General Terms and Conditions of Delivery SHW-SHS Inc. 09/2019

Section 1: General provisions  
1. SHW Storage & Handling Solution Inc. ("SHS") is offering for sale its products, equipment, gear and accessories (collectively and individually, the "Product(s)") identified herein, subject to the following exclusive terms and conditions of delivery (the "Terms and Conditions"). The Terms and Conditions set forth the legally binding terms with respect to the delivery of the Product(s). The Customer (as identified by purchasers of the Product(s) and/or services offered by SHS ("Customer"), in consideration of the mutual covenants, agreements and provisions set forth herein and hereon, hereby agrees that the delivery of the Product(s) offered by SHS shall be subject to and in accordance exclusively with the following terms and conditions.  
2. SHS’s offers are non-binding. Any documentation pertaining to an offer, including but not limited to illustrations, drawings, weights and measurements are estimates, unless expressly designated as binding. SHS reserves its rights in all information disclosed to Customer, including all information transmitted electronically. Any information received by the Customer may not be duplicated, reproduced or disclosed to third parties without SHS’s prior written consent.  
3. Performance under any agreement subject to export regulations shall be conditioned on SHS’s ability to obtain any permits required by local, state and federal regulations.  
4. SHS and the Customer (hereinafter sometimes referred to as “Party” or “Parties”) hereby agree that these Terms and Conditions shall govern and control the relationship between them, that the Terms and Conditions contained herein shall supersede the terms and conditions contained in a Customer-issued order, and that any deviation from these Terms and Conditions needs to be expressly agreed upon in writing by SHS and the Customer.    

Section 2: Scope of delivery and services  
1. SHS’s written order confirmation shall constitute acceptance between the Parties. Should the Customer accept an offer within a deadline set by SHS, the terms of SHS’s offer shall be binding, provided SHS does not confirm Customer’s acceptance in writing.  
2. Should the Customer request changes to the agreed upon terms and conditions, SHS may at its sole discretion accept such a request and charge additional fees for materials and labor.   

Section 3: Prices and payment   
1. Unless otherwise agreed upon in writing, the prices shall be EXW SHS or EXW supplier of SHS in accordance with ICC Incoterms latest edition, whereupon the risk of loss and right of possession of the Product(s) and responsibility for all transportation expenses shall pass to the Customer upon the Product(s) availability at SHS’s facility. Subject to SHS’s right to stop shipment of Products already in transit, any carrier shall be deemed to be acting for and on behalf of Customer regardless of the carrier used or the freight terms. Shipment will be made “best way,” either prepaid or collect, as requested by Customer. If Customer requests prepaid shipment, actual charges incurred shall be billed and shall be due and payable to SHS in accordance with SHS's regular payment terms. SHS will not assume any liability in connection with such shipment, nor shall any carrier be its agent. All shipping dates quoted or otherwise agreed to by SHS are estimates only. SHS will use its best efforts to meet scheduled dates, but assumes no liability for failure to do so. The prices are stated net of all applicable taxes. Wherever applicable, any taxes, including but not limited to federal, state and local taxes, and excises, and/or other governmental charges will be added to the invoice as a separate charge to by paid by the Customer.  
2. Unless otherwise agreed upon in writing, payments are to be made without deductions as follows:  
- 30 % of the contract price upon execution of an agreement between SHS and Customer;  
- 30 % upon the time SHS declares that the item to be delivered and/or a material part thereof is ready for shipping from the place of production (The Product will be shipped shall be effected upon receipt of payment);  
- 30 % upon receipt of the Product by the Customer;  
- 10% within one (1) month upon the transfer of risk.  
3. No discount shall be deducted unless expressly agreed upon in writing.  
4. The Customer shall not be entitled to withhold payment or set off payments.  
5. SHS reserves its right at any time when, in its sole opinion and discretion, Customer’s financial condition or other circumstances warrants it to withhold delivery until payment is made or until sufficient security was provided. 

