Terms and Conditions of Sale

NOTICE: ALL TRANSACTIONS BETWEEN SHD COMPOSITE MATERIALS INC., A NORTH CAROLINA CORPORATION (“SHD US”) AND CUSTOMER (“CUSTOMER”), AND ALL DOCUMENTS PERTAINING TO SUCH TRANSACTIONS ARE SUBJECT TO AND CONDITIONED UPON THESE TERMS AND CONDITIONS OF SALE (“TERMS”), AND THESE TERMS ARE INCORPORATED BY REFERENCE INTO AND ARE A PART OF ALL TRANSACTIONS BETWEEN SHD US AND CUSTOMER, INCLUDING ANY SUBSEQUENT OR FUTURE TRANSACTIONS BETWEEN SHD US AND CUSTOMER.  NO TERM CONTAINED IN ANY CUSTOMER CORRESPONDENCE OR ANY SALES DOCUMENTS ISSUED BY CUSTOMER, OTHER THAN CUSTOMER'S ACCEPTANCE OF THESE TERMS, SHALL BECOME A PART OF THE TRANSACTION BETWEEN THE PARTIES OR BIND SHD US.

1.   Order Process; Acceptance; Additional or Conflicting Terms.

(a)  “Sales Documents” include any quotation, proposal, statement of work, service request, order confirmation, order acceptance and invoice issued in writing and signed (including via email or electronically) by an authorized representative of SHD US. Customer’s purchase of Products (defined below) from SHD US, and any Services (defined below) SHD US provides, will be governed solely by these Terms and any applicable Sales Documents issued by SHD US in connection with such Products or Services (collectively, the “Contract”). In no event will Customer’s terms in any purchase order, service request, commercial document, website, communication or otherwise apply to, nor will Customer’s proposed additional or different terms modify, a Contract unless SHD US expressly accepts Customer’s specific terms in writing by including such specific terms in the Contract. SHD US hereby objects to and rejects any additional or different terms or conditions proposed by Customer or contained in any purchase order, statement of work, service request, commercial document, Customer’s website or other correspondence from Customer, regardless of any knowledge SHD US may have of such terms, and such terms will not bind SHD US or be applicable to the transaction (even if Customer’s purchase order is referenced in the Sales Documents). If any of these Terms conflict with the Sales Documents, the specific terms in the applicable Sales Documents will prevail over these Terms to the extent of such conflict. The applicable terms of any revised or later Sales Document will control over such terms in a prior, similar Sales Document. No other terms or changes, modifications, amendments or waivers of any terms in a Contract will apply to SHD US unless in writing and signed by an authorized representative of SHD US. 

(b)  All sales of products, including Processed Composite Materials (defined below), and any other goods sold by SHD US (individually, “Product” and collectively, the “Products”) are subject to final written acceptance in North Carolina by SHD US and no orders are binding on SHD US until so accepted.  All sales of Products  and any services performed by SHD US, including manufacturing or tolling services (collectively, “Services”) are contracts entered into in North Carolina and then only in accordance with the Sales Documents. 

(c)  SHD US will sell Products and provide Services to Customer in the quantities and at the times set forth in the Sales Documents. Customer may order Products by submitting written purchase orders that reference Product(s), quantity per Product, and requested delivery date. All orders and requests submitted to SHD US for Products or Services are subject to acceptance by SHD US and only the terms of the Sales Documents will apply. SHD US’ acceptance may be in writing (such as via an order confirmation), including electronically or via email, or by delivery of Products to Customer or performance of Services for Customer.

(d)  Customer may not cancel or change a Contract except with the prior written consent of SHD US. SHD US shall have the right to make any changes to the Products or Services which are necessary to comply with any applicable law or safety requirement or which do not materially affect the nature or quality of the Services or the Products. SHD US may change a Sales Document at any time to correct mathematical or clerical errors.   

2.  Price; Payment.

(a)  All prices for Products and Services will be as stated in writing by SHD US in the Sales Documents and, prior to SHD US’ written acceptance of an order, prices are subject to change by SHD US at any time without notice. If no price has been stated in the Sales Documents, the price will be SHD US’ standard price in its catalogs or price lists in effect at the time of delivery or performance, and as increased to account for costs of changes or modifications to the Products for the particular Contract.  Unless expressly stated otherwise in the Sales Documents, all prices must be in writing and are in U.S. dollars.  Customer will also reimburse SHD US for all reasonable travel and out-of-pocket expenses incurred by SHD US in connection with the performance of Services.

(b)  Unless expressly stated otherwise in the Sales Documents, prices for Products shall assume delivery is made Ex-Works (EXW -  Incoterms 2020) the facility stated by SHD US on the Sales Documents, excluding standard packing, handling, shipping, transportation or other in-transit costs.

