacy Policy. 

2. Definitions. For purposes of this COTOS, the following terms (when  capitalized) shall have the meanings indicated: 

a. “Accepted Order” shall mean an Order that has been accepted by  Foundation’s (i) acceptance of payment for the Products, or (ii) delivery or shipment of the Products to Customer. 

b. “Distributed Products” shall mean all Products that are distributed by Foundation, but not manufactured by Foundation or Dunn-Edwards  Corporation. 

c. “Manufactured Products” shall mean all Products that are  manufactured by Foundation or Dunn-Edwards Corporation. 

d. “Order Acceptance” shall mean Foundation’s acceptance of  payment for an Order for Products. 

e. “Products” shall mean all products that are sold by Foundation  through Foundation’s website using the “Consumers shopping experience,” including  both Manufactured Products and Distributed Products. 

f. “Order” shall mean a Customer order for Products. 

3. Ordering Procedure. Customer submits an Order for Products to  Foundation by clicking “Submit Order” for the Products in question on Foundation’s website. Foundation accepts such order when it accepts Customer’s payment for same or delivers or ships product. 

4. Order Cancellation/Modification. 

a. Cancellation by Customer. Customer shall have the right to cancel or modify any Order by re-entering the Order and canceling or modifying same  on Foundation’s website at any time within two hours after submitting the Order. After  the expiration of such two-hour window, Orders may not be cancelled or modified. 

b. Cancellation by Foundation. Foundation may cancel any Order  at any time, even if it has been accepted by Foundation, if Foundation believes that the  Order violates applicable law, including any law that requires proof of identity or age in  order to purchase a particular Product. 

5. Shipping and Delivery Terms. 

a. Shipping and Delivery Terms. All Products covered by any  Accepted Order shall be shipped by Foundation to the “ship to” location specified in the  Order via common carrier. Any freight charges to be borne by Customer shall be  assessed to and paid by Customer upon acceptance of Customer’s Order. 

b. Time of Delivery. Delivery shall be deemed complete, and title  and risk of loss shall be deemed to pass from Foundation to Customer, when the  Products are dropped off by the common carrier at the “ship to” location specified in the  Order. Foundation shall endeavor to effect delivery of the Products within the time  period specified at the time the Order was submitted. However, in no event shall  Foundation be liable to Customer for any damages that Customer may suffer due to  Foundation’s failure to deliver any Products on a timely basis. 

6. Returns. Any Products purchased by Customer from Dunn-Edwards that  do not conform to the limited warranty set forth in Section 12 below (“Damaged  Products”) may be returned to Foundation provided that the return meets the terms and  conditions set forth in this Section 6.a. Damaged Products may be returned by the  original Customer only, and all returns must be made within 30 days after the delivery of the Damaged Products in question to Customer. The full purchase price of any  Damaged Products that are returned to Foundation in conformity with the return policy  stated in this Section 6.a will be credited to Customer’s credit card or other payment  account within ___ days after Foundation’s receipt of the returned Damaged Products,  or, upon Customer’s request, Foundation will ship replacement Products to Customer. 

7. Force Majeure. For purposes of this COTOS, “Force Majeure Events”  shall mean: (i) inclement weather, earthquakes, fire, strikes or actions by labor unions,  accidents, delays by carriers, shortages of materials or labor, and other delays or  causes beyond Foundation’s reasonable control; or (ii) acts or omissions of Customer. Foundation shall not be liable for any failure or delay in filling any Accepted Order to the  extent that the failure or delay is due to a Force Majeure Event, or due to incomplete or  inaccurate information being supplied in the Order (such as, for example, partial or  incorrect addresses or Product descriptions)

8. Pricing. The prices for all Products sold to Customer shall be the prices  specified on the Consumers shopping experience portion of Foundation’s website at the  time that Customer’s Order is submitted. It is understood and agreed that Foundation  may change the prices specified on the Consumers shopping experience portion of  Foundation’s website at any time and from time to time, without prior notice of any kind. 

