Terms and Conditions of Sale and Service

BHS Global, Ltd. ( “BHSG”) and the person or entity (“Buyer”) purchasing goods (“Goods”) or services (“Services”) from BHSG hereby agree to these terms and conditions of sale (“Terms and Conditions”), which, together with any BHSG provided price list, schedule, quotation, acknowledgement, or invoice in connection with the sale of Goods or the provision of Services, forms the entire agreement between BHSG and Buyer with respect to the Goods or Services upon BHSG’s acceptance of a purchase order from Buyer. BHSG and Buyer may individually be referred to as a “Party” or collectively as the “Parties.” The Parties hereby agree that any prior agreements with respect to Goods or Services between the Parties, whether written or oral, are superseded by these Terms and Conditions. Upon the placement of a purchase order, Buyer consents to these Terms and Conditions with respect to the Goods or Services. BHSG hereby objects to and rejects the provisions of any Buyer’s purchase order, confirmation, or terms and conditions that are inconsistent with or in addition to the provisions of these Terms and Conditions.

PRICES

BHSG shall honor prices for orders received within thirty (30) days from the date of the quote.
Prices quoted are final; no further discounts apply. Prices do not include any applicable taxes, freight, or insurance costs unless specifically provided in a quote; Buyer is solely responsible for the costs of taxes, freight, insurance, or other ancillary expenses with respect to the Goods or Services.

TERMS OF PAYMENT

Full payment for Goods and Services must be made prior to shipment. All payments shall be made in United States currency. All payments shall be made without setoffs or deductions other than for amounts that the Party responsible for payment reasonably and in good faith disputes are due.
BHSG is not obligated to begin performance on any purchase order for Goods or Services until BHSG has received a down payment from Buyer of no less than fifty percent (50%) of the total purchase price for said Goods or Services. In any event, Buyer may not take possession of Goods or Services until and unless BHSG first receives full payment for Goods or Services.
If Buyer fails to pay any amount due for Goods or Services in a timely manner (as described above), BHSG may, without waiving any other legal remedies available to BHSG, terminate the corresponding purchase order, suspend further performance of any obligation thereunder, or both.
Buyer hereby grants BHSG a purchase money security interest in all Goods sold to Buyer by BHSG, which security interest shall continue until all such Goods are fully paid for in cash. Buyer, upon BHSG’s demand, shall execute and deliver to BHSG such instruments as BHSG requests to protect and perfect such security interest.

SUBSTITUTE GOODS OR SERVICES

BHSG reserves the right to change or modify, at any time without notice, any Goods or Services, or any materials used in the fabrication of Goods or the provision of Services, or to discontinue the manufacture of any Goods, without any liability thereto. Buyer shall accept substitute Goods and Services as changed or modified.

ACCEPTANCE OF ORDERS; COMMENCEMENT OF PERFORMANCE

BHSG may reject any purchase order, for any reason, in BHSG’s sole discretion.
All orders are subject to and shall be effective only upon written acceptance by an authorized representative of BHSG or upon delivery of Goods or commencement of Services.
BHSG will accept an order only after it receives complete and final information covering price, plans, specifications, delivery requirements and any information necessary to fill the order. It is Buyer’s responsibility to supply all such information.
BHSG shall not be obligated to begin the manufacturing of any Goods, including but not limited to battery extractor systems, before it has received the written approval of the design drawings relating to the Goods from both Buyer and Buyer’s end customer.
Nothing contained herein shall create any contractual obligation of BHSG towards the Buyer’s end customer.

BUYER’S OBLIGATIONS

In case of installation Services, BHSG shall not be responsible for laying out the basic lines without final connections to any Goods (“rough-ins”) of water, electrical, sewer, and air systems at the site where the Goods are to be installed (“Project Site”). The rough-ins shall be Buyer’s (or Buyer’s end customer’s) sole responsibility. Unless explicitly specified in a purchase order and accepted by BHSG, BHSG shall not be responsible for making any final connections between the rough-ins and any Goods and such connections shall be Buyer’s (or Buyer’s end customer’s) sole responsibility.
For the duration of the installation Services, Buyer shall provide BHSG (and any applicable agents, parents, affiliates or contractors) with unlimited and unrestricted access to, and the exclusive right to use and work with, the Goods and the necessary rough-ins, buildings, structures, or utilities related to the Goods at the Project Site.
Even if a purchase order states that BHSG will install certain Goods, BHSG (or its subcontractors parents, subsidiaries or affiliates) are not responsible for any of the following:

(a) the strength, condition, or load capacity of any floors or coatings on the Project Site, which shall be Buyer’s, its end-customers’, or the Project Site owner’s, sole responsibility;

(b) verification of national, state, or local compliance codes with respect to building or utility designs, the physical design of the Project Site, any ventilation requirements, or any other peripherals that may be required;

(c) compliance with or obtaining any permits, authorizations, certifications, consents, notices, or other requirements of any governmental or other authority with respect to the Goods or Services or their shipment, delivery, installation, or operation; or

(d) the design, construction, erection, or modification of related structures, utilities, or buildings.