(c)   Unless expressly stated otherwise in the Sales Documents, the prices do not include any sales, use, revenue, personal property, excise, privilege, transfer, VAT or other taxes or governmental charges, nor any tariffs, duties or assessment, arising out of or related to Products, Services or their respective purchase and sale which may be imposed by any governmental authority, all of which will be the obligation of, and paid by, Customer. If SHD US pays any such tax, duty or assessment, or inspection fees, or shipping and handling fees, Customer will reimburse SHD US in accordance with the terms of Section 2(e) below. Customer is responsible for obtaining and providing to SHD US any certificate of exemption or similar document required to exempt any sale from sales, use or similar tax liability.

(d)  The prices of Products are based on the approximate delivery times and schedules stated in the Sales Documents.  In the event that, between the date of the order on the Sales Documents and the date of delivery of the Products, there is an increase in cost to manufacture and/or deliver the Products for any reason, then, unless expressly stated otherwise in SHD US’ Sales Documents, Customer agrees that SHD US may add the amount of such increase  to the price of the Products or SHD US may cancel the Contract.  Further, should there be changes adverse to SHD US in currency fluctuations with the country in which Products are manufactured, import duties or transportation costs affecting the Products or price between the date of a Contract and the date of delivery of the Products, SHD US may adjust the price to be paid by Customer for Products and may add the amount by which currency rates, duties and transportation costs change (including shipping, insurance, demurrage and detention charges).

(e)  Unless expressly stated otherwise in the Sales Documents, payment terms are cash on, or prior to, delivery of Products.  Customer shall timely pay all amounts due in full, and without deduction or setoff regardless of any dispute that may arise between Customer and SHD US, without discount for shipping or other transfer, regardless of any dispute or controversy that may arise. Any required down payment or other prepayment are nonrefundable, but will be applied to the purchase price.  Customer shall make all payments under a Contract by wire transfer, cash, credit card, check, or such other payment method as SHD US may state from time to time and in U.S. Dollars. Customer is responsible for all credit card fees, foreign exchange, wire transfer and other bank fees. The date of payment will be the date SHD US receives payment in full. If at any time, in its sole discretion, SHD US has any doubt or concern as to Customer’s financial standing, solvency, creditworthiness or ability to perform its obligations, SHD US may decline to make shipments and terminate a Contract (in whole or in part) or perform Services, except upon receipt of a deposit or other satisfactory security or advance payment shipment. Customer shall not withhold, offset or recoup any amounts it owes to SHD US under a transaction, Contract, or otherwise against any other amount Customer claims SHD US owes to it, regardless of any dispute that may arise between the parties. SHD US may, in its sole discretion, apply payments by Customer to the oldest invoice first and in the following order: accrued costs, accrued interest, price for Products. If Customer and SHD US agreed on issuing a letter of credit by Customer in favor of SHD US, such letter of credit shall be irrevocable, extendable, and confirmed by a clearing bank or such other bank reasonably acceptable to SHD US. Withdrawal of funds shall be against invoice and bill of lading or warehouse receipt.

(f)   If Customer fails to make any payments as and when due or otherwise defaults, then (i) interest will accrue from the date the payment was due until payment is received in full at the lower of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law; and (ii) SHD US may take any or all of the following actions: (1) suspend performance under the applicable Contract or any other Contract with Customer; (2) terminate the applicable Contract for default or any other Contract with Customer; (3) require Customer to pay the full Contract price and any interest, fees, taxes, or assessments and other charges immediately; and (4) take any other actions or pursue any other rights or remedies.  To the extent allowed by applicable law, Customer will further reimburse SHD US for all costs incurred in collecting any late payments or overdue amounts, including attorneys’ fees and expenses, and any amounts paid by Customer shall first be applied against interest accrued, then against collection costs and finally to the Products purchased. Failure by SHD US to charge interest on late payments or to exercise its other rights and remedies will not be construed as a waiver of any other legal or equitable remedies.   

3.   Delivery.

(a)  Unless expressly stated otherwise in SHD US’ Sales Documents, all deliveries of Products are Ex-Works (EXW - Incoterms 2020) SHD US’ facility located in Mooresville, North Carolina, or such other location as designated by SHD US in the Sales Documents (“Delivery Point”). Unless expressly stated otherwise in SHD US’ Sales Documents, Customer will take delivery of Products when Products have been made available at or delivered to the Delivery Point. Delivery shall be deemed to have been completed at 9:00AM EST on the third business day following the day on which SHD US notified Customer that the Products were ready for pickup at the Delivery Point, unless Customer acquires physical or constructive possession of the Products prior to such previously stated time, wherein such Products shall be considered delivered as of the time Customer acquires physical or constructive possession (“Delivery Date”).  All risk of loss of Products shall pass to Customer when SHD US delivers the Products Ex-Works (EXW - Incoterms 2020) or such other delivery terms stated by SHD US on the Sales Documents. Delivery and performance are conditional on the timely receipt by SHD US of all information and documents necessary for the completion and proper execution of the order, any required down payments or periodic payments, and subject to SHD US’ confirmation.