9. Sales Tax. Customer shall be charged sales tax on all Products  purchased by Customer. Foundation shall have the right to charge Customer for any  sales tax owing with respect to any Products purchased by Customer that was not  appropriately charged at the time of sale. 

10. Payment. Foundation accepts the credit cards and/or other forms of  payment that are specified in the Consumers shopping experience portion of  Foundation’s website. 

11. Disputes. Should Customer wish to dispute any Foundation charge for  any reason (such as incorrect pricing, incorrect Products, failure to deliver Products,  etc.), Customer must notify Foundation of the dispute in writing within 60 days of the date the Order is accepted. Customer’s failure to notify Foundation of the dispute in  writing before the expiration of the 60-day period shall be deemed a binding  acknowledgment by Customer that (i) the charge is correct, and (ii) Customer has received delivery of all Products that are covered by the charge.

12. Standard Limited Warranty and Exclusive Remedy. 

a. Standard Limited Warranty. Foundation warrants that any  Manufactured Products that are sold to Customer will, on the date of their delivery to  Customer, (i) be new and undamaged and (iii) be merchantable and fit for the purposes  for which they are intended. This warranty does not cover normal color fading, or other  wear and tear of Manufactured Products or Distributed Products. 

b. DISCLAIMER OF ADDITIONAL WARRANTIES. EXCEPT AS SET  FORTH IN SECTION 12.a ABOVE, FOUNDATION MAKES NO WARRANTIES WITH  RESPECT TO ANY MANUFACTURED PRODUCTS, AND DISCLAIMS ALL  WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY DISTRIBUTED  PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF  MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. However,  nothing contained in this COTOS shall limit or affect any claims that Customer might  otherwise have against the manufacturers of any Distributed Products, whether under  any limited warranties offered by such manufacturers or otherwise. 

c. EXCLUSIVE REMEDY. IN THE EVENT OF ANY BREACH OF  EXPRESS OR IMPLIED WARRANTY BY FOUNDATION RELATING TO ANY  MANUFACTURED PRODUCTS FOUNDATION WILL REPAIR OR REPLACE THE  DEFECTIVE PRODUCTS OR, IF AGREEABLE TO BOTH PARTIES, REFUND THE  PURCHASE PRICE THEREOF. THIS SECTION 12.c SETS FORTH THE EXCLUSIVE  REMEDY FOR ANY BREACH OF EXPRESS OR IMPLIED WARRANTY BY  FOUNDATION. IN NO EVENT SHALL FOUNDATION BE LIABLE FOR LABOR, OR  FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF  INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR  EXCLUSION MAY NOT APPLY TO YOU. 

d. TERM OF WARRANTY. ALL WARRANTIES OF FOUNDATION,  WHETHER EXPRESS OR IMPLIED, COMMENCE ON THE DATE OF DELIVERY OF  THE PRODUCTS IN QUESTION TO CUSTOMER, AND EXPIRE SIX MONTHS  FOLLOWING SUCH DATE. FOUNDATION SHALL HAVE NO LIABILITY FOR  BREACH OF ANY WARRANTY, EXPRESS OR IMPLIED UNLESS FOUNDATION IS  PROVIDED WITH WRITTEN NOTICE OF THE BREACH DURING THE APPLICABLE  WARRANTY PERIOD. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW  LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT  APPLY TO YOU.

e. How to Make a Warranty Claim. To make a warranty claim under  this Section 12, contact the Foundation at Foundation’s corporate headquarters in Los  Angeles, California at 1-888-337-2468. 

f. Rights Under State Law. The warranty under this Section 12 gives  you specific legal rights, and you may also have other rights which vary from state to  state.

g. Returns. Nothing contained in this Section 12 shall limit or affect  Customer’s rights to return Products to Foundation pursuant to the terms of Section 6  above.

h. No Resale. Except to the extent expressly stated in a written  agreement entered into between Foundation and Customer, all Products that are sold to  Customer are sold for end-use by Customer and may not be resold, relabeled, or  repackaged. 