The items referred to in subsections (a)-(d) of this Section 15 shall be Buyer’s (or Buyer’s end-customer’s or the Project Site owner’s) sole responsibility and Buyer hereby represents and warrants that it has not retained or relied upon BHSG for such purposes. Notwithstanding the foregoing, if the Good is a battery extractor system, BHSG may, upon written request from the Buyer, make recommendations concerning any traffic floor requirement for the extractor travel path on the construction drawing submitted by Buyer.

Buyer shall ensure that any other legal impediments which may affect the performance of the Services hereunder shall be removed prior to the performance of any Services and shall settle all legal matters as may be required. The Parties shall cooperate in a commercially reasonable manner to accomplish the Services in accordance with the specifications provided in the purchase order.
Buyer shall disclose to BHSG any and all conditions concerning the Project Site which may reasonably affect the performance of the Services. Buyer assumes the risk with respect to any existing conditions affecting the performance of the Services and any change for any incremental costs or delay caused by such conditions. If and to the extent that Buyer refuses to approve an increase in the price which results from a previously undisclosed or unanticipated condition at the Project Site, BHSG shall have the right to terminate the corresponding purchase order.
Buyer shall not resell the Goods directly from its website or online store (including but not limited to third party online retailers) without the prior written consent of BHSG.
If Buyer of Goods is reselling the Goods to an end user or customer, it shall provide a copy of these Terms and Conditions with each sale and pass through terms in its commercial agreement that are at least as restrictive as these Terms and Conditions

SHIPMENT AND DELIVERY

All shipments of Goods are Ex Works (BHSG’s (or its parents, subsidiaries or affiliates) facility in St. Louis, Missouri USA) in accordance with the INCOTERMS 2010 of the International Chamber of Commerce. BHSG, at its option, shall not be required to tender delivery of any Goods for which Buyer has not provided shipping instructions and other required information.
A Service or a shipment of Goods that is delayed for any reason to accommodate the Buyer will be invoiced and dated the day BHSG is prepared to ship the Goods or to provide the Service. Additional charges for warehousing, trucking, or other incidental expenses created by the delay shall be borne by Buyer.
BHSG reserves the right to make partial deliveries or provide partial Services. Buyer acknowledges and agrees that BHSG may use Its parents, subsidiaries, affiliates or subcontractors to provide part or all of the Services.
Weights specified in BHSG’s literature and catalogs are estimated, not guaranteed. BHSG assumes no responsibility for tariff classifications of carriers.
Information and schedules related to the delivery of Goods or the provision of a Service are approximate and not guaranteed. Delivery means time of delivery to first carrier. Delay by Buyer in supplying specifications, custom parts, or other information necessary to complete the execution of an order shall extend delivery schedules and Service schedules for a reasonable time. Neither BHSG nor its parents, subsidiaries or affiliates shall be liable for any penalties or damages, liquidated or otherwise, for shipments, Services, or installments that are delayed.