(b)  Unless expressly stated otherwise in SHD US’ Sales Documents, the prices do not include any transportation, insurance, installation, training setup, storage or packaging costs and Customer is responsible for all such costs. SHD US may make partial or early deliveries.  Notwithstanding any requested delivery dates by Customer, the delivery date in SHD US’ order confirmation will control.  Any shipping or delivery schedule, quotation, forecast or commitment is only an estimate and SHD US will not be liable for any delay or failure to deliver all or any part of any order for any reason.  SHD US shall not be liable for any delay in the delivery of Products caused in whole or part by a supplier, contractor or agent of SHD US; by a Force Majeure event; or by Customer or its affiliates, suppliers, contractors or agents, including requests for modifications to any Contract, or Customer’s failure to provide SHD US with adequate delivery instructions, or any other instructions that are relevant to the design, production or delivery of Products.  SHD US will not be responsible for any damage to Products caused by a common carrier or shipping company and Customer’s sole recourse for such damage will be against the carrier.  If Customer does not take delivery of the Products within five (5) business days after SHD US notified Customer that the Products are ready for pickup at SHD US’ facility, SHD US may, at its sole discretion, store the Products at Customer’s sole risk of loss until Customer picks the Products up, and Customer shall be liable for all related costs and expenses (including storage and insurance).  All Product deliveries from SHD US to Customer are subject to and conditioned on SHD US’ receipt of Products or materials from its suppliers.  Should the fulfilment of the Contract be delayed or become impossible due to the delay or failure of SHD US’ supplier(s), vendors, contractors or agents, Customer shall not be entitled to a claim against SHD US for damages or for any other reasons.

4.   Toll Manufacturing Services.  In connection with the sale of certain Products, SHD US may provide certain manufacturing Services as specified in Sales Documents.

(a)  “Processed Composite Materials” means the composite material produced by the SHD US following the performance of Services with fabric or fiber provided by Customer and resin provided by either Customer or SHD US, as specified in Sales Documents. 

(b)  SHD US shall have the right to cease providing Services immediately and without liability in the event SHD US determines, at its sole discretion, that the fabric, fiber or resin supplied by Customer are not fit for their intended purpose or do not conform with any data, information or specifications provided by Customer to SHD US.

(c)  Unless otherwise specified in Sales Documents, in the event that SHD US provides the resin for the production of Processed Composite Materials, SHD US warrants that at the time of delivery of the Processed Composite Materials, the resin element of the Processed Composite Materials shall conform in all material respects with any written specifications applicable to that resin. In the event that the resin fails to comply with such specifications, SHD US’ liability shall be limited to refunding to Customer the price for the Services supplied in relation to that part of the Processed Composite Materials which incorporates the defective resin.

5.   Acceptance.

(a) Customer shall inspect all Products and Services immediately upon their delivery or performance, and prior to use or resale. Immediately and no later than five (5) days after delivery of a Product or completion of a Service, Customer must give written notice to SHD US of any claim Customer makes, based upon the condition, grade, patent defects in or quantity of Products or Services provided, and such notice must indicate the basis of the claim in detail, state the invoice number, invoice date, and information, such as a serial number, on the Product itself or the Product label or packaging. Customer shall not be entitled to reject or return the Products if SHD delivers up to and including 5% more or less than the quantity of Product ordered by Customer pursuant to the corresponding SHD order confirmation, and SHD shall make a pro rata adjustment to the corresponding invoice on receipt of written notice from the Customer,  and evidence satisfactory to SHD in its sole discretion, that the wrong quantity of Products was delivered. Customer’s failure to comply within the time specified in this Section 5 constitutes Customer’s irrevocable acceptance by Customer of Products delivered or Services provided and will bind Customer to pay to SHD US the full price of such Products or Services. Products sold will not be returned without SHD US’ prior written consent and then only Delivery Duty Paid (DDP - Incoterms 2020) SHD US’ facility located in Mooresville, NC, plus a restocking fee equal to 15% of the Contract price of the Products returned, and in accordance with SHD US’ then current return policies (for example, the Products have to be in their original and undamaged packaging, sealed and unopened, and Customer may be required to include the original packaging slip).  Customer shall pre-pay any other transportation charges for any authorized returns of Products.

(b) Customer acknowledges and agrees that custom Products manufactured for Customer pursuant to the Sales Documents must be purchased by Customer and cannot be returned. In the event Customer does not request shipment of such custom manufactured Products within fifteen (15) days after the manufacturing date, SHD US is authorized by Customer to ship and invoice Customer for such custom manufactured Products, and Customer shall pay for such Products in accordance with the Sales Documents.