Section 4: Delivery period; Delay  
1. The delivery period shall be defined in the agreement between the Parties. SHS is only able to comply with such stipulated delivery period if all commercial and technical issues were resolved and the Customer fulfilled all obligations, including but not limited to obtaining all necessary official certificates or permits or making a down payment. Failing this, the delivery period shall be prolonged by a reasonable period of time. However, this shall not apply if SHS is responsible for such delay.  
2. The delivery period shall be subject to SHS’s receipt of any required materials and/or information. SHS shall inform the Customer of any delay within a reasonable time period.  
3. The delivery period shall be deemed complied with if - as of the time the term of delivery expires - the item to be delivered left SHS's production site or the Customer has been informed that the item is ready for be shipped.  
4. SHS shall not be liable if delivery is impossible or delayed to the extent such impossibility or delay is caused by force majeure or any other events not foreseeable at the time the contract was concluded (including but not limited to interruption of operations of any kind, difficulties in the procurement of material or energy, transport delays, strikes, rightful lockouts, lack of workforce, energy or raw materials or failure by sub-suppliers to deliver, to deliver correctly and/or to deliver in due time) and to the extent such impossibility or delay is not attributable to SHS. Should SHS’s ability to effect deliveries or services be materially impeded or even rendered impossible by such events, and such impediment is not of a merely temporary nature, SHS shall be entitled to rescind any agreement between SHS and the Customer. If such impediments are of a temporary nature, the periods of delivery or service shall be prolonged and/or dates of delivery and service shall be postponed, in each case by a period of time which corresponds to the duration of such impediment plus a reasonable lead time.  
5. SHS reserves its right to partially ship any Product(s), as long as delivery of these parts of the Product can be utilized by the Customer, the delivery of the remaining parts of the Product is ensured, and the Customer won’t incur any substantial additional expense or labor.    

Section 5: Place of performance, delivery, acceptance, transfer of risk  
1. Either Party may request an official inspection of the Product. Both Parties accept the results of an inspection, if neither Party notifies the other Party of any issues within twelve (12) days of the inspection. Should no inspection be request, Customer’s accepts the Products after five (5) working days of usage, unless agreed otherwise by both Parties in writing.  
2. Should the Parties agree to perform an official inspection, SHS shall inform the Customer of the date of inspection, in order to allow the Customer to be present. Should the Customer not be present during the inspection, SHS will provide a protocol of the inspection. Customer may not challenge the correctness of the inspection protocol. Any usage of the Product upon completion of the inspection protocol shall be deemed acceptance.  
3. Customer may not refuse acceptance due to minor defects. If reasonable, SHS may provide services to rectify any minor defects.    

Section 6: Retention of title; Collaterals  
1. The delivered Product shall remain SHS’s property until complete payment by Customer of all of SHS’s pending claims. Should the Customer fail to pay outstanding balance on time, SHS may charge interest of five percent (5%) above the base rate. Re-sale of the Products to third parties by the Customer shall require SHS’s prior written approval. In the event of a re-sale by the Customer, Customer hereby assigns any claims to SHS.  
2. The Customer shall be obliged to treat the Product with care until the end of the warranty period. Customer shall obtain an insurance policy against theft, damage, destruction or accidental loss (in particular, fire and water) of the Product, and to provide evidence in support thereof upon SHS’s request. To the extent maintenance and inspection work is necessary, the Customer shall ensure performance of any required work within due time and at its own expense and/or request SHS to perform any required work at the Customer’s expense.  
3. The Customer shall be entitled to resell the Product in the Customer’s ordinary course of business. However, the Customer shall assign to SHS all receivables from the resale of the Product up to the amount of the final invoice (including all applicable taxes). The Customer shall collect the aforementioned receivables, unless Customer fails to meet the requirements set forth under these Terms and Conditions. Should Customer fail to meet the requirements set forth herein, SHS may collect any receivable directly from the third party.  
4. The Customer may only process or remodel the Product on behalf of SHS. Should the Customer process or remodel the Product with non-SHS materials, SHS shall acquire co-ownership in the newly created product on a pro rata basis calculated based on the value of the Product (final invoice amount including all applicable taxes) and the non-SHS materials.  
5. Should the Product be inseparably combined with a non-SHS product, SHS shall acquire co-ownership in the newly created product on a pro rata basis calculated based on the value of the Product (final invoice amount including all applicable taxes) and the non-SHS materials. Should the combined product be deemed a completely new product owned by the Customer, the Customer shall transfer ownership in this new product on a pro-rata basis to SHS.
6. The Customer shall assign to SHS any receivables from third parties arising out of combining or attaching the Product with a real property or part thereof.    

Section 7: Warranty Terms  
All Products offered by SHS are warranted to the original purchaser of the Product(s) ("Purchaser") to be free from defects in workmanship and materials for a period of twelve (12) months from the date of installation. During the term of the warranty, SHS, at its sole discretion, will either replace any Product(s) or part(s) thereof which prove to be defective in material and workmanship or remove the defect from any of the aforementioned Product(s) or parts(s). Minor deviations shall not be deemed a defect in accordance with the industry standards. 