TRADE COMPLIANCE

EXPORT CONTROL REGULATIONS - The Goods and/or Services that are the subject of these Terms and Conditions are subject to export and re-export restrictions under U.S. and other countries’ export control regulations, including without limitation the U.S. Export Administration Regulations (“EAR”), the International Traffic in Arms Regulations (“ITAR”), regulations of the U.S. Office of Foreign Asset Control (“OFAC”), and comparable laws and regulations of other countries, which may require U.S. or other government approval for any re-export or retransfer (“Export Control Regulations”). Buyer warrants that it (a) will adhere to and comply with (i) all applicable Export Control Regulations and (ii) any applicable terms, conditions, procedures, and documentation requirements made known to Buyer that may be promulgated by BHSG from time-to-time to comply with the Export Control Regulations; (b) will not, directly or indirectly through a third party, ship BHSG materials to Cuba, Iran, North Korea, Syria, Sudan, or any other country subject to trade embargoes in violation of Export Control Laws. Buyer acknowledges that BHSG will not proceed with a shipment when BHSG knows that the BHSG Goods in that shipment are destined for a sanctioned country. Buyer represents that neither Buyer, nor any of its principals, officers, or directors, or any person or entity known to Buyer, to be directly involved in this transaction as freight forwarder, customer, end-user, consultant, agent, or otherwise, is designated on any of the U.S. government restricted parties lists, including, without limitation, the U.S. Commerce Department Bureau of Industry and Security Denied Persons List, Entity List, or Unverified List, the U.S. Treasury Department OFAC Specially Designated National and Blocked Persons List, or the U.S. State Department Directorate of Defense Trade Controls Debarred Parties List, or restricted parties lists of any country having jurisdiction over Buyer or the transaction involving the Goods and/or Services that are the subject of these Terms and Conditions.
ANTIBOYCOTT PROVISIONS - Buyer will not request of BHSG information or documentation where the purpose of such request is to support, give effect to, or comply with a boycott of any country in contravention of the laws or policies of the United States, including but not limited to the Arab League boycott of Israel. BHSG hereby rejects any such request by Buyer and will report receipt of any such request to the relevant U.S. government office, as required by law.
ANTICORRUPTION AND ANTIBRIBERY - In relation to any transaction involving the Goods and/or Services that are the subject of these Terms and Conditions, Buyer shall not seek to obtain or retain business or gain any other advantage by making or offering to make any payment of money or by providing or offering to provide anything of value, directly or indirectly, to: (i) any government official; or (ii) any non-governmental person, in either case with the intent that such official or person will perform their responsibilities improperly. Buyer warrants that it will comply with the anticorruption laws and anti-bribery laws of any country having jurisdiction over Buyer or the transaction involving the Goods and/or Services that are the subject of these Terms and Conditions, and will in all cases comply with the U.S. Foreign Corrupt Practices Act (“FCPA”) and the U.K. Bribery Act.
NONCOMPLIANCE - In the event that BHSG reasonably believes that any provision of Paragraphs 25-27 has or may have been breached, Buyer shall cooperate fully with BHSG’s investigation to clear the matter and BHSG shall not be obligated to sell or provide Goods or take any other act in furtherance of any transaction or agreement while such investigation is pending, and such suspension or forbearance by BHSG shall not constitute a breach of any obligation in respect of the transaction to which Terms and Conditions apply or otherwise.

SERVICE AREA LIMITATION

BHSG may refuse to make quotations, accept orders, or make shipments to points of destination outside of its regular, assigned, or desired service area. BHSG may, in its sole discretion, determine what constitutes its regular, assigned, or desired service area.

INDEMNIFICATION

Buyer shall indemnify, defend, and hold harmless BHSG, BHSG’s subcontractors, and their respective directors, officers, parents, subsidiaries, affiliates, agents, representatives, or employees, for, from, and against any damages, costs, and expenses (including attorneys’ fees) arising from or in connection with any claim: (a) for or arising out of any injury to, or death of, any person or loss or damage to property of any person, in each case to the extent that such losses arise from (i) the acts or omissions of Buyer, Buyer’s end customers, or the Project Site owner, or their respective employees, agents, or representatives at the Project Site in the course of performing the Services or any portion thereof or (ii) the negligence or willful misconduct of Buyer, Buyer’s end-customer, the Project Site owner, or their respective employees, agents, or representatives, wherever occurring, or (b) asserted by any end-customer of Buyer or the Project Site owner, against BHSG or its subcontractors, in any manner arising out of, attributable to, in connection with, or otherwise directly or indirectly related to the purchase order or the transactions contemplated hereby.