(c) Customer shall follow any instructions, recommendations and limitations that SHD US gives with respect to the use, application, handling  and storage of Products. Customer assumes all risk of injury to persons and property arising out of or related to its failure to follow instructions, recommendations and limitations of SHD US and all resulting problems with the performance of the Products.

6.   Limited Warranty. 

(a)  Subject to the provisions in these Terms and in the Sales Documents, SHD US warrants that (i) when Products are delivered to Customer, Products will materially comply with SHD US’ published specifications for such Products, if any, as of the date of the Sales Documents and be free from material defects in material and workmanship; and (ii) when Services are performed, Services will have been performed using personnel of required skill, experience, and qualifications and in a workmanlike manner in accordance with generally recognized industry standards for similar services. The warranties provided in this Section 6 are hereinafter referred to collectively as the “Limited Warranty.” The Limited Warranty will apply for a period of twelve (12) months after the delivery date of a Product and for thirty (30) days after the completion of Services (“Limited Warranty”). Unless expressly stated otherwise in the Sales Documents, the Limited Warranty shall expire on the earlier of twelve (12) months after the Delivery Date  of a Product, (ii) immediately upon Products being cut or otherwise processed by Customer or any third party, or (iii) thirty (30) days after completion of Services (each, a “Warranty Period”). The Limited Warranty is conditioned upon Customer following the claims process outlined in Section 8 below, which SHD US may change from time to time. This Limited Warranty extends to Customer only, and not to any resale customer of Customer or end consumer,  and is non-transferable. In the event a Product is processed by Customer, or incorporated into other products, goods or materials, or resold by Customer, Customer shall be solely responsible for any and all warranties and other claims resulting from such actions and for any representations or warranties made by Customer to its customers and any end-customers regarding such Customer products. Customer will not refer to SHD US or the Limited Warranty, in any manner in connection with its resale of Products. Customer has tested the Products and is solely responsible for proper selection of Products as well as for their intended use, application and processing, and Customer has tested Products or otherwise determined their suitability for Customer’s intended use.  As such, Customer should not rely on SHD US to ensure that the Products purchased will meet any standards or specifications. 

(b)  From time to time, SHD US or its affiliates may provide certain supplemental information to Customer regarding the use or application of the Products. Customer acknowledges and agrees that any such supplemental information furnished by SHD US to Customer is provided on an “AS IS” basis and does not constitute any specifications, representations, warranties, or guarantees, implicitly or explicitly (“Supplemental Information”). Customer further acknowledges that any depictions, statements, claims, advertising, Supplemental Information, trials, projections, diagrams, samples, drawings, illustrations, and other descriptions or other information from SHD US or its affiliates, applicable to Products, Services, or a Contract, whether included in catalogs, datasheets or otherwise, are descriptions or approximations only, and do not constitute any specifications, representations, warranties, or guarantees, implicitly or explicitly.    

(c)   No employee, dealer, distributor, sales representative, or any other person or entity is authorized to offer any different or additional warranties or remedies, or to change the Limited Warranty, without the signature of an authorized officer of SHD US.  No descriptions, representations and other information or claims made by an employee, dealer, distributor, sales representative, or any other person or entity affiliated with SHD US are binding on SHD US.    

(d)  EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY PROVIDED IN THIS SECTION 6, SHD US MAKES NO REPRESENTATIONS OR WARRANTIES, STATUTORY OR OTHERWISE, REGARDING OR RELATING TO PRODUCTS, SERVICES OR ANY CONTRACT, AND SHD US DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO PRODUCTS AND SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

7.   Limited Warranty Exclusions. The Limited Warranty does not cover: (a) components, ingredients and materials not manufactured by SHD US, which will be subject only to any transferable warranty the manufacturer of such product may issue; (b) damage to Products during or after delivery; (b) normal wear and tear or items that are expendable; (c) user error; (d) use under circumstances or resale for uses exceeding SHD US’ specifications or limitations or contrary to any instructions or information from SHD US; (e) unauthorized use, or unauthorized or improper application, installation, repair, modification or alteration; (f) improper storage or handling under the required conditions and temperature; (g) defects or failures of Products sold arising from, in whole or part, based on Customer’s instructions, Supplemental Information, recipes, design, plans or other non-SHD US specifications; (h) any warranties or representations given by Customer on resale of Products; (i) Processed Composite Materials, (j) abuse or  accidents; (k) chemical, electrochemical or electrical influences; or (l) damage caused by natural calamities. The Limited Warranty on the Products is subject to marginal, technically unavoidable discrepancies in quality, color, breadth, touch, size, weight or design, and slight, unavoidable differences including quality, color, width, handling, weight, equipment or design do not confer any right of Customer to make a Warranty Claim. Customer shall be solely responsible for the correct use, application, and circumstances in which SHD US’ Products are used, modified or applied, alone or in conjunction with other products.