Section 8: Warranty Terms  
1. Enforcement of Warranty Notice: The Purchaser shall notify SHS in writing of any defects in the Product(s) that the Purchaser has detected and requires to be corrected under this warranty. Such notice shall be made without delay, but in any case within ten (10) days of detecting the defect and during the term of the warranty. The notice shall contain a description of the defect and a description of the probable cause of it if available. Remedy: If, after appropriate tests and inspections by SHS, the Product(s) or a part thereof is found to have defects that fall within this Warranty, exclusive remedy shall be made, at the sole option of SHS, by either repairing the defects or faults, or by supplying the respective correct Product or part to the Purchaser. Either SHS or the Purchaser or a third party shall perform repairs, at SHS's discretion.  
2. Precondition for Warranty Handling Exclusions: Excluded from the Warranty are, and SHS shall have no responsibility for, damage of any kind as a result of one of the following events: the repair and replacement of the Product(s) or any part thereto due to normal wear and tear, vandalism, accidents, negligence, or otherwise without any fault of SHS; repairs, alterations or adjustments to the Product(s) performed or originated by the Purchaser or any third party without SHS's prior written consent; unsuitable raw or working materials have been used when operating the Product(s); unreasonable use, misuse, abuse, accident, alteration, modification, neglect, lack of maintenance, or use after the Product(s) is significantly worn. The Warranty described above applies only to Products manufactured by SHS.  
3. Defective Part(s) Transportation: The Purchaser shall bear the cost and risk of transport of defective Product(s) or any part thereof to SHS's facility, while SHS shall bear the cost and risk of transport of repaired or replacement Product(s) or any part thereof to the port of destination. SHS will pay for the ocean/ground freight using the same method of transportation and port of destination than for the original shipment. SHS will not be responsible for additional duties charged for bringing a shipment of "warranted item" into any country and SHS will not refund duties already paid by the Purchaser for the defective Product(s) or any part thereof. Defective Part(s) and their Return: At SHS's request, defective part(s) replaced in accordance with this warranty shall be placed at the disposal of SHS. Any defective part(s) shall not be returned without authorization of SHS.  
4. Payments due by the Purchaser Monies Due: Any monies due to be paid by the Purchaser to SHS shall be paid in full, and SHS shall credit the Purchaser for any warranty claims separately, if necessary. Deductions: Should the Purchaser make any deductions, SHS shall immediately be discharged from the performance of its obligations under this Warranty until the Purchaser has paid SHS such deduction in full.  
5. Other Exclusions All claims beyond those allowed in these Terms and Conditions for any loss or damage from whatever cause arising, including damage to the Purchaser's property, shall be excluded and hereby waived by the Purchaser unless such claim is made based on intentional bad acts or gross negligence by the owner or executives of SHS. In such case, damages shall be limited to those that are reasonably foreseeable as a result of the intentional bad acts or gross negligence.  
THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESSED OR IMPLIED, AND THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE AND ALL OTHER WARRANTIES ARISING FROM THE COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY EXCLUDED. THE REMEDIES PROVIDED HEREIN ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY FAILURE BY SHS TO COMPLY WITH ITS WARRANTY OBLIGATIONS. CORRECTION OF THE NONCONFORMITIES IN THE MANNER AND FOR THE PERIOD OF TIME PROVIDED HEREIN SHALL CONSTITUTE COMPLETE FULFILLMENT OF SHS 'S OBLIGATIONS REGARDING DEFECTIVE PRODUCT(S), WHETHER THE CLAIMS BY THE CUSTOMER ARE BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.

Section 9: Limited Liability  
SHS will not be liable to Customer under these Terms and Conditions, whether in contract, in tort (including negligence) under any warranty or otherwise for any special, indirect, incidental or consequential loss or damage, or loss of profits or revenues even if SHS has been advised of the possibilities of such damages. The remedies set forth in these Terms and Conditions are exclusive, and SHS’s liability for damages to the Customer for any cause whatsoever, including performance or non-performance by SHS or Product(s) provided hereunder, regardless of the form of the action, under any warranty or otherwise will be limited to the remedies provided therein.    