13. Governing Law. The laws of the State of California, without regard to  principles of conflicts of laws, shall govern this COTOS and any dispute that might arise  between Customer and Foundation. 

14. Disputes; Arbitration. 

a. Arbitration. Any controversy or claim arising out of or relating to  this COTOS, or the breach thereof, or to any sale of Products by Foundation to  Customer, shall be settled by arbitration administered by the American Arbitration  Association under its Commercial Arbitration Rules in the closest city with a population  of over 100,000 to the location where the Products in question were delivered to  Customer, and judgment on the award rendered by the arbitrator(s) may be entered in  any court having jurisdiction thereof. 

b. NO CLASS ACTIONS. CUSTOMER MAY ONLY RESOLVE  DISPUTES WITH FOUNDATION ON AN INDIVIDUAL BASIS, AND MAY NOT BRING  A CLAIM AS A PLAINTIFF, CLASS REPRESENTATIVE, OR CLASS MEMBER IN A  CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CUSTOMER ACKNOWLEDGES AND AGREES THAT CLASS ARBITRATIONS, CLASS ACTIONS,  PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER  ARBITRATIONS OR ACTIONS ARE NOT PERMITTED. 

c. NO JURY TRIAL. BOTH FOUNDATION AND CUSTOMER WAIVE  ANY RIGHTS THEY MIGHT OTHERWISE HAVE TO A JURY TRIAL. 

d. Time for Bringing Claims. Any claim or cause of action by  Customer that arises out of Customer’s purchase or use of the Products, this COTOS,  or the breach thereof, must be filed within one year after the date that such claim or  cause of action arose, or else that claim or cause of action will be permanently barred. 

15. Communications and Notices. 

a. Phone Communications. Customer’s telephone communications  with Foundation, including calls with Foundation’ customer service providers or  independent contractors, are routinely monitored and/or recorded. Customer expressly  consents, on behalf of Customer itself and other users of Customer’s phone number, to  being monitored or recorded. By providing Foundation with a mobile or other phone  number as part of Customer’s online ordering or registration or during a service call,  Customer expressly authorizes Foundation to contact Customer regarding Customer’s  Order or account, for non-telemarketing communications, via text message or  telephone, including the use of prerecorded or auto-dialed calls, using that number. 

b. Notices to Customer. Foundation may provide notice to Customer  under this COTOS by: (i) personal delivery, overnight courier, or first class, registered,  or certified mail addressed to Customer at the address that appears on Customer’s  Order or is otherwise provided to Foundation by Customer; or (ii) sending an email to  Customer. Customer agrees that Foundation may send emails to Customer using the e mail address that Customer provided to Foundation when placing Customer’s Order for  Products. Notices provided by personal delivery will be effective upon receipt by  Customer. Notices provided by overnight courier will be effective one business day after  they are sent. Notices provided by registered, certified, or first class mail will be effective  three business days after they are sent. Notices sent by e-mail will be effective when  Foundation sends the e-mail. It is Customer’s responsibility to keep Customer’s e-mail  address current. Foundation assumes no responsibility for issues resulting from e-mail  notification failures. 

c. Notices to Foundation. Customer may submit Orders to Foundation in the manner provided in Section 3 of this COTOS. Customer may provide  other notices to Foundation under this COTOS by personal delivery, overnight courier,  or registered or certified mail addressed to Foundation, 6119 E. Washington Blvd. Office 251m Commerce, CA 90040, Attention: Dunn-Edwards Foundation CEO. Foundation  may update the address for notices to it by posting a notice on its website. Notices  provided by personal delivery will be effective upon receipt by Foundation. Notices  provided by overnight courier will be effective one business day after they are sent.  Notices provided by registered or certified mail will be effective three business days  after they are sent.