8.   Customer’s Limited Warranty Claims. Customer must give SHD US detailed written notice of any Products or Services which Customer alleges do not conform to the Limited Warranty, stating the alleged non-conformities (each, a “Warranty Claim”). Any Warranty Claim must be made within fifteen (15) days after Customer is aware of the alleged non-conformity and, in any event, within the Warranty Period. The Limited Warranty expires when, and no claims may be made after, the Warranty Period ends. Customer will follow SHD US’ then current Warranty Claims process. At SHD US’ request, Customer will allow SHD US access to the Products to inspect the Products and evaluate the alleged non-conformity and, upon request of SHD US, will return, at Customer’s expense, any alleged non-conforming Product to a location designated by SHD US for SHD US to evaluate and verify the alleged non-conformity. For any Products that SHD US determines do not conform to the Limited Warranty, SHD US’ sole liability and obligation, and Customer’s sole and exclusive remedy, will be, at SHD US’ choice, in its sole discretion and within a reasonable time, to repair or replace such non-conforming Product, or to refund the purchase price for such non-conforming Product. This Limited Warranty does not cover any allegedly defective Products if SHD US is not permitted to inspect such Products. These Terms shall apply to any repaired or replacement Products supplied by SHD US (but, for the avoidance of doubt, the Warranty Period shall not be renewed or extended as a result of the provision of repaired or replacement Products). In the event SHD US determines that any Products are not covered by this Limited Warranty, Customer shall pay all of SHD US’ expenses for inspection, handling, repair and replacement. For any Services which do not conform to the Limited Warranty, SHD US’ sole liability and obligation, and Customer’s sole and exclusive remedy, will be, at SHD US’ choice, to correct or repeat such Services.

9.   Limitation of Liability.

(a)  SHD US’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO A CONTRACT, OR PRODUCTS, OR SERVICES, OR THE USE (OR INABILITY TO USE) ANY PRODUCTS OR SERVICES, WHETHER IN WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AMOUNT CUSTOMER PAID TO SHD US FOR THE PARTICULAR PRODUCTS OR SERVICES AT ISSUE.

(b)  IN NO EVENT WILL SHD US OR SHD US’S AFFILIATES BE  RESPONSIBLE FOR ANY LOSS, LIABILITY, INJURY OR DAMAGE ARISING OUT OF OR RELATING TO (I) CUSTOMER’S DETERMINATION AS TO THE SUITABILITY OR FITNESS OF THE PRODUCTS OR SERVICES FOR A PARTICULAR PURPOSE, OR (II) THE USE OR APPLICATION OF THE PRODUCTS OR SERVICES, ALONE OR IN CONJUNCTION WITH OTHER PRODUCTS, OR (III) THE NEGLIGENCE OR WILLFUL MISCONDUCT OF CUSTOMER, OR (IV) FROM DEFECTS OR DEFICIENCIES IN CUSTOMER’S OTHER EQUIPMENT. 

(c)   IN NO EVENT WILL SHD US OR SHD US’S AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, WHETHER ARISING FROM THE SALE OF THE PRODUCTS, THE APPLICATION AND/OR USE OF ANY PRODUCTS, ANY TRAINING, ANY SERVICES, ANY DEFECT IN THE PRODUCTS, ANY NON-CONFORMITY WITH WARRANTIES, ANY USE OR INABILITY TO USE THE PRODUCTS, OR OTHERWISE, REGARDLESS OF THE THEORY OF RECOVERY, EVEN IF SHD US HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL SHD US OR SHD US’S AFFILIATES BE LIABLE FOR DAMAGES TO GOODS OR MATERIALS TREATED, COVERED, PROCESSED IN OR HANDLED WITH THE PRODUCTS.  THESE TERMS CONTAIN CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES RELATING TO THESE TERMS, A BREACH OF THESE TERMS, THE SALES DOCUMENTS, OR THE PRODUCTS, REGARDLESS OF THE THEORY OF RECOVERY.

10.  Indemnity.

(a) Customer agrees to indemnify, defend and hold harmless SHD US and its affiliates, and their respective officers, directors, employees and agents, from and against any and all claims, actions, suits, damages, liabilities, costs, obligations, and expenses (including attorneys’ fees and expenses) arising out of or relating to: (i) Customer, its employees, agents, or customers’ selection, installation, setup, use of, incorporation of, modification of, or application of the Products alone or in conjunction with other products;  (ii) any resins, fibers, fabric or any other product supplied by Customer for the production of Products or performance of Services, (iii) any processing or modification of Products in any manner by Customer, its employees, or agents, or customers; (iv) claims regarding warnings or failure to warn of dangers related to Products or Services; (v) any violation or failure to comply with applicable laws and regulations, including those pertaining to health and/or safety; (vi) any intentional or negligent act, or misrepresentation by Customer, its employees or agents; (vii) any breach of warranty or misrepresentation (express or implied) made by Customer, its employees or agents; (viii) any violation, misappropriation, or infringement of any patent, trademark, copyright or other intellectual property rights of any person or entity arising out of or related to compliance with Customer’s design, specifications or instructions or Customer’s use of a Product with other goods; (ix) use of a Product or Services inconsistent with or exceeding SHD US’ specifications, limitations or recommendations; (x) any breach by Customer of any terms of a Contract; and (xi) any personal injury or property damage arising out of Customer’s or its employees, contractors or agents’ acts or omissions; or (xii) unauthorized use or alteration.  At SHD US’ request, Customer shall also defend SHD US and its affiliates, and their respective officers, directors, employees and agents at Customer’s expense, against any such claims made against SHD US or its affiliates, and their respective officers, directors, employees and agents.