Section 10: Use of software  
1. Some Product may require access to software (the “Software”). Customer shall receive a non-exclusive license to use such software as is required. Such Software shall only to be used together with the related Product. The software must not be used on more than one system or plant.  
2. All other rights to the Software and documentation including any copies thereof shall remain with SHS and/or with the software supplier. The Customer may not grant sub-licenses to the provided software.  
3. Should there be an issue with the Software, Customer shall prove existence and source of such a defect. SHS or a designated third party may repair any defects to the Software. SHS shall determine the method of repairing any defects. Any cost resulting from request exceeding SHS’s determination, shall be borne solely by the Customer. SHS shall not liable for any damages caused by the Software in accordance with Section 9 herein.  
4. Customer shall pay for any expenses arising out of an unproven defect to the Software or any defect caused by an unauthorized modification and/or usage of the Software.    

Section 11: Cancellation or Postponement by Customer  
Orders accepted by SHS may not be canceled and shipments may not be postponed except by written notice to SHS. In the event Customer cancels or postpones an order(s) or any part thereof, SHS’s standard cancellation or postponement charges will apply.    

Section 12: Default  
(a) Any of the following will constitute an act of default hereunder. Customer:
i. is or becomes insolvent or a party to any bankruptcy or receivership proceeding or any similar action, including, but not limited to, deterioration of Customer’s credit rating or standing, affecting the financial condition or property of Customer and such proceeding has not been dissolved within 30 days;
ii. makes a general assignment for the benefit of creditors; or  
iii. ceases doing business in the normal course.  
(b) In the event an act of default occurs, SHS shall have the right to and may elect any or all of the following remedies, which shall be cumulative and not exclusive:  
i. Declare the particular order, out of which the default arises, to be immediately terminated;
ii. Declare, at its option, all charges incurred but unpaid relative to the order to be immediately due and payable;
iii. Exercise any or all remedies specified in these Terms and Conditions or any supplement associated herewith; and  
iv. Pursue each and every remedy available at law or in equity.    

Section 13: Governing law; jurisdiction  
These Terms and Conditions and any order accepted hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Georgia, exclusive of its conflict of laws provisions.    

Section 14: Arbitration  
Except as provided below, the Parties agree to submit any disputes relating to these Terms and Conditions and the purchase of Product(s) to arbitration, applying the American Arbitration Association Rules for Commercial Disputes. The proceedings shall be held in Atlanta, Georgia, be in English, and any award shall be enforceable in any court of competent jurisdiction according to the laws of the state of Georgia and the United Nations Convention for the Enforcement and Recognition of Arbitral Awards unless the nature of the dispute is suitable to injunctive relief thereby affording a party the right to pursue redress in court without proceeding to arbitration. Any dispute arising under these Terms and Conditions that cannot be arbitrated as provided herein shall be brought only in a court of competent jurisdiction in Fulton County, Georgia, USA, with the Parties waiving any defense of venue, personal jurisdiction, and jury trial.

Section 15: Assignment  
Customer shall not delegate any duties or assign any rights or claims under these Terms and Conditions without SHS's prior written consent, and any such attempted delegation or assignment shall be void.    

Section 16: Compliance with Laws  
These Terms and Conditions and all Product(s) purchased hereunder are subject to all laws, regulations, orders or other restrictions that may now or hereafter be imposed by the government of the United States or any agency thereof, including but not limited to all regulations relating to the sale, export, re-export or redistribution of equipment.    

Section 17: General  
(a) If any of the provisions of these Terms and Conditions are found invalid or unenforceable under any applicable statute or rule of law, such provisions are, to that extent, deemed omitted, but these Terms and Conditions and the remainder of its provisions shall otherwise remain in effect.  
(b) No provision of these Terms and Conditions shall be deemed waived, amended or modified by either Party, unless such waiver, amendment or modification is in writing and signed by the Parties.  
(c) The waiver of one default under these Terms and Conditions shall not be deemed a waiver of subsequent or similar defaults.  
(d) Each order under these Terms and Conditions shall be treated as a separate contract and default by either Party arising out of a particular order shall not constitute or be deemed to constitute a default of any other order or these Terms and Conditions itself.  
THESE TERMS AND CONDITIONS SHALL SUPERSEDE AND TAKE PRECEDENCE OVER ALL PROPOSALS, CUSTOMER PURCHASE ORDERS OR ANY OTHER WRITTEN OR ORAL COMMUNICATIONS BETWEEN THE PARTIES, EXCEPT AS OTHERWISE PROVIDED HEREIN. RECEIPT BY THE CUSTOMER OF PRODUCT(S) HEREUNDER SHALL BE DEEMED CONCLUSIVE EVIDENCE OF CUSTOMER’S AGREEMENT THAT THE PURCHASE, USE AND POSSESSION OF PRODUCT(S) IS GOVERNED EXCLUSIVELY BY THESE TERMS AND CONDITIONS.