LIMITED WARRANTY

All sales of Goods by BHSG to Buyer shall be governed by the manufacturer's standard limited warranty in effect at the time of shipment, if applicable and to the extent transferable (“Standard Warranty”), which shall be passed along to Buyer in accordance with the terms and to the extent permitted by the Standard Warranty and under applicable law. BHSG shall furnish, undertake, or provide (or cause to be furnished, undertaken, or provided) any Services in a workmanlike manner and in accordance the provisions of the purchase order. Buyer shall not make, give, or extend any other warranties with respect to the Goods, the use of the Goods, or the Services, except as authorized in writing by BHSG, and shall hold BHSG (including any parents, subsidiaries or affiliates) harmless against all damages, costs, and expenses (including attorneys’ fees) related to claims based upon an unauthorized warranty given by Buyer. THE WARRANTY DESCRIBED IN THIS PARAGRAPH IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY BHSG WITH RESPECT TO THE GOODS AND THE SERVICES. BHSG HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL BHSG (INCLUDING ANY PARENTS, SUBSIDIARIES OR AFFILIATES) BE LIABLE FOR ANY: (A) SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, THE LOSS OF PROFITS OR DAMAGES RESULTING FROM BUSINESS INTERRUPTIONS OR LOSS OF USE) OR (B) DAMAGES WHICH IN THE AGGREGATE EXCEED THE PURCHASE PRICE PAID FOR THE GOODS OR SERVICES GIVING RISE TO THE CLAIM OVER THE PRIOR 12 MONTHS.

EXCLUSIVE REMEDIES

BUYER’S EXCLUSIVE REMEDIES WITH RESPECT TO THE GOODS OR SERVICES ARE, AT BHSG’s OPTION AND DEPENDING ON THE CIRCUMSTANCES: (1) THE REPLACEMENT OR REPAIR OF GOODS OR (2) CREDIT IN AN AMOUNT NO GREATER THAN THE AMOUNT PAID BY BUYER FOR THE GOODS OR SERVICES. The limitations of this Section apply regardless of whether an underlying claim is for breach of contract, breach of warranty, infringement, negligence, strict liability, any other tort, or any other cause of action liability.

INTELLECTUAL PROPERTY OF BHSG

All trade names, trademarks, logos, patents, designs, drawings, copyrights, engineering, patents, trade secrets, photographs, samples, literature, and any other legally protectable intellectual property of any kind (under the laws of any country) with respect to the Goods or Services (“Intellectual Property”) shall at all times remain the property of BHSG (or its respective affiliates or licensors). Except for the materials supplied by BHSG that accompany the Goods, Buyer shall not use any Intellectual Property of BHSG (or its affiliates or licensors) at any time in any manner without the express written permission and approval of BHSG. Further, Buyer shall not use any Intellectual Property of BHSG (or its affiliates or licensors) at any time in any manner that may be detrimental to BHSG’s reputation or other interests. Buyer may not obtain any intellectual property rights with respect to any Intellectual Property of BHSG (or its affiliates or licensors) in any country, territory, or region.

FORCE MAJEURE

BHSG shall not be liable for any losses, damages, or delays caused by any event, condition, or circumstance beyond its ability to control, including without limitation, changes in government regulations, acts of God, Buyer’s acts or omissions, fires, strikes, boycotts, floods, epidemics, quarantines, wars, insurrections, riots, terrorism, inclement weather, acts of civil or military authorities, transportation embargoes, shortages, wrecks, labor shortages, delays by BHSG’s suppliers, or other similar circumstances. If a Party becomes aware of any such event, condition, or circumstance, then such Party will promptly advise the other Party and both Parties will cooperate to ameliorate the event, condition, or circumstance as quickly as possible. If there is such an event, condition, or circumstance, BHSG may allocate available merchandise among customers as it may determine or cancel orders without liability for any part thereof not shipped to the Buyer upon refunding any allocable advance payments received with respect of the cancelled portion.

CLAIMS FOR MISSING OR NON-CONFORMING GOODS OR SERVICES

Claims for missing or nonconforming Goods or nonconforming Services must be made in writing and received by BHSG within thirty (30) days of Buyer’s receipt of any shipment of Goods or the commencement of any Services. Any Goods or Services will be deemed accepted if Buyer does not give such notice of any claim within the above-proscribed period.

CANCELLATIONS

If the financial condition of the Buyer is not satisfactory to BHSG at the time of shipment of the Goods or at the commencement of any Services, or at any other time, BHSG may unilaterally terminate the applicable purchase order or require the Buyer to make full or partial payment in advance of shipment.
BHSG may terminate a purchase order in the event the Buyer is in breach of any material term of such purchase order (including payment obligations) and such breach remains uncured for thirty (30) days after written notice has been provided by BHSG.
After BHSG’s acceptance of Buyer’s purchase order, such purchase order cannot be cancelled or rescinded by Buyer without BHSG’s advanced written consent, which BHSG may, in its sole discretion, withhold or condition to include certain terms and conditions that compensate BHSG for lost profits and all costs and expenses (including any engineering and/or fabrication charges) attributable to the cancelled or rescinded purchase order.