(b)     Customer shall adhere to domestic and international customs regulations if the Products are resold.  If the Products are altered, further processed or incorporated into products or devices, Customer shall be liable for all resulting damages suffered by SHD US, Customer’s clients or third parties.  Customer shall indemnify and hold SHD US and its affiliates harmless from all claims, lawsuits, losses, expenses and attorneys’ fees arising out of or relating to (i) Customer’s failure to comply with any domestic or international customs regulations relating to Customer’s resale of any Products and (ii) any claims, including personal injury or property damage, arising out of or resulting from alteration, further processing or incorporation of the Products into products.

11.  Insurance. Customer will maintain commercial general liability, personal injury and property damage insurance policies, including wrongful death coverage, in reasonable amounts consistent with industry standards with a nationally recognized insurance company. All such insurance policies will name SHD US and its affiliates as additional insureds, and will require at least ten (10) days prior written notice to SHD US of any modification, cancellation or termination of any insurance policies. Customer will require its insurer(s) to waive all rights of subrogation against SHD US, its affiliates and their insurers. Customer will immediately deliver to SHD US a certificate of insurance meeting the requirements listed in this Section 11.  In addition, upon request by SHD US from time to time, Customer will deliver to SHD US a current certificate of insurance and a complete copy of the foregoing insurance policies.

12.  Confidentiality; Intellectual Property; No License. Customer may have access to certain proprietary and/or confidential information and to other property (including trademarks) owned or used by SHD US and its affiliates, whether in oral, written, electronic or other form or media. Customer acknowledges and agrees that all such proprietary and/or confidential information and other property will remain the property of SHD US and its affiliates and that, upon SHD US’ request, Customer shall return or destroy all proprietary and/or confidential information (in any and all forms) and shall return to SHD US all such other property of SHD US and its affiliates. Customer shall not, without SHD US’ prior written consent (which consent may be withdrawn at any time), copy for any purpose or disclose to any third person, entity or organization any aspect of any such proprietary and/or confidential information, and will not use, except internally to perform its obligations under a Contract, any such proprietary and/or confidential information or other property of SHD US or its affiliates. All intellectual property rights, including patents, trademarks, and copyrights arising out of or in connection with the Products or Services, as well as the exclusive right to manufacture the Products, shall be the sole and exclusive property of SHD US and its affiliates. Customer agrees that SHD US’ sale of Products or performance of the Services does not grant to Customer any license or intellectual property or similar right applicable to or in any Products or Services, or in any information or documents (including estimates, projections, drawings, calculations, recipes or instructions) SHD US provides to Customer, and Customer waives any and all such rights.  SHD US and its affiliates retain ownership in and control over all intellectual property, including patents, trademarks, copyrights, know-how, and goodwill applicable to or arising out of a Product or Service.  Customer shall not name or designate any SHD US information or Product in any patent application.  Customer may not alter or remove, and will abide by, any patent, trademark, copyright, trade secret, proprietary or other notices, serial numbers, labels, tags or other identifying marks, symbols or legends contained on or in a Product (including containers or packages).  If Customer acquires any intellectual property or similar rights in or relating to any Services or Products purchased under a Contract (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, then such rights are deemed and are hereby irrevocably assigned to SHD US or its licensors, as the case may be, without further action by either SHD US or Customer.

13.  Export Controls. All sales of Products and provision of Services are subject to and conditioned upon SHD US or its affiliates obtaining any necessary export control licenses for such Products or Services, if applicable, and SHD US may cancel the transaction with Customer if it does not obtain any necessary export license. Exporting certain Products outside of the United States of America and European Community may be subject to export control laws. Once the Products have been delivered to Customer in the United States of America or European Community, Customer is responsible for complying with all applicable export control laws and regulations, including without limitation obtaining any export licenses for the export of such Products outside the United States of America or the European Community. If Customer wishes for SHD US to delay the delivery of Products until any necessary export licenses are obtained, Customer shall inform SHD US as soon as practicable. Customer will be responsible for any storage costs in connection with such delay.

14.  Termination or Suspension.  Without limiting SHD US’ other rights and remedies available under a Contract, applicable law or in equity, SHD US may suspend or terminate the delivery, if: (a) Customer fails to perform or observe any of its obligations under a Contract between SHD US and Customer or under other existing or future contracts between SHD US and Customer or otherwise, including payment of any purchase price, fees or charges when due; (b) there is a change in the control or management of Customer; (c) Customer ceases to conduct its operation in the normal course of business; (d) Customer becomes insolvent or files for bankruptcy or has a bankruptcy proceeding filed against it; (e) Customer fails to pay all amounts due in full to SHD US within thirty (30) days of the date of the invoice for a sale of Products; (f) Customer makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of all or part of Customer’s property; (g) SHD US deems Customer’s credit unsatisfactory for any reason; or (h) a Force Majeure Event (as defined below) occurs.  SHD US may also suspend performance or terminate any Contract, without liability or obligation to Customer, if SHD US reasonably believes that its performance may violate applicable laws, regulations or orders of a governmental authority.  In addition to other provisions in these Terms, SHD US shall not be in breach unless (i) such breach is material and (ii) Customer gives SHD US prior written notice stating in reasonable detail the alleged breach and SHD US has failed to cure such breach within the longer of thirty (30) days from such notice to cure or, if such breach cannot be cured within thirty (30) days, such longer time as is reasonably necessary so long as Supplier commences the cure within thirty (30) days after receipt of Customer’s notice.       

15.  Compliance.  Customer shall conduct its business in complete compliance with all applicable Federal, State, foreign and/or local laws, orders, regulations, directions, restrictions, and limitations.  Customer shall bear any and all additional responsibilities and costs arising from any such laws, regulations, orders and the like.  Customer shall obtain and maintain at all times during the term of any Contract all required certifications, credentials, registrations, licenses and permits necessary to conduct its business.  Customer will comply with all applicable export or import laws and regulations relating to the Products and information.  In the event Customer exports or otherwise ships or sells the Products outside of the jurisdiction of delivery in the U.S., then Customer shall be solely responsible for complying with all applicable laws, rules, regulations, chemical inventory registrations, and labeling and licensing requirements, and shall be responsible for related costs, expenses, taxes, fees, and duties. In the event the Products must be registered in a particular country for Customer or others to import or use the Products or to resell them to its customers, then Customer shall notify SHD US and SHD US will, in its sole discretion, determine if SHD US wishes to seek registration of the Products in such location.  Customer will have no right to register the Products in any location.  SHD US is not responsible for any impact of existing or future laws, regulations, orders and the like may have on the Products or the use or inability to use the Products. Customer acknowledges that SHD US has furnished or made available, or will furnish or make available upon request, certain Product literature or information, such as safety data sheets, Product data sheets, and labels that may include warnings, safety and health information related to the Products furnished hereunder. Customer shall: (a) familiarize itself with all such information; (b) adopt and follow safe handling, storage, transportation, use, treatment and disposal practices with respect to the Products, including, without limitation, special care and practices relating to Customer’s use of the Products; (c) instruct its employees, independent contractors, agents and customers of the precautions and safe use practices required in connection with the unloading, handling, storage, use, transportation and disposal of the Products furnished hereunder (including, without limitation, information contained in SHD US’ most current safety data sheets or Product data sheets); and (d) comply with applicable safety and environmental laws and take action necessary to avoid spills or other dangers to persons, property or the environment. In the event the Products are intended for professional use only, Customer represents and warrants to SHD US that Customer is a professional user (or if Customer is a reseller, that the end user will be a professional user) experienced and knowledgeable regarding how to properly and safely handle, store, dispose of, and use such Products.

16.  Audits. Unless permitted by SHD US in its sole discretion, Customer shall have no rights to audit or inspect SHD US’ facilities, records, and/or operations. In the event Customer requests to audit or inspect SHD US’ facilities, records, and/or operation, and such request is granted by SHD US, then the audit shall be conducted at Customer’s sole expense and SHD US shall exclusively control the conditions, scope and parameters of such audit, including the time and location.

17.  Policies. SHD US shall not be bound or required to comply with any code of conduct, sustainability, or other policies of Customer. SHD US shall use commercially reasonable efforts to comply with its own corporate policies, which can be made available to Customer upon written request, and subject to change from time to time; provided, however, that SHD US shall under no circumstances be liable directly or indirectly to Customer or to any third party for SHD US’ failure to comply with its corporate policies.