RETURNS

BHSG will not accept Goods for return or credit unless period is within thirty (30) days of receipt of Good(s), previously agreed to in writing by BHSG and Buyer receives a Returned Goods Authorization form issued by a duly authorized representative of BHSG. The Buyer retains the risk of loss and shall reimburse BHSG for any costs it incurs in connection with the shipment and return of the merchandise, including but not limited to, a restocking fee of not less than twenty percent (20%) (restocking fees for non-standard Goods may be as high as one hundred percent (100%) of the purchase price of the Goods).

INTEREST AND ATTORNEYS’ FEES

Interest at the maximum legal rate or eighteen percent (18%) per annum, whichever is lower, shall be charged to Buyer on any overdue accounts and such amounts will be charged from the date the account becomes overdue.
If an invoice is not paid when due, Buyer agrees to pay all costs of collection, including attorneys’ fees, whether incurred in or out of court, on appeal, in arbitration, in bankruptcy court or in any insolvency proceedings.

ERRORS

BHSG’s stenographic, clerical, or other errors are subject to correction.

PENALTY CLAUSES

BHSG assumes no liability from penalty or liquidated damage clauses of any kind, written or implied, unless specifically approved in writing by a duly authorized BHSG representative.

ASSIGNMENT

Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of BHSG, and any such assignment without consent shall be void.

RELATIONSHIP BETWEEN THE PARTIES

BHSG shall perform and execute the Services as an independent contractor. None of BHSG, its subcontractors, nor any of their respective employees, parents, subsidiaries, affiliates or agents shall be deemed for any purpose to be an agent, servant, employee, or representative of the Buyer or Buyer’s end customers. Though BHSG shall have control over the details of the Service and the manner in which the Service is to be accomplished, nothing contained in these Terms and Conditions shall be construed to create the relationships of employer and employee or franchisor-franchisee between Buyer and BHSG, or to make either Party a partner, joint venturer, fiduciary or co-employer of the other. The employees of each Party shall not be deemed to be the employees of the other for any purpose.

SEVERABILITY

If any provision of these Terms and Conditions is deemed invalid or unenforceable, the remaining provisions of these Terms and Conditions shall remain fully valid and enforceable.

DISPUTE RESOLUTION

GOVERNING LAW. Any agreements between the Parties, including these Terms and Conditions, are governed by and construed in accordance with the laws of the State of Missouri, without regard to conflict of law principles. The Parties to these Terms and Conditions agree that the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) is hereby excluded in its entirety from application to these terms and Conditions.
MEDIATION. If a dispute arises out of or relates to any agreement between the Parties, including these Terms and Conditions, or the breach thereof, and the dispute cannot be settled through negotiations, the Parties agree to first submit the matter to mediation proceedings under the international mediation rules of the American Arbitration Association (“International Mediation Rules”), before resorting to arbitration.
ARBITRATION. If the Parties cannot resolve a dispute arising out of any agreement between the Parties, including these Terms and Conditions or the breach thereof, pursuant to the International Mediation Rules within thirty (30) days following the filing of a request for mediation or within such other period as the Parties may agree in writing, then the Parties shall refer the matter to binding arbitration, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration will be conducted as follows:

(a) The arbitration will be conducted in the English language;

(b) The seat of the arbitration will be in New York, New York USA;

(c) The arbitration will be conducted in accordance with the International Arbitration Rules of the American Arbitration Association (“International Arbitration Rules”) in effect at the time of the arbitration, except as they may be modified herein or by mutual agreement of the Parties;

(d) The arbitration will be heard by one arbitrator appointed in accordance with the International Arbitration Rules;

(e) The arbitral award will be in U.S. Dollars; and

(f) The arbitrator will decide the dispute in accordance with the substantive laws of the State of Missouri.

MISCELLANEOUS

BHSG reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms and Conditions, at any time by providing written notice to Buyer. Otherwise, no conditions, usage of trade, course of dealing or performance, understanding, or agreement purporting to modify, vary, explain, or supplement these Terms and Conditions shall be binding upon BHSG unless hereafter made or confirmed in writing and signed by BHSG. No modification or additional terms will become applicable to these Terms and Conditions by BHSG’s receipt, acknowledgement, or acceptance of purchase orders, shipping instruction forms, service instruction forms, or other documentation. Any such modifications or additional terms are specifically objected to, rejected, and deemed a material alteration hereof. No waiver by either Party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a waiver of any other breach or default or of any other right or remedy, unless such waiver is in writing and signed by the Party to be bound.

GSM-1010