18.  Force Majeure. SHD US will not be liable or responsible, nor be deemed to have defaulted under or breached a Contract, and its performance (and delivery dates and delivery periods) will be deemed extended for any failure or delay in fulfilling or performing any provision of a Contract, when such failure or delay is caused by or results from acts beyond the reasonable control of SHD US, its affiliates, or either SHD US’ or its affiliates’ respective subcontractors or suppliers, including the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, explosion, epidemic, or pandemic; (c) war, invasion, hostilities (whether war is declared or not), terroristic threats or acts, riot, or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect after the date of the Contract; (f) national or regional emergency; (g) strikes, labor stoppages or labor slowdowns or other industrial disturbances; (h) changes in the law; (i) delays in obtaining or the inability to obtain labor, materials, products or services Products or Services through usual sources at normal prices; and (j) other similar events beyond the reasonable control of SHD US or its affiliates, and their respective subcontractors or suppliers. If SHD US is rendered unable by Force Majeure Events to carry out any or all of its obligations under these Terms or a Contract, then SHD US shall give notice to Customer, and upon the giving of such notice the obligations of SHD US shall be suspended as may be necessary under the circumstances.

19.  Limitation on Actions. Customer must commence any action or proceeding that arises out of or relates to a Contract, SHD US’ breach of a Contract or Products or Services within the earlier of: (a) one (1) year after the claim or cause of action has accrued; or (b) the period prescribed by applicable statute of limitation or repose. Any action or proceeding Customer does not commence within such period will be forever barred and Customer waives the right to file any action or proceeding arising directly or indirectly from a Contract under any longer statute of limitation. The Contract contains Customer’s sole and exclusive remedies relating to a Contract or Products or Services regardless of the theory of recovery.

20.  Choice of Law; Venue; Jurisdiction. The transaction and Contract, and any matter, dispute or controversy arising out of or relating to the transaction, Contract or Products or Services will be governed by North Carolina law, excluding its conflicts of law principles, and the provisions of the 1980 United Nations Convention on the International Sale of Goods (“UNCISG”) are expressly excluded. Customer and SHD US agree that the North Carolina State Courts and the United States District Court for the Western District of North Carolina, shall constitute the sole and exclusive judicial forum(s) and venue and, therefore, will have sole and exclusive jurisdiction over the adjudication and resolution of any and all matters, disputes and controversies arising out of or relating to a transaction, Contract or Products or Services; except with respect to SHD US’ claim or any action instituted by SHD US (a) for equitable or comparable relief including an action for temporary or permanent injunctive relief, (b) for recovery of possession of Products, such as replevin, claim and delivery, attachment or the like;  or (c) to collect any amounts owed by Customer; or (d) to join or implead an action in which Customer is a party.

21.  Relationship.  SHD US is an independent contractor.  Nothing in a Contract will be construed as creating a partnership, association or joint venture between the parties.  Customer will have no power or authority to enter into any commitment on behalf of or otherwise bind SHD US on any matter including making any representation or warranty on behalf of SHD US.  No employee of either party will be deemed to be an employee of the other party.

22.  Notices.  All Notices will be in writing, on original letterhead, signed by Customer and sent via certified mail, return receipt requested, or by express mail or personal delivery to SHD US’ address at: 203 McKenzie Road, Mooresville, NC 28115, USA. Facsimile and emails will not be accepted as Notices, unless followed up by the original signed Notice. The effective date of such notice will be the date SHD US receives it.  A notice will be deemed effectively given and received (a) upon personal delivery, (b) if delivered by overnight courier, on the next business day after delivery to the overnight courier service, and (c) if sent by registered or certified mail, three business days after delivery to the U.S. postal service; provided, however, that any written communication containing such information actually received by a person will constitute notice for all purposes of these Terms.

23.  Miscellaneous. A Contract contains the entire agreement and understanding of the parties relating to the subject matter and supersedes all previous and contemporaneous agreements, understandings, proposals, negotiations or discussions, usages of trade and courses of dealing, whether written or oral, between the parties. A Contract will be binding on, and will inure to the benefit of, the parties and their respective successors, heirs and permitted assigns.  Customer may not assign (including by operation of law) all or any portion of its rights or obligations under a Contract without SHD US’ prior written consent, and any purported assignment without that consent will be void and of no effect.  No assignment will relieve Customer of any obligations under a Contract. Any consent, approval or agreement required or allowed by SHD US may be given or withheld by SHD US in its sole discretion and must be in writing and signed by an authorized representative of SHD US to be effective. No delay or failure by SHD US to exercise or enforce any of its rights or remedies under a Contract will be construed as a waiver of such rights or remedies. The express waiver of any right or remedy in a particular instance will not constitute a waiver of that right or remedy in any other instance. If any provision of these Terms or any Sales Documents is held to be invalid, illegal or unenforceable by any court of competent jurisdiction, then such provision(s) will be deemed to be severable and these Terms and any Sales Documents will then be construed and enforced in accordance with the remaining provisions. As used herein, the words “including”, “include” and “includes” will not be deemed to be limiting. The Contract and these Terms may be amended or modified only by a written agreement, signed by both parties, expressly amending or modifying the Contract or these Terms.

Terms and Conditions issued December 2022